CRIMINAL APPEAL No. 193 (DB) OF 1989 With CRIMINAL APPEAL No. 217 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated on 12th April, 1989 passed in Sessions Trial No. 165 of 1984 by Sri S.M.I.I.F. Alam, 4th Additional Sessions Judge, Arrah, Bhojpur. ***** 1. HARIFAN RAI, SON OF JADU RAI, 2. SURENDRA RAI, SON OF MOHAJHIL RAI, 3. MANJI RAI, SON OF BATESHWAR RAI ALL ARE RESIDENT OF VILLAGE-BHATTBIGHA, POLICE STATION- SAHAR, DISTRICT-BHOJPUR. --------(Appellants in Cr. App. No. 193 (DB) of 1989) DEEP NARAIN RAI, SON OF JAGDISH RAI, RESIDENT OF VILLAGE- BHATBIGHA, POLICE STATION-SAHAR, DISTRICT-BHOJPUR (ARRAH) --------(Appellant in Cr. App. No. 217 (DB) of 1989) Versus THE STATE OF BIHAR ----------(Respondent in both the Appeals) For the Appellants : Mr. Rakesh Kumar (Advocate) Mr. Anuj Prakash (Advocate) (in both the Appeals) For the Respondent : Ms. Shashi Bala Verma (APP) (in both the Appeals). ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ------ S.K. Sharma, & Akhilesh Chandra, JJ. Cr. Appeal No. 193 of 1989 (DB) on behalf of Harifan Rai, Surendra Rai and Manji Rai and Cr. Appeal No. 217 of 1989 (DB) on behalf of Deep Narain Rai have arisen out of one judgment of conviction and sentence dated 12.04.1989 passed by the learned 4th Additional Sessions Judge, Bhojpur at Ara in Sessions 2 Trial No. 165 of 1984 whereby appellant Deep Narain Rai was held under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of life and appellant Harifan Rai was found guilty under Sections 307 and 326 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and four years respectively. His sentences were ordered to run concurrently. Appellant Surendra Rai was convicted under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years whereas appellant Manji Rai was sentenced under Section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months. 1. The prosecution case has resulted on the basis of a fardbeyan given on 3.12.1983 at 2.45 p.m. by Jawahar Rai(P.W. 6) before the R.A. Mandal, A.S.I. Sahar Police Station at village Bhatbigha in his house in which the informant stated that he was sitting on his Darwaja along with Lakhpati Rai (the deceased) on 3.12.1983 at 10 a.m. when accused persons Deep Narain Rai, Surendra Rai, Harifan Rai, Baijnath Rai, Basisth Rai, Jalim Rai, Rajendra 3 Rai, Rajaram Rai, Praduman Rai, Kanhaiya Rai, Beyadar Rai, Uma Shankar Rai, Manjee Rai, Ramsarekh Rai, Jailendra Rai, Shambhu Rai, Banarsi Rai, Kamala Rai, Samla Rai and others arrived. Accused Beyadar Rai asked for withdrawal of the case failing which the informant was threatened for dire consequences. Lakhpati Rai (the deceased) protested that the cases will not be withdrawn on such threat. Allegation in the fardbeyan was that at the behest of Raja Rai accused Deep Narain Rai gave a Bhala blow which hit the right side of the chest of the deceased resulting into effect that the deceased fell down. When the informant moved to save him, then accused Harifan Rai assaulted him (P.W.6) with Farsa which caused injury on his head. It caused bleeding injury to the informant. Accused Surendra Rai assaulted with Bhala on left shoulder and right hand whereas Manjee Rai assaulted him with Lathi on his right hand above the wrist of the informant. The deceased after being injured fell down at the Darwaja of his cattle shed and succumbed to the injuries. When the hulla was raised by the informant (P.W.6) then Jaibahadur Rai (P.W.4), 4 Indradeo Rai (P.W.5), Dinanath Rai (P.W.6) and Badsah Rai (not examined) arrived. The informant went inside his house, thereafter the accused persons started pelting brick bats with the purpose of preventing him for lodging any information about the occurrence to police camp which was situated nearby. In the meanwhile, Premna Devi wife of Praduman Rai on the direction of Mithilesh Rai came and sprinkled colour at the place of occurrence and on the left leg of the Lakhpati Rai (the deceased). Accused Mithilesh Rai removed the blood stained earth from the place of occurrence which was available there. Enmity was reason of the occurrence. Accused persons wanted the informant to withdraw the case which was not agreed upon. The fardbeyan of Jawahar Rai was recorded by R.A. Mandal, A.S.I. and this fardbeyan resulted into Sahar P.S. Case No. 168 of 1983 dated 4.12.1983 under Sections 147, 148, 149, 302, 307, 323, 324, 447, 337, 201, 114 of the Indian Penal Code and investigation was taken up. After investigation, the charge sheet was submitted and the case was found to be triable by the Sessions court, so, it was committed to the 5 court of Sessions where charges under Sections 302, 148 of the Indian Penal Code were framed against accused Deep Narain Rai and against other 18 accused persons charges under Sections 302, 149 of the Indian Penal Code were framed. Against accused Harifan Rai charge under Sections 307, 326 of the Indian Penal Code were framed for causing grievous injury and attempting to commit murder to informant Jawahar Rai. Accused Surendra Rai and Manji Rai were charged under Sections 323 and 324 of the Indian Penal Code for causing injury to the informant by means of Bhala and Lathi. Accused Premna Devi and Mithilesh Rai were charged under Section 201 of the Indian Penal Code. Accused Surendra Rai, Harifan Rai and Baijnath Rai and Baijnath Rai were charged under Section 148 of the Indian Penal Code and rest 15 persons were charged under Section 147 of the Indian Penal Code. 2. In the First Information Report, Jaibahadur Rai, Indradeo Rai, Dinanath Rai and Badsah Rai were named as eye witnesses but Badsah Rai did not turn up and Dinanath Rai became hostile. 3. In order to prove its case, the 6 prosecution examined nine witnesses. They are: P.W.1 Rameshwar Rai @ Gupteshwar Rai, P.W.2 Ramadhar Rai, P.W.3 Dinanath Rai, P.W.4 Jai Bahadur Rai, P.W.5 Indradeo Rai, P.W.6 Jawahir Rai, P.W.7 Dr. Upendra Prasad Himanshu, P.W.8 Dr. B.P. Ojha, P.W.9 A.Z. Kamal, the officer- in-charge of the case. 4. The defence has examined Dr. B. Rai (D.W.1), Ramchandra Prasad (D.W.2) and Rajendra Singh (D.W.3). 5. The fardbeyan of Jawahar Rai has been exhibited as Ext.1 whereas injury report is Ext.2, post-mortem report of the deceased is Ext.3, carbon copy of seizure list is Ext.4, sketch map of the place of occurrence is Ext.5, formal First Information Report which was registered on the basis of Ext.1 has been marked as Ext.6, inquest report is Ext.7 and certified copy of judgment of Sahar P.S. Case No.11/1980 is Ext.8. On behalf of defence formal First Information Report of Sahar P.S. Case No. 183/1985 has been exhibited as Ext.A, signature of Dr. B. Ram on injury report is Ext.B, signature on the complaint petition is Ext.C, signature on the supervision note is Ext.D, signature of Umashankar is Ext.E, 7 certified copy of evidence is Ext.F, certified copy of evidence of U.P. Himanshu is Ext. F/1, certified copy of complaint petition is Ext.G and certified copy of another complaint petition is Ext.G/1 whereas certified copy of judgment of case no. 394 is Ext.H. 6. Altogether 21 persons were put on trial. One Bashisth Rai died during trial, so 20 persons have faced the trial. 7. The trial court after considering the entire evidences and other materials on record found guilty to only four accused and others were acquitted. 8. This Court is required to look into the fact that as to whether the prosecution has been able to prove the charges against the appellants beyond shadow of all reasonable doubts or not. 9. Dr. B. Ram has examined Padam Rai on 4.12.1983 and found the following injuries: (I).Incised wound 3”x1/3”xmuscle deep on mid scalp. (II).Swelling with bruise 3 1/2”x2 1/2” on the left scapular region. (III).Swelling with bruise 8 4”x3” on the right scapular region. According to the doctor all the injuries were simple and these injuries can be caused by the friendly hands. D.W.1 has been examined to rule out the evidence narrated by the prosecution and for that First Information Report recorded under Section 156(3) of the Code of Criminal Procedure has been proved by the formal witness in order to give another version of the occurrence. Whereas the prosecution has examined P.Ws.1, 2, 3, 4, 5 and 6 as eye witnesses though P.W.3 has been declared hostile. P.W.7 has examined the injuries on the person of the informant Jawahar Rai and has found the following injuries: (I).Incised wound 3”x1/2” muscle deep with features to cevellar concussion on the posterior middle side of the scalp. (II).Incised wound 1½”x1/6 on the back of right shoulder. (III).Echymosis 3”x2” on the back of right shoulder. The doctor has opined that Injury No.I was grievous and other two were simple. 9 The injuries were caused by sharp cutting weapon such as Garasa and Bhala. In para-9 of the cross-examination the doctor has opined that the injury was grievous because according to him the patient might have been convalescing for more than 21 days. Though the doctor has failed to elaborate as to on what basis he has come to the conclusion that the patient has remained convalescing for more than 21 days. 10. P.W.1 has been examined as an eye witness of the occurrence. He was present in the Khalihan at the time of occurrence and on hearing hulla he reached on the place of occurrence. He was in his Khalihan which was situated 20-22 yards towards West from the house of the informant, P.W.1 has stated in para-7 that he definitely reached the place of occurrence and it is but natural for a villager to go on a sudden hulla. He is not in any way related to the informant or the deceased nor any animosity has been shown against him. Therefore, P.W.1 appears to be a natural witness of the occurrence. P.W.2 is full brother of the deceased Lakhpati Rai and after hearing alarm being raised by his 10 brother Lakhpati Rai he went there and witnessed the occurrence. It is natural for a brother to go at a place where his brother was crying. No animosity of this witness has been shown with the accused persons though a counter version has been produced but the presence of P.W.2 cannot be doubted because he has been shown to be an accused in the counter case. His presence at the place of occurrence is proved beyond all shadow of reasonable doubts. He has seen the occurrence for the first time when the accused persons were standing in Goshala of the informant where the offence was committed. He went to his house and disclosed the occurrence to his family members, upon which they started weeping. He has stated that Lakhpati Rai on receipt of Bhala blow has died and when the informant came to rescue then he also suffered assault. Therefore, this witness is consistent so far as manner of assault is concerned. 11. P.W.3 has been declared hostile. He has merely stated that on hearing hulla he went to the Darwaja of the informant and saw the dead body of Lakhpati Rai. He has been contradicted with his previous statement by 11 P.W.9 in para-12. The evidence of this witness is of no help to the prosecution. 12. P.W.4 is a named witness of the First Information Report. He is brother of the informant Jawahar Rai and lives in the same house. Prior to the occurrence he was inside his house and was taking meal and on hearing hulla he came out and saw the occurrence. He has stated that the male and female were occupants, so on hearing hulla his going is natural. He has stated that he rushed inside the house along with Jawahar Rai. He also stated that accused persons were pelting brick bats, so that the informant and others can be prevented for taking further actions. The stone was found by the P.W.9, the Investigating Officer, when he has gone to the place of occurrence and while making inspection, in para-4 he has stated that brick bats were found. P.W.4 is another accused named in the counter case lodged by Padam Rai and so his presence at the place of occurrence stands well proved and established. 13. P.W.5 is a named witness of the First Information Report. He has started the prosecution case while he was deposing in the 12 court. According to the witness, while he was at his house which was situated near the place of occurrence he heard the hulla and had gone there. This witness is a neighbouring witness and his presence cannot be doubtful. A suggestion was given to him that as he was uncle of Lakhpati Rai, so there was motive to falsely depose but this bald suggestion of the prosecution was nothing but merely a suggestion. 14. P.W.6 is the informant and injured witness. He had three injuries upon his person. According to the doctor, one injury was grievous in nature which was caused by Farsa and it was on the scalp. Another incised injury was on the back of the right shoulder, so the presence of this witness at the time of occurrence cannot be doubted. His injuries have been attributed to Harifan Rai, Surendra Rai and Mithilesh Rai. The defence has got a theory to explain the manner of occurrence but the theory propounded by the defence supports the prosecution case instead of the case of the defence. By presenting the different version the defence has supported the prosecution case that on the date of 13 occurrence the accused persons came and committed various sorts of occurrence which resulted into death of one person and the injury to the informant who was trying to save the deceased. P.W.9 has inspected the place of occurrence and has prepared the inquest report of the dead body of the deceased Lakhpati Rai which was found in the courtyard of Goshala of the informant Jawahar Rai. He was found blood on the earth. The blood stained earth was removed and straw found there was marked with red colour. He has found the bricks in the courtyard of Goshala. The finding of the bricks in the courtyard of Goshala is objective finding of the Investigating Officer and this finding got support from the eye witnesses who have stated that the accused persons have pelted brick for preventing the informant and others from rushing to the police which was situated nearby. 15. The doctor who has conducted the autopsy of the deceased at 2.30 p.m. on 4.12.1983 has found three antimortem injuries: (I). Incised wound 2¼”x1”x thickness chest wall in the third intercostal space in the pectorial 14 area above right nipple. (II). Abrasion 1/2”x1/2” covered with blood on right knee. (III). Abrasion 1”x1/2” on right sole. On dissection right floral cavity contained 1/2 point of blood pericardial cavity contained 2 ounce of blood upper part of right lung with covering plura punctured incised wound 1/2"x1/4” on anterior side of arch arota was there. Injury No.I which has been attributed to the appellant no.1 Deepnarain Rai was caused by Bhala and others were caused by hard and blunt substances. The time elapsed since death was within 36 hours. The cause of death was haemorrhage and shock as a result of Injury No.I which was sufficient to cause death in the ordinary course of business. According to Ext.3, the cause of death was Injury No.I and it was within 36 hours from the time of occurrence because the post-mortem was done on 4.12.1983 at 2.30 p.m. so the death was in the period which has been alleged by the prosecution. 16. Learned Counsel for the appellants has submitted that the prosecution 15 has failed to prove the manner of occurrence, time of occurrence and no objective finding has been found regarding sprinkling of colour, so the entire case becomes doubtful. Further argument is that many accused persons of the same occurrence have been acquitted which shows that the prosecution has fabricated the case and it has been submitted that one of the accused sustained some injuries and the prosecution has failed to explain the injury and this has demolished the prosecution case in its entirety. 17. On the other hand, Learned Counsel for the State has submitted that injuries upon the one of the accused was of simple in nature. Simple injury can easily be fabricated. D.W.1 in his cross-examination has stated that above injuries cannot be fabricated. So it needs no explanation by the prosecution. 18. It is well settled that it is not necessary for prosecution to explain even the superficial injuries on the person of the accused. The prosecution was bound to explain the injuries of the accused if these were of serious nature. The First Information Report 16 of the defence case (Ext.A) shows that the occurrence has taken place on 3.12.1983 but a complaint was filed on 7.12.1983. The injuries of one of the accused were simple, so apparently the defence version appears to be fabricated. 19. The learned Counsel for the appellants has submitted that there was no occasion at all to cause death of Lakhpati Rai because the motive was only withdrawal of a case filed by the informant. Details of the case was not stated to the Investigating Officer but the defence has brought Ext.A to show the pendency of the case between the parties, therefore, the prosecution case was able to establish the motive which was for withdrawal of the case. 20. The place of occurrence stands proved by the eye witnesses and which has been fully supported by the Investigating Officer who has prepared a sketch of map. There is no vital inconsistency specially in view of the fact that the defence has also admitted that one occurrence has occurred on the place of occurrence, so the place of occurrence also stands proved. 17 21. It has been argued by the learned Counsel for the appellants that non-seizure of blood stained clothes and non-sending of the blood stained earth seized by the Investigating Officer for chemical examination is vital lacuna to the prosecution case. 22. The eye witnesses are consistent regarding manner of assault and occurrence. This fact has been supported by the doctor who has conducted the post-mortem. The eye witnesses are quite consistent to prove that the alleged occurrence was committed on the date of occurrence in the manner as alleged. In view of this fact non-sending of blood stained earth etc. or non-seizure of blood stained clothes are not vital rather these emissions are irrelevant. 23. The allegation was leveled against many persons. In course of evidence, it only transpires that only these four appellants have committed the offence, so others were acquitted. This does not create any doubt in the prosecution version. Others were not attributed any role, so they were acquitted. In this view of the matter, their acquittal cannot lighten the evidence against 18 the appellants. 24. Considering all the aspects, the prosecution was able to prove that Lakhpati Rai was murdered on 3rd December, 1983 at Village Bhatbigha police station Sahar, District-Bhojpur and injury of the informant was caused by other three persons. Learned Counsel for the appellants has submitted that there was no intention at all to cause murder of Lakhpati Rai. The informant was being asked to withdraw the case, so it has been submitted that this case cannot come under the purview of Section 302 of the Indian Penal Code and similarly it has been submitted that there was no intention to cause murder of the informant’s brother because there were no repetition of the blow and the doctor has merely opined that the injury was grievous because the injured might have been convalescing for a period of 21 days or more. On this basis it has been submitted that the objective finding of the doctor is perfunctory and without any basis. The grievous injury is to be proved in the manner which has been detailed in the Indian Penal Code but the doctor has not been able to show that it was 19 grievous injury and so the conviction under Section 302 of the Indian Penal Code is also unjustified. 25. We have analyzed the circumstances relating to the offence. No doubt, the prosecution was able to prove that a murder was committed but it appears that it was a case of culpable homicide not amounting to murder because the offence was committed whilst Deepnarain Rai was deprived of the power of self control by grave and sudden provocation because the informant was asked to withdraw the case and Lakhpati Rai has intervened and stated that in this manner the cases will not be withdrawn, so there was no intention at all to kill him. As such the case comes under Section 304 part-I of the Indian Penal Code against Deepnarain Rai whereas the case under Sections 307 and 326 of the Indian Penal Code against Harifan Rai is not established. The case against him at best comes under the purview of Section 324 of the Indian Penal Code. 26. Considering the facts and circumstances of the case, it is held that Deepnarain Rai is held guilty under Section 20 304 part-I of the Indian Penal Code whereas Harifan Rai is held guilty under Section 324 of the Indian Penal Code. So conviction of appellant Deepnarain Rai from Section 302 of the Indian Penal Code is altered to Section 304 part-I of the Indian Penal Code and conviction of Harifan Rai under Sections 307 and 326 of the Indian Penal Code are altered to under Section 324 of the Indian Penal Code. The convictions of appellant Surendra Rai under Section 324 of the Indian Penal Code and appellant Manji Rai under Section 323 of the Indian Penal Code are not required to be modified. 27. So far sentence of the appellants is concerned, Appellant Deepnarain Rai has remained in custody for about seven years and other three appellants namely Harifan Rai, Surendra Rai and Manji Rai have also remained in custody considerably for longer times and the occurrence is of the year 1983. So the sentences of the appellants may be reduced to the period already undergone by them in course of the trial and appeal which will be deemed to be sufficient for the ends of justice. Accordingly, the sentences of all the four 21 appellants are reduced to the period already undergone by them which will be sufficient for the ends of justice. 28. In the result both the appeals are dismissed with modification as mentioned above. The appellants are discharged from the liabilities of their bail bonds. Patna High Court, Patna Dated the 21st of January, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)