Patna High Court
Harabansh Rai And Ors. vs State Of Bihar on 30 April, 1986
Equivalent citations: 1986(34)BLJR776
JUDGMENT
Ram Naresh Thakur and S.H.S. Abidi, JJ.
1. All these appellants have been convicted under Section 302/149 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. Appellants Chaturbhuj Rai and Ramdeo Rai have also been convicted under Section 147 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one year. The rest of the appellants have also been convicted under Section 148 of the Code and each of them has been sentenced to undergo rigorous imprisonment for two years. Both the sentences have been directed to run concurrently.
2. The prosecution case, in short, is that the informant (PW 1) Munni Rai owned and possessed survey plot No. 191 having an area of 3 Bighas 2 Kathas, in village Bishnupur Diara, 1 Bigha 5 Kathas of this plot No. 191 falls in patti commonly known as Tinrasia and 18 Kathas of the said plot falls in the patti commonly called Dasrasia.
3. On the day of the occurrence, i.e., 21st June, 1972, at about 8 a.m. the deceased and his brother Munni Rai, the informant (PW 1) had gone to the aforesaid land, popularly known as Tinrasia. The deceased Gigal Rai was ploughing the land and the informant was weeding out grass. At that time all these appellants, variously armed, came there. Appellant Harbansh Rai asked the deceased to unyoke the bullocks and to stop ploughing. The deceased refused to oblige him. This led to altercation between the deceased and appellant Harbansh Rai. Thereafter, appellant Harbansh Rai asked the members of the mob to assault the deceased on which appellant Sarjug Rai assaulted the deceased with bhala on his chest. Appellant Gigal Rai assaulted the deceased on his chest with bhala and appellants Nathun Rai and Suresh Rai assaulted the deceased with bhala on his stomach. The deceased fell down and thereafter all the members of the mob started assaulting the deceased with their respective weapons with the result that the deceased died then and there. Arjun Rai (PW 2) and Dipa Rai (PW 7) went to save the deceased whereupon appellant Gigal Rai assaulted Dipa Rai with bhala on his back and appellant Chaturbhuj Rai assaulted him (Dipa Rai) with Lathi on his buttock. Thereafter, the appellants fled away.
4. According to the prosecution case, the deceased Gigal Rai and the informant Munni Rai had ploughed the aforesaid land about two to three days before the occurrence and one day before the occurrence the appellant had forcibly ploughed 18 Kathas of the land, popularly known as Dasrasia.
5. PW 9, who was the officer-in-charge of Bidupur police station on the day of the occurrence came on the spot at about 11 a.m. on 21st June, 1972, on hearing some rumour. He recorded the statement of the informant at the spot, which is Exhibit 4, on the basis of which a regular case was instituted against these appellants. PW 9 took up the investigation. He held inquest over the dead body, sent the dead body for postmortem examination, inspected the place of occurrence and subsequently submitted charge-sheet against these appellants, who ultimately, were put on trial.
6. In course of trial, ten witnesses were examined on behalf of the prosecution. The appellants pleaded their innocence. From the cross-examination of the prosecution witnesses and the defence evidence, further case of the appellants appears to be that the occurrence took place in 18 Kathas of land, popularly called Dasrasia, when the prosecution party had gone to take possession of that land forcibly and in course of that the prosecution party had damaged the hut of appellant Harnandan Rai. According to the defence case, some of the appellants also received injuries. Six witnesses were also examined on behalf of the defence. One Dipnarain Lal was also examined as a court witness in the case. After taking into consideration the entire facts of the case, the learned trial Court convicted the appellants as stated above.
7. Learned Counsel appearing for the appellant has mainly canvassed on the point that the trial Court has not appreciated the evidence of the prosecution witnesses, and, therefore, it came to a wrong conclusion. It has been further argued that from the evidence on the record it would appear that the occurrence did not take place in the manner as alleged by the prosecution, rather it took place in some different manner and, therefore, the prosecution is guilty of suppressing the truth. It has also been argued that the prosecution has failed to account for the injuries found on the person of some of the appellants.
8. PW 8 Dr. Gopal Prasad had conducted the post-mortem examination on the dead body of the deceased on 22nd June, 1972 at 9.30 a.m. and had found the following ante-mortem injuries on his person:
(1).--Incised penetrating wound 1" x 1/2" x going upwards and leftwards x chest cavity on the upper most part of the epigastrium in the abdomen--On opening the abdominal and chest cavities the injury had tracked through the diaphragm and pierced the lungs on its left side, pericardium and portion of heart muscles.--Blood and blood clots were found all over the track.
(2) Incised penetrating wound 3" X 1/5" X going deep below upwards and leftward on the epigastrium in the abdomen--On opening the chest and abdominal cavities this injury had entered the chest cavity through the diaphragm and had ruptured the left lung along with fracture of eighth rib.
(3) Incised penetrating wound 11/2'' X 1/2" x going deep in chest cavity right side.
(4) Incised penetrating wound 1'' X 1/5" x going deep in chest cavity about 2" below the nipple in front of right side--On deeper dissection of injuries Nos. (3) and (4) it was found that they had punctured right lung and fractured the seventh rib--Blood and blood clots were found in the chest wall and in the pleural cavity.
(5) Incised penetrating wound 1/4" X 1/5" x 3/4" on the sub-costal region on the right side of the abdomen obliquely.
(6) Incised penetrating wound 1" x 1/2" X 11/2" on the back of left fore-arm obliquely.
(7) Incised penetrating wound 1/2" X 1/8" X 11/2'' on the outer aspect of right arm below the shoulder joint.
(8) Incised penetrating wound 1" X 1/5" X 3" on the outer aspect of right thigh on its middle part going inward and leftward.
(9) Incised penetrating wound 1" X 1/2" X 11/2" on the back of left hip.
(10) Incised penetrating wound 1" X 1/2" X 2" on the left hip about 2" below injury No. 9.
Death, in the opinion of the doctor, was caused due to shock and haemorrhage as a result of injuries described above which where sufficient in the ordinary course of nature to cause death. According to him, the injuries were caused by sharp pointed weapon like bhala and time of death was between 24 to 36 hours from the post-mortem examination. The postmortem report is Exhibit 2. The oral evidence of eye-witnesses coupled with the aforesaid medical evidence clearly establishes the fact that the deceased died of injuries and there is no doubt about it. Even learned Counsel appearing for the appellants has not controverted this fact before this Court. Therefore, we find and hold that the deceased died of injuries.
9. Now the question arises as to whether the occurrence took place in the manner as alleged by the prosecution. It has come in the evidence of PW 1 that Gobardhan Rai had three more brothers, namely, Karu Rai, Keri Rai and Jaikaran Rai. Gobardhan Rai had two sons Jhari Rai and Chhathu Rai. Dipa Rai (PW 7) is the son of Jhari Rai. Deceased Gigal Rai, the informant (PW 1) Manni Rai and PW 4 Ekbali Rai are the grand sons of Chhathu Rai PW 5 Binda Rai is the grand-on of Jaikaran Rai. Thus, PWs 1, 4, 5, 7 and the deceased came from the same stock.
10. According to the prosecution case, the occurrence took place in the field which is popularly known as Tinrasis. From the evidence of the prosecution witnesses itself it would appear that this land was never claimed by the appellants and there had never been any dispute in between the informant on the one hand and the appellants on the other in respect of the land in dispute. It was the first occasion when the appellants, according to the prosecution case itself, came over the land and asked the deceased not to plough and on refusal the deceased was done to death. It has also come in the evidence of the prosecution itself that one day before this occurrence, the appellants had ploughed 18 Kathas of land which is popularly known as Dasrasia, forcibly. Though the deceased and the informant had protested, the appellants did not listen to them and they ploughed the land. Except protesting, the informant or the deceased did nothing and no information was given either to the Panchayat or to any authority. It may be mentioned here that according to the defence case, the occurrence took place on this 18 Kathas of land which is popularly known as Dasrasia. In this connection the evidence of PW 9, the investigating officer, is relevant to be considered. He (PW 9) inspected the place of occurrence in the presence of the informant and Ekbali Rai. He found the dead body of the deceased laying in the field having an area of 1 Bigha 15 Kathas which was recently ploughed. According to him, this land appertains to Knata No. 96, Khesra No. 191 and falls in the patti of Tinrasia, The dead body was lying by the side of the eastern ridge of this field. He also found some trampling marks nearabout. From the cross-examination of this witness it would appear that a counter case was also instituted on the statement of appellant Nathu Rai against the deceased, PW 2 Arjun Rai, PW 1 Manni Rai, PW 4 Ekbali Rai, PW 5 Binda Rai and PW 7 Dipa Rai. The aforesaid case was instituted under Sections 326, 324, 148, 426 and other sections of the Indian Penal Code. He had investigated that case also. According to him (PW 9) he had inspected the place of occurrence of the counter case in presence of the informant of the present case on 21st June, 1972 and 22nd June, 1972. While he was inspecting the place of occurrence of this case as well as of the counter case, none of the appellants was there. PW 1 Manni Rai had pointed out the Jhopri and Bathan etc. belonging to the appellants. He (PW 9) had found the Jhopri and Bathan of the appellants damaged and in shattered condition. He had also found trampling marks there. The place of occurrence of the counter case was in the south-west of the place of occurrence of the present case. He also found a Palani of appellant Harnandan Rai. From the place of occurrence of the present case and up to the Palani of appellant Harnandan Rai, PW 9 found land scraped here and there at several places. He also found a Nad freshly broken on the place of occurrence of the counter case. He also found one Hal with Pale lying on the place of occurrence of the counter case. According to PW 9 the place of occurrence of the counter case falls within Dasrasia and he found the ridge in between Tinrasia and Dasrasia disturbed. The appellants had also produced some papers before him in respect of this land of Dasrasia.
11. PW 1 has given the boundary of the land in dispute in paragraph 11 of his evidence according to which, in the south of the said land is the land of Ram Sahai Dusadh which falls in Dasrasia. This very witness (PW 1) has further stated in paragraph 18 that he has heard that from the descendents of Ram Sahai Dusadh some of the appellants have purchased the land belonging to Ram Sahai Dusadh and on the day of occurrence, the appellants were in possession of the land which they had purchased. Therefore, according to the admission of PW 1 himself, in the south of the disputed land, the appellants were in possession on the day of occurrence. All the eye-witnesses were questioned about the disturbances found on the southern land failing in Dasrasia by the investigating officer but they all have denied that there was any disturbance on that land. They further denied that any Jhopri or Bathan was disturbed or anything was done on that land. But in this respect, these eye-witnesses are falsified by the statement of PW 9 who claimed to have inspected the place of occurrence in the presence of the informant and Ekbali Rai. All the witness have denied that any occurrence took place in respect of the land falling in Dasrasia. According to them, the occurrence took place in respect of the land falling in Tinraskt. But PW 3 has said in paragraph 12 in cross-examination--"Usi 18 Katha bala khet ko lekar ghatna ke din wakua wale khet me ghatna ghati thi. Wahi dono ke beech tanab kajar tha". According to this admission of PW 3, the 18 Katha land was the root cause for the present occurrence but the other witnesses did not say anything about it.
12. According to the informant himself, one day before the occurrence the appellants had forcibly ploughed 18 Kathas of land which falls within Dasrasia though the deceased and the informant had protested but they did not listen and completed the ploughing. But nothing happened on that date. According to the prosecution case itself, the appellants never laid any claim over the land in dispute which falls within Tinrasia. Even before this Court this land has not been claimed by the appellants. In that situation, it looks somewhat absurd as to why the appellants would go to the field in question to stop ploughing which was being done by the deceased when none of the appellants laid any claim over that land. It also does not stand to reason as to why the appellants would commit an oceurrence for a land which is never claimed by them. Moreover if, as stated by the prosecution, one day before the occurrence the appellants had forcibly ploughed the land of the informant, the informant's party would have been aggrieved on the day of the occurrence and not the appellants because they had, according to the prosecution case itself, successfully ploughed the land of the prosecution party. Therefore, taking into consideration all the aforesaid facts, it appears that the prosecution party has not come up before the court with a true picture of the occurrence. If no occurrence took place on the land falling in Dasrasia, how disturbance and trampling marks were found by the Investigating Officer on that land and how could he find the Bathan and Jhopri of the appellants damaged and disturbed, especially when he had inspected that land in presence of the informant of this case. It has to be remembered at this stage that a counter case was lodged at 7 p.m. on 21st June, 1972, but the place of occurrence was inspected much earlier and no of the appellants was present at the time when PW 9 was inspecting the same.
13. From the evidence of the informant it would appear that he claimed the land which falls in Dasrasia and the land falling in Dasrasia is in the southern boundary of the land in dispute. If actually this land of Dasrasia was in the possession of the informant himself why did he not describe himself in the southern boundary when he had given the boundary of the land in dispute. This also indicates that the occurrence took place in respect of the land which falls in Dasrasia.
14. Apart from this, PW 9 has stated in paragraph 14 of his evidence that he had arrested appellants Nathun Rai and Harnandan Rai in Hajipur hospital and he had found injuries on their person. He had also found injuries on the person of appellants Hare Krishna Rai, Sarjug Rai, Gigal Rai and Jailal Rai, Exhibit A is the certified copy of the first information report of the counter case lodged by appellant Nathun Rai. This first information report was drawn up on the basis of the fardbeyan recorded on the statement of Nathun Rai in Hajipur Sadar Hospital on 21st June, 1972, at 7 p.m. DW 2 Dr. Ramesh Chandra Srivastava, who was then posted as Civil Assistant Surgeon at the sub-divisional hospital, Hajipur, had examined appellants Harnandan Rai and Nathun Rai and found the following injuries on their person:
Appellant Harnandan Rai:
(1) Abrasion 1/4" x 1/2" on superior aspect of nose. (2) Lacerated wound 1/4" X 1/8" X 1/8" on nose distal to injury No. (1). (3) Ecchymosis 1 1/2" x 1/2" on post erior aspect of right shoulder.
Appellant Nathu Rai:
(1) Wound with clear cut regular margin 1/4" X 1/6" x 1" on anterior aspect of left thigh 3" above left knee.
(2) Wound with clear cut regular margin 1/4 ' x 1/4" X 2" half an inch lateral to the injury No. (1).
One Dr. Ramji Prasad had examined some of the other appellants but he has been said to be mentally unfit to give evidence in the case. DW 5 has come to say that Dr. Ramji Prasad, who was medical officer of Raghopur State Dispensary at the relevant time, was laying in Patna since three years and he was unable to move about. DW 5 has proved some of the writings of Dr. Ramji Prasad as also the writings of the son of Dr. Ramji Prasad.
15. From the evidence on the record it appears that some of the appellants had also received injuries but no prosecution witness has claimed to have seen any injury on any of the appellants. PW 2 has admitted that in the year 1966 he had brought a criminal case against appellant Ramdeo Rai. PW 3 has also admitted that one Udar Rai had brought a case against appellant Harbansh Rai in which be had deposed for Udar Rai. He has further said that one Sarjug Rai had brought a criminal case against appellants Ramdeo Rai and Gigal Rai in which he had deposed for Sarjug Rai and that case was brought before the present case. Therefore, PWs 2 and 3, who claimed to be eye-witnesses had animosity with the appellants from before. PW 7 Dipa Rai who was also alleged to have received injuries was tendered. Thus, no independent witness has come forward to support the prosecution case. There are also vital inconsistencies between the statements of the eye-witnesses in the court and their statements before the Investigating Officer which are apparent from the evidence of the Investigating Officer (PW 9). Of course, a protest petition was filed against the Investigating Officer in course of investigation but nothing has been brought on the record during the trial to indicate that the Investigating Officer did not investigate the case properly and impartially.
16. In view of all the aforesaid facts and circumstances we come to the conclusion that the prosecution did not bring the correct picture of the occurrence before the court and, therefore, the appellants are entitled to get the benefit of doubt. Accordingly, the appeal is allowed and the order of conviction and sentences passed against the appellants is set aside.