Criminal Appeal (DB) No. 101 of 1989. Case: Sudama Rai Vs The State of Bihar, [Alongwith Criminal Appeal (DB) Nos. 103, 116 and 135 of 1989]. High Court of Patna (India)
| Case Number | Criminal Appeal (DB) No. 101 of 1989 |
| Counsel | For Appellant: Mr. Surendra Singh, Sr. Adv., Mr. Rana Pratap Singh, Sr. Adv., Mr. Akhileshwar Pd. Singh, Sr. Adv, Mrs. Anita Kumar Singh, Adv. and Mr. Aaruni Singh, Adv. And For Respondents: Ms. Shashi Bala Verma, APP |
| Judges | Mihir Kumar Jha and Aditya Kumar Trivedi, JJ. |
| Issue | Indian Penal Code (45 of 1860) (IPC) - Sections 147, 148, 149, 302, 304, 307, 323, 324, 326, 49 |
| Judgement Date | May 23, 2013 |
| Court | High Court of Patna (India) |
Judgment:
Mihir Kumar Jha, J.
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All these appeals arise out of a common judgment dated 28.2.1989 passed by the 5th Additional Sessions Judge, Arrah in Sessions Trial No. 52 of 1987 whereby and whereunder while appellant Umesh Rai has been convicted for offence under Section 302 of the Indian Penal Code (IPC), rest of the appellants Sudama Rai, Baidyanath Rai, Kamlesh Rai and Ramesh Rai have been convicted for offence under Section 302/149 IPC and have been sentenced to undergo rigorous imprisonment for life. The appellant Baidyanath Rai, Ramesh Rai and Kamlesh Rai have also been convicted for offence under Section 307 IPC and have been sentenced to undergo rigorous imprisonment for five years each. Appellants Sudama Rai, Umesh Rai, Baidyanath Rai and Ramesh Rai have also been convicted for offence under Section 148 IPC and have been sentenced to undergo rigorous imprisonment for two years whereas appellant Kamlesh Rai has been again convicted for offence under Section 147 IPC and has been sentenced to undergo rigorous imprisonment for one year. All the aforesaid sentences have been directed to run concurrently. The prosecution case in brief as per the Fardbeyan of Bhuneshwar Rai (P.W. 11) recorded at Behia State Dispensary at 8.30 AM on 4.4.1986 is that in the early morning while he and his father Radha Rai (deceased) were picking up Mahua in their field known as Dikwa Field situated in Kharauni Mahal, the appellants along with Ramashish Rai and Bhagwan Rai as well as Awadhesh Rai soon after the rising of the son variously armed with Bhala, Garasa, Lathi had arrived at the place where they were picking Mahua and having abused them (informant and his father) had question their authority for picking up Mahua. The informant is said to have reported to them by saying that both the field and the Mahua tree belongs to them for which they had necessary documents and, therefore, they will continue to pickup the Mahua.
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It has been alleged by the informant that on this utterance, the appellant Sudama Rai had given a Garasa blow on the father of the informant whereas appellant Umesh Rai had given Bhala blow in the chest of his father as a result whereof, he died at the spot instantaneously. The informant had also alleged that the appellant Bhagwan Rai had assaulted him (informant) by Bhala in his neck and he too had sustained injury. It has also been alleged by the informant that when on hulla, his own brother Kameshwar Rai had reached at the pot and he too was assaulted by Kamlesh Rai by Goji on his head causing open head injury while appellant Awadhesh Rai had assaulted him by Bhala on the back portion of his neck and his brother Kameshwar Rai also fell down on account of the aforementioned injury whereafter the appellant Ramesh Rai had also assaulted him by Bhala on his left side of his chest.
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The informant in his Fardbeyan had named Ram Dhiraj Rai (P.W. 2), Ram Narain Pandey (P.W. 4) as witnesses to the occurrence and had also stated that while they were in the injured condition, they were brought to the hospital on trekker by the villagers. On the aforesaid Fardbeyan to which Ram Dular Rai (P.W. 3) and one Gopal Rai (not examined) were the attesting witness, Behia P.S. Case No. 0040 of 1986 was recorded for offence under Section 147/148/149/302/307/324 & 323 I.P.C. against the eight persons including the appellants.
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The Police after investigation had submitted charge-sheet and since co-accused Awadhesh Rai was found to be juvenile, his trial was separated and rest seven persons including the five appellants and Ramashish Rai and Bhagwan Rai were put on trial leading to the impugned judgment convicting the five appellants and acquitting Ramashish Rai and Bhagwan Rai by giving them benefit of doubt.
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The defence of these appellants is one of complete innocence and their false implication on account of old enmity. In fact, from the trend of the cross-examination, it would transpire that the appellants have come out with a specific case that the deceased was done to death in a separate occurrence whereas the informant and his brother Kameshwar Rai (P.W. 9) had sustained injuries in another incident and both such incidents had taken place at different place, different point of time and in different manner altogether, actually in the dead of night and thus even when there these appellants were not identified all of them have been falsely implicated only on account of old enmity and grudge, primarily because they did not agree for the part with a piece of land to enable the prosecution party to use the same as passage for their to and fro movement from their house. The defence in fact for this purpose had also adduced certain documentary evidence to which we will refer to at an appropriate place.
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Mr. Surendra Singh, followed by Mr. Rana Pratap Singh and Mr. Akhileshwar Prasad Singh, appearing for the appellants in these four appeals have assailed the impugned judgment on a number of grounds. Mr. Surendra Singh learned Senior Counsel who has mainly made the submissions for its being adopted by the other Senior Counsels appearing for different sets of appellants had basically concentrated on the aspect that in absence of definite opinion of the doctor conducting postmortem on the person of the deceased as with regard to any of the specific injury being the cause of death, the charge under Section 302 or 302/49 I.P.C. was not substantiated much less established. According to Mr. Singh, in view of above discrepancy in medical evidence if the individual allegations of assault against the appellants as per prosecution case was accepted in toto, the same at best would make out a case under Section 304 Part-2 IPC against the appellant Umesh Rai and under Section 326/149 IPC against rest of the appellants except Kamlesh Rai whose conviction in view of simple injury could be only under Section 324 IPC.
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Mr. Singh had also submitted that as a matter of fact, no reliance could be placed on the two injured witnesses, namely, P.W. 9 and P.W. 11 because the doctor who had examined them at Ara after their first aid treatment a Behea State Dispensary has not been examined and in fact, the prosecution has done no service to itself even by explaining as to whether they were even admitted in the hospital at Arrah. In the same vein, Mr. Singh has also submitted that the two witnesses claimed in the First Information Report as eyewitnesses have also not fully supported the prosecution case and in fact one of them, namely, Ram Narain Pandey sought to be an eyewitness in the First Information Report has deposed only as a hearsay witness.
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Yet another important plank of the submission of Mr. Singh is that there is complete want of evidence to show that there was any common object for the unlawful assembly and in absence thereof, the conviction and sentence of the appellants as a member of unlawful assembly cannot be sustained. He has also gone to question the genesis of the prosecution case as with regard to the Mahua crop and its dispute leading to the occurrence in question as alleged by the prosecution.
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Per contra, Ms Sashibala Verma, learned APP appearing on behalf of the State, while supporting the impugned judgment, has submitted that a bare perusal of the postmortem report and the evidence of the doctor P.W. 7 will leave nothing for speculation that it was the fatal Bhala injury given by the appellant Umesh Rai in the chest of the deceased which was found to be the cause of death. She has also explained that the genesis as with regard to the picking up Mahua crop in the field and the tree belonging to the prosecution has been successfully proven and in fact the documents brought by way of defence exhibit by the appellants give no semblance of their right on the disputed land and Mahua tree.
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She has also referred to the evidence of the witnesses to substantiate that all the appellants with three others had formed an unlawful assembly and having arrived at the place of occurrence had indiscriminately assaulted on the three unarmed persons, namely, the deceased and his two sons P.W. 9 and P.W. 11 which by itself would go to show that the offence of murder was committed in a pre-planned manner. Proceeding further, she has also explained that there is no material contradiction in the evidence of the prosecution witnesses and specially when the prosecution has adduced the evidence of two injured witnesses, its case cannot be prejudiced only because of some minor discrepancy in the evidence of one of the two eyewitnesses named in the First Information Report.
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Before we would advert to the aforesaid submissions, it would be necessary for us to have a brief survey of the evidence on record. The prosecution had examined in all thirteen witnesses out of whom Samhut Rai (P.W. 1), Ram Dhiraj Rai (P.W. 2), Kameshwar Rai (P.W. 9) and Bhuneshwar Rai (P.W. 11) have deposed as eyewitnesses. Ram Dular Rai (P.W. 3), Ram Narain Pandey (P.W. 4), Dhaneshri Devi (P.W. 5), Kanhaiya Ram (P.W. 6) and Sheodani Singh (P.W. 10) have supported some part of the occurrence mostly as hearsay witnesses. Dr. R.K. Singh (P.W. 7) and Dr. Gorak Nath (P.W. 8) are the two doctors and while the former has proved the postmortem report, the latter has proven the injury report of both the P.W. 9 & P.W. 11. Sukeshwar Sharma (P.W. 12) is the Investigating officer who had conducted investigation and submitted the charge-sheet and P.W. 13 Tung Nath Prasad is a formal witness who has only proved certain documents relating to the field of Mahua belonging to the prosecution party.
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The prosecution has also led documentary evidence by proving thirteen exhibits out of whom Exbt.-1 Series is the signature of the witnesses over respective documents, Exbt.-2 is the sketch map, Exbt.-3 is the postmortem report, Exbt.-4 Series are the injury reports of P.W. 9 & P.W. 11, Exbt.-5 is the Fardbeyan and Exbt.-6 is the formal F.I.R., Exbt.-7 Series are the...
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