CRIMINAL APPEAL No.231 OF 1988 --------- Against the judgment and order of conviction and sentence dated 2.5.1988 passed by Shri R.C. Srivastava, the 4th Additional Sessions Judge, Muzaffarpur in S.T. No. 40 of 1987. --------- 1. Ram Deo Rai (since dead), son of Dhan Raj Rai, 2. Bhola Rai (since dead), son of Ramdeo Rai, 3. Jodha Rai, son of Ramdeo Rai, 4. Bhummi Rai alias Bhubneshwar Rai, son of Shyamdeo Rai, 5. Manjoo Rai, son of Shyamdeo Rai, 6. Chandeshwar Rai, son of Shyamdeo Rai, 7. Brij Nandan Rai, son of Jagannath Rai, all residents of village kanhauli, Bishundutta, P.S. – Sadar, District – Muzaffarpur ……………..Appellants Versus The State of Bihar ………Respondent ---------- For the Appellants : Shri Prasoon Sinha, Advocate For the Respondent: Sushree Shashi Bala Verma, APP --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA --------------- Dharnidhar Jha, J. Seven accused persons were put on trial by the learned 4th Additional Sessions Judge, Muzaffarpur in S.T. No. 40 of 1987 by framing charges under various sections of the Indian Penal Code and by judgment dated 2.5.1988 while three accused, namely, Shyamdeo Rai, Shambhu Choudhary and Uday Choudhary were acquitted of all the charges including that for assaulting P.W. 7 2 Suresh Rai, appellant Bhola Rai was found guilty of committing offence under sections 148 and 302 of the IPC. These two, namely, Ram Deo Rai and Bhola Rai having demised during the pendency of the appeal, the appeal as against these two appellants stood abated. The other appellants were convicted under sections 147 and 302/149 of the IPC and each of them was directed to suffer rigorous imprisonment for one year and for life under the above two counts respectively. The appellants have challenged their conviction through the present appeal. 2. The prosecution case is contained in Ext. 4, the fardbeyan of Haricharan Rai, P.W. 8, in which he stated that he along with Lakhan Rai (deceased) and Suresh Rai, P.W. 7 was going towards the Math (temple) from his house and when they had reached near a field situated south of the orchard of one Jagarnathi Rai, the FIR named accused persons, armed variously, were found sitting there. Appellant Manjoo Rai called the informant for certain talks but the deceased appellant Bhola Rai ordered to kill as it was futile to call him. On the above remonstration, the informant started running away and reached a Arhar field and started raising halla but the deceased appellant Ramdeo Rai ordered to kill, on which deceased appellant Bhola Rai gave a bhala blow in the back of the deceased Lakhan Rai and he fell injured there. It was alleged that the appellants Jodha Rai and Manjoo Rai dealt lathi blows to the deceased whereas appellants Bhuneshwar Rai alias Bhunni Rai, 3 Chandeshwar Rai and Brij Nandan Rai assaulted P.W. 7, Suresh Rai with lathi, as a result of which he fell down and became unconscious. 3. The halla raised by the informant P.W. 8 attracted Ram Chandra Rai ( P.W. 1), Ganga Ram (P.W. 3), Sidhu Paswan (P.W 2), Heera Das (not examined) and Ram Bilochan Rai (not examined), after which accused persons made good their escape. It was alleged that none except the named accused had come to the place of occurrence and it was further stated that there was some dispute and tension between Shambhoo Choudhary, son of Gopal Choudhary and the Secretary of the temple, namely, Baidyanath Singh and others and as such, the occurrence had been committed. 4. On the basis of Ext. 4, the FIR of the case, Ext. 11 was drawn up and investigation was taken up. The accused persons were sent up for trial after close of the investigation which, ultimately, resulted in conviction of the appellant and acquittal of three accused as indicated at the very outset. 5. Shri Prasoon Sinha, learned counsel for the appellant has taken us through the evidence of the prosecution and has submitted that it does not appear from the evidence as to for what reason the accused persons would be assaulting the deceased or P.W. 7. In fact, there should be some reason and no occurrence could occur without any fundamental reason for that but, the tenor of evidence indicates as if the prosecution witnesses were shying away from telling the 4 truth to the court and were concealing some most material facts. It was admitted that there was a dispute for some land between the persons who were in occupation of the temple and its properties and Shambhu Rai, who was one of the accused, put on trial and acquitted. The witnesses and the documents in that behalf indicate that Shambhu Choudhary and Gopal Choudhary who were armed with decrees in respect of the disputed properties, said to be that of the Math and, those decrees included one passed by this Court also. It is admitted by P.W. 7 that the prosecution witnesses were claiming themselves to be Thikedars over the land and, as such, it could be a probability that the prosecution party had interfered with the possession of said Shambhu Choudhary and others which might have resulted into some scuffle in which the deceased was killed. But, how the occurrence turned out, appears concealed by the witnesses. In the above context, our attention was drawn to the evidence of P.W. 7 who is said to be injured. I propose to deal with the same a bit subsequently. 6. Sushri Shashi Bala Verma, learned Additional Public Prosecutor, appearing on behalf of the state, has conceded that the witnesses appear giving evidence halfheartedly and appear concealing some material facts from the court in respect of the manner of occurrence also. It was contended that they appear not trustworthy. 5 7. P.W. 2 Sidhu Paswan, P.W. 3 Ganga Ram and P.W. 7 Suresh Rai, who was allegedly injured, have all either admitted or denied the pendency of criminal and civil litigations between the parties. P.W. 7 Suresh Rai has admitted in paragraph 7 of his evidence that a particular Title Suit was decreed in favour of the deceased appellant Ramdeo Rai and a criminal case ended in acquittal of acquitted accused Shyamdeo Rai. Documents were placed on record indicating that Shambhu Choudhary or his father Gopal Choudhary had won litigations on civil side and one such decree was passed by this Court and those were in respect of the land which was claimed by the prosecution party as belonging to the Math. There were sessions cases between the parties and one witness or the other had deposed in one or the other earlier sessions trials. This may appear from the cross examination of various witnesses, most of whom have denied but that appear probabilized by the documents on record. 8. Under the above background, it is extremely unsafe to place implicit faith upon the evidence of such witnesses who have been regularly deposing in one case or the other or were being prosecuted by one appellant or the other or any of the acquitted accused in one criminal case or the other. The court has to trade very cautiously while appreciating the evidence and while applying that approach, I have always found the witnesses concealing some important facts. No witness has stated as to why the deceased or P.W. 7 was chased 6 and assaulted along with the informant who escaped being hurt. There is no comprehensible reason stated by any of the witnesses as to why and, after all, on what account the incident was triggered and had ended up in the loss of a life. More over, there is no indication as to why Lakhan Rai would be targeted by the accused persons. The witnesses have stated that after the deceased had fallen down due to being given a massive bhala blow, the weapon was pulled out of the wound by acquitted appellant Shyam Deo Rai after he had mounted on the back of the deceased. P.W. 1 Ram Chandra Rai, an eye witness to the occurrence and also a witness to the inquest, has stated in paragraph 22 that the bhala blow was given with full force with both his hands by the deceased appellant Bhola Rai, as a result of which the deceased fell down on the ground. So far as the manner of pulling out the weapon is concerned, almost all the witnesses have stated that the bhala was twisted inside the wound and thereafter it was brought out. The doctor who held postmortem examination, i.e. P.W. 5, had found a wound measuring 3” x ½” x lungs deep on the back of right side of chest. It has been stated in his evidence that if the bhala had been twisted in the wound, it would have caused a hole like wound on account of twisting. Thus, the story as regards the pulling of the weapon from the wound, appears not acceptable. 9. The other aspect of the medical evidence is that the doctor was always found vacillating by us as regards his opinion regarding 7 the weapon which had been used for causing injury. He appears not sure whether the wound could be caused by a bhala or a garasa. I assume that it was caused by bhala as the length of the wound, i.e. 3” could very well be caused by a bhala sharp pointed part of which could also be broader having sharp cutting edges on either of its flanks. But for the above, the evidence does not inspire confidence as regards the witnesses. It is true that they have given eye witness account to every part of the incident, but they being inimical, were also interested with each other as may appear from the evidence of P.W. 2 in paragraphs 13, 14 and 15. There were series of litigations between the parties including the witnesses and this is why P.W. 7, the star witness of the prosecution, appears telling complete lies to the court. He was given lathi blows by three accused persons, namely, Bhuneshwar Rai alias Bhunni Rai, appellant Chandeshwar Rai and Brij Nandan Rai but the doctor, Dr. Birendra Prasad, found a solitary cut injury on the back of his right shoulder measuring 1” x 1/10” x 1/10” which was simple in nature caused by sharp cutting substance possibly by a split up bamboo. The dimension of injury as also the site thereof may indicate that it could be a very simple superficial wound on a part of the body which could hardly be the cause of unconsciousness. But, the witness P.W. 7 stated in paragraph 5 of his evidence that he remained unconscious for three days and when he gained his consciousness, he found himself lying admitted in Muzaffarpur hospital. This evidence is completely false 8 which was given by P.W. 7 in paragraph 26 in the light of the evidence of the doctor who had examined him, who stated in paragraph 5 in its last line that he had examined the injured as an outdoor patient. The other aspect of the evidence of P.W. 7 is that he has stated in paragraph 26 that he met the Investigating officer of the case in Muzaffarpur hospital itself where he was being attended to by his mother but he does not appear making statement to the Investigating officer of the case and appears going to his house after being discharged from the hospital, as a result of which, the police brought him from his house to the police station and recorded his statement. This remains a matter of curiosity for me as to why P.W. 7 was not willing to give his statement before the police in spite of the police coming to him in the hospital when he was quite conscious. This makes it all the more unsafe to place reliance upon the evidence of witnesses like P.W. 7 Suresh Rai. 10. While hearing the appeal, I had always a flash of probability in my mind that the prosecution party probably had formed an unlawful assembly and had gone over the properties in respect of which the defence had decrees passed by the Civil Court in their favour and they made a serious attempt to dislodge them from their possession. As a result of the above fact, a clash might have taken place between the two groups in which Ram Lakhan Rai was killed. Who killed Ram Lakhan Rai might be a mystery. What was the real 9 reason appears concealed by the witnesses making it very unsafe to uphold the judgment and order of conviction and sentence. 11. I find the judgment and order of conviction and sentence not sustainable in law as the prosecution witnesses appear suppressing the true facts from coming out to the fore. In the result, the two appeals are allowed. The five appellants whose appeal survive, are hereby acquitted by setting aside the order of conviction and sentence passed against them. They are on bail, they shall stand discharged from the liabilities of their respective bonds. (Dharnidhar Jha, J.) Akhilesh Chandra, J. – (Akhilesh Chandra, J.) Patna High Court, The …….July, 2010 NAFR/Anil/