IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 260 of 1989 Against the judtgement and order dated 4th May, 1989 passed in Sessions Case No. 269 of 1985 / 112 of 1985 by 1st Additional Sessions Judge, Begusarai. ========================================================== 1. Kobi Rai, S/o Achcho Rai 2. Mahendra Rai, S/o Lakhan Rai 3. Paras Rai, S/o Kobi Rai 4. Sahdeo Rai, S/o Ramautar Rai All residents of Village-Dahabauli Nawtolia, P.S.-Begusarai, District-Begusarai. ... .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : (i) Mr. Ram Bilash Mahto, Advocate (ii) Mr. Manoj Kumar Singh, Advocate (iii) Mr. Brajesh Kumar Pandey, Advocate (iv) Mr. Chandan Kumar Verma, Advocate (v) Mr. Dilip Kumar Roy, Advocate For the Respondent : Ms. Shashibala Verma, APP. ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ******** (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ********* The present appeal is directed against the judgment and order dated 4th May, 1989 passed in Sessions Case No.269 of 1985/112 of 1985 by 1st Additional Sessions Judge, Begusarai whereby appellant no.1 has been convicted under section 302 and 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for six months respectively whereas appellant nos. 2 to 4 have 2 been convicted under section 302 read with section 34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. This appeal was heard on different dates and hearing concluded and judgment was reserved on 15.10.2011. While the appeal was pending for judgment an affidavit has been filed on behalf of the appellants stating therein that appellant no.1Kobi Rai, who was aged about 60 years on the date of judgment i.e. on 4th May, 1989, had died during the pendency of the appeal on 27.9.1995. The affidavit has been sworn by one Rupal Kumar son of appellant no.3 Paras Rai and grand son of the deceased appellant no.1. In view of the affidavit dated 17.10.2011 the appeal so far as appellant no.1 is concerned abates pursuant to his death. The prosecution case is based on the fardbeyan of one Jugal Ram recorded on 14.1.1976 at about 7.30 p.m. by the officer incharge, Begusarai Police Station regarding an occurrence which took place on the same day at about 5 p.m. On the basis of the fardbeyan submitted by P.W.4 Jugal Ram, Begusarai P.S. Case No. 35(1) of 1976 was registered under section 302/34 of the Indian Penal Code against the appellants. The informant has alleged that on the relevant date and time of occurrence, while her mother was abusing the persons, who had plucked green chillies from her field, the appellants came. They enquired from her as to why she was abusing them. Upon this, the mother of the informant told that she was not abusing them and was abusing the persons, who had plucked chillies from her field. The informant has further alleged that appellant no.1 Kobi Rai struck one Lathi blow upon his mother’s head and appellant no.2 Mahendra Rai gave a Lathi blow on her waist as a result of which she fell down and started shouting. The informant’s son Ram Bilas Ram came in rescue upon 3 shouting of the victim Purni Devi, mother of the informant. In the meantime, appellant no.2 Mahendra Rai assaulted the informant by Lathi on his head and right hand and appellant no.1 Kobi Rai assaulted by Lathi on the back of Ram Bilas Ram, son of the informant. On hue and cry being raised several persons assembled and the accused persons fled away. Thereafter, the informant along with co-villagers Basudeo Ram (P.W.6), Ram Swaroop Ram (P.W.1), Chano Ram and Ram Bilash Ram (P.W.2) took his injured mother, Purni Devi to Begusarai hospital on a bullock cart but while on way she succumbed to the injuries sustained by her and thereafter she was taken to the police station where the oral statement of the informant was recorded on the basis of which the first information report was registered and investigation was taken up. On conclusion of investigation, the police submitted chargesheet. The appellants were sent up for trial. The learned Chief Judicial Magistrate took cognizance of the offence after supplying police papers in terms of section 207 of the Code of Criminal Procedure, the case was committed to the court of sessions. All the four appellants were charged under section 302/34 of the Indian Penal Code. The appellant no.1 Kobi Rai (since deceased) was further separately charged for the offence punishable under Sections 302 and 323 of the Indian Penal Code. The appellants did not plead guilty and claimed to be tried. In order to prove the charges the prosecution examined altogether ten witnesses. The fardbeyan of the informant was witnessed by Basudeo Ram (P.W.6) and Surya Sekhar Singh (not examined). P.W-1 Ram Swaroop Ram, P.W.2 Ram Bilash Ram. P.W.4 Jugal Ram, P.W.5 Baleshwar Ram and P.W.5 Basudeo Ram claim to be the persons who witnessed the occurrence. P.W. 3 Anup Bhagat is a witness to 4 the seizure list. P.W. 7 Jata Shankar Thakur, an Advocate Clerk is a formal witness. P.W.8 P.R.Mehasia is the doctor who conducted postmortem examination on the dead body of the deceased, Purni Devi. P.W. 9 Shiv Kumar is another doctor, who had examined Jago Devi, wife of the informant and had issued injury report. It would be pertinent to mention here that Jago Devi the alleged injured has not been examined by the prosecution in course of trial. P.W. 10 Jaipal Singh is also a formal witness, who had proved the writing of the investigating officer in the case diary. The prosecution in order to prove its case apart from oral testimony has also proved certain documents which have been marked as exhibits. The signature of Anup Bhagat (P.W.3) on the carbon copy of the search list has been proved by him and marked as Ext.1. P.W.3 has also proved signature of Sita Ram Rai, who has not been examined in course of trial, on carbon copy of search list which has been marked as Ext.1/1. Jugal Ram (P.W.4) has proved his signature on the first information report which has been marked as Ext.1/2. He has also proved signature of Basudeo Ram and Surya Sekhar Singh on the fardbeyan which were marked as Exts.1/3 and 1/4 respectively. P.W.7 has proved the formal first information report in the writing of Amrendra Kumar, officer incharge of Begusarai police station which was marked as Ext.2. The postmortem report of Purni Devi has been proved by P.W.8 and the same was marked as Ext.3. The injury report of Jago Devi, wife of the informant, has been proved by P.W.9 and has been marked as Ext.4. Since the investigating officer of the case has not been examined in course of trial the prosecution has proved the case diary through P.W.10 a formal witness and the same been marked as Ext.5. The defence has not examined any witness in course of trial. 5 However, the defence has proved affidavits dated 28.1.1980 and 2.9.1980 duly swore and filed in the case by Basudeo Ram (P.W.6) which has been marked as Exts. A and A/1. As noted above, five persons claimed to have witnessed the occurrence and they have deposed in court as P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6. From perusal of first information report it would transpire that the informant in his oral statement recorded by the police assigned the reason of assault to be incessant abusive language being used by his mother, the victim Purni Devi, to the persons who had plucked green chillies from her chilli plant. When we look to the evidence collected in course of trial, we find that all the eye witnesses such as P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6 have corroborated the story of use of abusive language by the victim to be the immediate cause of assault. So far as other part of allegation as levelled in the first information report is concerned, we find that manner of occurrence and story of assault varies in material particulars in the evidence of eye witnesses. The informant (P.W.4) in his fardbeyan has stated that accused Kobi Rai assaulted first on the skull of his mother and thereafter accused Mahendra Rai struck with “Lathi” on her waist. His mother fell down and started shouting and on her shouting the informant and his son Ram Bilas Ram (P.W.2) came in rescue. This part of story changes when P.W.4 deposes in the court. He has stated in his deposition that while his mother was sitting on a chair, the accused Mahendra Rai hit her first on her waist by “Lathi” and his mother fell down in the “Sahan”. Thereafter the accused Kobi Rai hit her on her skull by means of “Lathi” causing fracture and bleeding injury. When P.W.4 was confronted with his previous statement made before the police, he denied to have stated that it was Kobi 6 Rai who hit first on the head of the victim and thereafter accused Mahendra Rai assaulted her on her waist. He also denied to have stated that when she fell down a “Hulla” was raised on which he himself, his wife and others came. Another important aspect which can be highlighted here is that the informant in his fardbeyan had alleged that when he together with his son Ram Bilas Ram went in rescue of his mother, the accused Mahendra Rai assaulted on his head by means of “Lathi” and the accused Kobi Rai assaulted on the back of his son Ram Bilas Ram by “Lathi”. When P.W.4 deposed in court in his examination-in-chief, he has stated that on “Hulla” his wife and his son came in rescue. Thereafter, the accused Sahdeo Rai and Paras Rai assaulted his wife on her waist, thigh and leg by means of “Lathi”. In cross-examination when P.W.4 was further confronted with the previous statement made before the police he has stated that he had not stated before the police that on shouting of his mother, the informant and his wife came. He has further denied to have stated name of any one before the police who assaulted his son. A suggestion was given to this witness by the defence that Purni Devi had met with road accident one day prior to the date of occurrence in which she sustained injury and died which has been denied by him. A further suggestion was given to P.W.4 that land belonging to Yadu Babu which was purchased by him was being cultivated by accused Kobi Rai since long as a “Bataidar” and the informant had not come in possession over the land and it was for this reason the accused persons have been implicated in a false case. The aforesaid suggestion given to P.W.4 has also been denied. P.W.2 Ram Bilas Ram is none else but son of the informant and grand son of the deceased Purni Devi. In his deposition he has stated that 7 while her grand mother was abusing the persons, who had plucked green chillies from her field, the accused persons being armed with “Lathi” came there. The accused Kobi Rai gave a “Lathi” blow on her head causing fracture and bleeding injury whereupon he himself, his father and his mother rushed in order to rescue the victim Purni Devi. According to him the accused Kobi Rai assaulted him by “Lathi” on his back and his mother was assaulted by accused Paras Rai on her back by “Lathi” and Sahdeo Rai assaulted her on her waist and back by Lathi. Two important facts transpire in examination-in-chief of this witness. He claims to be an eye witness. He has not whispered a word against the appellant Mahendra Rai. According to him, the deceased sustained sole “Lathi” blow inflicted by accused Kobi Rai. The omission of name of Mahendra Rai amongst the persons who indulged in any overt act has got significance. This witness has extensively been cross-examined. In cross-examination, he has stated that his grand mother had consumed “Dahi” and “Chura” on the date of occurrence at about 12 noon. He has further stated that when he reached at the place of occurrence, he found his grand mother lying. Immediately after he reached there, accused Kobi Rai struck on her head with “Lathi”. He further states that his father, mother and other witnesses also came there. When we compare the deposition of P.W.2 with the deposition of P.W.4, we find that P.W.4 has categorically stated that when assault took place the victim was sitting on a chair. Both Mahendra Rai and Kobi Rai struck her with one “Lathi” each while she was in sitting posture. To the contrary according to P.W.-2 accused Kobi Rai assaulted his grand mother by “Lathi” while she was lying. Another noticing factor in his deposition is that he has not alleged any overt act as against the appellant Mahendra Rai. Further what would be 8 relevant for consideration is that this witness has stated that on the date of occurrence at about 12 noon the deceased had consumed “Dahi” and “Chura”. The doctor, who conducted the postmortem examination, has stated in cross-examination that he found Semi digested rice and vegetable in the stomach. This belies the story of consuming “Dahi” and “Chura” on the relevant date and time of occurrence at about 12 noon. P.W.1 (Ram Swaroop Ram) is another eye witness. In his examination-in-chief, he has almost reiterated the facts stated in the first information report excepting the fact that first assault was made by accused Kobi Rai. According to this witness also while the deceased was sitting on a chair it was accused Mahendra Rai who first hit her on her waist and when she fell down the accused Kobi Rai hit her on her head by “Lathi”. This story is a bit in variance to the story propounded by P.W.4 and P.W.2. P.W.2 states that the assault was made only by Kobi Rai on the deceased while she was in lying posture at her “Sahan” whereas P.W.4 has stated that both Kobi Rai and Mahendra Rai struck by a “Lathi” while she was sitting on a chair. P.W.1 has stated differently to the extent that it was Mahendra Rai who hit first by a “Lathi” while the deceased was sitting on a chair and when he fell down from the chair, accused Kobi Rai hit her on her head. P.W.1 has also stated that on shouting of the deceased her Jugal Ram (P.W.4), grandson Ram Bilas Ram (P.W.2) and daughter in law (not examined) came in her rescue. Other witnesses also came there. The accused persons assaulted Ram Bilas Ram and wife of the informant also and thereafter they fled away. In cross-examination, this witness has stated that Purni Devi had purchased the land from Yadu Babu. Earlier the said land was being cultivated by father of appellant Mahendra Rai. The accused 9 persons are agnates. He has denied the suggestion that one day prior to the occurrence Purni Devi had met with a road accident in which she had died and since the accused persons were not given possession over the land purchased from Yadu Babu they had falsely been implicated in the present case and he being a caste man of the informant had falsely deposed in the case. P.W.3 (Anup Bhagat) is a formal witness. In his examination in chief, he has stated that the investigating officer had seized blood stained soil on 15.1.1976 at about 7. a.m. He has proved his signature on the carbon copy of the seizure list which was marked as Ext. 1. He has also proved the signature of Sita Ram Rai on the said carbon copy of the seizure list which was marked as Ext. 1/1. In cross examination, P.W.3 admitted that he cannot say that paper which was proved as an Exhibit was the same on which he had put his signature. He has further admitted that the place from where blood stained soil was collected was 10-15 feet away from the road. It is important to note it here that neither there is any forensic science laboratory report regarding seized blood stained soil on record nor the material exhibits itself has been produced in the court in course of trial. P.W.5 (Baleshwar Ram) is a chance eye witness. He has stated that on the date and time of occurrence while he was proceeding towards his house from his field, he could notice Purni Devi abusing. He came on road and found all the four accused persons surrounding Purni Devi. It was the accused Mahendra Rai who hit first on her waist and thereafter the accused Kobi Rai assaulted on her head by Lathi. According to him on shouting several co-villagers assembled at the place of occurrence and the accused persons fled away. In examination in chief this witness has confined the 10 allegation of assault only against two of the accused persons namely Mahendra Rai and Kobi Rai. However, when he was cross examined he has stated that on shouting he went to the place of occurrence. He found the deceased Purni Devi sitting there. All the four accused persons had surrounded her. None else was present there. When he reached nearby he saw that all the four accused persons assaulted Purni Devi by Lathi one after another. When the accused persons fled away co-villagers came. From among the persons who came after the occurrence he could take names of Basudeo Ram (P.W.6) Ram Swarup Ram (P.W.1), Jugal Ram (P.W.4) and Ram Bilas Ram (P.W.2). He also saw wife of the informant Jugal Ram, who had come there. He could not recollect name of others. In further cross examination, this witness has stated that he could not say number of “Lathi” blows given by the accused Paras Rai and Sahdeo Rai upon the deceased. When this witness was confronted with his previous statement made before the police he has stated that he had not stated before the police that it was accused Mahendra Rai who hit first upon Purni Devi. He has further admitted that he had not stated before the police that the accused Kobi Rai hit her by “Lathi” on her head resulting in fracture and bleeding injury. He denied the suggestion that he was cousin of the informant Jugal Ram. If we go by the deposition of this witness, we find that the allegation has materially been developed and all the four accused persons are being attributed with inflicting injury by Lathi on the person of the deceased. If this witness is relied upon he rules out the possibility of the other eye witnesses seeing the occurrence of assault as according to him they reached at the scene of crime subsequent to assault. P.W.6 (Basudeo Ram) claims to be another eye witness. He has 11 supported the genesis of the occurrence being abusive language used by the deceased against the persons who had plucked green chillies from her field. According to this witness also Mahendra Rai assaulted first by means “Lathi” and she fell down. Thereafter, the accused Kobi Rai struck on her head by “Lathi”. He has also stated that the informant, his son Ram Bilas Ram and his wife also reached there. Purni Devi was being carried to Begusarai for treatment and while she was on way she died. In cross- examination this witness has stated that the villagers had assembled at the place of occurrence on hue and cry raised at the time of occurrence. He has further admitted that his eye sight was week. According to him, more than 100 people had assembled there but since his vision was not clear, he could not identify them. He has further stated that he went there on shouting made by Purni Devi that she was being killed. He found Purni Devi lying on the road. He further modified by saying that she was lying at her Sahan. P.W.7 ( Jata Shankar Thakaur) is another formal witness. He has proved formal first information report which was marked as Ext.2. P.W.8 (Dr. P.R. Mahesia), is the doctor who conducted postmortem examination on the dead body of Purni Devi on 15.1.1976 at 9 a.m. He found the following ante mortem injuries on her person:- I. Lacerated wound 2 ½” x ¼” x ¼” on the vertex of the head. On deep dissection there was Haemotoma overlying the skull bone. There was fracture of the left perital bone of the skull. On opening the skull there was massive haemotoma over lying the surface of the brain. II. Swelling 3``x 3``on the lower part of the back. Rigor motis was present on all the limbs. According to the doctor injury no. 1 was caused by hard and blunt substance and in ordinary course of nature such injury was sufficient to 12 cause death. The time elapsed since death was within 48 hours. The doctor was cross-examined and in cross-examination he has admitted that the injury as has been found on the dead body of the deceased may be caused by dashing against a heavy vehicle such as bus, tractor etc. The doctor in cross- examination has admitted in clear terms that the age of injury must be beyond 24 hours and within 48 hours. He has further stated that he found semi digested boiled rice and vegetable in the stomach. P.W.9 (Shiv Kumar) is another doctor who had examined Jago Devi, wife of Jugal Ram on 15.1.1976 at 2.30. p.m. and had issued injury report which has been proved by him and marked as Ext.4 in course of trial. It is to be noted that Jago Devi has not been examined by the prosecution in course of trial. The injury report (Ext.4) goes to suggest the following injuries noticed by the doctor on her person. “I.Complaints of pain in the right side of the back II.Complaints of pain on the back near the left shoulder region. III. Complaints of pain in the lower left leg.” In cross-examination, P.W.9 has admitted that he did not find any apparent mark of injury on the person of Jago Devi. P.W.10 (Jaipal Singh) is a Constable who has proved writing of investigating officer (K.B.Mishra) in the case diary and the entire case diary has been marked as Ext.5. Learned counsel for the appellants submits that the prosecution has failed to prove this case beyond all reasonable doubt. The investigating officer has not been examined in this case and there is no explanation given for his non-examination. His non-examination as a witness in course of trial has seriously prejudiced the defence. The defence could have cross- 13 examined him on various circumstances and on various facts relating to place of occurrence and the prosecution case. The defence could have cross- examined him on the point of various contradictions found in the statement of the witnesses. The medical evidence falsifies the prosecution case and witnesses are inconsistent to each other. Having heard the parties and after going through the records, we find that the doctor could find only one injury caused by hard and blunt substance. The second injury is said to be swelling. The doctor has not attributed any weapon for the said injury. The age of injury caused is far beyond the time the prosecution alleges. Semi digested boiled food found in the stomach of the deceased is contrary to what has been stated to be eaten by P.W.2 (Ram Bilas Ram), grand son of the deceased. The doctor has not ruled out the possibility of death due to accident by heavy vehicle which suggestion has been given to almost all the prosecution witnesses, who have claimed to be eye witnesses in this case. We further find that there is nothing on record to suggest that the appellants committed the murder in furtherance of common intention. There is no evidence at all