IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.168 of 1998 ========================================================== Uma Shankar Rai .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (SJ) No. 179 of 1998 ========================================================== 1. Ajay Kumar Rai 2. Sachidanand Rai 3. Surendra Rai 4. Wakil Rai (Now dead) .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (SJ) No. 234 of 1998 ========================================================== = 1. Ramanuj Rai 2. Ram Pravesh Rai 3. Ras Narayan Rai (Now dead) .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellants : Mr. Ramakant Sharma, Sr. Advocate : Mr. Ashok Kumar Mishra, Advocate : Mr. L. K. Sharma, Advocate : Mr. Varun Kumar, Advocate. For the Respondent : Mr. Ajay Mishra-A.P.P. for Cr. App. Nos.168/98 & 179/98 : Mr. S. N. Prasad- A.P.P. for Cr. App. No.234/98 PRESENT (HONOURABLE MR. JUSTICE MANDHATA SINGH) JUDGMENT Mandhata Singh,J. All the three appeals are directed against the judgment dated 17th of March, 1998 and order dated 18th of March, 1998 passed in Sessions Trial No.312 of 1990 by the learned Additional Sessions Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 2 Judge-8th, Bhojpur at Ara whereby he has been pleased to convict the appellants and sentenced to undergo R.I. for four years and to pay a fine of Rs.500/- each to be paid to the informant and in default to undergo S.I. for 15 days for offences under Section 307/34 of the I.P.C., to undergo R.I. for one year for the offences under Section 147 of the I.P.C., to undergo R.I. for six months for the offences under Section 323/34 of the I.P.C. and sentences are to run concurrently. Heard learned counsel for the appellants and learned counsel for the State. Fard-bayan of one of the injured persons namely Mithilesh Rai has been made basis for F.I.R. which in short is that on 30.7.1988, he had gone to his field situated at village-Makdumpur Semra Badhar for the purpose to do some agriculture work. He was cutting grass from his field, in the meantime, accused Ramanuj Rai with ‘Farsa’, Ram Pravesh Rai with ‘Bhala’, Ras Narayan Rai with ‘Farsa’ and remaining accused persons with ‘Lathi’ came there and surrounded him. Accused-appellant Ramanuj Rai ordered to kill and blew his ‘Farsa’ also on the head of informant that was followed by accused-appellant Ras Narayan Rai in repeating same way. Rest of the accused persons also assaulted him by means of ‘Bhala and Lathi’. PW-3 Nasiruddin Ansari came to save him, he was assaulted by all the accused persons by means of ‘Farsa, Bhala and Lathi’. Further “Nasiruddin Ansari’s licencee gun was snatched by Ramanuj Rai. Witnesses Ramdev Rai, Chandra Shekhar Pd., Ram Kumar Rai, Ramashankar Rai came and accused persons left the place of occurrence. Reason behind the incident is said the grazing of crop by Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 3 accused persons. Both the accused persons were taken to Koilwar, thereafter to Ara and then to P.M.C.H. where fard-bayan of PW-5 was recorded. After concluding the trial, impugned judgment and order of sentence is passed validity of which has been questioned through filing of these appeals in three sets, hence they are taken together for its disposal. Submission of learned counsel for the appellants is that accused-appellants are innocent, if is not accepted then there was no pre-meeting of mind for causing injuries with intention to kill is the vital point to be taken into consideration if has been taken into consideration by the trial court. In all, eight witnesses are there to substantiate the prosecution case they are PW-1Chandra Shekhar Prasad Singh, PW-2 Ram Kumar Rai, PW-3 Nasiruddin Ansari one of the injured persons, PW-4 Murat Ram, PW-5 Mithilesh Rai next injured person and informant of the case, PW-6 Mansoor Alam I.O. of the case, PW-7 Nishikant Thakur a doctor from Koilwar Primary Health Centre who has issued injury reports (Exhibit-3 and 3/1), PW-8 is Krishna Kumar Mishra a doctor from P.M.C.H. who examined one of the injured persons namely Mithilesh Rai. PW-6 is I.O. of the case to state proper investigation of the case. PWs-7 and 8 are to corroborate the witnesses if they are to be believed on the point of injuries to victims. PW-4 is a formal witness to state the execution of fard-bayan (Exhibit-1). Rest of the witnesses are claiming themselves as eye witnesses either received injuries or were present at the occasion of taking place of the incident. Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 4 Statement of PWs-1 and 2 is in corroboration of the F.I.R. that Mithilesh Rai was assaulted on his head by accused-appellants Ramanuj Rai and Ras Narayan Rai, thereafter, by appellant Ram Pravesh Rai by means of Bhala and rest by lathi that is also in corroboration of the statement of PWs-5 and 3, both the two injured persons. To what extent witnesses can be believed on the point of involvement of accused-appellants, their intention to kill, prior meeting of their mind, committing of theft or innocence will be taken later. It is made clear here that two of the accused-appellants namely Ras Narayan Rai of Cr. Appeal No.234 of 1998 and Vakil Rai of Cr. Appeal No.179 of 1998 are dead now, so, the appeal is abated for them. Though an attempt is made to show by referring Paragraph-9 of PW-1 and Paragraph-8 of PW-2 that after falling of PW-5, PWs-1, 2 and 3 reached, were not present at the time of taking place of the incident of assault is of no avail for the defence as both the injured are there to state taking place of the incident and their receiving injuries and all are on the point of causing of assault by appellant Ramanuj Rai and Ras Narayan Rai of Cr. Appeal No.179 of 1998 by means of ‘Farsa’ and snatching of Nasiruddin Ansari’s gun. So, the well discussed conclusion of the trial Court on the point that injuries of ‘Farsa’ were caused by these two appellants and gun was snatched by accused-appellant Ramanuj Rai needs no interference, save and except, the intention if was to kill. The circumstance prevailing at the time of occurrence, reason behind the incident including previous enmity, weapon used, part of the body and nature of injuries are some of the points which Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 5 may be taken to consider to reach the intention. F.I.R. is corroborated by the witnesses and that is to the effect that all the accused persons surrounded PW-5 then injuries were caused and reason was grazing of crop, which was opposed. Appellants’ cattle, if were grazing his (PW- 5’s) crop from earlier is missing, if the same was for the incident of the same day then pre-planning may not be gathered. Opposition of grazing can be taken for sudden provocation. No doubt, weapon is used ‘Farsa’ that is corroborated by PWs-7 and 8 that two of the injuries of victim Mithilesh Rai are found caused by sharp cut weapon, third one is half by sharp cut weapon and half by hard and blunt substance. Allegation is giving of a single blow by each accused Ramanuj Rai and Ras Narayan Rai. No doubt, that is on vital part of the body that is head, but not grievous, is the opinion of doctor (PW-8). This much is relevant on two points, first intention of causing assault and another prior meeting of mind. Discussed circumstance, goes to show that intention was not to kill. So, the offence committed by Ramanuj Rai and Ras Narayan Rai comes under Section 324 of the I.P.C. A vague allegation is there also about causing assault by them also to PW-3, but no injury of sharp cut is found on his person, so the assault caused by them to PW-3 may not be extended. Appellant Ram Pravesh Rai is shown armed with Bhala and rest with lathi. Accused persons armed with Farsa and Bhala were there for the purpose of grazing only can be doubted, but cause is missing for their coming prepared with such weapon. For others that cannot be doubted as usually persons with cattle remain with lathi. Number of injuries by means of lathi is Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 6 maximum three to PW-5 and six to PW-3 as in Exhibit-3 for Mithilesh Rai, number of injuries are shown five, two by sharp cut weapon and two by hard and blunt substance, half of one injury by means of sharp cut weapon and rest half by hard and blunt substance, so that comes either two or three and allegation about causing of such injuries is against all to PW-5 as well as to PW-3. Ram Pravesh Rai though has been shown causing assault by means of Bhala, but that is explained by PW-3 and PW-5 in Paragraph-1 about using of lathi portion of Bhala. For rest having lathi either there is vague allegation about causing of assault on their behalf or with some specification. PW-5 only has specified about the assailants by means of lathi and that is to the effect that after receiving injury of Ram Pravesh Rai, he fell down then Vakil Rai, Sachchida Rai, Surendra Rai, Ajay Rai assaulted with lathi. Number of assailants having vague or specific allegation comes more than five. So, the conclusion of the trial Court about forming of unlawful assembly needs no interference that is relevant for the offence under Section 148 of the I.P.C. for appellant Ramanuj Rai, Ras Narayan Rai and Ram Pravesh Rai and for rest under Section 147 of the I.P.C except appellant Uma Shankar Rai. Now it is made clear that liability of appellant Ramanuj Rai comes established for the offence under Section 148, 324 and 379 of the I.P.C. that of Ram Pravesh Rai comes for offence under Section 148 and 323 of the I.P.C. for appellants Ajay Kumar Rai, Sachchidanand Rai and Surendrak Rai under Section 147 and 323 of the I.P.C. Rest except Ras Narayan Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 7 Rai and Vakil Rai, who are dead, are given benefit of doubt after comparing number of assailants, injuries and no specific allegation. It is made clear that appellant Uma Shankar Rai is given that benefit. On the point of sentence, it is submitted that the circumstances under which occurrence took place, facing of prosecution by the appellants since 1988 and remaining of Ramanuj Rai and Ram Pravesh Rai in custody for a period of seven months and rest for a period of more than two months may be taken sufficient on the point of sentence. I agree with the learned counsel for the appellants. On the observation made above, evidence and circumstance of the case, appeal Nos.179 of 1998 and 234 of 1998 are partly allowed. Conviction of appellant of Cr. Appeal No.234 of 1998 Ramanuj Rai is accepted for the offence under Section 148, 324 and 379 of the I.P.C. that of appellant Ram Pravesh Rai of the same appeal is accepted under Section 148 and 323 of the I.P.C. and for rest that is accepted for the offence under Section 147 and 323 of the I.P.C. while appeal No.194 of 1998 allowed and conviction and sentence of sole appellant Uma Shankar Rai is set aside. He is acquitted of the offences charge for. He is further discharged from the liability of bail bonds. On the point of sentence the period undergone by the concerned appellants is observed sufficient. A copy of the judgment along with L.C.R. be sent back to the Trial Court forthwith. Patna High Court, Patna 13th of December, 2011 Vikash Verma A.F.R./ ( Mandhata Singh, J.) Patna High Court CR. APP (SJ) No.168 of 1998 dt.13-12-2011 8