Patna High Court
Jagdish Yadav & Ors vs State Of Bihar on 4 July, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.441 of 1993
Arising Out of PS.Case No. -10(3) Year- 1975 Thana -Sahar District- BHOJPUR
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1. Jagdish Yadav , son of Bilkesh Yadav (dead)
2. Shital Yadav son of Kirit Yadav (dead)
3. Rajeshwar Yadav son of Sakhichand Yadav
4. Mohan Yadav son of Govind Yadav
5. Rambalak Yadav son of Jibodhan Singh (dead)
6. Ballam Yadav son of Doman Yadav
All resident of village Etwari Police Station Sahar, District Bhojpur
7. Jalim Singh son of Deocharan Singh (dead)
8. Sheonath Yadav son of Bifan Yadav
Both are resident of village Etwari Police Station Sahar District Bhojpur
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (DB) No. 497 of 1993
Arising Out of PS.Case No. -10(3) Year- 1975 Thana -Sahar District- BHOJPUR
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1. Baban Yadav son of Tanikraj Yadav
2. Janeshwar Yadav son of Nathuni Yadav (dead)
Both resident of village Rambari Police Station Sahar District Bhojpur
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (DB) No.441 of 1993)
For the Appellant/s : Mr. Rakesh Kumar Sinha
For the Respondent/s : Mr. Ajay Mishra , A.P.P.
(In CR. APP (DB) No.497 of 1993)
For the Appellant/s : Mr. Rakesh Kumar Sinha
For the Respondent/s : Mr. Ajay Mishra , A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date: 04-07-2017
1.The aforesaid two Appeals were preferred against the
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017
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judgment and sentence dated 28th September 1993 passed in Sessions
Trial No. 71 of 1976 by Sri Ashok Kumar Verma , learned 6th
Additional District & Sessions Judge , Arrah. In the said case
altogether 35 persons were made accused however 27 accused
persons were tried and finally 17 accused persons were acquitted and
10 persons were held guilty and sentenced. In Cr. Appeal (DB) No.
441 of 1993 Rajeshwar Yadav /appellant no . 3 was convicted under
section 307/ 149 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for seven years. He was further also convicted
under section 324 of the Indian Penal Code and sentenced to under go
rigorous imprisonment for three years and further under section 148
of the I.P.C. he was sentenced to undergo rigorous imprisonment for
three years. Mohan Ahir / appellant no. 4 in Cr. Appeal (DB) No. 441
of 1993 was convicted under section 307/149 of Indian Penal Code
and directed to undergo rigorous imprisonment for seven years and he
was further convicted under section 147 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for two years; Raj
Ballam Ahir /Appellant No. 6 in Cr. Appeal (DB) No. 441 of 1993
was convicted under section 307 of I.P.C. and sentenced to undergo
rigorous imprisonment for seven years. He was further convicted and
sentenced under section 148 of the Indian Penal Code and directed to
undergo rigorous imprisonment for three years. Accused -Sheonath
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017
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Yadav /appellant no. 8 in Cr. Appeal (DB) No. 441 of 1993 was held
guilty and convicted under section 323 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for one year. He was
further convicted and sentenced under section 147 of the Indian Penal
Code and directed to undergo rigorous imprisonment for one year.
Accused- Baban Yadav /appellant no. 1 in Cr. Appeal (DB) No. 497
of 1993 was held guilty and convicted under section 302 of the Indian
Penal Code and sentenced to undergo rigorous imprisonment for life .
He was also convicted and sentenced under section 307 of the Indian
Penal Code and directed to undergo rigorous imprisonment for seven
years. He was further convicted and sentenced under section 148 of
the Indian Penal Code and directed to undergo rigorous imprisonment
for three years. During the pendency of the aforesaid Appeals i.e. Cr.
Appeal (DB) No. 441 of 1993 appellant no. 1/ Jagdish Yadav;
appellant no. 5/ Rambalak Yadav; appellant no. 2 / Shital Yadav and
appellant no. 7 /Jalim Singh died and as such their cases were abated
and they were expunged from the record by order dated 29.06.2017.
So far appellant no. 2 / Janeshwar Yadav in Cr. Appeal (DB) No. 497
of 1993 is concerned he also died during pendency of the appeal and
his case was abated and his name was expunged from the record by
the said order dated 29.6.2017. So far position of 27 appellants who
were finally tried accused Mahanand Ahir, Ragho Ahir, Sukul Ahir,
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017
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Madan Ahir, Deolok Ahir ; Jai Kishun Ahir, Bujhawan Ahir , Suresh
Ahir, Dhunmun Ahir , Nand Kumar Ahir, Bacha Ahir , Sakhi @
Sakhichand Ahir , Bhorik Ahir, Ram Ayodhya Ahir and Ram
Pravesh Ahir were acquitted . By the same judgment after conviction
10 appellants had preferred aforesaid appeal and during pendency of
the appeal altogether five appellants died and their name were
expunged and only five appellant survived.
2. The prosecution case in short is that on 22.3.75 in the
morning before sun rise informant Nand Kumar Rai was sitting at his
Dalan. At that time the accused Ballam Ahir, Taluk Ahir, son of
Taluk Ahir , Ramjee Ahir, Gopal Ahir, Bifan Ahir, younger brother
of Gopal Ahir, Mohan Ahir and Jagidsh Ahir, along with ten to twelve
persons came there. The accused persons were armed with sticks ,
lathi and bahala and they abused the informant to which he
protested. On hulla the people of village assembled. The accused
persons assaulted the informant with stick, lathi and bhala and
dragged him to the filed of Rajballam Yadav. The accused persons
also assaulted Birendra Rai, Munsi Rai, Kashi Rai, Ayodhaya Rai,
Devendra Rai, Daswat Rai and Bacha Rai. The accused persons had
detained the informant in the field and threatened him to kill. Ram
Swaroop Rai put fire in the Bundle of paddy straw of Perma Rai and
he also put fire in his PUAL in defence. According to prosecution the
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017
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boys of Ahir had uprooted the gram crop of the field of the informant
and the informant had complained about it to the accused persons and
due to this the accused persons had committed the offence. The
fardbyan of informant Nand Kumar Rai was recorded by S.I. of police
Sri S.N. Dubey of Sahar P.S. on 22.03.75 at 10.15 hours at village
Ekwari. Subsequently Birendra Singh alias Birendra Rai died due to
the injury caused to him by the accused.
3.On the basis of fardbyan of Nand Kumar Rai formal
F.I.R. was registered vide Sahar P.S. Case No. 10 (3) 75. In the F.I.R.
seven persons were specifically named and besides seven named
accused it was alleged that in the occurrence 10-12 other persons had
also participated. F.I.R. was lodged initially for the offence under
section 147/ 148 /149/ 307/ 435, /342 of the Indian Penal Code
against accused persons namely Ballam Ahir, Baban Ahir , Ramji
Ahir, Gopal Ahir, Bifan Ahir, Mohan Ahir , Jagdish Ahir and other
10-12 accused persons ; however subsequently after the death of
injured Birendra Rai section 302 of the Indian Penal Code was added.
In the case number of witnesses had received injuries and thereafter,
their injuries were got examined by the Medical Officer. During
investigation case was found true and charge sheet was submitted
against nine accused persons namely Ballam Ahir, Baban Ahir,
Ramjee Ahir, Gopal Ahir, Bifan Ahir, Mohan Ahir , Jagdish Ahir ,
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017
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Sheonath Ahir and one Ram Swaroop Ahir, who was shown as
absconder. After submission of charge sheet at the time of cognizance
the learned Magistrate took cognizance against charge -sheeted
accused persons and other four accused persons namely Singhasan,
Rajeshwar Yadav , Janeshwar Yadav and Shital. Thereafter, on
20.03.1976the case was committed to the court of sessions. The case of thirteen accused persons were committed to the court of sessions and thereafter on 28.05.1979 charges were framed against the accused persons, which are as follows:-
Name Of Accused IPC 1 Ballam Ahir (Appellant no. 6 in Cr. 302/149, 435/34,302,324,148 Appeal (DB) No. 441 of 1993 ) 2 Baban Ahir (Appellant no. 1 in Cr. 302/149, 435/34, 307, 324 Appeal (DB) No. 497 of 1993 ) 3 Ramjee Ahir 302/149, 435/34, 307, 148 4 Gopal Ahir 302/149, 435/34, 324 5 Bifan Ahir 302/149, 435/34, 147 6 Mohan Ahir (Appellant no. -4 in Cr. 302/149, 435/34, 147 Appeal (DB) No. 441 of 1993 ) 7 Jagdish Ahir 302/149, 435/34, 324 8 Sheonath Ahir (Appellant no. 8 in Cr. 302/149, 435/34, 147 Appeal (DB) No. 441 of 1993 ) 9 Ram Swaroop Ahir 302/149, 435, 147 10 Singhasan 302/149, 435/34, 324, 148 11 Rajeshar (Appellant no. 3 in Cr. Appeal 302/149, 435/34, 324, 148
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 7/28 (DB) No. 441 of 1993 ) 12 Janeshar 302/149, 435/34, 323,147 13 Shital 302/149, 435/34, 307, 148
4. During the trial after examination of one of the witnesss namely, Bacha Rai , a petition was filed under section 319 of the Cr.P.C. on behalf of the prosecution for summoning other 22 accused persons which was allowed and as such, they were added as accused with accused persons who were facing trial. Subsequently trial of one accused was bifurcated and again on 14.07.1980 fresh charges were framed against 33 accused persons in the following manner:-
Name Of Accused IPC 1 Ballam Ahir ( Appellant No. 6 302/149, 435/34, 148, 307, 149/323, 149/342, 307/149 in Cr. Appeal (DB) No. 441 of 1993) 2 Baban Ahir ( Appellant No. 1 302/149, 302, 435/34, 148, 307, 149/323, 149/342, in Cr. Appeal (DB) No. 497 307/149 of 1993 3 Ram Swaroop Ahir 302/149, 435, 147, 149/323, 149/342,307/149 4 Jagdish Ahir 302/149, 435/34, 148, 149/323, 149/342, 307/149, 324 5 Sudama Ahir 302/149, 435/34, 149/323, 149/342, 307/149 6 Mahanand Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 7 Ragho Ahir 302/149, 435/34, 149/323, 149/342, 307/149 8 Sukul Ahir 302/149, 435/34, 147, 307, 149/323, 149/342, 307/149 9 Madan Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 10 Deolok Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 11 Baboo Lal Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149
Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 8/28 12 Jai Kishun Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 13 Bujhawan Ahir, 302/149, 435/34, 147, 149/323, 149/342, 307/149 14 Singhasan Ahir 302/149, 435/34, 148, 149/323, 149/342, 307/149, 324 15 Suresh Ahir 302/149, 435/34, 147, 149/342, 307/149 16 Bifan Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 17 Gopal Ahir 302/149, 435/34, 148, 307, 149/323, 149/342, 307/149 18 Sheo Nath Ahir ( Appellant 302/149, 435/34, 147, 149/323, 149/342, 307/149 No. 8 in Cr. Appeal (DB) No. 441 of 1993 19 Chhathu Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 20 Lal Muni Ahir 302/149, 435, 147, 149/323, 149/342, 307/149 21 Dhunmun Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 22 Nand Kumar Ahir, 302/149, 435/34, 147, 149/323, 149/342, 307/149 23 Janeshwar Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 24 Ram Balak Ahir 302/149, 435/34, 149/323, 149/342, 307/149, 324 25 Ramjee Ahir 302/149, 435/34, 148, 307, 149/323, 149/342, 307/149 26 Bechu Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 27 Rajeshwar Ahir ( Appellant 302/149, 435/34, 148, 307, 149/323, 149/342, 307/149, No. 3 in Cr. Appeal (DB) No. 324 441 of 1993 28 Sakhi @ Sakichand Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 29 Bhorik Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 30 Yodha Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 31 Shital Ahir 302/149, 435/34, 148, 307, 149/323, 149/342, 307/149 32 Ram Pravesh Ahir 302/149, 435/34, 147, 149/323, 149/342, 307/149 33 Mohan Ahir ( Appellant No. 4 302/149, 435/34, 147, 149/323, 149/342, 307/149 in Cr. Appeal ( DB) No. 441 of 1993
5. After the charge during trial two accused persons namely Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 9/28 Chhathu Yadav and Ram Swaroop Yadav died and as such their cases were dropped by order dated 28.5.1986. Again trial of one accused namely Ramjee Yadav was split up on 11.8.1988. Further accused Babulal Yadav , Bifan Yadav and Gopal Yadav reportedly died and as such their cases were separated. Again one another accused namely Lalmuni died on 17.12.1992 and thereafter his case was dropped on 01.05.1993 . Further case of one of the accused namely Sudama Ahir was separated and finally 27 persons were tried and judgment impugned was passed in relation to 27 accused persons in which 17 accused persons were acquitted and 10 were held guilty and sentenced as indicated above.
6. During the trial to prove the prosecution case altogether 13 witnesses were examined out of whom Nand Kumar Rai , who was informant and injured was examined as P.W. 11; in the case P.W. 1 /Devendra Rai was eye witness as well as injured witness ; P.W. 2 /Daswat Rai was an eye witness; P.W. 4 /Bachcha Rai was injured and eye witness; P.W. 5 /Kashinath Rai is injured and eye witness; P.W. 7 /Awdhesh Rai and P.W. 8/ Ayodhya Singh have deposed as eye witness and he also received injury in the occurrence. P.W. 3 / Muninath Singh was a witness to the inquest and he proved his signature on the inquest report which was marked as Exhibit „1‟ and „1/1‟ ; P.W. 10 /Dinesh Chandra Pandey is a witness to the Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 10/28 seizure list; Dr. P.B. Ojha who had examined the injury of witnesses was examined as P.W. 9. He had examined the injury on the person of Bachhulal Singh on the same date at about 10.30 and he found injury on his person which was caused by sharp cutting weapon. On the same date at about 10.15 A.M. he examined injuries of Ayodhya Singh /P.W. 8 which was found incised injury also by sharp cutting weapon. At about 9. 50 A.M. on the same day he examined injuries of Munshi Rai and found incised injury on his person. Again on the same date at 9.30 A.M. he examined injuries on the person of Devendra Singh/ P.W. 1 and he found incised injuries. At about 10.00 A.M. he further examined injuries on the person of P.W. 4 and found incised injuries . On the same date i.e. on 22.3.1975 he also examined injuries of Kashi Nath Singh /P.W. 5 and found multiple incised injuries on his person. Sri Sachindra Nath Dubey who had recorded fardbyan of the informant / Nand Kumar Rai and also Investigating Officer was examined as P.W. 12; P.W. 13/ Dr. S.M. Issa had conducted post -mortem examination on the dead body of Birendra Singh on the same date i.e. on 22.3.1975 at 4.00 P.M. From the defence side defence had also examined a witness namely Murat Rai as D.W. 1 to prove certain documents relating to counter case.
7. P.W. 1/ Devendra Rai in his examination -in- chief has stated that occurrence had taken place at 3-4 A.M. in the morning. At Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 11/28 that very time he was at his Dalan and his brother /deceased Birendra was also sleeping on a cot . After hearing cry from the house of Bachcha Rai he along with his brother proceeded to the Dalan of Bachcha Rai where he noticed that hip of straw was burning. In the said light he noticed that beneath a tree i.e. Srifal (Bel) Bachcha Rai /P.W. 4 and Nand Kumar Rai/ P.W. 11 was raising hulla and they were being beaten . He specifically stated that he had seen Babban Ahir / appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 carrying Bhala , Ballam Ahir /appellant no. 6 in Cr. Appeal (DB) No. 441 of 1993 having Bhala; Bifan Ahir having lathi ; Jagdish Ahir /appellant no. 1 in Cr. Appeal (DB) No. 441 of 1993 having Bhala ; Shital Ahir/ appellant no. 2 in Cr. Appeal (DB) No. 441 of 1993 having Bhala, Gopal Ahir was carrying Garasa, Ramjee Ahir carrying Garasa; Mohan Ahir/ appellant no. 4 in Cr. Appeal (DB) No. 441 of 1993 was carrying Lathi and they were assaulting the aforesaid two persons namely Bachcha Rai and Nand Kumar Rai . He also said that he had noticed 30 -35 persons variously armed near the hip of straw. Amongst them he identified Bihari Ahir , Brindavan Ahir , Bachu Ahir; Janeshwar Ahir, Lalmuni Ahir, Dhunmun Ahir, Jalim Ahir/ appellant no. 7 in Cr. Appeal (DB) No. 441 of 1993. He further stated that due to assault Bachcha Rai had fallen and accused persons holding Nand Kumar Rai dragged him Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 12/28 outside the campus and simultaneously they were assaulting him. He further stated that his brother Birendra Rai tried to stop the accused persons thereafter Janeshwar Ahir / appellant no. 2 in Cr. Appeal (DB) No. 497 of 1993 (and died) during trial gave Lathi blow on his back . In paragraph „8‟ of his deposition P.W. 1 further stated that appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 /Baban Yadav gave blow from his Bhala on the neck of Birendra Rai where after he fell down . In the said occurrence Kashi Rai /P.W. 5 tired to save him but accused Ram Jee Ahir gave garasa blow on his head ; on his arm accused Gopal Ahir gave Garasa blow. In the same occurrence Babban Ahir / appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 and Ballam Ahir/ appellant no. 6 in Cr. Appeal (DB) No. 441 of 1993 gave Bhala blow on Kashi Nath Rai / P.W. 5. In paragraph 9 of his deposition P.W. 1 further stated that when he tried to save his brother Birendra Rai, appellant no. 1 / Baban Yadav in Cr. Appal (DB) 497 of 1993 gave him Bhala blow which hit on his arm . The learned trial judge has noticed that P.W. 1 had shown the injuries to the trial judge after receiving bhala injury . He also became unconscious . Subsequently, in Ara he heard that his brother Birendra Rai had died . This witness was cross examined at length but in the said extensive cross -examination nothing could be extracted to created doubt on the veracity of the case except the fact that in Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 13/28 cross- examination the defence extracted the fact from his mouth that in the counter case he was also one of the accused. P.W. 2 /Daswat Rai is also one of the eye witness and in paragraph „2‟ of his examination- in- chief he has stated that in the F.I.R. in the light of fire on hip of straw he had seen 30-40 accused persons variously armed. He had identified number of accused persons namely Babban Ahir / appellant no. 1 in Cr. Appeal (DB) 497 of 1993 ; Ram Jee ; Janeshwar /appellant no. 2 in Cr. Appeal (DB) No. 497 of 1993 who subsequently died during pendency of the appeal ; Gopal Ahir , Balak Ahir ( Rambalak Yadav/ appellant no. 5 in Cr. Appeal (DB) No. 441 of 1993 ), Bujhawan Ahir etc. Besides the aforesaid accused persons in paragraph „3‟ he further stated that he had identified Ballam / appellant no. 6 in Cr. Appeal (DB) No. 441 of 1993 , Jagdish /appellant no. 1 in Cr. Appeal (DB) No. 441 of 1993 , Mohan /appellant no. 4 in Cr. Appeal (DB) No. 441 of 1993 ; Bifan (who died during trial). He further stated that the accused persons had taken away the informant Nand Kumar in the occurrence . He also stated that he was given Danda blow in the occurrence. He too was extensively cross examined but no sufficient fact could be extracted to create doubt on his evidence save and except the fact that he accepted that he was also accused in the counter case.
8. P.W. 3 /Muni Nath Singh is a formal witness and witness Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 14/28 to the inquest. He proved his signature on the inquest report. P.W. 4/ Bachcha Rai had received multiple injuries in the occurrence. In his examination -in- chief he has stated like P.W. 1 and disclosed that in the occurrence he had seen 50-60 persons variously armed with Garasa, Bhala etc. He stated that while he asked the accused persons as to who were they , accused Lal Muni Ahir put fire on the straw of Perma Singh. He stated that thereafter he identified 33 persons in the light of fire who were Jalim Ahir/ appellant no. 7 in Cr. Appeal (DB) No. 441 of 1993 ; Jagdish/ appellant no. 1 in Cr. Appeal (DB) No. 441 of 1993 , Mohan/ appellant no. 4 in Cr. Appeal (DB) No. 441 of 1993 , Ballam Ahir /appellant no. 6 in Cr. Appeal (DB) No. 441 of 1993 , Bihari Ahir ; Bifan Ahir; Gopal Ahir , Singhasan Ahir, Bujhawan Ahir ; Deolok Ahir, Brindawan Ahir, Babban Ahir / appellant no. 1 in Cr. Appeal (DB) 497 of 1993 ; Bechu Ahir, , Lal Muni Ahir, Dhunmun Ahir, Chathu Ahir , Balak Ahir ( appellant no. 5 / Ram Balak Yadav) ; Ram Jee Ahir, Nand Kumar Ahir; Janeshwar Ahir /appellant no. 2 in Cr. Appeal (DB) no. 497 of 1993, Mohan Ahir /appellant no. 4 in Cr. Appeal (DB) No. 441 of 1993 , Mahanand ; Ragho, Thukal, Shital , Pravesh, Yodha Ahir; Bhorik Ahir , Sakhichand , Rajeshwar / appellant no. 3 in Cr. Appeal (DB) No. 441 of 1993 and Babu Lal Ahir . He also identified Jagdish, , Janeshwar, Jai Kishun, Gopal , Ragho, Nand Kumar , Suresh, Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 15/28 Pravesh in the dock and identification of other accused person who were not present in dock was waived. In paragraph „2‟ of his examination in chief he has further stated that he was also assaulted by bhala. Bhala blow was given by Balak Ahir /appellant no. 5 in Cr. Appeal (DB) No. 441 of 1993. He further stated that Jalim Ahir /appellant no. 7 in Cr. Appeal ( DB) No. 441 of 1993 had assaulted him by the Lathi of his Bhala on his back side. He stated that Jagdish Ahir gave Bhala blow which hit on left thigh. He stated that accused persons assaulting Nand Kumar Singh / informant had taken away dragging Nand Kumar/ informant whereupon Birendra Rai (deceased) , Devendra Rai, Munshi Rai, Ayodhya Rai, Kashi Rai, Bachchu Rai and others tried to rescue him. Thereafter accused Janeshwar Yadav/ appellant no. 2 in Cr. Appeal (DB) No. 497 of 1993 ( since died during pendency of appeal ) assaulted Birendra Rai on his back by lathi and Baban Ahir /appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 gave bhala blow on the neck of Birendra Rai. He further stated that Kashi Rai /P.W. 5 was assaulted by Ram Jee and Gopal Ahir by means of Garasa and Baban Ahir/ appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 and Mohan Ahir / appellant no. 4 in Cr. Appeal (DB) No. 441 of 1993 gave bhala blow . In paragraph „3‟ of his examination in chief he has stated that in hospital Sub Inspector of Police Town Police Station had recorded his Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 16/28 fardbyan and on his fardbyan he had put his signature . He had identified his signature on the said fardbyan which was marked as Exhibit 1/2. He stated that reason for the said occurrence was that one day earlier children of accused persons had destroyed their field whereupon complaint was made by Nand Kumar and he was abused and he was threatened that in the next morning the informant/ Nand Kumar will see the consequences. This witness was again extensively cross- examined however save and except extracting the fact that this witness was also one of the accused in the counter case nothing could be extracted to create doubt on his evidence. Kashi Nath Rai is also one of the injured eye witness and he has also stated like P.W. 1, P.W. 2 and P.W. 4. He has also specifically stated in his examination in chief that Babban/ appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 had inflicted bhala on the neck of Birendra (deceased). He was also cross examined extensively. Nothing could be extracted except the fact that he accepted that he was also accused in the counter case.
9. P.W. 6 /Madan Rai was also present at the time of occurrence. At the place of occurrence he identified the accused persons and disclosed the name of accused in his examination - in- chief. This witness was not accused in the counter case though he was cross -examined but on perusal of the cross -examination there is Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 17/28 nothing to draw an inference as if he was not witness to the occurrence. P.W. 7/ Awadhesh Rai is also an eyewitness and he too has stated like other eye witnesss and corroborated the prosecution case.
10. P.W. 8 /Ayodhya Singh too had received injuries in the occurrence and he was ocular witness to the occurrence. He too has specifically stated the role played by all the accused persons like stated by P.W. 1, P.W. 2 and P.W. 4. He too was extensively cross- examined.
11. P.W.9 /Dr P.B. Ojha had examined the injuries on the persons of injured who had received injury in the occurrence. He examined Bacchulal Singh and found incised would ¼" x ¼ muscle deep on back of the middle of right thigh which was simple and caused by sharp cutting weapon for which he said that it may be by bhala. He further examined injury of Ayodhya Singh /PW 8. He had examined injured persons in the following manner :-
"(1) On 22.3.75 at 10.30 A.M., while he was posted as C.A.S. Arrah he examined Bachhulal Singh, s/o Bishram Singh of vill- Ekwari, P.S. Sahar, Dt Bhojpur and found the following injuries on his person.
(i) Incised wound ¼"x ¼"x muscle deep on back of middle of right thigh. The injury was simple caused by sharp instrument may be by Bhala.
Age of injury was within 24 hours I/M above injury (2) On the same date at 10.15 A.M., I examined Ayodhya Singh s/o Mokhtar Singh of same village Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 18/28 and found the following injuries on his person (1) Incised wound 1 ½" x 1 ¼" x skin deep on the right side of arm in its middle. The injury was simple in nature and caused by sharp cutting weapon, may be by Bhala. Age of injury was within 24 hours.
I/M- above injury (3) On the same date at 9.50 A.M. I examined Munshi Rai s/o Ramanand Rai of same place and found the following injuries on his person (1) Incised wound ½" x¼"chest wall thickness on the left side of chest below arm pit with surgical emphysema , (vide bed head ticket No. 890) (2) Incised wound ½"x1/4" x skin deep on inner side of upper part of left arm. Both injuries were caused by sharp cutting substance may be by Bhala. Injury no. 1 was grievous in nature and injury no. 2 was found simple.
Age of injuries - within 24 hours I/M injury no. 1 (4) On the same date at 9.30 A.M., I examined this Devendra Singh s/o Kameshwar Singh (identified ) of the same village and found the following injuries on his person (1) Incised wound ¼"x 1/4"x thickness of anterior abdominal wall on left side of abdomen 3" from anticus with protrusion of mesenteries, small intestine and mesocolla ( vide B.H. Ticket 788) (2) Incised wound 1 ½" x 1" muscle deep on back of middle of left forearm.
Both the injuries were caused by sharp cutting substance, may be by Bhala. Injury no. 1 was grievous in nature and injury no. 2 was simple in nature. Age of injuries within 24 hours.
(5) On same date at 10 A.M. he examined this Bachha Singh (identifies) of the same place and found the following injuries on his person (1) incised wound ½"x 1/4"x muscle deep in front of upper part of left thigh with tender swelling 3"x ½"
(2)Abrasion ½" x 1/4" x with tender swelling 2"x1"
on left scapular area . Both the injuries were simple in nature. Injury no. 1 was caused by sharp cutting Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 19/28 substance may be by bhala and no. 2 by hard and blunt substance, may be lathi portion of Bhala. Age of injuries within 24 hours.
(6) On the same date at 9.50 A.M. I examined Kashi Nath Singh s/o Triveni Singh of the same village and found the following injuries on his person (1) incised wound 6"x 1 ½" x scalp deep on right side of head, 4" above right eye brow.
(2) Incised wound ½"x ¼" x muscle deep on back of lower part of left arm (3) incised wound 1½" x ½"x muscle deep on the middle of right arm.
(4) Incised wound ¼"x ¼" muscle deep in front of middle of left thigh (5) Incised wound ½"x 1/4" skin deep on back of proximal phalaza of left index finger.
(6) Incised wound ½"x 1/4"x muscle deep on right buttock All the injurers were caused by sharp cutting substance and were simple in nature. X-ray , skull showed no abnormal vide B.H.T. No. 989 . Injury no. 1 and 3 may be caused by Garasa and rest may be caused by Bhala.
Age of injuries within 24 hours I/M injury no. 1
7. All these six injury reports are written by him and bear his signature (Ext. 2 to 2/5)
12. In his cross -examination nothing could be asked to create doubt on his evidence. Dinesh Chandra Pandey is a witness to the seizure list which was prepared in respect of blood stained soil from the place of occurrence and ashes of straw which was seized from the place of occurrence and he proved his signature as Exhibit 1/3 and ¼. Nand Kumar Rai /informant was examined as PW 11. The informant had also received injuries in the occurrence . He stated in Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 20/28 paragraph „1‟ of his examination in chief that at the time of occurrence he was sitting in his „Dallan‟ and his brother Bachcha Rai was sleeping there. He stated regarding fire of straw in the Dallan of Perma Rai and he saw that 8-10 persons had arrived in the campus and 30-35 accused persons were outside the court yard . Amongst them he had identified Ballam Ahir /appellant no. 6 of Cr. Appeal DB 441 of 1993; Jagdish Ahir/ appellant no. 1 in Cr. Appeal (DB) No. 441 of 1993 ; Babban Ahir / appellant no. 1 in Cr. Appeal ( DB) No. 497 of 1993 , Bifan Ahir , Gopal Ahir , Sidhnath Ahir, Ram Jee Ahir and Mohan Ahir /appellant no. 4 in Cr. Appeal DB No. 441 of 1993. He stated about the reason for the occurrence. He further stated that Baban, Ballam Ahir and Jagdish were having bhala ; Gopal and Ramjee were carrying garasa and Bifan and Sidhnath were carrying lathi. He stated that on the order given by Ballam , Ballam gave assault from lathi side of the bhala; Bifan gave lathi blow; Sidhnath also gave lathi blow. When he raised alarm the accused persons lifted him. On alarm being given Birendra (deceased) , Devendra , Kashi , Munshi came, Devendra /P.W 1 , Kashi /P.W. 5 , Bacha Singh/ P.W. 4, Ayodhya Singh /P.W. 8 arrived . He further stated that Bachu Rai was given bhala blow by Jagdish /appellant no. 1 in Cr. Appeal (DB) No. 441 of 1993 ; on being restricted the accused persons assaulted Birendra, Devenda, Kashi, Ayodhya , Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 21/28 Munshi. Birendra died due to such injury . In cross examination nothing could be extracted to create doubt on his evidence. Sri Sachindra Nath Dubey/ P.W. 12 recorded fardbyan of the informant Nand Kumar Rai and he also conducted investigation of the case . During his examination in chief he has categorically stated that he arrived at the place of occurrence after recording Sanha entry and after arrival he recorded fardbyan of Nand Kumar Rai in the village Ekwari i.e. at the place of occurrence. He identified his writing and signature on the fardbyan which was marked as Exhibit „3‟ . He further stated that after returning to the police station he drew formal F.I.R which was prepared on his dictation. He identified the writing of the person who had prepared the formal F.I.R which was marked as Exhibit „4‟ . In paragraph „2‟ the Investigating Officer has made specific statement that while he was recording fardbyan of Nand Kumar Rai his condition was not proper. He also prepared report regarding injury which was in his own signature and marked as Exhibit „5‟. He identified the injury report certified by Dr. Lakmi Prasad and also his signature. He stated that Dr. Laxmi Prasad who had examined the injury of Nand Kumar Rai was subsequently murdered. He stated that since condition of Nand Kumar Rai was critical he was kept on a cot near the place of occurrence and thereafter he was sent to hospital. He further visited the place of Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 22/28 occurrence and had noticed that field was trampled. In detail he has given the description of place of occurrence in paragraph „3‟ and „4‟ of his examination in chief . He further stated that after death of Birendra Singh in hospital and getting this information he got section 302 of the Indian Penal Code added in the F.I.R. He stated that he prepared inquest report and after receiving post- mortem examination report and finding the case true had submitted charge sheet. In his cross examination he accepted that in the counter case also i.e. Sahar P.S. Case No. 9 (3) of 1975 he had investigated and submitted charge sheet. Dr. S.M. Issa , who was examined as P.W. 13 had conducted autopsy on the dead body of Birendra Singh and he found following injuries on the person of the deceased :-
"...Average built - Rigor Mortis present. The following wounds were found on his person
(i) One incised wound ¾" x ½"x 6" deep entering into the left chest over the front of left half of the neck just above the left clavicle
(ii) Bruise 4"x 1 ½" over the back with under line selling 5"x 3". The aforesaid two injuries were ante mortem
2. On dissection noted the following - upper part of the left pleura ruptured - left chest clavian filled with one pint of blood - upper bone of the left lung ruptured - both lungs pale -
muscles and vessels on the front of left half of the neck & left subclavian empty damaged-
heart pale -its chamber empty. Liver and spleen and kidney pale . Stomach contains 402 of liquid substance - In skull méninges and brain pale . Time elapsed since death within 48 hours. The death in my opinion was Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 23/28 due to hemorrhage and shock as a result of injury No. 7 inflicted by sharp cutting weapon may be bhala. Injury of bruise may be by lathi.
Injuries were sufficient in natural course to cause death. This PM report is in my pen and it bears my sig. Marked ext. 7
3. As regard injury No. 1 the penetration was down ward. Rigor mortis starts normally after 3 to 4 hour of death but it also depends on various others factors. Rigor mortis does not start immediately after death. Under normal circumstances rigor mortis starts spreading in the body after 12 hrs. After spreading its stays in the body for 48 hrs and then process of disappearance starts. In the present case rigor mortis was present all over the body"
And he proved the post- mortem report which was marked as Exhibit „7‟.
13. From the defence side one Murat Rai was examined as D.W. 1 who was a formal witness and proved certain documents including case diary of Sahar P.S. 9 (3) 1975. After completion of the prosecution evidence statement of accused persons were recorded under section 313 of the Cr.P.C. On perusal of the statement of accused under section 313 of the Cr.P.C. it is evident that the accused persons were explained regarding entire evidences collected during investigation against them and they were asked question. Perusal of the statement under section 313 Cr.P.C. makes it clear that it was true compliance .
14. Sri Rakesh Kumar Sinha, learned counsel for the appellants has argued that though witnesses were consistent on the Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 24/28 accusation, but fact remains that most of the witnesses have suppressed the fact that they were accused in the counter case. He submits that the witnesses since initially suppressed the fact regarding counter case and their involvement, they may not be termed as trustworty witness and on the basis of such evidence the appellants were not required to be held guilty. He submits that since the witnesses had not come out with clean hand, it was a case for giving benefit of doubt. He further submits that the place of occurrence has not been proved by the prosecution. According to him the prosecution side were aggressors and they had arrived into the village of the accused side and they had assaulted, thereafter from the accused side firstly a case was lodged vide Sahar P.S. Case No. 9 (3) 75 . He submits that in the case instituted from the appellants side‟ the informant‟s side of the present case were forwarded as accused and they were charge -sheeted. He submits that though the witnesses are consistent, but since place of occurrence was not exactly proved and not the witnesses were truthful, the appellants may be extended the benefit of doubt.
15. Sri Ajay Mishra, learned Additional Public Prosecutor submits that it is not a case that the witnesses were introduced with a view to prove the charges, but most of the witnesses who have been examined during trial were injured Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 25/28 witnesses. Their injuries were also noticed by the doctor namely Dr. P.B. Ojha, who has been examined as P.W. 9. Those witnesses in the occurrence had received injuries which were found as incised injury caused by sharp cutting weapon. According to him, witnesses have categorically stated that the accused persons had used Bhala and Garasa besides Lathi. He further submits that learned trial judge has meticulously examined the evidence and thereafter save and except appellant no. 1 of Cr. Appeal (DB) No. 497 of 1993, all the appellant of 1st case i.e. Cr. Appeal (DB) No. 441 of 1993 were held guilty and convicted mostly under section 307 and other allied sections of the Indian Penal Code and maximum sentence they were imposed was seven years rigorous imprisonment. So far appellant/ Baban Yadav is concerned, he submits that there is specific evidence against him that he had given Bhala blow on the neck of deceased Birendra Singh, which was the cause of his death. According to him there is no reason even to given benefit of doubt to any of the accused persons.
16. Besides hearing learned counsel for the parties, we have perused the entire evidence brought on record and after going through the same, there is no reason to doubt the prosecution case.
P.W. 1, 2, 4 5 , 7 and 8 had received injuries in the occurrence and their injuries were found on their person by P.W. 9. They all had Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 26/28 received incised injuries which corroborates the prosecution case. The informant is also consistent with other eye witnesses. So far Investigating Officer is concerned, P.W. 12 / Sachindra Nath Dubey has made categorical statement that how on receiving information he reached the place of occurrence and he noticed that there was blood stain on the place of occurrence and seizure list of stained blood soil was prepared, inquest report was also prepared and finally during post- mortem examination the injuries, which were alleged by the witnesses were found by the doctor / P.W. 13 Dr. S.M. Issa, who conducted the autopsy on the person of the deceased. The post - mortem examination report is Exhibit 7. It is necessary to incorporate the post -mortem examination report, which is as follows:
"...Average built - Rigor Mortis present. The following wounds were found on his person
(i) One incised wound ¾" x ½"x 6" deep entering into the left chest over the front of left half of the neck just above the left clavicle
(iii) Bruise 4"x 1 ½" over the back with under line selling 5"x 3". The aforesaid two injuries were ante mortem
2. On dissection noted the following - upper part of the left pleura ruptured - left chest cavity filled with one pint of blood - upper lobe of the left lung ruptured - both lungs pale -
muscles and vessels on the front of left half of the neck & left subclavian artery damaged-
heart pale -its chamber empty. Liver and spleen and kidney pale . Stomach contains 402 of liquid substance - In skull méninges and brain pale . Time elapsed since death within 48 hours. The death in my opinion was Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 27/28 due to hemorrhage and shock as a result of injury No. 7 inflicted by sharp cutting weapon may be bhala. Injury of bruise may be by lathi.
Injuries were sufficient in natural course to cause death. This PM report is in my pen and it bears my sig. Marked ext. 7
3. As regard injury No. 1 the penetration was down ward. Rigor mortis starts normally after 3 to 4 hour of death but it also depends on various others factors. Rigor mortis does not start immediately after death. Under normal circumstances rigor mortis starts spreading in the body after 12 hrs. After spreading its stays in the body for 48 hrs and then process of disappearance starts. In the present case rigor mortis was present all over the body"
17. Exhibit „7‟ i.e. the post -mortem examination report corroborates the prosecution case and there is nothing to create doubt on the prosecution case. It is true that most of the injured witnesses were accused in the counter case but merely on the ground that they were accused in the counter case, their evidence may not be brushed aside. The Apex Court in a case report in (2003 ) 11 SCC 519 (RAJ KISHOR JHA Verus STATE OF BIHAR AND OTHERS) has interfered with the judgment of acquittal passed by this court in which benefit of doubt was given on the plea that witnesses were accused in counter case.
18. Considering the facts and circumstances as well as specific evidence which has been brought on record and consistency in the evidence of eye witnesses, there is no reason to create any Patna High Court CR. APP (DB) No.441 of 1993 dt.04-07-2017 28/28 doubt. We have examined the materials available on record and don‟t find any apparent error in the impugned judgment of conviction and sentence, which requires no interference. Accordingly both Appeals stand dismissed. In Cr. Appeal (DB) No. 441 of 1993 appellant no. 1 to 6 vide order dated 13.10.1993 were extended the privilege of bail. In view of dismissal of the Appeal their bail bonds are hereby cancelled. So far appellant no. 8 of Cr. Appeal (DB) No. 441 of 1993 is concerned, he was earlier granted provisional bail and he was directed to continue on the same bail bond by the order dated 13.10.1993 . Accordingly, his bail bond is also cancelled. Appellant no. 1 in Cr. Appeal (DB) No. 497 of 1993 was granted bail on 18.11.1993 while admitting the appeal. Accordingly, his bail bond is hereby cancelled. The accused are directed to surrender before the court below for serving remaining period of sentence.
(Rakesh Kumar, J) (Mohit Kumar Shah, J) Praful/-
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