{"id":104454,"date":"2011-08-12T00:00:00","date_gmt":"2011-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deo-rai-vs-state-of-bihar-on-12-august-2011"},"modified":"2014-11-08T04:04:31","modified_gmt":"2014-11-07T22:34:31","slug":"deo-rai-vs-state-of-bihar-on-12-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deo-rai-vs-state-of-bihar-on-12-august-2011","title":{"rendered":"Deo Rai vs State Of Bihar on 12 August, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Deo Rai vs State Of Bihar on 12 August, 2011<\/div>\n
Author: Gopal Prasad<\/div>\n
                             Criminal Appeal (SJ) No.336 of 1998\n\n                                                ****\n<\/pre>\n
                   Against the judgment, dated 17.08.1998, passed by Shri Ravi Nath
\n                   Verma, Additional Sessions Judge, Vi, Chapra, in S. Tr. No. 267 of
\n                   1997<\/span><\/p>\n
                                                ****<\/p>\n
                   Deo Rai, son of Bhagwan Rai, resident of village Bramhpur (Naya
\n                   Basti) P.s. Bhagwan Bazar, district Saran (Chapra)
\n                                                   .. Appellant<\/p>\n
                                               Versus<\/p>\n
                   The State Of Bihar                  .. Respondent<\/p>\n
                                                ****<\/p>\n
                   For the Appellant                   .. M\/S Umesh Kumar Verma, Munna
\n                                                          Prasad Singh & Chandrashekhar
\n                                                          Sharma, Advs.\n<\/p>\n
                   For the Respondent                  .. Mr. Sujit Kumar Singh, APP<\/p>\n
                                                ****<\/p>\n
                                           PRESENT<\/p>\n
                     THE HON’BLE MR. JUSTICE GOPAL PRASAD<\/p>\n
Gopal Prasad, J.                  Heard the counsel for the appellant and the State.<\/p>\n
                                  2. The appellant has been convicted under Section 364\/34<\/p>\n
                   of the Penal Code and sentenced to undergo rigorous imprisonment for<\/p>\n
                   seven years.\n<\/p>\n
                                  3. The prosecution case as alleged in the fardbeyan by the<\/p>\n
                   informant, Brahmdeo Mahto, P.W. 6, that on 08.09.1996 at 12.00 in the<\/p>\n
                   noon ten persons armed with pistol and gun came on a boat.          They<\/p>\n
                   came to the darwaza of the informant and abducted Hardeo Mahto,
\n                                   2<\/span><\/p>\n
younger brother of the informant, aged twenty years, at the point of<\/p>\n
pistol. They threatened to kill if any one comes in the way.        They<\/p>\n
kidnapped his brother on the boat to the south. The informant and<\/p>\n
others could not speak anything out of fear. The informant identified<\/p>\n
amongst the miscreants Kamal Rai, Lal Babu Rai, Inder Rai,<\/p>\n
Deonandan Rai, Sri Krishun Rai, Deo Rai and Jita Rai, four were<\/p>\n
armed with country made pistol and the informant could not identified<\/p>\n
three persons who were armed with gun. The, further, case is that co-<\/p>\n
villagers Paras Mahto (not examined), Chandrika Mahto (P.W. 3),<\/p>\n
Ramnandan Mahto (P.W. 2), Dhurva Mahto (P.W. 4), and the father of<\/p>\n
the informant (not examined) saw the occurrence. Informant believed<\/p>\n
that they have abducted the brother of the informant to kill, reported the<\/p>\n
matter to police to take steps.\n<\/p>\n
             4. On the fardbeyan the first information report lodged and<\/p>\n
after investigation the charge sheet submitted, cognizance taken and<\/p>\n
case committed to the Court of sessions and after commitment the<\/p>\n
charge was framed and trial proceeded.\n<\/p>\n
             5. During the trial eight persons were examined as<\/p>\n
witnesses, who are P.W. 1 Lal Bahadur Mahto, P.W. 2, Ramnandan<\/p>\n
Mahto, P.W. 3, Chandrika Mahto, P.W. 4 Dhruva Mahto, P.W. 5,<\/p>\n
Urmila Devi, P.W. 6, Brahmdeo Mahto, P.W. 7, Raj Kumar Mahto and<\/p>\n
P.W. 8, Shashi Shekhar Sharma, who is the investigating officer. P.W.<\/p>\n
6 is the informant. The trial Court after considering the evidence of<\/p>\n
P.W. 6, the informant, having supported the prosecution case along<\/p>\n
with evidence of P.Ws. 1, 2, 3 and 5 and further considering the
\n                              3<\/span><\/p>\n
evidence of P.W. 7, who scribed the written report on the basis of<\/p>\n
which first information report lodged and the evidence of investigating<\/p>\n
officer, who has given a graphic description of the place of occurrence<\/p>\n
and confirmed the area surrounded by water of river and, further,<\/p>\n
taking into consideration the consideration of oral and documentary<\/p>\n
evidence of the defence and convicted and sentenced the appellant, as<\/p>\n
stated above.\n<\/p>\n
            6. The learned counsel for the appellant, however,<\/p>\n
contended that five persons have been named by the informant as<\/p>\n
witness in the fardbeyan out of which Paras Mahto and father of the<\/p>\n
informant has not been examined as witness. It has, further, been<\/p>\n
contended that all the persons who examined are members of same cast<\/p>\n
and no person of other community has come to support the prosecution<\/p>\n
case and placed reliance upon 1985 P.L.J.R., 341 (Prabhu Rai & Ors.<\/p>\n
Vrs. The State of Bihar) and also suggested that motive and intention<\/p>\n
has not been established and has placed reliance on A.I.R. 1940 Cal,<\/p>\n
561 (Upendra Nath Ghose Vrs. Emperor).            It has, further, been<\/p>\n
contended that there are contradiction in the evidence of the witnesses.<\/p>\n
It is, further, contended that P.W. 1 has stated that he has come to<\/p>\n
depose at the information of the Advocate, P.W. 2 has stated that he<\/p>\n
come to depose without notice, at the instance of Kailash and, hence,<\/p>\n
the prosecution has not been able to prove it’s charge beyond<\/p>\n
reasonable doubt.\n<\/p>\n
            7. The learned counsel for the State, however, contends<\/p>\n
that motive is relevant with the case is for circumstantial evidence and
\n                               4<\/span><\/p>\n
when the evidence of the witnesses says are clearly inspire confidence<\/p>\n
and, further, non-examination of the independent witnesses, which is<\/p>\n
not rule of law that the evidence of interested or inimical witnesses are<\/p>\n
to be rejected outright. The persons of other group normally does not<\/p>\n
come to the Court and the contradiction pointed out are minor and not<\/p>\n
go to the root of prosecution case to disbelieve the prosecution story.<\/p>\n
             8. Hence, under respective submissions, I perused the<\/p>\n
records. P.W. 1 has supported the prosecution case and has specifically<\/p>\n
mentioned that he identified seven persons out of ten. However, in<\/p>\n
cross examination he stated that he has come to depose in the case on<\/p>\n
the intimation send by the Advocate. P.W. 2 has also supported the<\/p>\n
prosecution case and has named seven persons out of ten, who had<\/p>\n
came and abducted and also identified Deo Rai. P.Ws. 3 and 4 are the<\/p>\n
witnesses who were named in the first information report and have also<\/p>\n
supported the prosecution case and they have also stated that they have<\/p>\n
identified seven persons. P.W. 4 has also stated that his brother has<\/p>\n
called him for giving the evidence. P.W. 5 is Urmila Devi, the wife of<\/p>\n
the victim. He has also supported the prosecution case and stated that<\/p>\n
out of ten persons seven came and kidnapped her husband and three<\/p>\n
remained on the boat.      P.W. 6 is the informant and he has also<\/p>\n
supported the prosecution case and has stated that after abduction his<\/p>\n
brother is traceless. P.Ws. 6 and 7 have also supported the prosecution<\/p>\n
case. P.W. 8 is the investigating officer and has also supported the<\/p>\n
prosecution case and stated that the place of occurrence is at a distance<\/p>\n
of 500 yards from Naka no. 2 and this village Nawitola is the eastern
\n                                5<\/span><\/p>\n
tola and all the area is surrounded by the river,<\/p>\n
             9. Hence, taking into consideration the entire evidence<\/p>\n
P.W. 6 has supported the prosecution case and there is allegation that<\/p>\n
the accused persons came on boat and kidnapped. The investigating<\/p>\n
officer has also stated that there is river water, hence, there is no road.<\/p>\n
             10. The defence has also adduced oral and documentary<\/p>\n
evidence.    D.W. 1 is the witness, who has formally proved the<\/p>\n
fardbeyan and the said fardbeyan is with regard to the murder of<\/p>\n
Subhash Rai and the witnesses have adduced that the appellant has<\/p>\n
falsely been implicated.\n<\/p>\n
             11. However, the learned counsel for the appellant has<\/p>\n
pointed out the various contradictions that though the prosecution case<\/p>\n
in the fardbeyan that ten persons came on darwaza and kidnapped the<\/p>\n
victim. However, P.W. 5 has stated that only seven persons got down<\/p>\n
from the boat armed with pistol, but, three persons armed with gun<\/p>\n
remained on boat. P.W. 1 has also stated that ten persons came and<\/p>\n
kidnapped, but, Urmila Devi, P.W. 5, the wife of the victim has not<\/p>\n
stated and has stated only seven persons came, hence, there is<\/p>\n
contradiction.   It has, further, been pointed out that some of the<\/p>\n
witnesses have stated that Hardeo was dragged by the persons, some<\/p>\n
has stated that he was lifted and some has stated that the accused<\/p>\n
persons caught hold of him and took away and, hence, there is<\/p>\n
contradiction in the evidence of the witnesses.              However, the<\/p>\n
contradiction pointed out is minor different, persons may describe the<\/p>\n
same incident in different way, hence, discrepancies pointed out have
\n                               6<\/span><\/p>\n
got no significance as they do not go to the root of prosecution case. It<\/p>\n
has, further, been pointed out that P.W. 1 has stated that he went to<\/p>\n
depose at the instance of Advocate, P.W. 2 has stated that he went to<\/p>\n
depose at the instance of Kailash, P.Ws. 3 and 4 stated that they went to<\/p>\n
depose on the information of the informant’s brother. Hence, the main<\/p>\n
contention is that without issuing notice they come to depose.<\/p>\n
However, the fact remains that these persons have been named as<\/p>\n
witnesses and their statement recorded by the investigating officer<\/p>\n
during the investigating officer and, hence, merely, because they went<\/p>\n
to the Court to depose on the information given by Advocate or<\/p>\n
informant or some other has got no significant with to their testimony<\/p>\n
and deposition in Court.\n<\/p>\n
             12. However, the learned counsel for the appellant has<\/p>\n
placed reliance upon the decision reported in A.I.R. 1940 Cal, 561<\/p>\n
(supra) and it has been stated that intention of the abduction has not<\/p>\n
been proved, however, the case reported in A.I.R. 1940 Cal, 561<\/p>\n
(supra) is a case of circumstantial evidence and in case of<\/p>\n
circumstantial evidence the motive and intention becomes relevant,<\/p>\n
however, in the facts and circumstances there is clear evidence that ten<\/p>\n
persons came and abducted and took the victim and not returned till<\/p>\n
date of the deposition of the informant witness.<\/p>\n
             13. The learned counsel for the appellant, however,<\/p>\n
contends that none of the independent witnesses have been examined<\/p>\n
and the reliance placed on decision reported in 1985 P.L.J.R., 341<\/p>\n
(supra), however, the law is well settled and it is not the law that the
\n                               7<\/span><\/p>\n
evidence of the independent or interested witness to be outright<\/p>\n
rejected, but, the law is well established that the witness are interested<\/p>\n
and inimical then their evidence requires to be strictly scrutinize and if<\/p>\n
on strict scrutiny their evidence are found to be reliable and trustworthy<\/p>\n
then the conviction can be sustained.         More over, in a case of<\/p>\n
kidnapping or serious offence there is tendency that witnesses do not<\/p>\n
like to depose in the case and, hence, the evidence of the witnesses can<\/p>\n
not be rejected on this ground alone the witnesses are interested and no<\/p>\n
independent witness has come to support the case. P.Ws. 2, 3 and 4<\/p>\n
have come to support the prosecution case, however, non-examination<\/p>\n
of one Paras Mahto and father of the informant, the evidence of P.Ws.<\/p>\n
2, 3 and 4 can not be rejected, if their evidence found to be reliable and<\/p>\n
trustworthy. However, the infirmity pointed out is the contradictions<\/p>\n
that P.W. 1 has stated that ten persons are abducted whereas P.W. 5 has<\/p>\n
stated that seven persons came and abducted and three remained on<\/p>\n
boat. P.W. 5 has stated that Kishun Rai is 80-90 years old whereas<\/p>\n
P.W. 6 has stated that Kishun Rai was 50 years old. However, every<\/p>\n
one assess the age of a person differently, hence, it is not a mistake of<\/p>\n
fact, but, it is a mistake of assessment about the age and, hence, the<\/p>\n
infirmity pointed out that P.W. 5 stated that 10-12 persons of the<\/p>\n
village came and P.W. 6 stated that 20-25 persons came.            It was<\/p>\n
pointed out that P.W. 6 deposed that person on boat were wearing dhoti<\/p>\n
kurta and others were in pant whereas P.W. 5 stated that persons who<\/p>\n
were on boat were wearing ganja, lungi and kurta and not in pyjama<\/p>\n
kurta. However, the contractions pointed out are of minor in nature
\n                                8<\/span><\/p>\n
and does not go to the root of the prosecution case to state the<\/p>\n
substratum of the prosecution story to disbelieve the prosecution case.<\/p>\n
              14. Hence, taking into consideration the entire evidence,<\/p>\n
I find and hold that prosecution has able to prove the charges beyond<\/p>\n
reasonable doubt and, hence, I do not find any merit in recording the<\/p>\n
order of conviction and sentenced and, hence, the appeal is dismissed.<\/p>\n
                                       ( Gopal Prasad, J. )<\/p>\n
The Patna High Court,
\nThe 12th day of August 2011,
\nN.A.F.R.,
\nS.A.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Deo Rai vs State Of Bihar on 12 August, 2011 Author: Gopal Prasad Criminal Appeal (SJ) No.336 of 1998 **** Against the judgment, dated 17.08.1998, passed by Shri Ravi Nath Verma, Additional Sessions Judge, Vi, Chapra, in S. Tr. No. 267 of 1997 **** Deo Rai, son of Bhagwan Rai, resident of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-104454","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nDeo Rai vs State Of Bihar on 12 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deo-rai-vs-state-of-bihar-on-12-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deo Rai vs State Of Bihar on 12 August, 2011 - 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