Patna High Court
Shiva Balak Rai And Ors. vs State Of Bihar on 17 March, 1986
Equivalent citations: 1986CRILJ1727
JUDGMENT Krishna Ballabh Sinha, J.
1. All the four appellants have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. They have also been convicted under Section 147 of the Indian Penal Code, for which sentence of one year's rigorous imprisonment has been awarded to them. The sentences have been ordered to run concurrently.
2. Briefly stated the case of the prosecution is that the marriage ceremony of the son of Adalat Rai, the informant, was performed about a fortnight prior to the day of the occurrence, in which he had arranged a feast, which was attended by a large number of persons. However, some persons could not attend the feast on that occasion. So on 18-5-1977, he invited Aziz Mian (P. W. 2) and Sanaullah Mian, since the deceased, at his residence in village Charagaha Dhobia Tola, lying within Turkaulia Police Station in the district of East Champaran. Besides them, Ganesh Rai (P. W. 4) of village Jagiraho, was also invited to attend the feast. The invitees came at his house at about 9 p.m. Sanaullah Mian finished his meal and left the place while the other invitees were still taking their food. Only some time after his departure, the informant heard the alarm raised by Sanaullah Mian, who was crying for help. The informant rushed with a torch in his hand. When he reached near his field situated east of the house of accused Ram Chandra Rai, he found appellants Shiva Balak Rai, Jokhan Rai, Ramautar Rai and Dina Nath Rai assaulting Sanaullah Mian with lathi. Accused Ram Chandra Rai was armed with farsa, who was also assaulting him with its lathi portion. Sanaullah Mian was lying injured in the field. Aziz Mian (P. W. 2) and one Ram Lagan Sah also reached there. They asked the accused persons not to assault Sanaullah Mian, but threats were held out to them. The accused persons dragged Sanaullah Mian by his feet and took him at their Darwaja where he was assaulted with spade on his head. Adalat Rai (P. W. 5) reported the matter to the village Choukidar, who came with him and found the dead body of Sanaullah Mian lying at the Darwaja of accused Ram Chandra Rai. One Singhasan Baitha had executed a deed of conditional sale in favour of the deceased for a piece of land. The said land was purchased, subsequently, by accused Ram Chandra Rai from Singhasan Baitha, which gave rise to a dispute between the parties and this was alleged to be the motive for the occurrence.
Adalat Rai (P. W. 5) went to Turkaulia Police Station on 19-5-1977 at 2 a.m. with his co-villager Hafiz Mian (P. W. 3) and lodged the first information report, on the basis of which the police registered a case and after investigation submitted charge-sheet. Accused Ram Chandra Rai died before commencement of the trial.
3. In support of the charges, the prosecution examined five witnesses. Besides the informant, P. W. 1 Ram Lagan Sah, P. W. 2 Aziz Mian, P. W. 3 Hafiz Mian and P. W. 4 Ganesh Rai figured as eye-witnesses of the occurrence.
Four witnesses were examined on behalf of the appellants in the trial Court. D. W. 1 Balmukund Pandey proved the formal first information report (Ext. A) of Turkaulia Police Station Case No. 11(5)77 and another first information report of Turkaulia P. S. Case No. 5(7)78 and (Ext. A/2). D. W. 2 Panchanan Sarma, the Record Keeper of Collectorate, formally proved a report (Ext. B) regarding destruction of a case record. D. W. 3 Narendra Narayan Singh, Assistant Sub-Inepector of Police also formally proved a first information report (Ext, A/3). Satyadeo Thakur (D. W. 4) formally proved injury reports (Exts. C & C/l) of accused Ram Chandra Rai and Shiva Balak Rai.
4. Upon consideration of the evidence led on behalf of the parties, the IInd Additional Sessions Judge, Motihari, convicted the appellants and passed sentences against them, as mentioned above.
5. The learned Counsel for the appellants contended that the occurrence, admittedly, took place in the dark-night and the evidence adduced with regard to the means of identification was highly discrepant. It was urged that the Police Officer, who made investigation of the case, was not examined in the trial Court, which seriously prejudiced the case of the appellants. The Doctor, who performed autopsy over the dead body of Sanaullah Mian, was also not examined and so there was no evidence on the record to show that Sanaullah Mian died as a result of the injuries alleged to have been caused by the appellants. It was also contended that the witnesses (P. Ws. 1 to 5) were highly interested.
6. The learned Counsel for the State strenuously argued in support of the judgment and contended that no prejudice had been caused to the appellants on account of non-examination of the Police Investigating Officer. He further contended that the postmortem report was available on the record of the trial Court and so for the ends of justice it was necessary to allow the prosecution to adduce additional evidence for proving the said report. It was also urged that, if necessary, the prosecution should be given an opportunity to examine the Police Investigating Officer.
7. P. W. 5 in his evidence in the trial Court stated about the marriage of his son, namely, Shri Hari Shankar Rai, which was performed some time before the date of occurrence. On that occasion, he could not invite some persons. So, he invited P. Ws. 2, 4 and the deceased on the day of occurrence, who came at about 8 p.m. at his residence. After taking his meal, the deceased left the place earlier. He heard hulla of the deceased and rushed towards that side along with P. Ws. 2 and 4, who had not finished their meal by that time. He was carrying a torch and P. W. 4 had also a torch in his hand. In the light of the torches, he saw Sanaullah Mian (deceased) lying in the field, who was assaulted by accused Ram Chandra Rai and the appellants. Accused Ram Chandra Rai was assaulting him with a farsa and the appellants were hurling lathi blows on him. Appellants Ramautar Rai and Jokhan Rai caught the feet of Sanaullah Mian and dragged him to the Darwaja of accused Ram Chandra Rai situated at a distance of 4-5 poles (Laggi) from the said field. Sanaullah Mian was kept in the open space in front of the verandah of the appellants, where appellant Shiva Balak Rai brought a spade and caused injuries on his head and back, as a result of which he breathed his last.
According to his evidence, a large number of people, including P. Ws. 1 and 3, arrived at the place of occurrence and all of them were protesting while the appellants were dragging Sanaullah Mian to their Darwaja. He stated about the dispute with regard to a piece of land between the appellants on the one hand and the deceased on the other, for which a Panchayati was convened. All the Panches, who participated in the said Panchayati, were alive. He was not a Panch of the said Panchayati. He could not say how long before the death of Sanaullah Mian, the Panchayati was held. The deceased had agreed to hand over possession of the disputed land on the due date of the appellants after accepting the consideration money of the mortgage. He said that he was son of appellant Jokhan Rai from his first wife and the other appellants were also his sons from the second wife. The appellants were living separately from him. He admitted that accused Ram Chandra Rai had instituted a case of assault against him. He denied the defence suggestion that Sanaullah Mian was engaged by him to assault the accused persons and when 'he went to the house of accused Ram Chandra Rai, he was drunk and dashed against a Pole and fell down, as a result of which he sustained injuries and died.
8. The other prosecution witnesses (P. Ws. 1, 2, 3 and 4) also supported the evidence of the informant and stated that they reached at the place of occurrence having heard the alarm raised by the deceased and saw the appellants and accused Ram Chandra Rai assaulting him. They further stated that the deceased was dragged from the field to the Darwaja of the appellants by his feet where spade blows were dealt on his person causing his instantaneous death.
P. W. 1 RamlaganSah, a resident of village Sobhaya and P. W. 3 Hafiz Mian, son of the deceased, said that they heard the hulla of the deceased when they were in their orchard and went at the place of occurrence. P. W. 3 stated about the Panchayati, which was convened to settle the land dispute between his father and the appellants. He named Mahadeo Baitha, Bideshi Baitha, Darshan Baitha, Baldeo Baitha and Raghu Baitha as the persons, who had acted as the Panches. He could not say the month when the Panchayati was held.
It was submitted on behalf of the appellants that according to the evidence of P. Ws. 4 and 3, the Panches were alive and P. W. 3 also disclosed their names, but none of them was produced in the trial Court in support of this assertion. Admittedly, P. W. 5 was not a Panch and there was no document to establish the fact that any Panchayati was held with regard to dispute of land between the parties. Both the witnesses failed to give the month and time of the Panchayati. The other prosecution witnesses said nothing about the Panchayati. As the prosecution did not examine any of the Panches and there is no document in support of the Panchayati and, in my view, the evidence of P. Ws. 3 and 5 is not sufficient to establish the fact that a Panchayati was held with regard to dispute of land between the deceased and the appellants. According to the prosecution case, the land dispute between the parties was the root cause of the trouble and that having not been proved, it is a circumstance, which goes against the prosecution.
P. W. 3 Hafiz Mian stated that by the time he reached near the place of occurrence, he had seen P. Ws. 1,2,4 and 5 coming from the other direction with torch. P. W. 5 stated that besides him, P. W. 4 was also flashing torch, in the light of which the appellants were identified while assaulting the deceased in the field and at the Darwaja of accused Ram Chandra Rai. P. W. 4, himself, did not state that he was carrying any torch at the time of occurrence. When asked in cross-examination, the informant (P. W. 5) stated that he did not remember to have stated before the Magistrate and the Police that he was having a torch with him at the time of occurrence. He further stated that he also did not remember that he mentioned about any torch with Ganesh (P. W. 4) in his statement before the Police. P. W. 1 did not say anything about any torch in his evidence. P. W. 2 stated about a torch only with Ganesh Rai (P. W. 4), which was not supported by P. W. 4 himself. P. W. 5 also stated that his torch was not seized by the Police and the same was destroyed and hence not" available for production in the Court. The evidence of the prosecution witnesses is absolutely contradictory and most unsatisfactory with regard to the means of identification and thus it is not safe to place reliance on their testimony.
9. According to the prosecution evidence, deceased Sanaullah Mian was assaulted in the field of the informant. His injuries were bleeding when he was dragged from the said field to the Darwaja of accused Ram Chandra Rai. According to defence suggestion, Sanaullah Mian died as a result of injury sustained by him when he dashed against a pole at the Darwaja of the appellants in drunken state. So, there are two versions of the occurrence before the Court. Some of the witnesses admitted that a counter case was also filed with regard to the same occurrence. The correctness or otherwise of the two versions would have been easily ascertained by looking to the objective evidence found at the place of occurrence. The Police Officer, who made investigation into the case, was not examined in the trial Court and in absence of his evidence it is difficult to hold as to which of the two versions is correct. There is nothing on the record to indicate that marks of struggle or stains of blood were found in the ploughed field of the informant where Sanaullah Mian was assaulted. There is no evidence that sign of dragging and blood stains were found from the said field to the Darwaja of accused Ram Chandra Rai. If the ocular evidence adduced by the prosecution is accepted in absence of the evidence of the Police Investigating Officer, it is likely to cause prejudice to the defence of the accused persons.
10. True it is that the post-mortem report is available on the record of the trial Court. The post-mortem report has not been legally brought on the record as the doctor, who performed autopsy, was not examined. It, therefore, follows that there is no evidence before the Court to hold that Sanaullah Mran died as a result of the injuries caused to him by lathi, farsa and spade. It further shows that there is no corroborative medical evidence in support of the oral allegations made against the appellants that they caused injuries to the deceased.
11. Informant (P. W. 5) admitted that accused Ram Chandra Rai had instituted a criminal case against him. He also said that he had invited the appellants to attend the feast on the occasion of marriage of his son, but they did not attend the same. As stated above, appellant Jokhan Rai is father of the informant and other appellants are his step-brothers. It appears that the relationship between the informant and the appellants was not cordial.
Hafiz Mian (P. W. 3), the son of the deceased, had accompanied P. W. 5 to the Police Station and was present when the first information report was lodged. As P. W. 3 had not seen the occurrence according to the evidence of P. W. 5, so the latter lodged the first information report. But subsequently, P. W. 5 stated in his evidence that P. W. 3 was also present at the place of occurrence when Sanaullah Mian was assaulted. P. W. 3 being the son of the deceased is an interested witness and his presence at the place of occurrence becomes doubtful in view of the contradictory statement of the informant.
P. W. 1 Ram Lagan Sah, a resident of village Subhaya, claimed that he was present in his orchard, wherefrom he came at the place of occurrence after hearing the alarm. In natural course, it is not expected that at such hour of the night, he (P. W. 1) would be present in his orchard, without any work.
P. Ws. 2,4 and 5 were made accused in the counter case, The prosecution, therefore, did not produce any independent witness. As mentioned above, the evidence of the prosecution witnesses is not free from suspicion and hence does not inspire confidence.
12. In course of argument. the learned Counsel for the State led much emphasis for allowing the prosecution to give additional evidence. The provision for taking further evidence at the appellate stage has been made under Section 393 of the Code of Criminal Procedure, which is thus:
391. Appellate Court may take further evidence or direct it to be taken-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
13. The language of the section does not put any restriction on the power of the Court. But it is for the appellate Court to decide whether in the interest of justice it is "necessary" to allow any partly to give additional evidence. The word "necessary" has not been used in the section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. Under the garb of the pro-vision of this section, the prosecution cannot be allowed to fill up the lacuna in the prosecution evidence. Where only formal proof of a document is necessary, the appellate Court would be perfectly justified in admitting the additional evidence. Likewise, if the evidence which is necessary for a just decision of the case, was erroneously rejected by the trial Court or such evidence was not within the knowledge of the parties earlier, the appellate Court may exercise the power. The abovementioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. Ordinarily, it should not be allowed if the prosecution fails to avail the opportunity given to it by the trial Court for producing such evidence.
Similar view has been expressed in the case of Rajeshwar Prasad Misra v. State of West Bengal AIR 1965 SC 1887 : 1965(2) Cri LJ 817 it has been held that the order for reception of additional evidence, usually, must not be made if the prosecution has had a fair opportunity and did not avail of it unless the requirements of justice dictate otherwise.
14. In the instant case, the hearing of the trial commenced in the Sessions Court on 30-8-1980 when the parties were heard on the point of framing of the charge. Adalat Rai (P. W. 5), the last witness on behalf of the prosecution, was examined on 7-3-1981. The statement of the accused persons under Section 313 of the Code of Criminal Procedure was recorded on 19-1-1982. Prior to this date, the case was adjourned for more than half a dozen time and summonses were ordered to be issued against the Doctor and the Police Investigating Officer. The learned Public Prosecutor was also directed to take step for production of the said witnesses and ultimately the prosecution was closed on 3-12-1981. The first defence witness was examined on 25-3-1982 and, thereafter, three other witnesses were also examined.
On perusal of the order-sheets of the trial Court, it is manifest that ample opportunity was afforded to the prosecution to examine the Police Investigating Officer and the Doctor, who held autopsy over the dead body of Sanaullah Mian. Although, several chances were given to the prosecution for producing the said witnesses, but it did not avail the same.
15. The other aspect of this controversial issue also needs some consideration. The occurrence had taken place as far as back in the month of May, 1977 and, thereafter, a period of more than eight years has already rolled on. During the said period, the appellants must have remained in great mental agony due to prolonged prosecution. So, on the facts and in the circumstances of the case, it will be too hard for the appellants if the case is reopened at this stage and the prosecution is allowed an opportunity to give additional evidence. I, therefore, do not find any justification to allow the prayer of the learned State Counsel for reception of additional evidence, at this stage.
16. In view of the infirmities as mentioned above, in the prosecution evidence, I am constrained to hold that the prosecution has failed to prove the charges against the appellants beyond all reasonable doubts.
17. In the result, the appeal is allowed and the conviction and sentence passed against the appellants are set aside. They are directed to be discharged from the liability of their bail bonds.
Phani Bhushan Prasad, J.
18. I agree.