Criminal Appeal No. 981 Of 2007
Against the judgment and order dated 04.06.2007 and sentence dated
07.06.2007 passed by Sri Prodip Kumar Neogy, learned Additional Sessions
Judge, Fast Tract Court No. - I, Sheohar at Sitamarhi in Sessions Trial No. 85
of 1996 / 100 of 2006.
Chhuna Rai, Son of Late Chandeshwar Rai, resident of village - Tulsi Nagar,
Police Station - Tariyani in the district of Sheohar.
------------------------ (Appellant)
Versus
THE STATE OF BIHAR
----------------------- (Respondent)
With
CR. APP (DB) No. 868 Of 2007
1.Snehi Rai, Son of Late Khelawan Rai.
2.Ram Faresh Rai, Son of Late Braj Nandan Rai.
3.Kishor Rai, Son of Snehi Rai.
4.Mauje Rai, Son of Late Shiwan Rai.
All resident of village - Tulsi Nagar, Police Station - Tariyani, District
- Sheohar.
------------------------ (Appellants)
Versus
THE STATE OF BIHAR
--------------------- (Respondent)
With
CR. APP (DB) No. 992 Of 2007
Dharmendra Rai, Son of Ram Swarath Rai, resident of village - Tulsi Nagar,
Police Station - Tariyani in the district of Sheohar.
---------------------- (Appellant)
Versus
The State Of Bihar
--------------------- (Respondent)
With
CR. APP (DB) No. 994 Of 2007
Ramanand Mahto, Son of Late Nandu Mahto, resident of village - Tulsi
Nagar, Police Station - Tariyari, District - Sheohar.
---------------- (Appellant)
2
Versus
The State Of Bihar
--------------- (Respondent)
With
CR. APP (DB) No. 802 Of 2007
Vishwanath Rai, Son of Late Banshidhar Rai, resident of village - Tulsi Nagar,
Police Station - Tariyani, District - Sheohar.
------------------- (Appellant)
Versus
The State Of Bihar
------------------ (Respondent)
With
CR. APP (DB) No. 806 Of 2007
1. Ram Swarth Rai, Son of Late Baidyanath Rai.
2. Ram Lagan Rai, Son of Late Baidyanath Rai.
Both are resident of village - Tulsinagar, P.S. - Tariyani, District -
Sheohar.
------------------- (Appellants)
Versus
The State Of Bihar
------------------ (Respondent)
With
CR. APP (DB) No. 844 Of 2007
Jitendra Kumar Rai, Son of Kishori Prasad Yadav, resident of village - Tulsi
Nagar, P.S. - Tariyani, District - Sheohar.
----------------- (Appellant)
Versus
The State Of Bihar
--------------- (Respondent)
With
CR. APP (DB) No. 871 Of 2007
Shyam Nandan Rai, Son of Late Jai Mangal Rai, resident of village - Tulsi
Nagar, Police Station - Tariyani, District - Sheohar.
------------------ (Appellant)
Versus
THE STATE OF BIHAR
----------------- (Respondent)
3
With
CR. APP (DB) No. 893 Of 2007
1. Ram Binod Mahto, Son of Late Mandu Mahto.
2. Raja Ram Mahto, Son of Late Nandu Mahto.
3. Ajablal Rai, Son of Deeplal Rai.
All resident of village - Tulsi Nagar, Police Station - Tariyari, District
- Sheohar.
---------------- (Appellants)
Versus
The State Of Bihar
---------------- (Respondent)
With
CR. APP (DB) No. 945 Of 2007
Jitendra Rai, Son of Ram Lagan Rai, resident of Village - Tulsi Nagar, Police
Station - Tariyani, District - Sheohar.
--------------- (Appellant)
Versus
The State Of Bihar
--------------- (Respondent)
With
CR. APP (DB) No. 902 Of 2007
Raj Kumar Rai, Son of Harbansh Rai, resident of Village - Tulsi Nagar, Police
Station - Tariyani, District - Sheohar.
-------------- (Appellant)
Versus
The State Of Bihar
------------ (Respondent)
With
CR. APP (DB) No. 995 Of 2007
Binda Rai, Son of Snehi Rai, resident of village - Tulsi Nagar, Police Station -
Tariyani, District - Sheohar.
------------------- (Appellant)
Versus
THE STATE OF BIHAR
----------------- (Respondent)
4
For the Appellants :- Shri Rana Pratap Singh, Sr. Advocate.
Shri Aruni Singh, Advocate.
Shri Sumant Singh, Advocate.
Shri Ashok Kumar Singh No. 3, Advocate.
For the State :- Shri Ashwini Kumar Sinha, Advocate (APP).
For the Informant :- Shri Manoj Kumar Ambastha, Advocate.
Shri Udai Pratap Singh, Advocate.
-----------
PRESENT
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. All the criminal appeals have been heard together
and being disposed of by the common judgment and order as all the
appellants have preferred appeals against the order of conviction and sentence
recorded in Sessions Trial No. 85 of 1996 / 100 of 2006 arising out of
Tariyani P.S. Case No. 16 of 1994 (G. R. No. 60 of 1994). [Originally there
were 21 named accused persons in the First Information Report out of which
one accused Chandeswar Rai, son of Jainandan Rai died during the course of
investigation. The co-accused Dukhit Rai, son of Pyare Rai and Kishori Rai,
son of Bishundayal Rai died during the course of sessions trial at the stage
after recording their statements under Section 313 of the Cr.P.C and so the
case abated against them. Rest 18 accused persons on trial convicted have
preferred the appeals as aforesaid. However, during the pendency of the
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appeal, the appellants, Ram Snehi Rai and Ram Faresh Rai of Cr. Appeal
(DB) No. 868 of 2007 died and hence appeal preferred by them held to have
been abated by order dated 31.03.2011 passed in analogous appeals in Cr.
Appeal (DB) Nos. 981 of 2007.]
2. Appellants Binda Rai, Dharmendra Rai, Jitendra Rai, son of Ram
Lagan Rai, Ramanand Mahto and Chunna Rai have been convicted under
Section 302 of the Indian Penal Code for the alleged murder of deceased Buni
Lal Rai and have been sentenced to undergo rigorous imprisonment for life.
Accused Ram Binod Mahto @ Bittan Mahto, Ajablal Rai, Raj Kumar Rai,
Ram Swarth Rai, Vishwanath Rai, Ram Lagan Rai, Shyam Nandan Rai,
Mauje Rai, Kishore Rai, Jitendra Rai, son of Kishori Prasad Yadav, Raja Ram
Rai have been convicted under Section 302/149 of the Indian Penal Code and
have been sentence to undergo rigorous imprisonment for life and further
Ram Binod Mahto, Ajablal Rai, Raj Kumar Rai, Ram Swarath Rai,
Vishwanath Rai, Mauze Rai, Ram Lagan Rai, Binda Rai, Jitendra Rai, son of
Kishori Prasad Rai, Dharmendra Rai, Ramanand Mahto, Chhuna Rai, Kishori
Rai, Jitendra Rai, son of Ram Lagan Rai, Raja Ram Mahto have further been
convicted under Section 148 of the Indian Penal Code and have been
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sentences to undergo rigorous imprisonment for two years and further Shyam
Nandan Rai has been convicted under Section 147 of the Indian Penal Code
and sentenced to undergo rigorous imprisonment for one year. Accused Ram
Binod Mahto, Ajablal Rai, Raj Kumar Rai, Jitendra Rai, son of Ram Lagan
Rai, Raja Ram Mahto have been convicted under Section 307 of the Indian
Penal code and sentenced to undergo rigorous imprisonment for seven years
and further Ram Binod Mahto @ Bittan Mahato, Ajablal Rai, Raj Kumar Rai,
Mauje Rai, Binda Rai, Jintendra Rai, son of Ram Lagan Rai, Ramanand
Mahto and Chhuna Rai have been convicted under Section 27 of the Arms
Act and have been sentenced to undergo rigorous imprisonment for three
years and further appellants, namely, Ram Binod Rai, Bittan Rai, Ajablal Rai,
Raj Kumar Rai, Snehi Rai, Ram Swarath Rai, Viswanath Rai, Ram Faresh
Rai, Mauje Rai, Ram Lagan Rai, Binda Rai, Jitendra Rai, Son of Kishori Rai,
Dharmendra Rai, Jitendra Rai, Son of Ram Lagan Rai, Ramanand Mahto,
Rajaram Mahto, Chunna Rai and Kishor Rai convicted under Section 148 of
the Indian Penal Code and appellant, namely, Shyamnandan Rai convicted
under Section 147 of the Indian Penal Code and sentence to undergo rigorous
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imprisonment for two years and one year respectively. However, it has been
ordered that sentences shall run concurrently.
3. The prosecution case as alleged in the fardbeyan of the
informant, Raj Kali Devi, wife of deceased Bunilal Rai is that she was
sleeping in the night in between 03.03.1994 / 04.03.1994 at her Bathan where
her husband Bunilal Rai (deceased) and her sons Upendra Rai (P.W. 4),
Prabhu Rai (P.W. 2) and Kashi Kumar Rai (P.W. 1) were also sleeping. She
got up on the sound of crying in the mid-night. She along with her son
Upendra Rai came out of the house. In the moon-light as well as in the light
of Lantern she identified Snehi Rai armed with Fersa, Binda Rai armed with
gun, Chunna Rai armed with gun, Jitendra Rai, son of Kishori Rai armed with
gun, Ram Lagan Rai, son of Baidyanath Rai armed with Fersa, Ram Swarath
Rai armed with Fersa, Jitendra Rai, son of Ram Lagan Rai armed with gun,
Shyam Nandan Rai, son of Jay Mangal Rai armed with Fatta, Dharmendra
Rai, son of Ram Swarath Rai armed with pistol, Vishwanath Rai, son of
Banshidhar Rai armed with Fersa, Rama Nand Mahto, Son of Nandu Mahto
armed with gun, Raja Ram Mahto, son of Binod Mahto armed with gun,
Kishori Rai, son of Bishun Dayal Rai armed with Fatta, Chandeshwar Rai
8
armed with gun, Raj Kumar Rai armed with gun, Ajab Lal Rai armed with
gun, Mauje Rai armed with pistol, Dhukit Rai armed with Fersa, Kishore Rai
armed with gun and Ram Faresh Rai armed with gun. Snehi Rai commanded
to shoot at the old man as he does not transfer the land. On the command
Vishwanath Rai entered into the house and started dragging Bunilal Rai the
husband of the informant. Then Binda Rai, Chhuna Rai, Ramanand Mahto,
Jitendra Rai and Dharmendra Rai fired one shot each at her husband causing
injury to him.
4. The further case is that on receiving the gun shot injury by the
five accused persons Bunilal Rai the husband of the informant fled away to
adjoining room by the side of that room and there he fell down and died.
5. Further the case of the informant in the fardbeyan is that in the
mean time Chandeshwar Rai caught the hand of the informant and dragged
her and gave two slaps and got her seated near him. The son of the informant
Upendra Rai (P.W. 4) ran to rescue his father (deceased) then accused
Jitendra Rai, Raja Ram Mahto, Ram Binod Mahato, Raj Kumar Mahto and
Ajablal Rai fired at Upendra Rai (P.W. 4) by which he got badly injured and
fell down then Kishori Rai assaulted him by Farsa.
9
6. Further case of the informant in the fardbeyan is that her son
Prabhu Rai (P.W. 2) was assaulted by Dhukit Rai with back of Farsa. On the
sound of firing and Halla villagers rushed to the place of occurrence then the
accused persons fled away towards the east.
7. The further case of the prosecution is that the motive for the
occurrence is land dispute between the deceased Bunilal Rai and accused
Shyam Nandan Rai, Chhuna Rai and others and litigations are going on
between the parties.
8. The fardbeyan of the informant, Raj Kali Devi (P.W. 3) was
recorded by the Investigating Officer, Bharat Kant Jha, S.I., P.W. 7,
(Investigating Officer) on 04.03.1994 at about 3:30 A.M. at her Bathan at
village Tulsi Nagar under Tariyani Police Station. The occurrence is alleged
to have occurred on 04.03.1994 at 12:00 in the mid night. The said fardbeyan
was forwarded to the Officer-In-Charge, Taryani to institute a case under
Sections 302, 307, 324, 323 and 34 of the Indian Penal Code and 27 of the
Arms Act on which First Information Report was lodged bearing Tariyani
Police Station Case No. 16 of 1994 and Mr. B. K. Jha, S.I. took up the
investigation of the case.
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9. After investigation the charge-sheet was submitted, cognizance
taken under various Sections under Sections 302, 302/149, 307, 323, 307,
148, 147 the Indian Penal Code and 27 of the Arms Act and case was
committed to the court of Sessions. After hearing the parties the charges were
framed against accused persons.
10. However, during trial 11 witnesses were examined by the
prosecution. The witness examined are P.W. 1 Kashi Kumar Rai, P.W. 2
Prabhu Rai, both sons of the informant, P.W. 3 is Raj Kali Devi (informant)
wife of the deceased Bunilal Rai, P.W. 4 Upendra Kumar, the son of the
informant and the deceased, P.W. 5 Sia Devi a co-villager, P.W. 6 Dr. Vairo
Singh who examined the injured P.W. 2, P.W. 7 is Bharat Kant Jha, the
Investigating Officer, P.W. 8 Dr. Rajib Bhusan Sinha who proved the post-
mortem report of deceased, P.W. 9 Yogendra Mahto who proved the post-
mortem report of the dead body of Bunilal Rai deceased, P.W. 10 Dr. Basant
Kumar Sinha who examined P.W. 4.
11. The documentary evidence adduced on behalf of the prosecution
as Ext. 1 injury report of Prabhu Rai, Ext. 1/1 injury report of Upendra Rai,
Ext. 1/2 is injury report of Upendra Rai dated 04.03.1994, Ext. 2 is the
11
fardbeyan of Raj Kali Devi informant, Ext. 3 is the carbon copy of the inquest
report, Ext. 4 is the dead body challan, Ext. 5 is the seizure list of the blood
stain earth and Ext. 6 is the post-mortem report.
12. The defence has also adduced both oral and documentary
evidence. The oral evidence adduced on behalf of defence as D.W. 1 Ram
Chandra Rai, Chaukidar and the documentary evidence adduced on behalf of
the defence is Ext. A fardbeyan of Upendra Rai recorded by the S.I., B. K.
Jha of Tariyani P.S. on 04.03.1994 at 3:00 A.M. at Narwara Hospital, Ext. B
is para 81 of the case diary, Ext. C is page no. 75 of the case diary, Ext. D is
the heading of the fardbeyan in English, Ext. E is the certified copy of the
charge-sheet of Tariyani P.S. Case No. 221 of 1993 and Ext. 7 is the certified
copy of the power of Tariyani P.S. Case No. 23 of 1993.
13. The defence of the accused persons as apparent from the
suggestions made and the trend of cross-examination is that the appellants
have falsely been implicated and the witnesses are tutored and have given
false and fabricated statements due to the enmity or interestedness with the
deceased and his son Upendra Rai. The further case of the defence is that the
deceased and his son Upendra Rai (P.W. 4) were in company of the criminals
12
and the villagers used to protest the criminal activity of the deceased and
Upendra Rai. There was a fight amongst the group of criminals in which the
deceased and his son got injured. The informant has not seen the occurrence
and her statement were not recorded at her Bathan. The fardbeyan has been
recorded much after the occurrence. Upendra Rai has criminal antecedent and
is serving sentence in jail on his conviction in a murder case and the accused
persons have been falsely implicated out of the enmity due to the previous
litigation between the parties.
14. After considering the oral and documentary evidence and
considering the defence as well as submissions of the parties the trial court
convicted and sentenced the appellants as stated above and hence this appeal.
15. Learned counsel for the appellants has challenged the judgment
and order of conviction and sentence and has contended that the earliest
version of the prosecution case has been withheld by the prosecution. The
station diary entry on the statement of Chaukidar, on the basis whereof the
police proceeded, has not been proved. Neither the Chaukidar has been
examined during trial by the prosecution, nor the witness in the
neighbourhood who came to the place of occurrence just after the occurrence
13
have been examined nor even the witnesses named in the charge-sheet having
residence and Bathan adjacent to the place of occurrence have been
examined. The prosecution case has been developed from stage to stage.
According to the Chaukidar, the name of the accused was not disclosed by the
prosecution just after the occurrence when he reached to the place of
occurrence. Ext. A, the fardbeyan of Upendra Rai (P.W. 4) recorded at 3:00
A.M. mentions the name of 10 accused persons without any description of
role attributed to accused where as the fardbeyan of Raj Kali Devi recorded at
3:30 A.M. mention the name of 21 accused persons in more detail. The First
Information Report on the basis of fardbeyan of Raj Kali Devi lost its
significance in view of Ext. A, as hit by Section 161 of the Cr.P.C. It has
further been contended that the witnesses are interested and inimical and their
evidence suffer from inherent improbabilities, contradiction and development
from stage to stage. There is no corroboration to the prosecution story either
about manner of occurrence or about implication of accused persons and no
independent witness has come forward to support the prosecution case on any
part of the prosecution story. Hence the prosecution has not been able to
14
prove the charges beyond reasonable doubts by cogent, reliable, reasonable
and unimpeachable evidence.
16. Learned counsel for the State and the learned counsel for the
informant, however, contended that the witnesses has supported the
prosecution case in material particular and merely because the witnesses are
interested and inimical their evidence cannot be outright rejected and Ext. A
itself appears to be doubtful in view of the evidence of Investigating Officer
and 3:00 A.M as mentioned in recording Ext. A may be a mistake for 8:00
A.M. Subsequent evidence of the Investigating Officer on recall rectified the
mistake that 3:00 A.M. wrongly mentioned in Ext. A for 8:00 A.M. and hence
the prosecution has proved the charges beyond reasonable doubts.
17. Hence, on the respective submissions of the parties, the question
for consideration is whether the prosecution has proved the charges beyond
reasonable doubts.
18. P.W. 3 is the informant and in her evidence has stated that the
occurrence took place on 04.03.1994 at 12:00 P.M. in the mid-night. She was
sleeping in a house at her Bathan along with her son Upendra Rai (P.W. 4),
Prabhu Rai (P.W. 2) and Kashi Rai (P.W. 1). Her husband Bunilal Rai was
15
sleeping in the adjoining room. On the sound of firing and cry she got up. At
that time the lantern was lighting at her house and it was a full moon night.
All the four persons (informant and her sons) ran to the room of her husband.
She saw Chhuna Rai armed with gun, Binda Rai armed with gun, Ramanand
Mahto armed with gun, Jitendra Rai, son of Kishori Prasad Yadav armed with
gun, Raja Ram Mahto armed with gun, Binod Mahto armed with gun, Mauje
Rai armed with pistol, Dharmendra Rai armed with pistol, Jitendra Rai, son of
Ram Lagan Rai armed with gun, Ajablal Rai armed with gun, Kishori Rai
armed with gun, Ram Faresh Rai armed with gun, Snehi Rai armed with
Farsa, Ram Lagan Rai armed with Farsa, Ram Swarth Rai armed with Farsa,
Kishori Rai armed with Farsa, Vishwanath Rai armed with Farsa,
Chandeshwar Rai armed with Garasa, Dhukhit Rai armed with Farsa. Snehi
commanded to kill Bunilal Rai by firing as he does not execute deed with
regard to the land. On the command, Vishwanath Rai caught hold of the
husband of the informant to drag then the husband of the informant caught
hold of pillar in the room. Then Chandeshwar Rai gave a Garasa blow on the
nose of the husband of the informant due to which his hold on the pillar was
lost. Thereafter, Chhuna Rai, Binda Rai, Ramanand Mahto, Dharmendra Rai,
16
Jitendra Rai son of Kishori Prasad Yadav at once fired at her husband by
which he got injury and then he ran from that room to the adjoining room and
fell down. When the informant rushed to save her husband then Chandeshwar
Rai caught hold of her hand and got her seated and commanded not to make
Hulla. When her son Upendra Rai rushed to save his father then accused Ram
Binod Mahto, Raja Ram Mahto, Jitendra Rai, son of Ram Lagan Rai, Ajablal
Rai, Raj Kumar Rai fired at Upendra Rai by which Upendra Rai got injured
and fell down and thereafter Kishore Rai gave a Farsa blow on the left ear of
Upendra Rai and Shyam Nandan Rai assaulted Upendra Rai by Farsa on his
head and further Shyam Nandan Rai injured the abdomen of Upendra Rai by
dagger and Dhukhit Rai assaulted her son Prabhu Rai with the back of the
Farsa below his knee and when on the sound of firing the villagers rushed to
the place of occurrence then the accused persons fled away towards the east
and she claims to have identified in the moon-light as well as the light of
lantern.
19. P.Ws. 1, 2 and 4 have also deposed verbatim, as P.W. 3 stated in
her evidence, in a parrot like manner, to support the prosecution case. They
also claims to be the eye witness with specific details as deposed by the
17
informant P.W. 3. In the cross-examination of these witnesses it is admitted
that there was prior enmity between the prosecution and accused persons as
both civil and criminal litigations are going on. Hence, the enmity is admitted.
20. The attention of P.W. 1 has been drawn for taking contradiction
with regard to his earlier statement before the police. He has denied to have
stated before the police that one person told to kill the old man then someone
fired which hit his father and when his elder brother Upendra Rai was going
to his father then someone fired at him by which he got injury and the
contradiction has been taken from the Investigating Officer (P.W. 7) in para
21 that P.W. 1 Kashi Kumar stated before him that one person told to fire at
the old man then someone fired by which his father received injury and died
and had also stated before him that his elder brother Upendra Rai was going
to his father then he was also injured by firearm by some one. Hence, the
evidence of P.W. 1 is contradictory in material particulars about the
involvement of accused persons. It is well settled the contradiction is a mode
of discrediting a witness by drawing his attention with regard to his earlier
statement before the police. Hence the evidence of P.W. 1 suffers from
contradiction and hence evidence suffers in credibility.
18
21. P.W. 4 has also supported the prosecution case in parrot like
statement as deposed by the P.W. 3. This witness has also stated that he was
taken to Narwara Hospital but at Narwara Hospital he was not fully conscious
and at that time police wanted to record his statement by force but he was not
in a position to give his statement but the police got his signature by catching
hold of his hand. He has further deposed that he found himself in full
consciousness at S.K.M.C.H. His statement was recorded under Section 164
of the Cr.P.C. when he got full consciousness. However, the attention of this
witness has been drawn in para 17 of his deposition with regard to his earlier
statement before the police and the contradiction has been taken from the
Investigating Officer in para 31 of the evidence of the Investigating Officer,
P.W. 7. His evidence is found to be in contradiction of his earlier statement
before the police. The claim of this witness that he was unconscious at
Narwara Hospital stands falsified in view of Ext. A. However, this witness
reluctantly admits in his evidence that he gave some statement to police and
police got his signature by catching hold of his hand. However, the
Investigating Officer has proved Ext. A his signature as well as the signature
19
of witnesses including the brother of P.W. 4 but that witness of Ext. A has
been withhold by the prosecution.
22. In Ext. A it has been stated that he is giving his statement in
injured state before the Daroga of Tariyani Police Station that today in the
night he along with his two brothers Prabhu Rai and Kashi Rai was sleeping
in the eastern room of the Bathan and his father was sleeping at another room
of the Bathan then he got up as 12:15 A.M on the sound of firing and then
heard the cry of his father “Upendra Rai get up someone has shot me” on
which he came out of the house and identified Ramanand Mahto who fired at
him in his right leg and fired again hitting on his left hand. In the meantime
someone assaulted him on his chest and head and in the moon-light he
identified Ramanand Mahto, Bitan Mahto, Chhuna Rai, Raja Ram Mahto,
Shyam Nandan Rai, Raj Kumar Rai, Haribansh Rai, Jitendra Rai, son of Ram
Lagan Rai, Binda Rai, son of Snehi Rai and on his cry the neighbourers came
then the accused persons fled away. However, during evidence he gave up
this story as impounded in Ext. A, that was stated before the police which was
signed by him and other witnesses but has come to support the prosecution
case verbatim as deposed by P.W. 3. This witness has stated in paras 5, 10
20
and 14 that he was not fully conscious at Narwara Hospital and he was not in
a position to give evidence though admits that he spoke out but he does not
remember. He claims full consciousness at S.K.M.C.H. He remained in
S.K.M.C.H for more than a month. During the period police came at
S.K.M.C.H but he did not gave any statement till he was in S.K.M.C.H and
his statement under Section 164 of the Cr.P.C. was recorded after 1-1/2
month. However, there is no documentary evidence brought on record that
this witness remained admitted in S.K.M.C.H and was unconscious for 1-1/2
month. Neither the bed head ticket nor any document about his treatment and
prescription during his treatment for 1-1/2 month has been brought on record
nor his statement under Section 164 of the Cr.P.C. has been proved in
evidence. There is no documentary evidence that he was unconscious or
remained admitted in S.K.M.C.H for more than a month and injury report Ext.
½ marked exhibit with objection does not indicate about his admission in
S.K.M.C.H or about his unconsciousness.
23. P.Ws. 1, 2, 3 and 4 claimed to be injured during the occurrence.
But there is no injury proved on the person of P.W. 1. and P.W. 3. However,
P.W. 6 has come to prove injury report Ext. 1, the injury on the person of
21
Prabhu Rai (P.W. 2) as simple, which is only „tenderness‟ without any
dimension of „tenderness‟ and hence the injury on the person of P.W. 2 is
doubtful.
24. However, so far the injury on the person of Upendra Rai (P.W.
4) is concerned P.W. 6 the doctor who examined P.W. 4 at Narwara Hospital
has proved the injury report and has deposed that injury nos. 1, 2 and 3 on the
person of Upendra Rai was by hard and blunt substance which was simple in
nature and with regard to injury nos. 4, 5 and 6 the patient was referred to
S.K.M.C.H. However, the injury nos. 1, 2 and 3 are lacerated wound on the
scalp on the left portion of the left side of the neck. Injury no. 4 is lacerated
wound on the left side of the chest. Injury no. 5 is lacerated wound of left
forearm below elbow and injury no. 6 lacerated is lacerated wound on the mid
portion of the calf muscle and hence there is nothing in his evidence to
suggest that injuries were serious in nature. P.W. 10 is the evidence of Dr.
Basant Kumar Sinha, who examined Upendra Rai at S.K.M.C.H and has
stated that he only examined the injury no. 3 an incised wound over the
anterior abdominal wall 1″ long tear in interior wall of stomach. However, the
injury report has been marked as Ext. ½ with objection as the injury report
22
was a copy of original injury report and he has not mentioned that it is the
copy copied by him from the original report and the injuries were said to be
written in injury register at S.K.M.C.H but he has not written the injury from
that injury register. However, P.W. 4 claims to be seriously injured and
assails Ext. A on the ground that he was seriously injured and was unable to
speak out but there is no corroborating evidence about his being unconscious
and about his remaining admitted in S.K.M.C.H. for 1-1/2 months and hence
his evidence is only an attempt to reconcile the inconsistency in prosecution
case and to explain away Ext. „A‟ which bears his own signature and
signature of his brother as witness. The evidence of P.W. 2 suffers from
contradiction and development.
25. Moreover, Ext. A, the alleged fardbeyan of Upendra Rai (P.W.
4) recorded by police at 3:00 A.M on 04.03.1994 as apparent on the face of it,
mentions that Upendra Rai along with his two brothers were sleeping at the
Bathan. However, the name of the mother does not find place amongst the
persons sleeping at Bathan and this creates a great doubt about the presence of
P.W. 3 Ram Kali Devi at the time of occurrence.
23
26. However, so far the manner of occurrence is concerned the
prosecution case as developed during evidence is that on the command of
accused Snehi Rai, accused Vishwanath Rai caught hold of the leg of the
deceased to drag him out of the room then the deceased caught hold of a pillar
in the room then Chandeshwar Rai gave a Farsa blow on the nose of the
deceased and then deceased loosened his hold of pillar and then five accused
persons shot at the deceased and deceased received the gun shot injury and
then the deceased ran from one room to another and fall down in second
room. But the prosecution case is not corroborated by the evidence of doctor
who conducted autopsy on deceased.
27. P.W. 9 is the Doctor, who conducted the post-mortem
examination on the deceased Bunilal Rai. The doctor has found five firearm
injuries on the person of the deceased. However, out of those five injuries he
found that the injury nos. 1 and 2 passing through right side of the neck floor
of mouth and nasal cavity fracturing bone of the floor of the moth and nasal
bone in neck muscle and the blood vassal danger drawing esophagus intact
and in cross-examination has opined that is difficult to move a person who
has received injury like 1 and 2. Hence, the medical evidence negates the
24
prosecution case that the deceased after receipt of the injury ran from one
room to another and then fell down and further the prosecution case is that the
deceased caught hold of pillar in the room and on receiving Farsa injury on
nose loosened hold on pillar but this part is also not corroborated as no
corresponding Farsa injury was found by the doctor on the nose of the
deceased. Hence the manners of occurrence is not substantiated or
corroborated by the medical evidence.
28. P.W. 7 is the I.O. and he has stated in his evidence that on
04.03.1994 he was posted as Officer-In-Charge of Tariyani Police Station at
2:30 A.M the Chaukidar 7/3, Ramchander Rai (D.W. 1) came to the Police
Station and gave information which was recorded as Sanha Entry No. 61
dated 04.03.1994. The I.O. (P.W. 7) proceeded towards place of occurrence at
village Tulsi Nagar and he reached at the place of occurrence and he recorded
the fardbeyan of the informant Raj Kali Devi (P.W. 3), the wife of the
deceased Bunilal Rai. Devendra Yadav (not examined) and Ram Kaleber Rai
(not examined) signed on the fardbeyan which has been marked as Ext. 2. He
prepared the inquest report of deceased Bunilal Rai at 6:00 A.M. on
04.03.1994 (both not examined). He has further stated that he prepared the
25
dead body Challan inspected the place of occurrence the Bathan of informant
at Tulsi Nagar. He found house of straw facing east in the south. There is one
room which contains a Chauki, fitted with a bamboos gate and he found blood
on the said bamboo gate and to the adjoining north of this room there is a
room for cattle and there is no gate in this room and he found the dead body
of the deceased in this room on the earth. He found large number of blood
fallen there. He seized the blood stain earth, prepared the seizure list marked
as Ext. 5. He has further stated that in front of this house there is Sahan for
Khalihan and to the south of this Khalihan there is also a hut of straw having
a room and there is no gate in this room (in which it was stated that the
informant (P.W. 3) and his son Upendra Rai (P.w. 4) and Prabhu Rai (P.W. 2)
were sleeping). There is a Kadam tree in the eastern part of the Khalihan and
a boring in southern part. He has further stated that to the north of the Bathan
there is a Bathan of Ram Kaleber Rai (witness in charge-sheet but not
examined), in the south there is land of informant Raj Kali Devi and in the
east there is a field of informant and in the west there is a field of informant
Raj Kali Devi. Hence, from the evidence of the Investigating Officer it is
apparent that the prosecution case as disclosed by the informant in fardbeyan
26
that she was sleeping in a room adjacent to the room in which her husband
was sleeping is belied.
29. The Investigating Officer found the house of Ram Kaleber Rai
adjacent to the place of occurrence, the Bathan of the informant. P.W. 1 in his
evidence has also stated that to the northern side of the said Bathan there is a
house of Ram Kaleber Rai and Jay Narayan Rai and has further clarified that
house means Bathan but Ram Kaleber Rai who is also an witness of
fardbeyan was not examined and was given up by prosecution. He has further
stated that to the west of the place of occurrence after his field there is Bathan
of Raja Rai, Jocki Lal Rai, Ram Prakost Rai, Ram Saber Rai and hence it
indicates that at the place of occurrence there were several houses and Bathan
but none was examined. Amongst them Ram Kaleber Rai is one of the
charge-sheet witness but has not been examined and further four witnesses in
the charge-sheet have also been given up and their evidence has been
withheld without any reason.
30. The I.O. in his evidence has further stated that he learnt that one
of the son of the informant, i.e., Upendra Rai (P.W. 4) is injured and is in
Narwara Hospital for treatment and he proceeded to Narwara Hospital and
27
took the injury report of the injured Upendra Rai (P.W. 4) at 8:00 A.M on
04.03.1994 which has been marked as Ext. 1/1. Again he proceeded from
Narwara Hospital and reached the place of occurrence at 9:30 A.M. and
recorded the further statement of the informant and thereafter recorded the
statement of Prabhu Rai (P.W. 2), Kashi Rai (P.W. 1) and Surendra Rai (not
examined) and others and submitted the charge-sheet after due investigation
on receipt of the post-mortem report and the injury reports.
31. However, in his cross-examination P.W. 7, I.O. has proved Ext.
A fardbeyan of Upendra Rai recorded by this witness in his writing and has
stated that on 04.03.1994 at 3:00 A.M in the morning he recorded the
statement of Upendra Rai son of Bunilal Rai at village Tulsi Nagar at
Narwara Hospital and this Upendra Rai is injured of this case and has stated
that the fardbeyan is in his writing and signature and after recording the
fardbeyan he read it over to Upendra Rai who signed on his fardbeyan which
bears the signature of witnesses Gajendra Rai, and Surendra Rai and Harendra
Rai (not examined). He has stated he did not institute the case on the basis of
this fardbeyan of Upendra Rai (P.W. 4) and has stated that he has recorded
the fardbeyan of Raj Kali Devi on 04.03.1994 at 3:30 A.M at village Tulsi
28
Nagar. He has further stated that on 04.03.1994 at 2:30 A.M the Chaukidar
7/3 Ramchandra Rai informed that someone has killed Bunilal Rai. He has
recorded the statement of the Chaukidar 7/3 Ramchandra Rai in paragraph 81
of the case diary (marked as Ext. B) and he has further stated that on the
statement of the Chaukidar he had been to the place of occurrence and seen
the deceased and injured and then came to the Police Station. He has also
mentioned that the distance of the Police Station and the Narwara Hospital is
about two kilometers south connected with a pitch road and distance from
Narwara Hospital to the Bathan of Bunilal Rai is about two Kilometer south
west and the distance between the place of occurrence and police station is
about one Kilometer.
32. Investigating Officer (P.W. 7) has again been examined on recall
by the prosecution and has stated that on 04.03.1994 he went to the Narwara
Hospital and recorded the fardbeyan of Upendra Rai at 8:00 A.M but in his
cross-examination he has stated that in case diary he has only mentioned
about the recording of the statement of Upendra Rai and not about recording
of the fardbeyan.
29
33. Hence, from the evidence of P.W. 7 it is apparent that the police
proceeded on the information received from the Chaukidar 7/3 Ramchandra
Rai after recording the information in station diary entry as entry no. 61 dated
04.03.1994. However, neither the Chaukidar has been examined as
prosecution witness nor the station diary entry 61 dated 04.03.1994 has been
proved or brought in evidence which is earliest version.
34. However, Ramchandra Rai has been examined as D.W. 1 by the
defence and his statement recorded by the police has been proved as Ext. B
(para 81 of the case diary). D.W. 1 has stated that on the sound of firing he
went to the Bathan of Bunilal Rai and then saw Bunilal Rai lying dead and
Upendra Rai injured by firearm. He has further stated that Upendra Rai
disclosed that he did not identify anyone who fired and then he came to the
police station. In cross-examination, he has stated that Upendra Rai was
injured by firearm and was speaking, though he was speaking less and he was
immediately taken to hospital and his statement recorded in para 81 of the
case diary is also to that effect. Hence, from evidence it is apparent that D.W.
1 reached at the place of occurrence just after the occurrence and found
Upendra Rai in injured stage. Neither Upendra Rai nor any person disclosed
30
the name of any of the accused persons and he rather stated that he did not
identify the culprits.
35. P.W. 1 in para 6 of his evidence has stated that the Chaukidar of
this village is Ramchandra Rai and just after an hour of the occurrence he
came at the place of occurrence but none of the family members disclosed
him about the occurrence. P.W. 3 also in her evidence in para 19, 20 and 21
has stated that Ramchandra Rai was the Chaukidar at the time of occurrence
and she did not disclose anything to Ramchandra Rai prior to coming of
Daroga. P.W. 3 has further stated in her evidence that after the occurrence 5-
10 persons of the villager had come on Halla but she did not disclose the
name of accused person to anyone prior to the arrival of police at the place of
occurrence and hence the prosecution version also supports the version of the
defence witness D.W.1 that the prosecution party did not disclose the name of
the accused persons either to Chaukidar or to any of the person who reached
the place of occurrence. Hence, the prosecution case about manner of
occurrence and implication of accused has not been corroborated by any
independent or reliable evidence.
31
36. P.W. 5 is Sia Devi a co-villager. She has deposed that in the
evening on the date of occurrence she was going to meet the call of nature
then saw Chhuna Rai, Vishwanath Rai, Kishori Rai, Jitendra Rai and
Dharmendra Rai were going on three motorcycles towards the house of
Chandrashekar Rai. However, she has further stated that soon thereafter she
heard the sound of firing of one shot and then she went there and found
Bunilal Rai dead and his son Upendra Rai in injured state and she also saw
there Raj Kali Devi and her two other sons.
37. However, the evidence of this witness is not of much
significance. As per her evidence the time of occurrence has not been
corroborated and although she claims to have gone to the place of occurrence
after hearing the sound of firing but she has not stated that any of the family
members of the deceased disclosed the name of the accused persons.
38. Hence, taking into consideration the entire evidence, i.e., P.Ws.
1, 2, 3 and 4, who have come forward to support the prosecution case as
mentioned in the fardbeyan of the informant P.W. 3, it is noticed that the
evidence of the four witnesses are verbatim the same in their Examination-In-
Chief and they deposed in a parrot like manner and are not reliable. Whereas
32
the evidence of P.W. 1 suffer from contradiction as he has not stated the name
of any of the accused persons rather stated that he did not identify any person
and someone has killed his father, the evidence of P.W. 4 also suffer from
contradiction. Moreover, the prosecution in this case has drawn two
fardbeyans. The fardbeyan Ext. A was recorded at 3:00 A.M but the First
Information Report has not been drawn on the said fardbeyan. However,
during trial the prosecution developed an explanation that this fardbeyan was
really recorded at 8:00 A.M when the police reached at the Narwara Hospital
after recording the fardbeyan of Ram Kali Devi P.W. 3 at the place of
occurrence. However, it does not stand to reasons that when the Investigating
Officer recorded the fardbeyan of Ram Kali Devi at 3:30 A.M which was sent
for lodging the First Information Report then what was the occasion to record
Ext. A, the further fardbeyan of Upendra Rai (P.W. 4). Hence, the plea that
Ext. A was recorded at 8:00 A.M is not acceptable. It is an attempt to
reconcile the inherent improbability in the prosecution case which casts a
serious doubt about prosecution case. If the fardbeyan Ext. A was recorded at
3:00 A.M prior to the recording of the Ext. 2, the fardbeyan of Raj Kali Devi
then the fardbeyan of Raj Kali Devi on the basis of which First Information
33
Report was drawn becomes doubtful and is hit by Section 161 of the Cr.P.C.
Moreover, the presence of P.W. 3 at the time of occurrence becomes doubtful
in view of Ext. A in which Upendra Rai stated that he was sleeping at Bathan
along with his two brothers but does not mention that P.W. 3 was also
sleeping with them. Hence, the prosecution case in fardbeyan Ext. 2 becomes
doubtful.
39. Moreover, recording of the two fardbeyans in the same case
itself creates a doubt that there is some hanky panky in the investigation of
the prosecution case. It is apparent that the police proceeded at the place of
occurrence on the information received from the Chaukidar 7/3 Ramchandra
Rai D.W. 1, who had given the statement after due verification of the
occurrence by himself going at the place of occurrence but the said statement
of Ramchandra Rai which was recorded in the station diary has not been
proved or brought on record. The said Ramchandra Rai has not been
examined as a witness by the prosecution but by the defence as D.W. 1 who
has stated that after the occurrence he went to the place of occurrence and
found the deceased and the injured Upendra Rai and Upendra Rai did not
disclose the name of the any accused persons and rather disclosed that he
34
(Upendra Rai P.W. 4) did not identify the culprits. Witnesses in the fardbeyan
of Upendra Rai, Ext. A, who are also charge-sheet witnesses were not
examined. The I.O., P.W. 7 has proved Ext. A with specific assertion that the
fardbeyan of Upendra Rai P.W. 4 was recorded at 3:00 A.M. at the Narwara
Hospital. Ext. A mentions the name of only ten accused persons whereas the
fardbeyan of P.W. 3 recorded at 3:30 A.M on same mentions the name of 21
persons with specific roles attributed to some of them.
40. Hence, it is apparent that at the earliest point of time just after the
occurrence the Chaukidar and the villagers reached to the place of occurrence
but none disclosed the name of any of the accused persons and thereafter
through Ext. A development was made and ten persons were named as
accused at 3:00 A.M. Thereafter the fardbeyan of P.W. 3 at 3:30 mentions the
name of 21 persons with specific roles attributed to some of the accused
persons. The prosecution case has further developed giving more specific
role. Hence, the prosecution story developed from stage to stage and there is
no corroboration to the evidence of P.Ws. 2 and 3 in any material particular
either about the manner of occurrence or about the implication of accused
persons. Even the medical evidence does not corroborate the prosecution case
35
as no corresponding Farsa injury was found on nose of deceased. The
prosecution case is that the deceased on receiving firearm injuries ran from
one room to another and then fell down but there is serious doubt that person
receiving such injury cannot move. Prosecution case is, thus, clearly not
reliable.
41. It is a matter of great concern and regret that a cold blooded
murder has to go unpunished but it is well established that there is much
distance between may be proved and must be proved and the prosecution
must corer this distance by cogent, reliable, credible and unimpeachable
evidence. However, the prosecution has not been able to prove the charges
beyond reasonable doubt by cogent, reliable, trustworthy and unimpeachable
evidence. Hence, for the reasons mentioned above the appellants are entitled
to be acquitted of all the charges.
42. Having regard to all the facts and circumstances, I find and hold
that the prosecution has not been able to prove the charges beyond reasonable
doubts and the accused persons are entitled for acquittal. The learned lower
court has not gone into several important aspect of the matter noticed earlier
and hence the order of conviction and sentence recorded by the learned lower
36
court is hereby set aside and the appellants are acquitted of all the charges
leveled against them. Appellants, namely, Ramanand Mahto, Binda Rai,
Dharmendra Rai and Chhuna Rai who are in custody are ordered to be
released forthwith, if not required in any other case and rest of the appellants
are discharged from all the liabilities of the bail bonds, if any.
(Gopal Prasad, J.)
Shiva Kirti Singh, J. – I agree.
(Shiva Kirti Singh, J.)
Patna High Court, Patna
Dated, The 17th May, 2011
A.F.R./Kundan