JUDGMENT
S.N. Jha, J.
1. Appellant Nos. 1 and 2, namely, Ram Bilash Rai and Sattan Rai respectively, have been convicted under Section 302 of the Indian Penal Code (for short Penal Code’) and have
been sentenced to undergo imprisonment for life. Appellant Nos. 3 and 4, namely. Ram
Pratap Rat and Budban Rai respectively, have been convicted under Section 302/34 of the Penal Code and have been sentenced to undergo imprisonment for life.
2. Appellant No. 4, Budhan Rai, was also charged under Section 302 read with Section 114 of the Penal Code, but he was acquitted of the said charges.
3. The prosecution case, in short, is that on 25th June, 1986 at about 11,00 P. m. one Jajlal Rai (P. W. 10) of
Village-Supaul, Police station, Angarghat in the district of Samastipur, lodged a fardbeyan (Ext–2) which was recorded by the Officer Incharge of Angarghat Police Station Jagroop Ram (P. W. 12) at Jailal’s house, alleging, inter alia, that deceased
Baidhyanath Rai had taken BALLA (settlement) of one mile of land by the side of railway line on auction from the Railways and on account of which a dispute was coming in between the deceased on the one hand and the accused Ram Bilash Rai (Appellant No. 1) and Ram Pratap Rai (Appellant No. 3) sons of Budhan Rai (Appellant No. 4) on the other. It appears that on the same day at about 2.00 p. m. the accused have quarrelled with the deceased for grazing their cattle in the BALLA, which was some how averted at that time. Appellant No. 1, Ram Bilash Rai, wanted that his cattle should also graze in the laid BALLA without any payment, which was the cause of the said quarrel.
4. Further case of the prosecution is that on that very date at about 7.30 p. m. all the four appellants came at the house of the deceased and appellant No. 1, Ram Bilash Rai, started stabbing the deceased Baidyanath Rai, The deceased tried to defend himself by his hands and received some injuries in his hand, but appellant No. 4, Budhan Rai, caught hold of his left hand and appellant No. 3, Ram Pratap Rai, caught hold of his right hand and on the order of appellant No. 4. Budhan Rai, to kill the deceased, Appellant No. 1, Ram Bilash Rai, inflicted a chhura blow on the panjara and Appellant No. 2, Sattan Rai, inflicted a chhura blow on the chest of the deceased Baidyanath Rai, as a result of which he fell down on the ground and all the appellants left the place of occurrence. It is stated in the fardbeyan that P. W. 1 Madan Rai, P. W. 2, Gulab Rai @ Gulai Rai, P.W. 5, Ram Bhujhwan Rai and Upendra Rat (not examined) have seen the occurrence. The occurrence took place at the darwaja of the deceased and the appellant No. 1, Ram Bilash Rai, had injured his palm from his own deggar during the commission of the crime. The fardbeyan bears the
thumb-impression of the informant (P. W. 10). Gulab Rai @ Gulai Rai (P. W. 2) and Ram Bhujawan Rai (P. W. S) have also put their signatures on the fardbeyan.
5. On the basis of the said fardbeyan a formal first information report (Ext. 3) was recorded and Angarghat Police Station Case No. 26 dated 26–6–1986 was registered against the appellants.
6. The defence case is that they have been falsely implicated in this case. As matter of fact, no settlement was ever taken by the deceased from the Railways and the entire story of dispute in between them and the deceased for grazing the catties in the lands in question is imaginary and has been concocted for implicating them.
7. The prosecution in order to substantiate the charges levelled against the accused persons has examined altogether 13 witnesses. Out of them, P. W, 1 (Madan Rai), P. W. 2 (Gulab Rai @ Gulai Rai), P. W. 5 (Ram Bhujawan Rai) and P. W. 6. (Devki Devi) are eye witnesses including the informant (P. W. 10 Jailal Rai). P. W. 7 (Sudama Devi) is a tendered witness and the mother of the deceased. P, W. 3 (Avinash Prasad Singh), P. W. 4 (Khurshid Alam), P. W. 8 (Shib Sharan Singh), P. W. 9 (Rajeshwar Prasad) and P. W. 13 (Bhola Rai) are formal witnesses, who have proved certain papers. P. W. 11 is Dr. Anil Chandra Sinha, who held post mortem examination on the dead body of the deceased. P. W. 12 is the Investigating Officer of the case. He has also proved the inquest report (Ext. 7) and forwarding note sent to the court alongwith the arrested accused Ram Bilash Rai and Sattan Rai (Ext, 8).
8. The defence has also examined one witness Sukhdeo Rai in support of their case that there had been a quarrel between P. W. 2 and the appellant, Ham Bilash Rai with respect to a sohjan tree and there had been panchayat (arbitration) Jo solve the dispute, in which a finding was given by the punches (arbitrators) that the said sohjan tree belonged to appellant Ram Bilash Rai and P. W. 2 (Gulab Rai) was fined Rs. 101.
9. The trial court on consideration of the evidence and materials available on the record came to the conclusion that the prosecution has been able to prove the charge under Section 302 of the Penal Code against Accused Ram Bilash Rai and Sattan Rai and charge under Section 302/34 of the Penal Code against accused Ram Pratap Rai and Budhan Rai and finding them guilty under the aforesaid sections, convicted and sentenced them, as indicated above. Hence this appeal.
10. The learned Counsel appearing on behalf of the appellants has contended that the fardbeyan (Ext. 2) on the basis of which a formal first information report (Ext. 3) was drawn up cannot be treated as a first information report because it has come in the evidence that the informant (P. W. 10) had gone to the police station and the
so-called first information report is a statement made during the course of investigation and can be used only for contradiction by the accused under Section 162 of the Code of Criminal Procedure. Therefore, the conviction based on such a first information report cannot be sustained in the eye of law and fit to be set aside. It was further contended that the conviction is also bad in the eye of law on account of non–examination of number of material witnesses, namely, Upendra Rai, who has been named in the first information report as a eye witness, the Choukidar and the Dafadar, who had come at the place of occurrence, and the two Station Masters of Desua and Angarghat Railway Station, According to the learned Counsel, only partisan and interested witnesses have been examined and, therefore, their evidence should be discarded and it is not safe to rely on the testimony of only such witnesses.
11. In support of his contentions the learned Counsel has drawn my attention to the evidence adduced in this case,
12. Before coming to the evidence, it is relevant here to give a geneological table to show the relationship between the appellants on the one hand and the deceased on the other. Ram Chandra Rai and Budhan Rai (appellant No. 4) are full brothers.
Banshi Rai
————————————————–
! !
Ram Chandra Raj Budhan Rai
Sundari Devi, wife. Appellant
P.W. 7 No. 4
!
----------------------------------------------------
! ! ! ! !
Baidyanath Ram Bhujawan Jailal Rai Raghunath !
(deceased) Rai (informant) X !
(P.W. 5) ------------------------
! ! !
Dewaki Devi Ram Bilas Rai Ram Pratap Rai
(wife) Appellant No. 1 Appellant No.3
P.W.6 !
Sattan Rai
Appellant No.2
13. The above geneological table shows that the appellants and the informant alongwith the P. Ws. are members of the same family.
14. According to the prosecution case, as given by the informant (P. W. 10), there was some quarrel between the parties on the date of occurrence at about 2.00 p.m. and some how that was averted, but at about 7.30 p.m. all the appellants came at the darwaja of the deceased and Appellant Nos. 1 and 1 started stabbing the
deceased. The deceased tried to defend himself and in the attempt received injuries on his palm, but in the meantime,
Appellant No. 4, Budhan Rat, caught hold of his left hand and appellant No. 3, Ram Pratap Rai, caught hold of his right hand and then appellant No. 4, Budhan Rai, asked his sons and grand son to kill the deceased by saying “Ab Kaya Dskhta Hat, Maro Beta, Yahi Mauka Hai. Khoon Pachana ke Liye Ham Haiya Hain”. On this utterance appellant No. 1 Ram Bilash Rai inflicted a chhura blow on the left panjara of the deceased and appellant No. 2 Sattan Rai inflicted chhura on the chest of the deceased Baidyanath Rai. Baidyanath Rai fell on the ground and all the appellants left the place of occurrence.
15. P. W. 10, who is the informant of the case, has deposed in the court that on the date of occurrence at about 7.00 p. m. he was on the verandah of his house, which is facing east. There is a Sahan in front of the verandah, which is an open space. His brother deceased Baidyanath Rai was sitting on a cot. His brother (deceased) had asked his wife (P. W. 6) to bring his food, so that he would go to his duty. At that very time all the four appellants
reached there. Appellants Ras Bilash and Sattan were armed with chhura. Appellants Ram Pratap and Budhan were empty handed. Appellant Ram Bilash asked the deceased as to whether he will allow them to graze their cattle in the field in question or not, on which the deceased, Baidyauath replied to pay the amount and then they will allow you to graze cattle. At this, appellant Ram Bilash and Sattan inflicted chhura blow on the deceased Baidyanath. The deceased tried to defend himself but appellant Ram Pratap caught hold of his right hand and appellant Budhan Rai caught hold of his left hand and ordered the sons to kill him. On this Sattan Rai inflicted chhura blow on the chest and Ram Bilash inflicted chhura blow on his panjara. After receiving the injuries Baidyanath fell down and died. This witness has further stated that P. Ws. 1, 2, 5, 6 (wife of the deceased) and 7 (mother of the deceased) had also seen the occurrence.
16. In his evidence it has also come that P. W. 2 Gulab Rai went to Desua Railway Station and telephoned the Angarghat Police Station and Officer Incharge came at his darwaja, where he recorded his statement. He hits further stated that his brother Baidyanath Rai had taken the ball a for grazing purposes from Bhola Rai and Bhola Rai had taken the settlement from Gayam Rai, who had taken the settlement from the Railway authorities.
17. P. Ws. 1, 2 and 5 are first information report witnesses, as I have already indicated above. P. W. 1 has deposed in the court that his darwaja and darwaja of the deceased Baidyanath is nearby to each other intervened by a road and the deceased’s darwaja is west to his darwaja. At the time of occurrence the deceased was at his darwaja. All the four appellants came there and started quarreling with the deceased on account of grazing of their cattle. Appellant Sattan Rai inflicted chhura blow on the deceased Baidyanath. The deceased tried to defend himself but appellant No. 4. Budhan and appellant No. 3, Ram Pratap, caught hold of his hands. According to his statement appellant No. 1 inflicted chhura blow in the panjara and appellant Sattan inflicted chhura injury on the chest, as a result of which Baidyanath fell down and died. This witness has fully supported the statement of P. W. 10, the informant, regarding the manner of occurrence. In his cross–examination, he has said that on the date of occurrence, he had gone to work in village Dadhia, which is at a distance of one mile from his village, as a mission, but returned in the evening at about 5.00 p. m. He has also heard the hulla of dauro dauro, mardiya. This witness also saw these four appellants running away from the place of occurrence. He has also said that he saw blood near the cot on which there was no carpet or bed sheet.
18. The learned Counsel appearing on behalf of the appellants has drawn the attention of the court to his statement made in paragraph No. 14 of his cross–examination, in which he has stated that P. W. 5, Ram Bhujawan, and P. W. 10, Jailal the informant, had gone to police station for giving information regarding the occurrence and brought the Officer In charge at the Place of Occurrence. Therefore, the fardbeyan given by informant at his darwaja on which the formal first information report was drawn up is not
the first information report and it may be treated as the statement given during the course of investigation. But both the P. Ws., namely, P. W. 5 and 10 had denied in their statement in the court to have gone to the police station for giving any information. P. W. 10 has rather stated that P. W. 2 had gone to Desua Railway Station to send the information to Angarghat Police Station by telephone and on that, information the Officer Incharge came and recorded the statement of P. W. 10. This aspect will be dealt with when I will consider the evidence of the Investigating Officer at the appropriate place.
19. P. Ws. 2 and 5 have fully supported the case of the prosecution so far as the genesis and manner of the prosecution case is concerned, P. W. 2 is also a neighbor of the deceased Baidyanath Rai. He has stated that the deceased had come to him and asked for tobacco. Thereafter he had gone to ease himself, took bath at a boring and came to his darwaja and sat on the cot. Thereafter the deceased ordered his wife to bring meal for him as he had to go to duty. At that very time appellant No. 4 alongwith other appellants came there. Appellant Budhan and Ram Pratap were empty handed and appellants Ram Bilash and Sattan were armed with chhura, Ram Bilash and Sattan told that they would graze their cattle on the land in question, on which Baidyanath replied “first pay the rent and then graze your cattle.” On this there was an altercation and the appellants flashed their chhuras. Baidyanath attempted to defend himself but appellant Budhan and Ram Pratap caught hold of his left and and right hand respectively and appellant Ram Bilash inflicted chhura blow on his panjara and appellant Sattan inflicted chhura blow on his chest. Thereafter Baidyanath died within two minutes.
20. This witness has stated that there after he went to the Desua Bhagwanpur Railway Station and informed the Station Master about the incident and requested to inform the Angarghat Police Station on telephone. The Officer Incharge came at the place of occurrence’ at about 11.00 in the night and recorded the statement of P. W. 10, Jailal Rai. He has also stated that he saw the occurrence from his darwaja, which is just near the Sahan of the deceased. In his cross–examination he has stated that he also stated the names of the assailant to the Station Master and it is not correct to say that he had not named the assailants to the Station Master. There is nothing in his cross-examination to discredit this witness.
21. P. W. 5 is the own brother of the deceased Baidyanath. He has also fully supported the prosecution case to the genesis and manner of occurrence. He has stated the Baidyanath was sitting on a cot in the evening at about 7.00 p.m. in the Sahan. The appellants came there and there was some altercation regarding the grazing of bufallows in the land in question. According to this witness, deceased Baidyanath told the appellants that he has taken the land for grazing purposes on settlement. You also pay the amount and graze your cattle. The appellants told that they would not pay the amount. On this issue there was altercation. Appellant Ram Bilash and Sattan inflicted chhura blows on Baidyanath, which he tried to defend on which Budhan Rai caught hold of left hand of the deceased and Ram Pratap caught hold of right hand of the deceased. Appellant Budhan ordered to kill the deceased as they were ready to face the consequences of murder. On his utterance, Sattan inflicted chhura blow on the chest and Ram Bilash inflicted chhura blow on the panjara of the deceased and the deceased fell down and died.
22. In his deposition this witness has said that Baidyanath and his courtyard is the same, but their rooms are separate and they live separately. On the date of occurrence, he was sitting at his darwaja and he was also examined by the Investigating Officer, but the learned Counsel appearing on behalf of the appellants has said that this fact has been contradicted by the Investigating Officer, P. W. 12. He has denied to have stated before the Investigating Officer that Ram Bilash and Sattan had thrown the deceased on the ground. This witness has also said that panjara injury was very grievous and the intestine had come out. He has also said that the genesis of the occurrence was the altercation for grazing buffaloes in the field by the side of the railway line. This witness has also stood the test of cross–examination.
23. P. W. 6 is the wife of the deceased. She has stated that her husband had ordered her to bring food as he had to go to his duty. While she was coming with the food from the courtyard and reached at the darwaja, she saw all the four appellants there, and having altercation with her husband. According to her statement as well her husband told them to deposit the money and then graze the cattle in the Bulb, but the appellants said that they would not pay the amount. She has also narrated that Budhan and Ram Pratap caught hold of the hands of her husband and Sattan and Ram Bilash inflicted chhura injuries. Her husband fell down after receiving the injuries and died then and there. She has said in her deposition that she has also stated to the Investigating Officer that while she was coming with the food she saw all the appellants quarrelling with her husband. She had at once rushed to inform her brother–in–law (bhainusur) Ram Bhujawan, P. W. 5. She saw the appellants fleeing away after killing her husband. She cried. On her hull a many persons, males and females came there. She became unconscious after seeing the death of her husband. She has denied the suggestion of the defence that she hat not seen the occurrence.
24. P. W. 7, the mother of the deceased, has been tendered by the prosecution. But in her cross–examination she hat said that she bad seen with her own eyes that the appellants Ram Bilash, Sattan, Budhan and Ram Pratap had killed her son.
25. P. W. 13 has stated in his deposition that he knew one Ram Jinis Rai, who had taken the settlement of Balla from the Railways. Out of the said land, he settled one mile Balla of railway line with him and out of the said one mile, P. W. 13 had sold half to the deceased, Baidyanath Rai for a sum of Rs. 320/–. P W. 13 has proved Ext. 9 and 9/1. which are the documents of settlement which show that the settlement was made by P. W, 13 in favor of the deceased Baidyanath. Therefore, the version of the defence that the deceased had not taken the settlement cannot be accepted.
26. All these statements, discussed above, in my opinion, have established that the prosecution has proved the genesis and manner of the occurrence and their statements cannot be discarded.
27. P. W. 11 is the doctor, who held post mortem on the dead body of the deceased and found the following ante mortem injuries on the person of the deceased:
(i) Penetrating wound 1 “x 1/2″ thorasic cavity deep on left side of chest 3” below nipple.
(ii) Incised wound 3 “x 2 1/2” on the left side of chest below injury No. 1.
(iii) Incised wound 2″ x 1/2″ skin deep between right thumb, and index finger. On deep dissection the thorasic cavity containing blood and clots on the left side. The pleura and the left lung was punctured in the lower portion and the left verticle of the heart alongwith pericardium was also punctured. The heart was empty.
The doctor has also said that the instrument used was sharp cutting substance, may be dagger. According to him the death was caused due to shock and hemorrhage of the aforesaid injuries. The doctor has also proved the Post Mortem Report, which is Ext. 6 in my opinion, the statement of the doctor has also proved the prosecution case regarding the manner of occurrence.
28. P. W. 12 is the Investigating Officer of the case. He has stated in his deposition that he received a written memo from the Station Master, Angarghat Railway Station in the police station at about 21.45 hours on
25-6-1986 regarding the murder in village Supaul. He made an entry in the Station Diary and started for village Supaul with A. 8. I. Kameshwar Singh and some Constables. He reached in the village and recorded the statement of Jailal P W 0. After recording the statement he took his
thumb-impression in presence of two witnesses, who also put their signatures. Thereafter the Investigating Officer inspected the place of occurrence. According to him, the place of occurrence is the tiled roof darwaja of deceased Baidyanath, which is east facing. There is a Sahan in front of the drawaja, which, is said to be the place of occurrence. He has also found drops of blood at the place of occurrence. He seized the blood stained earth from the place of occurrence and prepared an inquest report and sent the dead body to Samastipur Sadar Hospital for post mortem through Constable No. 291, Mukti Prasad Singh and Chaukidar Sone
Lal Paswan. In the same night he arrested accused Ram Bilash Rai and Sattan Rai while they were fleeing. There is a kachcha road east to the place of occurrence, which runs from north to south towards railway line and deceased’s Balkan is also just adjacent north to the place of occurrence. He has further stated that during the course of investigation, he learnt that while the deceased was sitting on the cot the appellants caught hold of him and inflicted chhura blows on his person, as a result of which he died. He has also deposed that informant Jailal had shown him the settlement papers regarding the land in question. Angarghat Police Station is near Angaraghat Railway Station and village Supaul in near Desua Railway Station. Desua Railway Station is west to Angraghat Railway Station. In his cross–examination he has said that he received an information that a man of
village-Supaul has been assaulted with Bhala. He has further stated that name of the assailant was not given in the written memo. When the Investigating Officer reached at the place of occurrence the people of the Tola had come there.
29. It was vehemently argued on behalf of the appellants that the written memo or the Station Diary entry has not been produced by the prosecution. Therefore, an adverse inference can be drawn against the prosecution’ case. Since some written report bad been received by the Officer Incharge of Angarghat Police Station, that should be treated as the first information report.
30. In the impugned judgment, the learned Sessions Judge has dealt with this aspect of the argument, and relying on decision of the Hon’ble Supreme Court in the case of Baiju alias Bharosa v. State of Madhya
Pradesh 1978 BLJR 54 and Tapinder Singh v. State of Punjab and Anr. has rightly held that non-production of such message will not affect the merit of the case, were the prosecution has adduced other satisfactory evidence to establish the guilt of the accused.
31. In the case of Tapinder Singh (supra), It was held that cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant fact and circumstances of each case In this connection, reference may also be made to (State of U.P. v. P.A. Madhu), where it has been held that the telephonic message to police that gun shots were being; fired at the deceased, such cryptic information sent at the moment of utter choas and confusion during the occurrence is not an P.I.R.
Non-mention of assailants name, therefore, cannot discredit the prosecution case. In the instant case, it is an admitted position that the message sent by the Station Master to the Officer Incharge did not contain the name of the assailant nor contain the name of the person who gave the information. Therefore, in view of the aforesaid decisions, I do not find force in the submissions advanced by the learned Counsel appearing on behalf of the appellants on this point.
32. It was next contended that number of material witnesses have not been examined, including the Choukidar, Dafadar, the two Station Masters and Upendra, who was named in the first information report as a witness As such the conviction cannot be sustained only on the evidence of partisan and highly interested witnesses. True, it is well–settled that witnesses
essential to the unfolding of the narrative on which the prosecution is based must be examined, but in the instant case, as I have already indicated above, most of the eye witnesses, who are important witnesses for the un
flooding of the prosecution case, have been examined and their testimony have been accepted and
non-examination of Upendra and other persons will not affect the prosecution case.
33. There is no hard and fast rule that the evidence of partisan witnesses cannot be accepted. Of course, it is subjected to strict and careful scrutiny. The Hon’ble Supreme Court in the case of State of U.P. v. Ram Swarup and Ors. has held as under:
It is wrong to ignore the testimony of eye by stating that they are either partisan witnesses or close relatives of the deceased. There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself doss not render their evidence false. Partisanship by itself is no ground for discarding sworn testimony. Interested evidence is not necessarily false evidence. In small village where people are divided on caste basis, the prosecution may not be able to get any neutral witness. Even if there is any such neutral witness, he will be reluctant to come forward to give testimony to support one of the other sides. Therefore, merely because the eyewitnesses are associated with one faction or the other, evidence should not be discarded. It should, no doubt, be subjected to careful scrutiny and accepted with caution.
34. Taking into consideration all the facts and circumstances of the case, it can be safely held that the case against the appellants have been proved beyond all reasonable doubts and the order of conviction and sentence passed by the court below on the appellants, in my view, cannot be set aside.
35. In the result, the appeal is dismissed. The appellants are directed to surrender in the trial court, if not already in jail, immediately to serve out the sentences awarded to them by the trial court, failing which the trial court Will take all coercive steps to apprehend them to serve out the sentences already awarded. The bail bonds of the appellant Nos. 3 and 4 are cancelled.
R.N. Lal, J.
36. I agree.