Patna High Court
Krishna Rai And Ors. vs State Of Bihar [Alongwith Criminal ... on 5 February, 1999
Equivalent citations: 1999(1)BLJR231
JUDGMENT Ravi Nandan Sahay, J.
1. These two appeals, which have been heard together, have arisen from Sessions Trial No. 133/83 on the file of IVth Additional Sessions Judge, Patna, who by its judgment dated 17th December, 1986 convicted all the eight accused persons under Section 302/34 Indian Penal Code and 307/34 Indian Penal Code and sentenced them to life imprisonment under Section 302/34 Indian Penal Code and 7 years imprisonment, under Section 307/34 Indian Penal Code. Two of the appellants, namely, Ram Babu Rai and Binda Rai were also convicted under Section 147 Indian Penal Code and sentenced to three years imprisonment and the remaining six appellants were convicted under Section 148 Indian Penal Code and sentenced to three years imprisonment.
2. On 14.4.1981 at about 2.00 P.M. Ram Bichar Rai son of Din Dayal Rai and Girjan Rai son of Hari Charan Rai of village Manas Nai Panapur P.S. Danapur in the District of Patna left the village for Nasriganj Satuani Mela, Girjan Rai was on cycle. Ram Bichar Rai and Girjan Rai proceeded ahead followed by Baidyanath Singh and Sanehi Singh for going to Nasriganj. They had to go to bank of river one behind Bata Shoe Factory, Digha. They wanted to cross the river, in the meantime they were surrounded by 8-10 persons who spoke "they have come, kill both the Salas, they vex us very much." All the accused persons are alleged to have assaulted them with daggers and iron rods. Appellant Shivji Rai gave a dagger blow near the left side below the arm pit and back of Girjan Rai. Appellant Nandlal Rai assaulted him with iron rod. Appellant Ram Babu Rai gave dagger blow on the leg of the informant. The surrounded persons raised hulla, thereupon Baijnath Singh, Ram Shehi Singh, Dharamnath Rai and other co-villagers, who were also going to attend Satuani Mela arrived there and the accused persons filed away.
3. Baijnath Singh and Dharamnath Rai and others brought both the injured to Danapur Patna Main Road and from there they were brought in a Tempo to P.M.C.H. Patna. Both the injured were unconscious. Although Digha Police Station was near the place of occurrence, no information was given there by any body nor at the Denapur Police Station. There is also a hospital in Denapur but the injured were not taken there.
4. The version of the occurrence was given by Ram Bichar Rai on the next day i.e., on 15.4.1981 at 6.45 A.M. to the Officer-in-charge of Digha Police Station, in which he narrated the entire incident as stated above. There were witnesses, who had seen the occurrence and were available at P.M.C.H. to give version but the police officer waited for Ram Bichar Rai to come to his senses to take the statement. Girjan Rai who was badly wounded could not regain his sense and he succumbed to his injuries. Ram Bichar Rai was able to give his statement on the next morning.
5. The main accused Shivji Rai also filed a case at Digha Police Station (Ext.-C) on the date of occurrence i.e., 14.4.1981. According to the counter version, Shivji Rai along with his younger brother Nand Lal Rai was returning from Patna in the afternoon. He met Girjan Rai and Ram Bichar Rai at the place where occurrence took place. There was confrontation and alteration. Girjan Rai gave a lathi blow on his head and Ram Bichar Rai inflicted dagger blow. Shivji Rai was severely injured. Shivji Rai stated that he snatched the dagger of Ram Bichar Rai and injury could have been caused by to Ram Bichar Rai while snatching the dagger.
6. The trial Court has given little importance to this plea of Shivji Rai, who was injured, what is intriguing is the behaviour of the Investigating Officer of this case Mahendra Prasad Singh, Officer In-charge, who admitted that the brother of Ram Bichar Rai was in friendly term with him. The defence has brought out materials to show that the Investigating Officer was not impartial in his approach in the Sessions case. He was all along helping the informant's party and as such the investigation was highly unfair. Now the circumstances show that something was serious in the manner of the investigation of the case.
7. Mahenara Prasad Singh (P.W. 9) was the Officer-in-charge of Digha Police Station. On 14.4.1981 at 19.15 hours he received an anonymous call that some body has stabbed some body behind Digha Bata Shoe Factory and the victim has been taken to P.P.C.H. for treatment. The Officer-in-charge made Station Diary Entry No. 396 and proceeded to P.M.C.H. for investigation. He reached Rajendra Surgical Emergency Ward and on verification of record he learnt that two persons, Ram Bichar Rai and Girjan Rai had been admitted in the ward. He visited the Operation Room where Girjan Rai was seen unconscious. He saw parts of his body bandaged. He then went of Ram Bichar Rai at Bed No. 14. He too was injured. He was crying in agony. Ram Bichar Rai was not in a position to speak anything. He was given blood transfusion. The Officer-in-charge returned to the police station without contacting any body. He had not said that no relation of the injured persons were at the hospital at that time and the persons, who had been them in the hospital were not there. It cannot be believed that there was no person of the village to attend the injured persons.
8. The Officer-in-charge again visited the hospital on the next day at 6.15 A.M. and recorded the statement of Ram Bichar Rai and registered the case. Girjan Rai was still unconscious. On 15.4.1981 this witness inspected the place of occurrence with the help of witness Mahangu Rai (not examined). The place of occurrence was northern extreme of river Sone. Mahangu Rai was also the witness to the occurrence. He was boatman. There is a public rasta which is used for coming and going to Digha. The Officer-in-charge said that there was Mela at Nasriganj on the occasion of Satuani-Ghat Rasta is a busy one. The Investigating Officer has admitted that he knew Ram Bichar Rai from before, who is brother of Laxmi Rai. Laxmi Rai lives in a house adjacent to the house of the Investigating Officer. He did not try to ascertain whether O.D. Slip had been issued from the hospital to the Pirbahore Police Station which should have been done in normal course. P.M.C.H. fails within the jurisdiction of Pribahore Police Station. Two persons with serious injuries had been admitted in the hospital. There is no doubt that the doctors, who had attended the injured must have sent information to the Pirbahore Police Station. There is no evidence whether Pirbahore Police was informed. There is no evidence that any information was sent from the Hospital to Digha Police Station. The Investigating Officer had received a call at Digha Police Station that appellant Shivji Rai had been admitted in Sadar Hospital but he did not remember whether he had visited Danapur Sadar Hospital or not. The Investigating Officer had sent a requisition to Danapur Police to arrest Shivji and produce him before the Magistrate. There is no explanation why the Investigating Officer did not go to arrest the accused himself. Shivji Rai was brought in custody at Digha Police Station. He had found it simple injury on the person of Shivji Rai.
9. Girjan Rai died on 17.4.1981 at P.P.C.H. Dr. Upendra Prasad Verma, who was Professor and Head of Department of Forensic Medicine, P.M.C.H., conducted Post-Mortem Examination on the dead body of Girjan Rai on 18.4.1981 and following ante-mortem injuries were found on the person of the deceased-
1. Left paramedian incise stitched wound of laprotony 81/2" in length.
2. Incised wound penetrating 3/4" × 1/2" at front of left lower chest 6" below left nipple through which a drainage tube was fixed to the skin communicating with the interior of abdomen to the exterior. The drainge tube was fixed with stitches and it was a surgical wound.
3. Stitched wound 11/2" at left chest in the anterior axillary line, 3" above the injury No. 2.
4. A stitched wound 2" in length at back of left upper chest.
5. Surgical incised wound 1" × 1/10" × 1/12" stitched at medial side of right anckle meant of transfusion.
6. Transeverse, oblique bruise at antero caternal aspect of the left leg in the lower portion, under which the left tibia and fibula were found fractured, the fractured ends of both visible through a surgically incised wound 21/2" × 21/2" × bone deep in front.
Injury No. 3 was due to a sharp or a semi sharp weapon directed medially and downwards, which after having passed through the corresponding plura had cut the lower portion of left lung and pierced through the left disphram under which the speen was found to have been removed surgically with stitches present at the site and also at the mysentry at left splenic flexure (stitched), Injury No. 3 may also be caused by dagger.
Injury No. 4 was directed towards front and had cut the upper portion of left lung partially. The left chart cavity showed presence of half litre of altered blood. Injury No. 4 may also be caused by dagger.
Injury, No. 6 was due to impact of hard blunt substance which was rod like and heavy. It may be caused by iron rod also.
Death was due to injury to lungs.
Injury Nos. 3 and 4 were sufficiently dangerous and likely to cause death.
Dr. Verma opined that there was surgical interference before the post-mortem examination of the deceased.
10. On 14.4.1981 the deceased Girjan Rai was examined before his death by Dr. Ganga Prasad Verma, Assistant Professor, Neurosurgery and he had found following injuries-
1. Compound fracture of left leg with lacerated wound.
2. Penetrating injury over left scapula about 21/2" × 1/2" × muscle deep.
3. Penetrating injury about 11/2" × 1/2 over the mid axillary line on anterior aspect.
11. Dr. Ramesh Chandra Singh, who examined the defence witness Shivji Singh on 15.4.1981, found following injuries on his person-
1. Lacerated wound 2" × 1/2" × skin deep over left side of the head.
2. Incised would 1" long and 1/2" deep over the right hand palmer surface.
12. The prosecution has disputed this injury report. However, the Investigating Officer did find some merit in the injury report of Shivji Singh.
13. The prosecution evidence is that the appellants variously armed with deadly weapons like daggers, bhala, farsa and iron rod and lathis, caused injuries to Girjan Rai and Ram Bichar Rai. However, according to the defence version, appellants Shivji Rai had alone caused certain injuries in exercise of right of his private defence. Learned trial Judge has rightly observed that the alleged occurrence and resultant injuries found on the person of Girjan Rai and Ram Bichar Rai as well as on the appellant Shivji Rai in the alleged incident becomes very much admitted by the appellant. The earlier version of the occurrence is Ext.-C the fardbeyan of accused Shivji Rai at Digha Police Station.In his fardbeyan, Shivji Rai asserted that Girjan Rai and Ram Bichar Rai were the aggressor and they assaulted Shivji Rai with lathi and dagger on his head. Shivji Rai in self defence snatched the dagger from the Ram Bichar Rai and assaulted him with dagger and when both Girjan Rai and Ram Bichar Rai fell him on the ground, from beneath he caused injury to Girjan Rai with dagger. However, in his statement under Section 313 Cr. P.C. Shivji Rai made out completely a different case. He stated that Girjan Rai might have been hit by dagger by Ram Bichar Rai when he had hurled dagger blow on Shivji Rai while the latter had caught Girjan Rai. Learned trail Judge, therefore, commented that two contradictory and inconsistent verson of Shivji Rai leads to no where. Learned trail Judge has observed. 'The multiplicity and diversity and the depth of the injury on Girjan Rai and Ram Bichar Rai itself disproves the theory of causing injury to them by accused Shivji Rai alone in exercise of the right of private defence. It is not plausible that Girjan Rai and Ram Bichar Rai, if they were aggressor would have caused only a lathi blow on Shivji Rai on his head while they could have suffered several dangerous injuries with dagger, rod and lathis on various parts of their bodies." According to the trial Judge, simple injury on the person of Shivji Rai does not make the claim of the defence reliable. Learned trial Judge relaying on and 1979 Cr. L.J. 888, held that it is not obligatory on the part of the prosecution to expLaln the injuries on the accused Shivji Rai because the injuries on his person was not at all serious and severe rather it was simple injury. The trail Judge held that it was not a case of right of private defence. Right of private defence is available to the prosecution and not to the defence. At best, it could be a case of free fight where each individual is responsible for his own acts. Question of right of private defence did not at all arise in the case like this. There appears to be force in the logic of the trial Judge.
14. So far manner of occurrence is concerned, the learned trail Judge has summarised the evidence in para-16 of the judgment as follows-
Now, it may be seen how far the prosecution has been able to prove the alleged manner of occurrence beyond all reasonable doubts. According to the prosecution case the informant and Girjan Rai were surrounded by all the accused persons near the northern bank of river sons when they were going to Nasriganj Satuani Mela. It is further alleged that accused Sibnandan Rai, Krishnna Rai, Shivji Rai were armed with Chbora, Rajendra Rai with Bhala, Sibnandan Rai with pharsa, Nandlal Rai with rod and Binda Rai and Ram Baboo Rai with lathi. It is also alleged that accused Sib Nandan Rai, Krishna Rai caused injuries to Ram Bichar Rai with dagger on his back and accused Ram Babu assaulted him with rod on his leg while accused Sibji Rai caused injury to Girjan Rai on his back and on the Panjra with dagger while accused Nandlal Rai assaulted him with rod on left leg. All these allegations have been reliably proved by P.W. 1 in paras 1, 2 and 13, P.W. 2 in para 2, 4, and 17 and 18, P.W. 3 in para 1, 3 and 9 and by P.W. 6 in paras 1 and 2. Accordingly to the prosecution evidence, therefore, there is allegation of overt act regarding causing injury to Girjan Rai with dagger against Shibji Rai, with rod against Nandlal Rai only. Likewise, against Sibnandan Rai and Krishna Rai there is allegation of causing injuries with dagger to Ram Bichar Rai and against Ram Babu Rai with lathi on his leg. Against the remaining three namely, Rajendra Rai, Binda Rai and Gibnandan Rai there is no allegation of committing any overt act although their participation by their being members of the assembly and regarding sharing common intention with the 5 accused who are responsible for committing overt act resulting into death of Girjan Rai and attempt on the life of Ram Bichar Rai becomes very much proved.
15. The medical evidence is that the death was due to injury No. 4 which was had cut of the upper portion of left lung of the deceased. A number of other injuries were also found on the person of the deceased.
16. The evidence of Ram Bichar Rai is important. He was by the side of the deceased Girjan Rai, who was allegedly attacked by eight persons. The appellant Shivji Rai, according to the evidence of the eye witnesses, had inflicted two knife injuries on the deceased. Ram Bichar Rai was also assaulted by Shivji Rai on the head. The other injuries were also inflicted by Appellants Sheo Nandan Rai, Krishna Rai and Ram Babu Rai. Appellant Shivji Rai was also injured. The participation of appellant Shivji Rai in the occurrence cannot be doubted.
17. The defence of the accused persons is that the appellant Shivji Rai and his brother Nand Lal Rai were attacked by Girjan Rai and Ram Bichar Rai. The defence of the appellant Shivji Rai that he was unarmed and that he snatched the dagger of Ram Bichar Rai is difficult to believes and give any credence. Appellant Nand Lal Rai did not cause any injury on any vital part of the deceased. He did not cause any injury to the informant.
18. Learned Additional Sessions Judge in para-4 of the judgment has considered the case of Shivji Rai as disclosed by him in the statement under Section 313 Cr.P.C. as also Ext.-C. carbon copy of the fardbeyan of bigha P.S. Case No. 140 dated 14.4.1981 of which Shivji Rai was informant. Learned Additional Sessions Judge has observed as follows-
These statements of accused Sibji Rai constitute the counter version of the same occurrence. His statement under Section 313 Cr.P.C. before the Court has been that he was returning from Patna along with his younger brother accused Nandlal Rai at the alleged time of occurrence. Girjan Rai, the deceased and Ram Bichar Rai, the informant abused Nandlal Rai. This led to altercations. Ram Bichar Rai ordered to kill Sibji Rai, Girjan Rai gave a lathi blow on the head of Sibji Rai and Ram Bichar Rai hurled the dagger. He caught Girjan Rai along with his lathi. Then Ram Bichar Rai hurled many blow with dagger on Sibji Rai and at that time the dagger blow given by Ram Bichar Rai hit Girjan Rai. Accused Sibji Rai caught and snatched the dagger from Ram Bichar Rai. He has stated that after snatching away the dagger from Ram Bichar Rai he was running away swinging the dagger in the air which might have hit and caused injury to Ram Bichar Rai. However, his statement contained in his fardbeyan, Ext.-C is a bit different. According to his Fardbeyan Ext-C he was returning with his younger brother Darbeshwar Prasad Rai and not along with Nandlal Rai as stated in Court by him. There is no mention in his fardbeyan that, first of all, his brother Nandlal Rai had been abused. There is positive statement in his fardbeyan that in a exercise of right of his private defence to his life he hurled Chura which he had snatched from Ram Bichar. He has also stated in his Fardbeyan that when Girjan Rai and Ram Bichar Rai both had downed him on the ground, from beneath he in self defence, used the dagger which might have hit and caused injury to Girjan Rai. There is also an additional statement in the Fardbeyan regarding taking out Rs. 500/- by Girjan Rai from his pocket.
19. Learned Additional Sessions Judge has further observed that the multiplicity of dagger blows caused on the vital parts of body leaves no room for doubt that the intention behind causing these injuries were to cause such injury which might have resulted into the death of the informant Ram Bichar Rai, attracting the offence under Section 307 I.P.C.
20. Learned Additional Sessions Judge further found that the multiplicity and diversity and the depth of the injury on Girjan Rai and Ram Bichar Rai itself disproves the theory of causing injury to them by accused Sibji Rai alone in exercise of the right of private defence. It is not plausible that Girjan Rai and Ram Bichar Rai, if they were aggressors would have caused only a lathi blow on Sibji Rai on his head while they could have suffered several dangerous injuries with dagger, rod and lathi on various parts of their bodies. Learned Additional Sessions Judge found that the accused persons were aggressors and the plea of right of private defence was not acceptable. It was not obligatory on the part of the prosecution to explain the injuries on the accused Sibji Rai because the injuries on his person was not at all serious and severe rather it was simple injury. In the facts and circumstances of the case, right of private defence was available to the prosecution and not to the defence.
21. The judgment of the learned Additional Sessions Judge is well considered one. He has gone deep into the evidence. He has rejected the version of the appellant Shivji Rai the main accused of the case, who had inflicted three stab injuries on Girjan Rai. Participation of Shivji Rai in the occurrence is proved on his admission under Section 313 Cr.P.C. He has no right of provate defence in the facts and circumstances of the case. The appellants were armed with dagger and iron rod.
22. The question is whether all these appellants are liable for the act of Shivji Rai. Main assailant was only Shivji Rai who had dealt vital blow of knife on the chest of Girjan Rai. The evidence is that Nandlal Rai struck with rod on the leg of Girjan Rai causing fracture of libia and fibula. Ram Bichar Rai was assaulted by Sheo Nandan Rai and Krishna Rai. There was compound fracture of left leg by iron rod. The penetrating wounds were muscle deep.
23. I am, however, of the view that the other appellants who had not caused any injury could not be held guilty vicariously in the facts and circumstances of the case. The nature of the evidence reveals that there was Marpit from both sides and some facts have also been suppressed by the prosecution. This does not mean that only because some injuries were found on Shivji Rai and there is contradiction in the evidence, the appellants, who had caused injuries, would escape the consequences of their individual act. There is some suppression from the side of the prosecution. The appellants, who participated in the assault, are only liable. All are not liable under Section 302/34 I.P.C. The accused persons are liable for their individual acts. The question of constructive liability does not arise. As the entire true facts of the incident has not come forward from the side of the prosecution and that appellant Shivji Rai had also sustained injuries, in my opinion, he is liable under Section 304 Part-I of Indian Penal Code and not under Section 302 Indian Penal Code. The appellant Shivji Rai is sentenced to imprisonment fur 7 years under Section 304 Part-I of the Indian Penal Code.
24. Appellant Nandlal Rai had caused fracture injury on the leg of the deceased. This appellant is held guilty under Section 226 Indian Penal Code for causing serious injury to the deceased Girjan Rai and is sentenced to undergo imprisonment for two years.
25. All the appellants have been convicted under Section 307/34 Indian Penal Code for having caused injuries to the informant Ram Bichar Rai. According to the medical evidence, following injuries were found on the person of Ram Bichar Rai:
(1) One sharp penetrating injury on the back of shoulder just above left scapula 11/2" × 1/2" × muscle deep.
(ii) One sharp penetrating wound on the back of the roof of the neck just at the left of mid line 1" × 1/2" × muscle deep.
(iii) The panetrating wound near third thoracic vertibra 1/2" × 1/2" × 1/2" × muscle deep.
(iv) One penetrating wound just above left iliac crest posterially 1" × 1/2" × muscle deep.
(v) Abrasion over the left elbow.
(vi) Penetrating wound over the lumber region about 1" × 1/2" × muscle deep.
Four penetrating wounds caused by knife are only muscle deep. One wound has been caused by lathi. The doctor has not indicated the nature of these injuries. He has not stated that there injuries were dangerous to life. Four penetrating wounds were caused but the injuries were only muscle deep.
26. According to the evidence of injured Ram Bichar Rai, the dagger injuries were caused by Sheo Nandan Rai and Krishna Rai. One injury was caused by iron rod on his leg by Rambabu Rai.
27. Considering the nature of injuries and failure of the doctor to indicate the nature of injuries, the charge under Section 307/34 Indian Penal Code cannot stand. Appellants Sheo Nandan Rai, Krishna Rai and Rambabu Rai will be liable under Section 324 Indian Penal Code and not under Section 307/34 Indian Penal Code. Appellants, namely, Rajendra Rai, Binda Rai and Jibanandan Rai, who had not committed any overt, act, are acquitted of all the charge.
28. In the result, the conviction of all the appellants under Sections 302/34, 307/34, 147 and 148 of Indian Penal Code is set aside. Appellant Shivji Rai in Cr. Appeal No. 76 of 1987 is convicted under Section 304 Part-I of Indian Penal Code and is sentenced to 7 years imprisonment. Appellant Nandlal Rai of Cr. Appeal No. 76 of 1987 is convicted under Section 326 Indian Penal Code and is sentenced to undergo imprisonment for two years. Appellants Sheo Nandan Rai, Krishna Rai and Rambabu Rai of Cr. Appeal No. 597 of 1986 are convicted under Section 324 of Indian Penal Code. Appellants Sheo Nandan Rai and Krishna Rai are sentenced to one year R.I. While appellant Rambabu Rai is sentenced to six months R.I. Appellants, namely, Rajendra Rai, Binda Rai and Jibanandan Rai.are acquitted of all the charges. They are discharged from the liability of their bail bonds. Appellants Krishna Rai, Sheo Nandan Rai, Rambabu Rai, Shivji Rai and Nandlal Rai shall surrender before the Court below for serving the remaining period of sentence.
29. Cr. Appal No. 76 of 1987 is dismissed with modification in sentence. Cr. Appeal No. 597 of 1986 is allowed in part.