CRIMINAL APPEAL(DB) No.391 OF 2006 (Against the judgment dated 23rd of March, 2006 and order of conviction dated 27th of March, 2006 passed by Sri. Binoda Nand Mishra, Ist Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 37 of 2002) BISHWA NATH RAI, son of Late Deo Nath Rai, resident of village-Masaha, Police Station-Marhowrah, District-Saran at Chapra. --------------(Appellant) Versus The State Of Bihar ----------(Respondent) With CR. APP (DB) No.341 of 2006 1. RAM SINGAR RAI, son of Karmu Rai 2. PARAS RAI, son of Late Deo Nath Rai, Both are residents of village-Masaha, Police Station-Marhowrah, District- Saran at Chapra. ----------------(Appellants) Versus The State Of Bihar --------------(Respondent) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & D. K. Singh, J. J. Cr. Appeal No. 391 of 2006 of Bishwa Nath Rai and Cr. Appeal No. 341 of 2006 of Ram Singar Rai and Paras Rai have been taken up together because both the cases have been arisen out of common 2 judgment dated 23rd of March, 2006 and sentence dated 27th of March, 2006 passed in Sessions Trial No. 37 of 2002 by First Additional Sessions Judge, Saran at Chapra whereby appellant Bishwa Nath Rai was found guilty under Section 302 of the Indian Penal Code and 27 of the Arms Act and other appellants Ram Singar Rai and Paras Rai were found guilty under Section 302/34 of the Indian Penal Code. The appellant Bishwa Nath Rai was sentenced to undergo R.I. for life under section 302 I.P.C. and to undergo R.I. for three years under Section 27 of the Arms Act. The appellants Ram Singar Rai and Paras Rai were sentenced to undergo R.I. for life for offence under section 302/34 I.P.C. 2. The prosecution case relates to an occurrence of the night on 4th June, 2000 at 11:30 P.M. At the relevant time, the informant father- in-law Ramdeo Rai, son of not known (deceased) was sleeping outside the house on a cot. At that time a lantern was giving light. The informant was sleeping nearby on a cot. The informant’s son Mangal Prasad Yadav came and went to his bed for sleeping. Informant daughter-in-law Lilawati Devi wife of Wakil Rai (not examined) was also there. At about 11:30 P.M. the appellant Bishwanath Rai armed with country 3 made pistol and the other appellants namely Paras Rai and Ram Singar Rai armed with Farsa came near the cot. As soon as accused persons came, the appellant Bishwanath Rai fired from the pistol on the Ramdeo Rai, father-in-law of the informant which caused injury on his chest and he died instantly. The accused persons thereafter started leaving but after hearing firing sound, the villagers Kunkun Rai, Ramayan Rai and others came there and they identified accused persons in torch light while they were escaping. Land dispute was said to be the reason for this occurrence. 3. The informant claims that the accused were intending to kill him but they killed his father-in- law presuming him to be the informant. Earlier also the accused persons were threatening the informant of killing. Fardbeyan was recorded at the door of the informant Radha Rai at about 4:30 A.M. and the case was registered under Section 302/34 and 27 of the Arms Act. 4. After investigation the charge sheet was submitted under the aforesaid sections. After observing the paraphernalias, the case was committed to the Court of Sessions where charges were explained under Sections 302 of the Indian Penal Code and 27 Arms Act in respect of Bishwanath Rai whereas 4 charges under Section 302/34 I.P.C. were explained to the appellants Ram Singar Rai and Paras Rai. All the accused persons claimed innocence and so the trial proceeded. 5. The defence of the appellants was that they have been implicated on account of enmity because prior to the occurrence, the father of Bishwanath Rai was murdered and in that case father of Kameshwar Prasad @ Kunkun Rai was an accused. The informant Radha Rai was also an accused in that case and so they had motive to commit the offence. 6. The trial Court after considering the evidences of the prosecution and hearing the parties came to the finding that the accused persons were guilty and accordingly they were sentenced to undergo R.I. for life. 7. In order to prove the case, the prosecution has examined 9 witnesses. They are P.W.1, Hemu Rai, son of the deceased, P.W. 2, Rameshwar Rai, P.W. 3, Maheshwar Prasad, P.W. 4, Dr. Shaligram Bishwakarma, P.W. 5, Kameshwar Prasad, P.W. 6, Wakil Rai(son of the informant), P.W. 7, Mangal Rai, P.W.8, Radha Rai(informant) and P.W. 9, Harihar Prasad Singh(Investigating Officer). Ext. 1 is postmortem report, Ext. 2 is fardbeyan and Ext. 3 is 5 formal F.I.R. 8. P.W. 1, Hemu Rai has not seen the occurrence and so he has stated that he was not in a position to say as to who has committed the offence. 9. P.W.2, Rameshwar Rai has come to the place of occurrence after hearing the sound of firing and when reached there he saw the deceased. According to him the reason of the occurrence was enmity between the parties. Though this witness identified all accused persons but his identification was of no use for the prosecution case because he has not seen any part of the occurrence. 10. P.W. 3, Maheshwar Prasad Yadav has heard the firing sound while he was at his house. In the next morning, he came to the place of occurrence. Therefore, there is no use of witness. 11. P.W. 5, Kameshwar Prasad @ Kunkun Rai has heard the sound of firing while he was at his house which was situated at the distance of 100 yards from the house of informant Radha Rai where alleged firing was made. After hearing the sound of firing this witness set out from his house and went to the house of the informant Radha Rai where he saw Ramdeo Rai dead. He was having one fire armed injury upon his chest. This witness has stated that he has seen 6 Bishwanath Rai with pistol and Paras Rai and Ram Singar Rai with Farsa. In cross examination this witness has stated that in the case of murder of father of Bishwanath Rai, his father was also an accused. This witness has not seen the occurrence and he is an interested witness because of strong motive as stated by him in Para 4 of the cross examination. 12. Though P.W.5 is an F.I.R. witness but his examination in chief made it clear that he has not seen the occurrence and he has gone to the house of the informant after hearing the sound of firing. 13. P.W. 6, Wakil Rai is the son of the informant and according to him at about 11:30 P.M. on 04.06.2000, Bishwanath Rai came to his house and at that time Ram Singar Rai and Paras Rai were also with him. Bishwanath Rai and Ramji Rai were having pistol whereas Ram Singar Rai and Paras Rai were having Farsa. According to his evidence, Bishwanath Rai fired which has caused injury to the maternal grand father of this witness and it proved fatal. According to this witness Kunkun Rai, Ramayan Rai and other villagers came and they chased the culprit but they managed to escape. The defence has given suggestion that this witness has not identified the accused persons because of the non availability of any means of identification 7 but this witness in cross examination at para 6 has stated that at the time of occurrence lantern was giving light and under that light he has identified the accused persons. From the examination and cross examination of the witness, it appears that he has seen the occurrence in which his maternal grand father Ramdeo Rai was killed due to firing by appellant Bishwanath Rai. He has remained consistent in his evidence regarding the occurrence which has led to death of Ramdeo Rai. 14. P.W. 7, Mangal Rai is another son of the informant and according to him he was sleeping by the side of his maternal grand father on the date and time of occurrence. At that very time, Bishwanath Rai and others came and firing was attributed to Bishwanath Rai which caused death to Ramdeo Rai. According to this witness he has identified accused persons in the light of lantern. According to him the intention of the accused persons was to kill his father and due to mistaken identity his maternal grand father has to loose his life. 15. P.W. 8, Radha Rai, the informant has given his fardbeyan in the next morning of the occurrence which occurred on 11:30 P.M. on 04.06.2000. According to the informant, P.W. 8, his 8 father-in-law was sleeping on the cot which was regularly being used by the informant, P.W. 8. According to this witness, Bishwanath Rai came along with other accused persons and firing was made by Bishwanath Rai which caused death of informant’s father-in-law. On the sound of firing the informant and other villagers came at the place of occurrence but the accused persons managed to escape. He has given his fardbeyan to the police and the fardbeyan has resulted into the First Information Report. According to this witness, prior to the occurrence, the father of Bishwanath Rai was killed and in that case this witness i.e. P.W. 8 has gone to the custody. According to this witness, the accused persons were intending to kill him but in his place his father-in-law had to loose his life. He has described about the source of identification. 16. It has to be seen as to whether the death was occurred in the manner as alleged or not. 17. P.W. 4, Dr. Shaligram Vishwakarma has conducted the autopsy of Ramdeo Rai at 11:15 A.M. on 5th of June, 2000 and found the following ante- mortem injury. (i) Rigor mortis was present in all the limbs. On external examination he found:- 9 (i) An oval penetrating wound 1”x ½” on right fourth inter costal space near external border having lacerated inverted charred margin (wound of entry). (ii) An oval penetrating wound 1/4” diameter on back of chest of left side of vertebral column having lacerated everted margin (wound of exit.) On dissection:- (i) Through and through lacerated penetrating wound on the ventricles of the heart anterior to posterior destroying the tissues of the heart. (ii) Pericardial cavity full of blood (iii) Lacerated penetrating wound on lower part of left lung. Left cavity also containing blood. (iv) Liver, spleen, kidney found pale. (v) Stomach and bladder found empty. According to the opinion of the Doctor, the death was due to extreme damage to the vital organ like heart caused due to fire armed and death was within 6 to 12 hours before the postmortem examination. Postmortem was conducted at 11:15 A.M. on 05.06.2000. 18. According to the prosecution, the occurrence is of just preceding midnight and hence it 10 was within the time as given by the prosecution. The manner of death also stands established because according to the Doctor, the death was on account of fire armed injury upon the chest. 19. Learned counsel for the appellants has argued that motive of implication is apparent from the perusal of deposition of the witnesses. It has been argued that there was no intention at all to cause death to Ramdeo Rai. It has also been argued that the informant is man of criminal background because he was involved in the murder of the father of the appellant Bishwanath Rai and there was possibility that informant himself has committed murder with intention to get the appellant punished. It has also been argued that the I.O. has not been examined and I.O. P.W. 9 submitted charge sheet has been examined. 20. After analyzing the entire evidence brought on record, it is apparent that in the night of occurrence, the murder of Ramdeo Rai was committed due to use of fire arm and that has been consistently proved. The only fact to be proved is as to whether the prosecution has been able to prove that the charged accused persons were involved in commission of murder or not. 21. The witness P.W. 8 and his two sons 11 P.W. 6 and P.W. 7 have consistently stated and supported that on the date and time of occurrence Bishwanath Rai has used his fire arm in commission of murder of Ramdeo Rai. No doubt there are certain inconsistency in the prosecution version like non production of the cloth which the deceased was using and also non seizure of the blood etc, but these are not the vital lacuna on behalf of the prosecution which can effect the case in totality. 22. Considering the consistent evidence of the Doctor, coupled version of P.W.s. 6, 7 and 8, it is apparent that death of Ramdeo Rai was caused by Bishwanath Rai. Accordingly, we are of the opinion that the prosecution has been able to prove that on the date and time of occurrence, the appellant Bishwanath Rai reached the cot of the informant, Radha Rai and has murdered Ramdeo Rai by use of fire arm. Hence his conviction is upheld. 23. So far as other two appellants of Cr. Appeal No. 341 of 2006(DB) namely Ram Singar Rai and Paras Rai are concerned, as they were described to be present at the time of occurrence, no overt act has been attributed to them. So their conviction in this case can not be justified. There is no evidence that these persons were having common intention or object to 12 cause death to Ramdeo Rai. Even if their presence is proved, it can not be said that they were involved in any act which could lead to presumption that they were assisting Bishwanath Rai in commission of murder. Therefore, their conviction under Section 302/34 of the Indian Penal Code is not proved. 24. Accordingly Cr. Appeal No. 341 of 2006 is allowed and the conviction and sentence of Ram Singar Rai and Paras Rai is set aside. They are acquitted of their charge and are discharged from liabilities of their bail bonds. 25. So far as appellant of Cr. Appeal No. 391 of 2006, Bishwanath Rai is concerned, the prosecution has proved that on 4th June, 2000 he has committed murder intentionally and caused death of Ramdeo Rai by use of fire arms. Hence this appeal is dismissed and conviction and sentence of this appellant under section 302 I.P.C. and 27 of the Arms Act are upheld. Patna High Court Dated 23rd Feb. 2010 Shageer/N.A.F.R (Shyam Kishore Sharma, J) (Dinesh Kumar Singh, J)