Patna High Court
Ram Pravesh Rai vs The State Of Bihar on 15 December, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.149 of 2015
Arising Out of PS. Case No. -72 Year- 1995 Thana -CHIRAIYA District- EASTCHAMPARAN(M OTIHARI)
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RAM PRAVESH RAI SON OF SURUJ RAI RESIDENT OF VILLAGE -BELA
GHAT, P.S- CHIRAIYA,(SHIKARGANJ), DISTRICT-EAST CHAMPARAN.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
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Appearance:
For the Appellant/s : Mr. Sunil Kumar No. III, Adv.
For the Respondent/s : Mr. Binod Bihari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 15-12-2017
1. Appellant, Ram Pravesh Rai has been found guilty
for an offence punishable under Section 307 of the IPC and
sentenced to undergo R.I. for seven years as well as to pay fine
appertaining to Rs.5000/- and in default thereof, to undergo S.I.
for five months additionally, under Section 27 of the Arms Act and
sentenced to undergo R.I. for three years as well as to pay fine
appertaining to Rs.3000/- in default thereof to undergo S.I. for
three months additionally with a further direction to run the
sentences concurrently by the Third Additional Sessions Judge,
East Champaran at Motihari vide judgment of conviction dated
20.02.2015and order of sentence dated 26.02.2015 in connection with Sessions Trial No.94 of 1997/150 of 2014.
2. PW.4. Mahanth Awadh Bihari Das gave his fardbeyan on 25.11.1995 at about 12:30 PM at Sadar Hospital, Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 2 Motihari while he was admitted in an injured condition disclosing therein that in the preceding night at about 11:00 PM he along with other saints Ramayanik Das, Ramanand Das, Ramroop Das, Baidyanath Das were going to sit over Aasan after taking meal, 15-20 persons intruded inside and encircled them. Some were armed with firearm while some were armed with lathi and sword. They began to abuse. They also threatened to hand over possession of land to them otherwise they will be murdered. During course thereof, appellant Ram Pravesh Rai, who was armed with pistol, fired as a result of which he sustained pellet injury over his both legs, thigh, cheek (right side), waist (right side) as well as three places over left hand. Just after sustaining injuries, he became unconscious and fell down. They also assaulted Ramayanik Das with lathi over his right leg, neck. They also assaulted saint Ramanand Das over his forehead. He identified Ram Pravesh Rai, Arun Rai, Arvind Rai, Brajkishore Rai, Sushil Rai, Bhanu Rai, Harbansh Rai out of them. Also claimed identification against the remaining. They also taken away cereals, cash, Kamandal, blanket, religious books including other ite ms.
3. The aforesaid fardbeyan was first of all transmitted to Sikarganj P.S. for registration and investigation but, as the P.O. laid within the jurisdiction of Chiraiya P.S. thereupon, same was transmitted to Chiraiya P.S. whereupon Chiraiya P.S. Case No.72/1995 followed with investigation, submission of the charge sheet, facilitating the trial in a manner, subject matter of instant appeal.
4. Defence case, as is evident from mode of cross- Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 3 examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has also been pleaded that with regard to Sawaitship of the aforesaid Math, there was dispute in between Saryug Das as well as informant Awadh Das. Because of the fact that appellant including other villagers were supporting Saryug Das, on account thereof, they have been falsely implicated. To substantiate the same, apart from oral evidence, documentary evidence have also been adduced.
5. In order to substantiate its case, prosecution had examined altogether four PWs. PW.1-Tribhuwan Rai, PW.2- Baijnath Das, PW.3-Ranjay Kumar, PW.4-Mahanth Awadh Bihari Das. Then thereafter, the doctor CW.1-Dr. Mohammad Jahir and the Investigating Officer CW.2-Harimohan Prasad were examined and by way of their examination, prosecution had exhibited Ext.1- Formal FIR, Ext.2-Injury Report, Ext.3-Fardbeyan. Defence had also examined three DWs, DW.1-Ranjan Verma, DW.2-Rajindra Rai and DW.3-Shrikant Prasad as well as had also exhibited, Ext.A-C.C. of order dated 15.12.1995, relating to Case No.62/1995, Ext.B-C.C. of Complaint Case No.C412/1995, Ext.A/1-C.C. of order dated 20.01.1996 in Trial No.36/1996, Ext.B/1-C.C. of Complaint Case No.425C/1995, Ext.C-Photocopy of Panchnama dated 22.12.1994, Ext.D-Report of Incharge Record Room regarding destruction of Miscellaneous Case No.367KM/1995, Ext.E-Certified copy of Informatory Application No. 367KM/1995, Ext.F-Letter dated 24.02.2005 issued by Shashi Bhushan, Superintendent of Bihar State Religious Trust Board Patna and Ext.G-Reminder, issued vide letter no.2621 dated Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 4 13.08.2005 by Shashi Bhushan Singh.
6. The learned counsel for the appellant while assailing the judgment of conviction and sentence has submitted that majority of the saints whose presence have been disclosed in the written report, have not been examined save and except PW.2 Baijnath Das. It is apparent that his testimony is fit to be rejected in the background of the fact that as per fardbeyan he had not sustained assault at the end of the accused persons but, during course of evidence this witness claimed that he was also assaulted. Then, it has been submitted that evidence of PW-1 could not be accepted in the background of the fact that there happens to be strain relationship amongst the family members that means to say PW.1 as well as accused who were descendants of common ancestor and getting an opportunity, got the appellant and others (since acquitted) involved in this case to satisfy personal grudge and in likewise manner, informant allowed as, appellant and others were supporter of Saryug Das with whom, there was dispute over Sawaitship of the Math. Now remains the evidence of injured. If the evidence in totality is taken into consideration inconsonance with the evidence of the Investigating Officer, CW.2, it is evident that he might have sustained the aforesaid injury at the hands of miscreant at different place but, becoming doll at the hands of the PW.1 and others who allured on the pretext of supporting him against the Saryug Das, got the appellant and others (since acquitted) involved in this case. Therefore, in spite of injury having proved at the CW.1, Dr. Mohammad Jahir, the case of the prosecution is not at all found Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 5 duly substantiated whereupon, is fit to be rejected.
7. Apart from this, it has also been submitted that from the defence exhibit it has become crystal clear that irrespective of the fact that witnesses had tried to wrap the contentious atmosphere in between Saryug Das as well as informant, is found duly exposed. So, in the aforesaid facts and circumstances of the case, the judgment of conviction and sentence happens to be unwarranted, uncalled for whereupon is fit to be set aside.
8. Per contra it has been submitted by the learned Additional Public Prosecutor that though some variance is found in the evidence of PW.1 and PW.2 but the evidence of an injured is to be accepted unless and until there happens to be a good ground for discrediting the same. From the evidence of PW.4, injured it is apparent that appellant could not be able to dismantle or at least been able to expose that he was any way directly involved with the interest of Math supporting the claim of Saryug Das, the evidence of PW.4 has got truthfulness and is further found corroborated with the evidence of the doctor CW.1 as well as objective finding of the Investigating Officer, CW.2 whereupon, the judgment is fit to be affirmed after dismissing the appeal.
9. After going through the record, more particularly, the fardbeyan, it is apparent that save and except presence of saint, none of the villager does found place. In the aforesaid background, when the evidence have been gone through, it is evident that PW.1 though during course of examination-in-chief had tried to support the case of the prosecution but from cross - examination at para-5 the inter se relationship is found duly Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 6 exposed. In para-8 of his cross-examination he had stated that when he had gone to the Math after hearing hulla Shambhu and Raghunath Rai had also gone there. As per para-6, these two happens to be his cousin. In para-9, he had stated that when he reached at the Math he had seen the accused persons in Sahan out of Math. He had no talk with the accused persons. He had not apprehended any of the accused persons. They have not tried to raise alarm. Then had stated that when they reached, Mahanth was standing condition. He was near the furnace where accused persons have encircled. Then had stated in para-10 that there was only one firing as a result of which Awadh Bihari became injured. The assailant remained there. When Awadh Bihari fell down, then the assailant came near him, other saints did not take any kind of recourse against the accused persons. In para-11, he had stated that accused persons remained at the Math for about five hours. In para-12 he had stated that Jadolal Rai and Nagendra Rai lifted Awadh Bihari just after the occurrence. Again controverted and said that Awadh Bihari fell down after sustaining injury. Then again woke up and rushed for a mile towards western direction. In para-16, he had stated that they have removed the blood from the P.O. before arrival of the police.
10. PW.2 during examination-in-chief had stated that at the time of occurrence he along with others saints were taking meal. At that very time 12-14 persons came who were armed with gun, countrymade gun etc. Ram Pravesh Rai was armed with countrymade gun, Shashi Rai with Bhala, Hanu Rai, Arvind Rai, Arun Rai, Haribansh Rai with lathi, others were also present. Just Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 7 after arrival, accused directed Mahanth to put L.T.I. over a document which Mahanth refused whereupon, Ram Pravesh Rai fired from countrymade pistol causing injury over the person of Mahanth. After sustaining injury, Mahanth fell down but again woke up and fled away. He was assaulted by Hanu Rai. None others were assaulted. Then the accused persons taken away cereals and other items. He had further stated at para-5 that Mahanth was taken to Sadar Hospital, Motihari where he was treated. During cross-examination at para-16, he had stated that they were taking meal at the inner side of the Math. They were taking meal inside a hut. It was winter season. In para-18 he had stated that accused persons came inside the room and directed Awadh Bihari to go out of Math over which Awadh Bihari did not respond. In para-19, he had stated that none of the saints been able to come outside the room till presence of accused persons in the room. Then had said that firing was made by the Ram Pravesh Rai from front. At the time of assault, Mahantji was in sitting poster having western front. He was near the furnace along with other saint. He sustained gun shot injury during course of sitting. He was shot at only once. Just after firing, accused Ram Pravesh fled therefrom. His associates also fled away. At the time of firing, he was taking meal. In para-20, he had stated that after fleeing of accused persons he had gone to Awadh Bihari who was unconscious and lying over the ground. In para-22, he had said that after departure of the accused persons, so many villagers came and named some of them Raghunath Rai, Nandu Rai, Bilash Rai. In para-29, there happens to be contradiction and then had denied the suggestion that no occurrence had taken place in a Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 8 manner at the relevant place.
11. PW.3 is formal in nature. PW.4 is the informant, who had stated that on 24.11.1995 at about 11:00 PM Ram Pravesh Rai, Brijkishore Rai, Bhanu Rai, Sushil Rai, Arvind Rai, Arun Rai, Harbansh Rai came at Math and fired as a result of which he sustained injury over his both legs, cheek, elbow, groan. They also looted away wheat (75 Mans), five silver coin and other items so detailed therein. Ramayani Das, Roopa Das, Baijnath Das were present who were also assaulted by all the accused persons with lathi. He came to Sadar Hospital for his treatment and recorded his fardbeyan. The accused persons also looted away articles of Ramayani Das. His further statement was recorded by the Investigating Officer. In para-9 he had admitted that he is on litigating term with Saryu Das over Sawaitship. Then at para-10 he had stated that accused persons had instigated Saryu Das to institute a case. Then there happens to be genealogical table with regard to Sawaitship under para-11 and 12. In para-13 he had admitted presence of 144 Cr.P.C. proceeding in between Saryu Das. At para-16 he had stated that Saryu Das had prepared false documents. Then had denied any kind of Panchayati on that score under para-20. Then at para-22 he had admitted that accused persons illegally assisted Saryu Das. In para-23 he had stated that accused persons do not want his stay as Mahant of Bela Math. In para-25, he had further stated that accused persons were witness in a case instituted by Saryu Das. In para-28, he had stated that on the alleged date of occurrence ten saints were present. In para- 29 he had stated that when villagers came, he was lying on the Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 9 ground after sustaining injury of firearm. He had further stated that he talked with Raghubansh who happens to be father of accused Harbansh. In para-31, he had deposed that occurrence took place inside a room. In para-32 he had stated that in the room there were four saints apart from he himself. They were relaxing. They were lying over straw. In para-33, he had stated that when accused persons came near Math, they raised alarm whereupon he opened door and then thereafter, accused persons fired at him. The door was closed since before. There was two firing. After sustaining gun shot injury he fell down. Then accused persons entered inside the room. Then had said that he had sustained injury from the first firing. Thereafter, accused persons began to loot. In para-34 he had stated that he was simply watching the activity of the accused being on the ground. In para- 37, he had stated that after occurrence, he was lifted by the saints. In para-40, he had stated that he returned from the hospital after six days. Police had come to Math and seen the blood spot over the ground as well as properties having been damaged at the end of the accused. In para-41 there happens to be contradiction. In para-44 he had denied the suggestion. Then at para-47 he had stated that accused persons along with Dharamik Nyas Board are coercing him to execute sale deed in their favour with regard to land belonging to the Math. Then had denied the suggestion that he had sustained injury at the other place and as accused persons are supporting Saryu Das that on account thereof they have been falsely implicated.
12. CW.1 is the doctor who had examined Awadh Bihari Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 10 Das on police requisition on 25.11.1995 at 09:00 AM and found the following:
i. Four small pin head to pea seized lacerated blackened margin circular wounds on right leg.
ii. Five similar wounds on right thigh.
iii. Four similar wounds on left leg.
iv. Two similar wounds on left elbow.
v. One similar wound on right cheek.
vi. One similar wound on supra pubic region.
On X-ray, pellets were found inside the body which were taken out, sealed and handed over to the place. Injuries were caused by firearms within 12 hours simple in nature. During cross- examination he had stated that the injuries were not dangerous to life nor happens to be on vital part of body.
13. CW.2 is the Investigating Officer who had deposed that on 25.11.1995 he was Officer-in-charge of Sikarganj P.S. He had received fardbeyan of Awadh Bihari from Motihari Town Police Station whereupon case was registered and then proceeded with the investigation. He had visited place of occurrence. Then had detailed the same. Temple has got pukka structure and adjoining thereof, 2-4 thatched house as well as tiled roof house were found. Thatched house was being used as Bhusaul. Two small temples were also present. School lies North to the Math. Recorded further statement of the informant. Recorded statement of the witnesses. Procured injury report and then, submitted charge sheet. At para- 4, he had admitted that in para-64 of the case diary he had Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 11 incorporated that informant Ram Bihari Das had produced relevant orders relating to Section 144, 145 Cr.P.C. proceeding wherein Saryu Das and Bilas were parties but had not investigated on that very score. He had further stated under para- 5 that he received fardbeyan on 26.11.1995 on which date, he had visited place of occurrence. In para-5 he had deposed that during course of inspection he had not found Beri (a place of storage of grain). He had not found grains scattered at the place of occurrence. He had not found mark of wheel. He had not found any door having been broken and in likewise manner, Almirah. He had not found blood spot. He had not mention in the case diary regarding presentation of blood spotted cloth.
14. From the evidence available on the record., it is apparent that PW.4, had sustained gun shot injury and is found duly corroborated by the doctor CW.1. During course of cross- examination of CW.1, it is evident that defence could not be able to sack. That being so, presence of gun shot injury over the pe rson of PW.4 is found out of controversy.
15. It is further evident from the evidence of the witnesses including informant PW.4 that there happens to be litigation in between Saryu Das and the informant PW.4 regarding Sawaitship and on that very score, there happens to be series of cases in between. It is also e vident that appellant along with others stood as a witness on behalf of Saryu Das. All the exhibits made on behalf of defence is relating to acknowledgement of Saryu Das to be Sawaitship of the Math. That is not going to give any kind of favour to the appellant so far occurrence is concerned. Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 12
16. Now the only questions remains whether the occurrence took place at the math or not. That means to say in accordance with the prosecution version. From the evidence of CW.2 Investigating Officer, it is evident that during course of inspection of the P.O. the objecting finding recorded by him happens to be adverse to the prosecution version as, neither any kind of supporting link has been found nor the blood spot over the ground which, as per evidence of the prosecution witnesses, fallen due to injury of PW.4, informant. So far presence of PW.1 is concerned, his presence has been completely ruled out as, PW.2 as well as PW.4 are consistent that after occurrence villagers have come where his presence has been shown. So, apart from he happens to be aggrieved on account of his family dispute with the appellant and others, even his evidence, if considered in its totality did not inspire confidence.
17. So far evidence of PW.2 is concerned, his status also appears to be shaky in the background of the fact that during his examination-in-chief alone he had stated that at that very time, saints were taking meal which has not been disclosed by the PW.4. In likewise manner, in examination-in-chief he had stated that after arrival of the accused persons, they have directed the informant Mahanth Awadh Bihari Das to put LTI over a document which, Mahant Awadh Bihar Das declined whereupon Ram Pravesh shot at while PW.4 had stated that after hearing uproar he opened the door which was closed since before and no sooner than, he was shot at. This inconsistency clearly suggest that he was not present along with PW.4, informant Awadh Bihar Das. Patna High Court CR. APP (SJ) No.149 of 2015 dt.15-12-2017 13
18. Now coming to the evidence of PW.4, it is apparent that on the alleged date and time of occurrence, accused persons came at the Math and fired as a result of which he sustained firearm injuries over a person and further, they have also looted away the articles so enumerated therein. From his cross- examination at para-33 he had stated that when the accused persons came near Math they raised alarm over which he opened the gate and no sooner than, they have shot at. Door was closed since before. The objective finding of the Investigating Officer belies his testimony. So, taking into account the examination-in- chief of the PW.4 in consonance with the para-33 of evidence cross-examination wherefrom appellant has not been arrayed as an assailant, it is difficult to accept and identify the appellant to be the assailant and consequent thereupon, appellant is found entitled for benefit of doubt. Accordingly, the judgment of conviction and sentence recorded by the learned lower court is set aside. Appeal is allowed. Appellant is on bail, hence discharged from its liability.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 20.12.2017
Transmission 20.12.2017
Date