Baijnath Rai & vs Vs. The State of Bihar

Appellants, Baijnath Rai, Adya Rai, Raji Rai have been found guilty for an offence punishable under Section 342 IPC and sentenced to undergo R.I.

three months, under Section 307/34 IPC and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to rupees two thousand and

in default thereof to undergo R.I. for two months additionally, with a further direction to run the sentences concurrently by the Additional Sessions

Judge, IIIrd, Gopalganj vide judgment of conviction dated 29.06.2015 and order of sentenced dated 30.06.2015 passed in connection with Sessions

Trial No.305 of 2009/241 of 2014.

Upendra Rai, PW. 2 gave his fardbeyan on 07.11.2006 at about 4.30 PM while he was admitted at Primary Health Center, Kuchaikot in an injured

condition disclosing therein that on the same date at about 8 AM while he had gone to see his field, he saw his co-villager Baijnath Rai, Raji Rai, Adya

Rai S/o Late Mahatam Rai, were engaged in ploughing his field after dismantling the ridge whereupon, he objected. Baijnath Rai began to abuse and

further threatened him to leave the place as, he was ploughing his own field. Then thereafter, all of them chased him armed with Lathi, Danda over

which, he escaped therefrom. During the course thereof, Baijnath Rai instructed him to stop otherwise he will be killed. Out of fear, he stopped. Then

thereafter Raji Rai and Adya Rai caught, threw him on ground and then Raji Rai encircled his neck with string and began to press as a result of which,

he became senseless. On the other hand, Baijnath Rai, Adya Rai both assaulted him with Lathi and Danda as a result of which, he became severely

injured. Anyhow, he saved himself and raised alarm attracting the villagers were upon, all the three fled away and during course thereof, Baijnath Rai

snatch away his wrist watch. Then thereafter, his family members lifted him to hospital where he was being treated.

On the basis of the fardbayan, Bishambharpur P.S Case No. 51/2006 was registered followed with an investigation as well as submission of charge

sheet facilitating the trial meeting with the ultimate result, subject matter of instant appeal.

Defense Case as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C is that of complete

denial. However, no ocular evidence has been adduced in defence. While Ext. A, Khatiyan has been placed on record as a documentary evidence.

In order to substantiate its case, prosecution had examined altogether five PWs out of whom PW.1-Ram Naresh Rai, PW.2- Upendra Rai, PW.3-

Mahajan Manjhi, PW.4- Om Prakash Verma, PW.5- Dr. Ashok Kumar Pandey. Side by side had also exhibited, Ext.1-Signature of informant over

fardbeyan, Ext.1/1-Fardbeyan, Ext.2-Endorsment over fardbeyan, Ext.3-Formal FIR, Ext.4-Police requisition and Ext.5-Injury report. Though, no

ocular evidence has been adduced on behalf of defence but C.C of khatiyan has been made Ext. A.

The learned Counsel for the appellants has submitted that whole prosecution case happens to be farce, motivated and, the same has been filed by

the informant to defer the appellants to prosecute a title suit which has been registered against them at the end of the appellants. In order to

substantiate the same, it has been submitted that happens to be reason behind that informant was not at all taken to Primary Health Centers lying in

between the village of the informant to Kuchaikote rather, he was taken to Kuchaikote were things were managed. Furthermore, it has also being

submitted that there happens to be inconsistency amongst the evidence of the witnesses, more particularly, over the manner of occurrence as well as

place of occurrence whereupon, the case of the prosecution looses its sanctity, reliability, credibility and so, when the same is taken together with the

evidence of PW.4-I.O that is found duly exposed. Even if considering the evidence of PW.5, the doctor that victim had sustained injuries that was at

different place, in different manner and so, the cumulative effect did not justify the finding having been recorded by the learned lower court. So, the

judgment of conviction and sentence recorded by the learned lower court is fit to be set aside.

On the other hand, the learned Additional Public Prosecutor while refuting the submission made on behalf of the learned counsel for the appellants

has submitted that from the suggestion whatever been given to the respective witnesses including injured coupled with the evidence of PW.5, injury

over the person of PW.2, informant is admitted. Furthermore, it has also been submitted that the evidence of injured has got primacy and so, it has to

be taken into consideration without any hitch and during course thereof, it is found that the manner of occurrence is found duly established. So, the

judgment impugned is fit to be confirmed.

Form perusal of the evidences, it is apparent that this case has not been properly conducted whereupon, there happens to be presence of loophole

hither and thither. The relevant loopholes having left by the appellants and its impact is to be seen at the relevant stage hereinafter. First of all, the

evidence of doctor is to be seen who had examined the PW.2 on 07.11.2006 on a police requisition, Ext.4 and found the

following:-

(i) One circular bruise of 10â€​ perimeter extending from left side of leg to posterior surface of neck to right side of neck to front of neck.

(ii) Swelling and tenderness of right forearm.

(iii) Swelling and tenderness of right shoulder.

(iv) Swelling and tenderness of left forearm.

(v) Swelling and tenderness of right leg.

(vi) Swelling and tenderness of front of right thigh.

(vii) Swelling and tenderness of left leg.

 X-ray reveals fracture of left fibula.

During cross-examination, it is evident that his finding has not been challenged at the end of the appellants. Furthermore, it has also been asked at

the end of the appellants regarding nature of injury whereupon, he answered with injury No.1 was capable to cause death. And so, irrespective of the

nature of the injury having been identified by the doctor PW.5 to be simple in nature, Injury No.1 has been found to be dangerous to life. In the

aforesaid background, the presence of injury over the person of the PW.2 informant goes out of controversy. Now, the only question remains who is

the author of the aforesaid injury and further, in what manner.

PW.2 is the injured as well as informant who had deposed that occurrence is of dated 07.11.2006, at about 08:00 AM. At that very time he had

gone to his field to see whereupon, saw three persons engaged in ploughing his field after dismantling the ridge who were Baijnath Rai, Raji Rai and

Adya rai. Raji Rai was ploughing while Adya Rai was dismantling the ridge through spade and Baijnath Rai was standing armed with Lathi. He

forbade whereupon, Baijnath Rai apprehended him while Raji and Adya began to assault. When he fell down then, Raji Rai came along with string,

encircled his neck and began to drag towards the river during course thereof, Baijnath Rai was assaulting with Lathi. He became unconscious. He

raised alarm. People came, sprinkled water whereupon, he regained sense. Then thereafter, he was lifted to Kuchaikote PHC where he was treated.

Then thereafter, police came before whom he had made his fardbeyan (exhibited), identified the accused. During cross-examination at para-4 he has

stated that P.O lies one mile away from his house. It happens to be out of village. In para-6 he had stated that he is enable to disclose Khata, Keshra

of the P.O land. Total area happens to be 18 kattha. He is unable to disclose in whose name the revisional survey khatiyan stood. Then, had disclosed

that there was one Bhardul Rai who had two sons Singhashan and Daroga. He happens to be grandson of Singhashan while accused persons happen

to be grandson of Daroga. Then had stated that Singhashan is entitled for one and half share. Then had disclosed that accused persons have got share

from eastern side while he got share from western side. In para-7, he had further stated that about a year ago accused persons had indulged in similar

kind of activity and for that, police station as well as Panchayat were informed. Accused persons did not obey the finding of the Panchayat. He will

file order of the Surpanch. In para-8, he had stated that he had not got the disputed land measured by Government Amin. At para-9, he had stated that

at the time of occurrence Mahajhan Manjhi, Mankeshwar Rai, Ajit Rai, Aashirwad Rai were there. Then at para-11, he had stated the boundary of

the P.O. East-Nathuni Rai, West-Hareram Rai, North-Deoki Rai then corrected in North Janak Prasad and South-Deoki Rai. In para-13, there

happens to be contradiction but the same has not been placed before the I.O., PW.4 and on account thereof, it remained worthless. In para-15, he had

stated that Bhojchapar and Bhasai happens to be two PHC falling in between where he had not gone as doctor was not competent enough to tackle

with serious patient. Then had, denied the suggestion at para-17 that after preparing forged and fabricated injury report, got this case filed after taking

the police in collusion. In para-18, he had admitted presence of title suit since before the occurrence filed at the end of the accused.

PW.4 is the Investigating Officer who had deposed that on the alleged date i.e. on 07.11.2006 he was Officer-in-charge, Bishambharpur. He

received fardbeyan from Kuchaikote P.S. on 10.11.2006 whereupon Kuchaikote P.S. Case No.51/2006 was registered (exhibited). He took

investigation on 10.11.2006 and on the same day, he visited the place of occurrence. He recorded statement of Ram Naresh and inspected the place

of occurrence as shown by him. The P.O. has shown as a field of informant lying north to the village at Sikhani Sareh. Occurrence took place with

regard to cutting of the ridge as has been disclosed. He had shown the boundary of the P.O. North-accused persons, South-Deoki Rai, EastNathuni

Rai, West-Hari Rai. Then had stated that during course of inspection of P.O. he had found that the land was ploughed 2-3 days earlier. Land of

informant happens to be eighteen katha while accused seven kattha, lies near the place of occurrence. Again said that adjacent to the P.O. Again said

that found the ridge of the P.O. land ploughed. Then had stated that he recorded statement of the informant, witness Mahajhan Manjhi, Aashirwad

Rai, Mankeshwar Rai, Ajit Rai. Procured injury report on 02.12.2006. As he was transferred so handed over charge to S.I. Sudama Rai. During

crossexamination at para-10 he had stated that he had incorporated under para-8 of the case diary that the P.O. lies north to village-Kala Matahania

at Siswani Sarch in a field contiguous to informant as well as accused. He had not mentioned in which village, the P.O. lies. In para-11, he had stated

that he had not mentioned the fact in the case diary whether he had demanded relevant document regarding P.O. from the informant. In para-13, he

had stated that as pointed out by the Ram Naresh Ram, he had incorporated the fact that the 18 kattha land of informant as well as 7 kattha land of

accused are contiguous to each other. In para-14, he had stated that he had not mentioned whether occurrence took place in the field of accused or

informant. In para-15, he had stated that while incorporating boundary of the P.O. he had conjointly disclosed relating to the land belonging to

informant as well as accused. Then had denied the suggestion his investigation was cryptic.

PW.1 is Ram Naresh Rai full brother of the informant. He had deposed that on 07.11.2006 at about 08:00 AM he was in his field two Bigha away

from the P.O. land. During midst thereof, he had seen Baijnath Rai, Adya Rai and Raji Rai assaulting the informant Upendra Rai whereupon, he

rushed to the P.O. where he saw Raji Rai and Baijnath Rai were dragging Upendra Rai after encircling string around his neck and during course

thereof, Upendra Rai sustained fracture of his leg. Adya Rai was present there. He raised alarm whereupon 2-4 persons came seeing whom, accused

persons rushed therefrom. Then thereafter, Upendra Rai was taken to Kuchaikote Hospital. He had further stated that on account of land dispute this

occurrence has been committed. He had claimed identification of the accused. During crossexamination at para-5 he had admitted that he is unable to

disclose khata number, khesra number of the P.O. land. In para-6, there happens to be genealogical table of both the branches. At para-7, he had

denied the suggestion that they were Pattidar having half share each. Then had stated that total area of the P.O. land happens to be 18 decimal. At

para-8, he had shown ignorance with regard to khata number, khesra number of the P.O. Again disclosed Khata no.29 khesra no.270 area 1 Bigha 6

kattha. Then had stated that the share of the informant happens to be from northern side while accused has from southern side. Accused persons

encroached over some portion at northern side. He had not got the land measured by Government Amin. Then at para-9 there happens to be

disclosure at his end regarding previous conduct of the accused persons. Then at para-11, 12, 13 happens to be contradiction but, as PW.4 was not at

all confronted therefore, the same had gone worthless. In para-14 had stated that when he reached at the place of occurrence he had found injury

over the person of Upendra. He had also seen spot over neck. In para-15, he had admitted institution of Title Suit No.54/2006 by the Baijnath Rai

against them since before occurrence. Then had admitted presence of two PHC in the midst of way but explained that as injuries were severe on

account thereof, Upendra was not taken to those PHC. Then had denied suggestion that after meeting the injury over the neck procured injury report

and then, got this case filed.

PW.3 had stated that on the alleged date and time of occurrence he was ploughing near by the P.O. field. He saw Upendra came to his field.

Accused Baijnath Rai was ploughing his field whereupon Upendra Rai interrogated why you have dismantled the ridge whereupon, Baijnath Rai, Raji

Rai and Aadi Rai began to assault Upendra Rai with lathi. Baijnath Rai had assaulted with lathi while rest with fist and slap. Upendra Rai, Ramnaresh

Rai, Makeshwar Rai, Ajit Rai took him to hospital on bicycle. Identified the accused. During cross-examination at para-3 had admitted accused as

well as informant to be own pattidar. At para-7, he had stated that at the time of occurrence accused was ploughing his field. Then had disclosed that

this occurrence took place at the western southern plank of the field belonging to the accused. At para-8 he had stated that he had seen occurrence

from his field so, he is unable to say where informant had sustained injuries.

The Hon’ble Apex Court in Chandrasekar & Anr. vs. State of Tamil Nadu reported in 2017 (4) PLJR (SC) 220, it has been held by the

Hon’ble Apex Court:-

“10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was

speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop

vs. State of U.P., (2011) 6 SCC 288 observing as follows: “28. Where a witness to the occurrence has himself been injured in the incident, the

testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the

scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.â€​

That means to say the evidence of an injured has got primacy and his evidence should not be brushed aside in normal course unless and until there

happens to be cogent reason discrediting the same. So far occurrence is concerned, there happens to be consistent evidence apart from suggestion

having given to the respective witnesses coupled with the evidence of PW.5, the doctor. Apart from this, the injury over neck of the informant is also

found admitted to some extent while going through the evidence of PW.1. regarding which, the defence during his cross-examination had procured

from PW.5, doctor could be fatal to the life. In the aforesaid background, now the other circumstances is to be seen. There happens to be admitted

inter se relationship amongst them. There happens to be no dispute with regard to pendency of title suit at the end of the appellant /accused before the

commission of the occurrence. It is also evident from the evidence of PW.4, the Investigating Officer, that during course of inspection of the P.O., he

had not sincerely performed his duty and that happens to be reason behind that he failed to incorporate nor capable to identify the actual place of

occurrence rather, from his evidence there happens to be confusing atmosphere relating to the place of occurrence which persists as is evident from

the evidence of PW.1 as well as PW.2, but the disputed plot has not been controverted at the end of the appellant. That being so, some sort of

deficiency in properly locating the actual P.O., is not at all found adverse to the prosecution case in the background of the fact that informant as well

as PW.1 was duly cross-examined over the land shown as place of occurrence, nor they challenged that lands of both the parties are not contiguous to

each other, no ridge was cut, field was not ploughed by them.

Some sort of deficiency at the end of the Investigating Officer is not going to discredit the evidence of the other PWs as well as dent over the

prosecution case.

Giving anxious consideration to the evidences available on the record, it is found and held that prosecution succeeded in proving its case,

consequent thereupon, instant appeal lacks merit and is accordingly, dismissed. Appellants are on bail, hence their bail bonds are hereby cancelled,

directing them to surrender before the learned lower court to serve out the remaining part of sentence within four weeks, failing which the learned

lower court will be at liberty to proceed against them in accordance with law.