Patna High Court
Dipa Rai vs State Of Bihar on 14 July, 2015
Author: V.N. Sinha
Bench: V.N. Sinha, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.156 of 1993
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1. Bhola Rai son of Ratan Rai
2. Sudarshan Rai son of Sipahi Rai
3. Lal Babu Rai son of Sudarshan Rai
4. Ramdahin Rai son of Jhauri Rai
5. Ram Kirit Rai son of Jhauri Rai
6. Ramsewak Rai son of Jhauri Rai
7. Sikandar Rai son of Ram Sewak Rai
8. Tokhan Rai son of Ramdhyan Rai
9. Ram Ajodhya Rai son of Ramdhyan Rai
10. Ram Kripal Rai son of Ramdhyan Rai
11. Dhaneshwar Rai son of Ramdeo Rai
12. Taras Rai son of Bhagwan Rai
All resident of village- Marar, P.S.- Parsa, District- Saran...... .... Appellants
Versus
The State of Bihar...................................................... .... Respondent
with
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Criminal Appeal (DB) No. 216 of 1993
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Dipa Rai son of Ramdahin Rai, R/o village- Marar, P.S.- Parsa, District-
Saran..................................................................... Appellant
Versus
The State of Bihar................................................ .... Respondent
with
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Criminal Appeal (DB) No. 221 of 1993
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Manai Rai son of Bhola Rai, R/o village- Marar, P.S.- Parsa, District- Saran
............................................................................... .... Appellant
Versus
The State of Bihar.......................................................... ....Respondent
with
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Criminal Appeal (DB) No. 224 of 1993
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Chulhan Rai son of Bhola Rai, R/o village- Marar, P.S.- Parsa, District-
Saran......................................................................... .... Appellant
Versus
The State of Bihar........................................................ .... Respondent
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Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 2
Against the judgment of conviction and order of sentence dated 12th and 20th
March, 1993 passed by Shri Chiranji Singh, IVth Additional Sessions Judge, Saran
at Chapra in Sessions Trial No. 117 of 1991.
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Appearance :
For the Appellants : Mr. Ajay Kumar Thakur, Advocate
Mr. Rakesh Kumar Sinha, Advocate
For the Informant : Mr. Arvind Kr. Srivastava, Advocate
For the State : Mr. A. K. Sinha, APP
Mr. S.C.Mishra, APP
Mr. S. N. Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 14-07-2015
These four appeals arise out of judgment of conviction, order of
sentence dated 12, 20.03.1993 passed by 4th Additional Sessions Judge, Saran at
Chapra in Sessions Trial No. 117 of 1991 whereunder the appellants of Cr.
Appeals (DB) No. 216, 221 and 224 of 1993 have been convicted for the offence
under Section 302 IPC and sentenced to suffer rigorous imprisonment for life, 12
appellants of Cr. Appeal (DB) No. 156 of 1993 and appellant of Cr. Appeal (DB)
No. 216 of 1993 have further been convicted for the offence under Sections
302/149 IPC, sentenced to suffer rigorous imprisonment for life, appellant nos. 1,
11 of Cr. Appeal (DB) No. 156 of 1993 and appellant of Cr. Appeal (DB) No.
221 of 1993 have been convicted for the offence under Sections 302/34 IPC,
appellant no. 10 of Cr. Appeal (DB) No. 156 of 1993 has been convicted for the
offence under Section 323 IPC, sentenced to suffer rigorous imprisonment for
three months, appellant nos. 3, 9, 10, 11 and 12 of Cr. Appeal (DB) No. 156 of
1993 and appellants of Cr. Appeal (DB) No. 224, 216 of 1993 have
been convicted for the offence under Sections 148, 426 IPC,
sentenced to suffer rigorous imprisonment for one year, three months
Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 3
respectively, appellant nos. 2, 4, 5, 6, 7, 8 of Cr. Appeal (DB) No. 156 of 1993,
appellant of Cr. Appeal (DB) No. 221 of 1993 have also been convicted for the
offence under Section 147, 426 IPC, sentenced to suffer rigorous imprisonment
for one year, three months respectively, appellant of Cr. Appeal (DB) No. 216 of
1993 has been convicted for the offence under Section 324 IPC, sentenced to
suffer rigorous imprisonment for six months, appellant nos. 2, 9, 11 of Cr. Appeal
(DB) No. 156 of 1993 has been convicted for the offence under Section 324 IPC,
sentenced to suffer rigorous imprisonment for six months and appellant no. 8 of
Cr. Appeal (DB) No. 156 of 1993 has been convicted for the offence under
Section 337 IPC sentenced to suffer rigorous imprisonment for three months. The
sentences have, however, been directed to run concurrently.
2. Prosecution story, as set out in the fardbeyan of Panchhi Lal
Rai (PW 6) recorded in Parsa Government Hospital on 11.06.1990 at 1.30 am by
S.I. Sri Nityanand Tiwary (PW 15), is that on 10.06.1990, in the afternoon,
around 4:30 pm he was at his entrance, accused Tokhan Rai, Manai Rai, Bhola
Rai, Dipa Rai and Ram Sewak Rai, all variously armed with lathi, spear and
spade, suddenly arrived near his entrance and began to slice the earth from the
northern side i.e. near the foundation wall of his house. Informant raised protest,
the accused persons called their other companions Dhaneshwar Rai, Ram Ajodhya
Rai, Ram Kirpal Rai, Sikandar Rai, Sudarshan Rai, Lal Babu Rai, Ram Dahin Rai,
Ramkrit Rai, Chullhan Rai and Teras Rai. They also came variously armed with
Farsa, Spear and lathi as also brickbat. On the orders of Bhola Rai to kill the
informant, Tokhan Rai threw brickbat which caused injury in the temporal region
of the informant, wherefrom the blood started oozing. Meanwhile, his sons Indra
Mohan Rai (deceased) and Sohan Rai (PW 4) along with their uncle Nageshwar
Rai (PW 5) came running to the entrance and were also assaulted by Manai Rai
Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 4
with brickbat. Indra Mohan Rai suffered injury in his temporal region fell down
and after his fall, Chullhan Rai also assaulted Indra Mohan Rai on his temporal
region, eye with the butt of the pistol causing injury near his eyes. Dipa Rai
assaulted him with dagger causing injury on his left leg. Sohan Rai (PW 4) was
attacked by Ram Ajodya Rai and Kirpal Rai with farsa and lathi portion of the
spear. Brother of the informant Nageshwar Rai (PW 5) was also assaulted by
Sudarshan Rai with spear causing injury on his right temporal region.
Dhaneshwar Rai also attacked informant PW 6 with farsa causing injury on his
left knee. Informant, his two sons, namely, the deceased Indra Mohan and PW 2
Sohan Rai and his brother Nageshwar Rai (PW 5) all suffered injury and fell
down on the ground, whereafter, all the other accused persons assaulted them with
lathi, brickbats. Accused persons also threw bricks on the house of the informant
causing damage to the earthen tiles of his house. Hearing alarm, another brother
of the informant Brahmdev Rai (PW 7) who was working in the field nearby also
came running along with Dular Rai (PW 8), Mahavir Rai (PW 9), Prithvi Rai (PW
14) together with Khelari Rai and others, not only saw the occurrence but also
saved the informant and others, carried them to Parsa Government Hospital for
treatment on the tyre cart of co-villager Khelari Rai. Informant has further stated
in the fard-beyan that at the time of occurrence his another son Awadhesh Rai
(deceased) and nephew Laxman Rai (PW 2) had gone to attend feast in the house
of Mathura Rai of village Kuwari within Dariyapur Police Station, wherefrom
they returned around 6:15 pm, having learnt about the occurrence both his
nephew, son along with co-villager Sukhit Rai (PW1) proceeded towards Parsa
but were attacked near the Dalan of Jagdeo Singh in village Nassochak by
accused Dipa Rai, Manai Rai, Dhaneshwar Rai and Bhola Rai, the four suddenly
appeared and surrounded them, whereafter Dhaneshwar Rai asked the other three
Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 5
to kill Awadhesh and Laxman Rai (PW 2). Bhola Rai armed with pistol asked
Awadhesh and Laxman Rai to stop, Manai Rai suddenly caught hold of
Awadhesh Rai, threw him on the ground/field by the side of the road. Meanwhile
Dipa Rai took out dagger from his pocket and pierced the same in his cheat
causing his sudden death. Dhaneshwar Rai assaulted the nephew of the informant
Laxman Rai (PW 2) with brickbat who also fell down. Sukhit Rai wanted to save
the two but Bhola Rai armed with pistol threatened him not to come near them.
Swarath Rai and Banarsi Rai were returning to their village at the same time, also
saw the occurrence and tried to intervene, also raised alarm whereafter the
accused persons ran away. In the fardbeyan itself, the informant made it clear that
his nephew Laxman Mandal (PW 2), Banarsi Rai and Sukhit Rai informed him
about the manner of assault on his son Awadhesh after they came to Parsa
Government Hospital around 7:00 pm and on the basis of information gathered
from them, the informant narrated about the said incident in the fardbeyan. In the
fardbeyan the informant also stated that both his sons Indra Mohan Rai and Sohan
Rai were referred from Parsa Government Hospital to Patna Medical College and
Hospital for better treatment as their condition was precarious. In the concluding
portion of the fardbeyan the informant also stated that on account of land dispute
between him and accused persons which is pending in the Chapra Civil Court, the
present occurrence has taken place. Informant having gone through the fardbeyan
and finding the contents true, put his signature over the same in presence of Scribe
Sri N. N. Tiwary, S. I. of Dariyapur Police Station and three witnesses, namely,
Ram Bahadur Prasad (not examined), Sukhit Rai (PW 1) and Laxman Rai (PW 2).
3. On the basis of the fardbeyan Officer In-charge, Dariyapur
Police Station registered the FIR on 11.06.1990 at 6:30 am against 15 persons
named in the fardbeyan. The First Information Report was also dispatched on
Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 6
11.06.1990through special messenger but was received by the C.J.M., Chapra on 12.06.1990. After the fardbeyan was scribed on 11.06.1990 at 1:30 am, Sri N. N. Tiwary (PW 15) came to village Nassochak in the same night at 2:30 am and conducted the inquest proceedings on the dead body of Awadhesh Rai, the body was received for post mortem in Sadar Hospital, Chapra on 11.06.1990 at 12:30 pm, the post mortem examination was also conducted on the same day at about 4:45 pm. The other injured Indra Mohan Rai who was referred by the Medical Officer, Parsa Government Hospital for better treatment to PMCH also succumbed to his injuries, on the same day i.e. 11.06.1990 at about 3:45 pm his inquest proceedings were conducted by S. I. Sri Rajnath (CW 2) of Pirbahore Police Station. Post mortem on the dead body of Indra Mohan was conducted in PMCH by Dr. Shambhu Sharan (PW 14A), Medical Officer, Forensic Medicine, PMCH, Patna on 12.06.1990 at 10:00 am.
4. In the light of the fardbeyan as also the statements of the injured and others as also the inquest, post mortem repots the Investigating Officer of the case Sri Hari Lal Yadav (PW 16), Officer In-charge of Dariyapur Police Station submitted chargesheet in the case. In the light of chargesheet, cognizance was taken and the case was committed to the court of Sessions. Charges were framed vide order dated 16.07.1991 to which the 15 accused persons pleaded not guilty, claimed to be tried.
5. To support the prosecution case, prosecution party has examined as many as 19 witnesses. PWs 1, 2 and 3 are the eye witnesses of the assault on the person of Awadhesh Rai and PW 2 Laxman Rai in village Nassochak, while both having learnt about the occurrence from their grandmother were rushing to Parsa Government Hospital to attend on the informant, their brother Indra Mohan Rai and others in the evening of the occurrence i.e. after Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 7 6:15 pm on 10.06.1990. PW 6 Panchi Lal Rai is the informant of the case and he along with PW4 Sohan Rai, PW 5 Nageshwar Rai and PW 7 Brahmdeo Rai are the witnesses of the first part of the occurrence i.e. about the assault on the person of informant, Indra Mohan Rai and others which took place at the entrance of the house of the informant on 10.06.1990 at 4:30 pm. PW 10 Dr. Ram Pukar Prasad is the Medical Officer of Parsa Government Hospital who examined the informant (PW 6) and his son Indra Mohan Rai and referred him and PW 4 Sohan Rai to PMCH for better treatment. PW 12 Dr. Niraj Kumar is the Medical Officer who conducted post mortem on the dead body of Awadhesh Rai. PW 14 A Dr. Shambhu Sharan is the Medical Officer, Forensic Medicine, PMCH who conducted post mortem on the dead body of Indra Mohan Rai. PW 15 Nitya Nand Tiwary is the Scribe of the fardbeyan and conducted inquest proceedings of Awadhesh Rai. PW 16 Hari Lal Yadav, Officer Incharge of Dariyapur Police Station is the I. O. of the case who after investigation submitted chargesheet. PW 8 and PW 9 Dular Rai and Mahavir Rai have been tendered. PWs 17, 19 are formal witnesses, Advocate's clerk. PW 18 is the Assistant Record Keeper. His evidence is also formal in nature.
6. Besides the aforesaid evidence, the court has also examined two witnesses, namely, Birendra Kumar Yadav (CW 1) son of Gokhul Prasad Yadav nephew of the informant who accompanied the injured Indra Mohan Rai and Sohan Rai to PMCH. Another court witness is Rajanath Singh (CW 2). He is the S.I. of Pirbahore Police Station who recorded the statement of Birendra Yadav in PMCH (Ext. B).
7. The trial court having considered the prosecution evidence including the evidence of the two court witnesses concluded that it was the accused persons, led by Tokhan Rai and others, who assaulted the informant, his Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 8 brother PW 5 and his two sons deceased Indra Mohan Rai and Sohan Rai (PW 4) on 10.06.1990 at 4:30 pm after the informant protested earth cutting by the side of northern foundation wall of his house by the accused persons which is the first part of the occurrence. Informant and three other injured, soon thereafter were taken to Parsa Government Hospital on the tyre cart of co-villager Khilari Rai for treatment. Trial court further concluded that during the first part of the occurrence, Awadhesh Rai the other son of the informant, his nephew PW 2 Laxman Rai were not available in the house as they had gone to attend the feast in the house of Mathura Rai of village Kuwari, wherefrom they returned around 6:15 pm, learnt about the occurrence and rushed to Parsa Government Hospital along with Sukhit Rai for attending on the four injured. While Awadhesh Rai and others were on way to Parsa Government Hospital and reached near the Dalan (sitting place) of Jagdeo Singh in village Nassochak were attacked by Dipa Rai, Manai Rai, Dhaneshwar Rai and Bhola Rai, who suddenly appeared on the scene and as per the orders of Dhaneshwar Rai proceeded to eliminate them, Manai Rai caught hold Awadhesh Rai dashed him on the field/ground by the side of the road and Dipa Rai assaulted Awadhesh Rai with dagger on chest causing his instant death. PW 2 Laxman Rai also suffered injury in the same transaction at the instance of Dhaneshwar Rai. Trial court being satisfied with the contents of the evidence of injured eye witnesses of both the parts of the occurrence, held the accused persons guilty of the charges framed against them.
8. By filing four appeals, appellants have assailed the findings recorded by the trial court as also the sentences imposed by it. It is submitted on behalf of the 12 appellants in Cr. Appeal (DB) No. 156 of 1993 that as per the prosecution case, as found true by the trial court, they have been attributed with the overt acts of causing injury on the person of deceased Indra Mohan Rai as also Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 9 injured Sohan Rai and informant Panchi Lal Rai PWs 4 and 6 respectively but there being no specific overt act attributed to them, they cannot be saddled with the intention or knowledge of causing death of Indra Mohan Rai and Awadhesh Rai. It is further submitted on their behalf that they could not have been convicted for the offence under Section 302/34 , 302/149 IPC and, at best, for the simple injuries caused to the informant and two injured, they could have been convicted for the offence under Section 323 of the penal code.
9. Learned counsel for the appellants in other three appeals i.e. Cr. Appeals (DB) No. 216, 221 and 224 of 1993 submitted that though the trial court has found the three appellants to have caused injury on the person of the two deceased which proved fatal but the injuries have been caused by brickbats, lathi portion of the spear and spade, as such, the three appellants can also not be attributed with knowledge or intention to cause death of the two deceased.
10. Learned counsel further submitted that there has been unexplained substantial delay in lodging the FIR which was lodged on 11.06.1990 at 1:30 am though the occurrence is said to have taken place on 10.06.1990 at 4:30 pm, further the FIR has been registered on 11.06.1990 at 6:30 am, dispatched from the Police Station also on 11.06.1990 but received by the C.J.M., Chapra on 12.06.1990. The delay in drawing the fard-beyan as also the FIR if not explained the possibility of suppressing the true version by the informant cannot be ruled out. He further submitted that the true version of the occurrence has been narrated by Birendra Yadav (CW 1) the nephew of the informant who accompanied the injured Indra Mohan Rai and Sohan Rai to PMCH and as the version deposed by Birendra Yadav did not match with the version mentioned in the fardbeyan, the fardbeyan and the depositions of the witnesses supporting the fardbeyan is fit to be rejected.
Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 10
11. It is further submitted that the evidences of all the prosecution witnesses is also fit to be rejected on the ground that they are interested witnesses as all of them are the family members of the informant and the deceased. In this connection, he further pointed out that Swarath Rai and others of village Nassochak were required to have been examined in support of the prosecution story but for the reasons best known to the prosecution, they have not been brought to the witness box.
12. Learned counsel for the State and the informant have opposed the aforesaid submissions, according to them, the prosecution story as disclosed in the fardbeyan is fully established in the light of the evidence of informant PW 6 and the three injured PW 4 Sohan Rai, PW 5 Nageshwar Rai, PW 2 Laxman Rai the son, brother and nephew of the informant, respectively as also PW 1 Sukhit Rai independent witness. Learned counsel for the State explained the delay in lodging the fardbeyan as the place of occurrence is within Dairyapur Police Station, after the occurrence the informant and three injured were taken to Parsa Government Hospital wherefrom the information was sent to Police officials of Dariyapur Police Station who took time to come to Parsa Government Hospital and record the fardbeyan of the informant on 11.06.1990 at 1:30 am though informant and others had reached Parsa Government Hospital earlier, his sons Indra Mohan Rai as also Sohan Rai were referred to PMCH for better treatment after their arrival at Parsa Government Hospital by PW 12 Dr. Niraj Kumar. Learned counsel explained the delay in lodging the fardbeyan which was on account of non-availability of the Police Officers attached to the Dariyapur Police Station. In this connection, he has also referred to the evidence of the Scribe who learnt about the occurrence while he was on patrolling duty and thereafter rushed to the Government Hospital, Parsa and recorded the statement of Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 11 the informant (PW 6) at 1.30 am, thereafter, immediately proceeded to Nassochak for conducting inquest proceedings on the dead body of Awadhesh Rai which was conducted in Nassochak on 11.06.1990 at 2:30 am.
13. In view of the deposition of the informant and the Scribe PW 15, we are satisfied that the delay in lodging the fardbeyan is well explained by the prosecution.
14. Having perused the evidences of the prosecution witnesses, we are of the view that appellants in Cr. Appeal (DB) No. 156 of 1993, though participated in the occurrence but had no intention to kill either of the two deceased, they may be attributed with the knowledge and intention to cause injuries on the members of the prosecution party but without the knowledge and intention to cause death of the two deceased. In the circumstances, they deserve grant of benefit of doubt for their conviction under Sections 302/149 IPC. Their conviction for the lesser offences is however, maintained with observation that the period already undergone by them as under trial or convict may suffice for their sentences. Appellants of Cr. Appeal (DB) No. 156 of 1993 are accordingly, discharged from the liabilities of their bail bonds.
15. So far as the three appellants of Cr. Appeals (DB) No. 216, 221 and 224 of 1993 are concerned, we are satisfied from the evidence of PWs 6, 5, 4, 2 and 1 that the three appellants, namely, Dipa Rai, Manai Rai and Chulhan Rai played active part in killing Indra Mohan Rai and Awadhesh Rai. Appellant Chulhan Rai assaulted Indra Mohan Rai on the parietal region with the butt of the pistol causing injury on the temporal region and blackening wound beneath the eyes and it was Manai Rai who apprehended Awadhesh Rai and threw him on the ground whereafter, Dipa Rai stabbed him with dagger on chest causing his instant death. Besides, Manai has also taken part in the first part of the occurrence as Patna High Court CR. APP (DB) No.156 of 1993 dt.14-07-2015 12 earlier he assaulted Indra Mohan Rai with brickbat on his head and corresponding injury was noticed in the post mortem (Ext. B/1), as such, we are satisfied that all the three appellants, namely, Dipa Rai, Manai Rai and Chulhan Rai had played active part in both parts of the occurrence. Accordingly, their conviction and sentences are hereby confirmed. Their appeals dismissed, bail bonds cancelled. The three appellants are directed to surrender forthwith to serve out their remaining sentences.
(V.N. Sinha, J)
avin/- (Jitendra Mohan Sharma, J)
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