Jagbali Ray @ Jagwali Rai vs The State of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 06-08-2026 Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State.

The present appeal has been preferred for setting aside the judgment of conviction dated 31.01.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 07.02.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Exclusive Special Excise Court No. II-cum-Additional District & Sessions Judge, Vaishali (hereinafter referred to as the ‘learned trial court’) in G.R. No. 3563 of 2017 arising out of Raghopur P.S. Case No. 83 of 2017. By the impugned judgment, the appellants have been convicted for the offences punishable under Sections 323, 302/34 of the Indian Penal Code (in short ‘IPC’) and Section 27 of the Arms Act. By the impugned order, they have been sentenced to undergo life imprisonment and to pay a fine of Rs.1 lakh/- each for the offence under Section 302/34 IPC and in case of default of payment of fine, they have to undergo six months additional imprisonment. For the offence under Section 323 IPC, they have been ordered to undergo one year imprisonment with a fine of Rs.1000/- each and in default of payment of fine, they have to undergo one month additional imprisonment. For the offence under Section 27 of the Arms Act, they have been ordered to undergo seven years imprisonment with a fine of Rs.10,000/- each and in default of payment of fine, they have to undergo three months additional imprisonment. All the sentences are to run concurrently.

The prosecution story is based on a written information (Exhibit-1) dated 14.08.2017 submitted by Amira Rai (PW-6) who is the father of the deceased. In his written application, PW-6 has stated that he was with his son Satish Kumar (since deceased) in Bathan to look after the animals. On 13.08.2017 at 8:00 PM, the named accused persons, namely (1) Dashrath Rai, (2) Bindeshwar Rai, (3) Jagbali Ray, (4) Panchu Rai, (5) Manoj Ray and (6) Dinesh Roy came there, they were carrying liquors in a bag and all of them were having revolvers in their hands. They tried to take out the liquor bottles from the bag in order to consume the said liquor, this was objected to by the informant and his son. It is alleged that the accused persons said that whosoever will stop them from consuming liquor today, they would be killed. This resulted in hurling abuses and physical push. Panchu Rai caught hold of the informant, in the meantime, Dashrath Rai ordered Jagbali Ray to shot at Satish and on his direction, Jagbali Ray shot at Satish Kumar, whereafter, Satish fell down on the ground after becoming restless. The informant further alleged after Satish fell down on Earth, Dashrath whispered that he should not be left alive and Dashrath Rai also shot at Satish. On hulla and hearing the sound of the firing, the witnesses namely Shyamanand Rai, Shitkesh Kumar and Mithlesh Kumar assembled at the place of occurrence. Seeing the arrival of the witnesses, the accused persons fled away brandishing their revolver and firing. The informant alleged that the witnesses had identified the criminals who fled away after committing the crime. The informant took Satish to Raghopur Primary Health Centre where doctor referred him to PMCH, Patna but on arrival at the PMCH Patna, Satish was declared dead. From PMCH, Patna the informant returned with the dead body of the Satish to his house. He has stated that he had given information to the Chowkidar and also to the police station.

On the basis of the written information of the informant (PW-6), Raghopur P.S. Case No. 83 of 2017 dated 17.08.2017 was registered under Sections 302, 34 IPC and Section 27 of the Arms Act and Section 30(a) of the Bihar Prohibition and Excise Act, 2016 against (1) Dashrath Rai, (2) Bindeshwar Rai, (3) Jagbali Ray, (4) Panchu Rai, (5) Manoj Ray and (6) Dinesh Roy.

After investigation, police submitted chargesheet bearing Chargesheet No. 48 of 2017 dated 12.05.2018 against (1) Panchu Rai, (2) Jagbali Ray, (3) Manoj Ray, (4) Dinesh Roy showing two accused, namely, (5) Dashrath Rai (6) Bindeshwar Rai absconder under Sections 302, 323, 504/34 IPC and Section 27 of the Arms Act.

Learned Chief Judicial Magistrate, Gopalganj vide order dated 11.03.2019 took cognizance of the offences punishable under Sections 302, 323, 504/34 IPC and Section 27 of the Arms Act and Section 30 (a) of the Bihar Excise and Prohibition Act, 2016 after finding a prima-facie case against the accused, namely, (1) Panchu Rai, (2) Jagbali Ray, (3) Manoj Ray, (4) Dinesh Roy, (5) Dashrath Rai and directed the office to split off the records with respect to Bindeshwar Rai.

Charges were read over and explained to the five accused persons, namely, (1) Panchu Rai, (2) Jagbali Ray, (3) Manoj Ray, (4) Dinesh Roy, (5) Dashrath Rai which they denied and claimed to be tried. Accordingly, vide order dated 19.11.2019 charges were framed against them under Sections 302, 323, 504/34 IPC and Section 27 of the Arms Act and Section 30 (a) of the Bihar Excise and Prohibition Act, 2016.

Learned trial court vide order 02.12.2020 expunged the name of Dashrath Rai as he had been reported dead.

In course of trial, the prosecution examined as many as ten witnesses and got exhibited various documentary evidences. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided hereunder in a tabular form:-

Learned trial court after examining the oral as well as documentary evidences available on the record came to the conclusion that on the said date, time and manner of the occurrence, Satish Kumar died because of gunshot injury in course of treatment. Learned trial court found that PW-6 (informant), PW-1, PW-2 and PW-5 are the eye witnesses who have completely supported the prosecution case. Rest of the prosecution witnesses also supported the prosecution case.

Learned trial court found that the post mortem report (Exhibit ‘3’) shows the cause of death is due to firearm injury which corroborates the prosecution case.

Learned trial court further found that the stand taken by the defence that the accused persons were falsely implicated because Dinesh Rai gave Rs. 2.5 lakhs/- to Raghubir Rai the brother of the informant for purchase of 22 Kathas land but he neither registered the land nor returned the money, has no basis as there is nothing on record to show the transaction.

Learned trial court after considering all the facts and circumstances of the case held that the prosecution has been successfully able to prove the charges beyond all reasonable doubts levelled against these appellants. Accordingly, the appellants were convicted of the offences punishable under Sections 323, 302/34 IPC and Section 27 of the Arms Act.

Learned counsel for the appellants has submitted that P.W. 1 and PW-4 are the FIR named witnesses. Learned counsel submits that according to PW-3, they came home with the dead body of Satish Rai at 02:30 -03:00 AM but the incident was reported at 9:00 AM which raises suspicion in the version submitted by the informant.

Learned counsel for the appellants has submitted that from paragraph ‘13’ of the deposition of PW-3, it is evident that Daroga ji came at Raghopur hospital and recorded the statement of Amira Rai which was not brought on record which implies that the prosecution has suppressed the first and true version of the manner and nature of the occurrence. Learned counsel submits that according to the deposition of the defence witnesses, the deceased was involved in liquor business and was killed by the persons involved in the same line.

Learned counsel has also submitted that there has been a delay of 13 hours in lodging of the FIR which is enough time to concoct and fabricate a false story.

Learned counsel for the appellants has submitted that there are several contradictions in the versions stated by prosecution witnesses which furthers strengthens the possibility of fabricated story presented by the prosecution.

Learned counsel for the appellants has further submitted that the inquest report of the deceased has not been produced on record. He further added that there are three Investigating Officers in this case but none of them has said anything about the inquest report in their respective deposition. This further raises suspicion in the case of prosecution.

Furthermore, it was submitted that P.W. 8, who is the earliest I.O., in paragraph ‘13’ of his deposition has stated that he had recorded the statement of all witnesses at the place of occurrence itself, no witness mentioned it to him that they saw the occurrence. Learned counsel submits that this fact implies that the witnesses indeed are presenting a fabricated story and are suppressing the true nature and manner of occurrence.

Learned Additional Public Prosecutor for the State has opposed the appeal. It is submitted that learned trial court has examined the evidences available on the record meticulously and found the involvement of the appellants in the commission of the offence. Hence, the impugned judgment and order need no interference of this Court.

We have heard learned counsel for the appellants, learned Additional Public Prosecutors for the State as also perused the trial court’s records.

The prosecution story is based on the written information (Exhibit-1) dated 14.08.2017 submitted by Amira Rai (PW-6) who is the father of the deceased. The formal FIR has been registered on 14.08.2017 at 9:00 AM. Perusal of the same would show that the occurrence had taken place on 13.08.2017 at 8:00 PM but the information was received in the Police Station only at 9:00 AM. According to the informant, he was with his son Satish Kumar (since deceased) in Bathan to look after the animals. On 13.08.2017 at 8:00 PM, the named accused persons 1. Dashrath Rai, 2. Bindeshwar Rai, 3. Jagbali Ray, 4. Panchu Rai, 5. Manoj Ray and 6. Dinesh Roy came there, they were carrying liquors in a bag and all of them were having revolvers in their hands. They tried to take out the liquor bottles from the bag in order to consume the said liquor, this was objected to by the informant and his son. It is stated that accused persons said that whosoever will stop them from consuming liquor today, they would be killed. This resulted in hurling abuses and physical push. Panchu Rai caught hold of the informant, in the meantime, Dashrath Rai ordered Jagbali Ray to shot at Satish and on this direction Jagbali Ray shot at Satish, whereafter, Satish fell down after becoming restless. He stated that after Satish fell down on Earth, Dashrath whispered that he should not be left alive and Dashrath Rai also shot at Satish. On hulla and hearing the sound of the firing, the witnesses namely Shyamchand Rai, Shitalesh Kumar and Mithlesh Kumar assembled at the place of occurrence. Seeing the arrival of the witnesses, the accused persons fled away brandishing their revolver and fired. The informant claimed that the witnesses had identified the criminals who have fled away after committing the crime. Informant took Satish to Raghopur Primary Health Centre where doctor referred him to PMCH, Patna but on arrival at the PMCH Patna, Satish was declared dead. From PMCH, Patna the informant returned with the dead body of Satish to his house. He stated in the written information that he had given information to the Chowkidar and also to the police station.

It appears on the perusal of the records that in this case, the prosecution examined as many as ten witnesses and exhibited documents such as the written information (Exhibit ‘1’), the charge-sheet (Exhibit ‘2’), the Post Mortem Report (Exhibit ‘3’) and the charge-sheets of other cases. The prosecution case has to be examined and analyzed on the basis of the evidences brought on record by the prosecution, henceforth, the Court would first discuss the testimonies of the prosecution witnesses hereinafter.

The star witness of this case is the informant i.e., PW-6 who claims his presence at the place of occurrence when the occurrence took place on 13.08.2017 at 8:00 PM. In the examination-in-chief, he has stated that at the time of occurrence, he was sitting in the Bathan with his son Satish. By improving upon the statement in the written information, PW-6 has stated in course of trial that Shyamchandar Rai was also sitting in his Bathan for taking milk. It is important to note that in his written information (Exhibit ‘1’) he has claimed Shyamchandar Rai as one of the three persons who had arrived at the place of occurrence after hearing hulla and sound of firing. In the examination-in-chief, PW-6 has stated that when he and his son protested that they would not allow accused person to consume liquor in the Bathan then they abused and physically pushed by hand and fist. Dashrath Rai asked to kill Satish then Dinesh and Manoj caught hold of Satish. This is another improvement in the version of the informant (PW-6). During this cross examination on behalf of Jagbali Ray, Manoj Ray and Dinesh Roy, his attention was drawn towards the written information (Exhibit ‘1’) and it was suggested that in his written information submitted to the Daroga ji, he had not stated that Manoj Ray and Dinesh Roy caught hold of Satish. PW-6 denied the suggestion but it is evident from the testimony of the first Investigating Officer (PW-8) and on perusal of the written information (Exhibit-1) that the informant had not stated so about Manoj Ray and Dinesh Rai catching hold of Satish. This Court therefore, finds that in course of trial, the informant (PW-6) has made all efforts to improve upon the prosecution case.

This Court finds that in his cross-examination, on behalf of the Panchu Rai, the informant has stated that the occurrence had taken place during the night hours but on the date of occurrence in the night he had not given information to the police. He has stated that the information was made available to Daroga Ji when he had gone to Raghupur hospital with Satish. Regarding the location of the hospital and police station, PW-6 has stated that both are adjacent to each other but he has stated that no one came from the police station to see Satish in Raghopur Hospital. PW-6 returned home with the dead body of his son during night hours between 3-3:30AM and Daroga ji came on 14.08.2017 at 9:00 AM. Daroga Ji stayed for one hour with him, whereafter, he had taken away the dead body for post-mortem. It is evident from the testimony of PW-6 that the place of occurrence is said to be the Bathan, according to him, his son Satish Rai was shot twice. In paragraph ‘7’ of the deposition, he has stated that blood had fallen at the place of occurrence where Satish had fallen down and blood had spread for about one yard, Daroga Ji had seen the blood and had collected the samples. This testimony of PW-6 does not get corroboration from the evidence of the first Investigating Officer (PW-8).

PW-8 has stated that he had received the information regarding the occurrence on 14.08.2017 in the whee hours (Bhor Mei), whereafter he immediately went to the place of occurrence. He has stated that after going to the place of occurrence and on his return to the police station, the FIR was lodged on receipt of the application. He had stated in Paragraph No. ‘4’ of the deposition that he had received the informant at 9:00 AM, whereafter, he had registered the FIR. He has stated that he got information after arrival of the dead body of Satish. From this part of the deposition of the Investigating Officer (PW-8), it would appear that he had got information about the arrival of the dead body of Satish in the whee hours of 14.08.2017, thereafter, he went to the place of occurrence. In his examination-in-chief, he has referred Paragraph No. ‘2’ of the case diary to submit that in the said paragraph, he has recorded the inquest report. It is for this reason, we have referred to the paragraph no. ‘2’ of the case diary to find out the relevant facts regarding preparation of the inquest report. It is noticed that the inquest Report was prepared on 14.08.2017 at 5:45 AM. Amira Rai (PW-6) and Shitalesh Rai (PW-4) who are the two inquest witnesses are said to have put their signatures on it. It is therefore, evident that at the time of preparation of the inquest report no fardbeyan or written information of the informant was available with the Investigating Officer (PW-8).

It is also evident from the evidence of PW-6 and PW-8 that the police station and the hospital are adjacent to each other, Satish Rai was taken to the Raghopur hospital immediately after the occurrence but even at this stage, no Fardbeyan or written information was submitted to the police station. PW-6 has stated that police did not arrive at the hospital. Investigating Officer says that he got information only in the whee hours of 14.08.2017 after the dead body of Satish Rai arrived at his residence. It is, therefore, apparent that till the time of preparation of inquest report on 14.08.2017 at 5:45AM, the prosecution story was still in embryo.

We have noticed that in this case, the dead body was sent for postmortem on 14.08.2017 at 11:30 AM and the post-mortem commenced at 12:35AM. In the post mortem report (Exhibit ‘3’) there is no mention of police case number, therefore, it gives an impression that till the dead body was sent to Sadar Hospital, Hajipur for post-mortem, the police case was not registered. The occurrence had taken place on the previous day at 8:00 PM but as per the formal FIR, the information was given to the police station on the next day at 9:00AM, whereafter, the FIR was lodged, thus, there is a delay of 13 hours in giving written information to the police. PW-6 has stated that Daroga Ji had a talk with him for one hour on 14.08.2017 after he arrived at his home but the statement of the informant (PW-6) made before the Daroga ji during his interaction has not been recorded and made basis of lodging F.I.R. Daroga Ji has clearly stated that he registered the FIR after his return to the police station and on the receipt of the written information. This delay of 13 hours in lodging of the FIR would create huge doubt over the prosecution story.

In the case of Chotkau vs. State of U.P. reported in (2023) 6 SCC 742, the Hon’ble Supreme Court has, in paragraph ‘60’ taken note of the judgment rendered in the case of Meharaj Singh (L/Nk.) vs. State of U.P. reported in (1994) 5 SCC 188. Paragraph ‘60’ of the judgment in the case of Chotkau (supra) is being reproduced hereunder for a ready reference:-

In this case, we have further noticed that P.W 6 claims that at the place of occurrence, blood had spread in one yard but Investigation Officer (P.W-8) has categorically stated in Paragraph No. ‘12’ of his deposition that when he reached the place of occurrence he had not found blood, he had also not found any empty shell of fired cartridges by pistol and though he had recorded the statement of all witnesses at the place of occurrence but during the entire investigation done by him no witnesses had stated about seeing the occurrence. In Paragraph No. ‘14’ of the deposition, P.W-8 has further stated that he had not found any liquor bottle at the place of occurrence, he had not found any sign of consumption of liquor at the place of occurrence. It is for this reason that the defence has argued before this court that in the present case, the prosecution has failed to establish the place of occurrence being the Bathan of the informant. Investigation Officer has stated that when he reached the place of occurrence, the dead body of Satish Ray was lying at his Darwaja. The fact that he had not found any blood at the place of occurrence or any shell of empty cartridge fired at the place of occurrence would be an additional reason to doubt the prosecution case.

The defence has suggested to the informant that Dinesh Roy had purchased a plot from the Raghuveer Ray (brother of the informant) on which he had constructed a house, he had paid the cost of the land but the sale deed had not been executed. It was further suggested that for this reason, Dinesh Roy has lodged civil and criminal cases. P.W-6 denied the suggestion but the defence has adduced evidence through Udesh Ray (D.W-1) who has stated that Dinesh Ray has given money to Raghuveer Ray brother of Amira Ray (PW-6) for purchase of 22 Katthas of land but even after receiving money Raghuveer Ray was not executing the deed of the said land. D.W-1 has stated that the deceased was involved in sale of liquor and on the account of some money transactions with the liquor traders he was shot dead. Jhilmil Ray (D.W-2) has also stated the same thing with regard to payment of money to Raghuveer Ray for purchase of 22 Katthas of land. DW-2 has also stated that Satish was involved in sale of liquor.

Apart from the aforementioned evidences, this Court has noticed that there are evidences of the other prosecution witnesses, namely, Shyamchandra Ray (P.W-1) who has stated that he was examined by the Investigation Officer after one and half month. The defence suggested this witness that he was examined after 7 months by the Investigation Officer.

Bhusan Ray (P.W-2) is another witness who has been examined on 15.04.2018 i.e., after 8 months by the third Investigation Officer.

In Paragraph No. ‘1’ of his deposition, P.W-7 has stated that he had taken the charge of the investigation on 15.04.2018 whereafter, he had recorded the statement of Ram Chandra Ray (not examined), Om Prakash (P.W-5) and Bhusan Ray (P.W-2). These witnesses have been introduced in this case at a much belated stage.

On an overall analysis of the entire evidences available on the record, we are of the considered opinion that the inordinate delay in lodging of the F.I.R coupled with the unnatural conduct of the informant in not disclosing the occurrence immediately to the Raghopur Police Station which was adjacent to the hospital and then even at the stage of preparation of the inquest report and the postmortem report, the prosecution case having remained in the embryo, the prosecution story disclosed at a belated stage after 13 hours cannot be said to be free from blemishes.

The prosecution witnesses such as P.W-1, P.W-2, P.W-3, P.W-4 and P.W-5 have been introduced in this case after several months, even as they claimed to be present when the police arrived at the place of occurrence on 14.08.2017 but they did not make any statement before the police at the earliest opportunity. This would definitely shake the credibility of these prosecution witnesses. They are not reliable witnesses. The prosecution has failed to establish its case beyond reasonable doubt. We are of the opinion that the appellants have made out a case for acquittal giving them benefit of doubt.

In result, the impugned judgment and order are set aside. The appellants are acquitted of the charges giving them benefit of doubt. The appellants are said to be in custody, hence, they are ordered to be released forthwith, if not wanted in any other case.

40 This appeal is allowed.

Let a copy of this judgment along with the trial court’s records be sent down to the trial court.