Junarbi Rai vs The State Of Bihar

Honourable Mr. Justice Shyam Kishore Sharma

The sole appellant Junarbi Rai has assailed the judgment and order dated 3.10.1989 passed by the learned 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 277 of 1986 convicting the appellant u/s 302/34 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. The occurrence relates to Ist January, 1983. In the night at 9.00 PM, Rama Rai set out from his house after taking meal and went to his boring installed in the field for watching it. At about 10-11 PM the informant Laxmi Devi @ Laxminia Devi (PW 4)- Bhabhi of Rama Rai heard shout for help. Rama Rai was crying from his field that Tileshar, Jugeshwar, Junarbi and Subhash were annihilating him. When the informant recognized the voice of Junarbi Rai, then she along with Lalmati (PW 2), Reshmi Devi (not examined), Satyendra (PW 1) and others went near the Boring and found 6-7 persons including Junarbi assaulting Rama Rai. She identified Junarbi, Tileshwar Rai, Jugeshar Rai and Subhash among the assailants. Junarbi and other assailants escaped after killing. The motive assigned for killing was that Rama Rai (deceased) was working as Chowkidar. The Police Officer of Dariyapur Police Station with the assistance of Chowkidar Rama Rai had arrested Sri Ram Rai, son of accused Junarbi Rai in connection with a dacoity case and thereafter, certain articles which were kept in his house as well as in the house of another person were recovered. The arrest of Sri Ram Rai, son of the appellant in a dacoity case led the accused to commit the offence. The fard-beyan (Ext. 3) led to registration of formal FIR (Ext. 1) of Dariyapur P.S. Case No. 1 of 1983 under sections 302/34 of the Indian Penal Code and the investigation commenced. In course of investigation the inquest report (Ext. 5) was prepared, Post mortem examination report (Ext. 2) was obtained, statements of witnesses u/s 161 Cr.P.C. were recorded and after finding the allegation to be true the chargesheet was submitted. Altogether four persons were named as accused. The appellant was one of them. Other two named accused Tileshwar and Jugeshwar were killed in police encounter in the night of 28/29 May, 1984 which led to registration of Dariyapur P.s. Case No. 92 of 1984. Remaining accused Subhash Rai, son of the appellant, escaped and remained absconder. Ultimately, the sole accused was put on trial who was charged u/s 302/34 of the Indian Penal Code and explained to him to which he pleaded his innocence and so the trial proceeded.

The defence of the accused was of false implication on account of enmity from before. The Court below after considering the prosecution evidence and the defence and after hearing the submissions on behalf of the parties came to the opinion that the prosecution has been able to prove its case beyond the shadow of all reasonable doubts.

Now this Court is required to see as to whether the prosecution was able to prove its case beyond the shadow of all reasonable doubts or not.

In order to prove its case the prosecution has examined altogether 10 oral witnesses. They are Satyendra Rai (PW 1), Lalmani Devi (PW 2), Basmati Devi (PW 3), Laxmi Devi @ Laxminiya Devi (PW 4), Kamal Chandra Kumar (PW 5), Dr. Suresh Prasad (PW 6), Jahir Hasan (PW 7), Salauddin Haider (PW 8), Rajnarain Singh (PW 9) and Sri Ram Saran Choudhary (PW 10).

PW 7 is a formal witness who proved the writing of Sri R.S. Choudhary (PW 10) on the fard-beyan (Ext. 3). PW 8 is another formal witness who has proved the writing of formal FIR (Ext. 4). PW 9 Raj Narain Singh is also a formal witness. PW 6 is a doctor who held post mortem examination on the dead body of the deceased and PW 10 has investigated into the occurrence.

PWs 1, 2, 3 and 4 are the family members of the deceased and the informant. They are the material witnesses. PW 1 is the nephew of the deceased. PW 2 is the niece of the deceased and PW 3 is widow of the deceased and PW 4 is the informant and the Bhabhi of the deceased. All the four witnesses have been examined as a witness to the occurrence.

Before taking up the ocular evidence, it is appropriate to discus the medical evidence. PW 6, who at 9.30 AM on 3.1.1983 was posted as Civil Assistant Surgeon, Sadar Hospital, Saran at Chapra, held the post mortem examination on the dead body of Rama Rai and found that rigor mortis was present in all four limbs on both upper and lower limbs and also found the following ante mortem injuries:

(i) Incised wound 5 " x 1" x 2 1/2" over upper most part of front of neck, with complete cutting of trachea and esophagus and both external carotid vessels and other soft tissues.

(ii) Incised wound two in number 3" x 1"x2 1/2" and 4" x 1" x 3" over upper most part of the back of the neck.

(iii) Incised wound 4'' x 1" x oval cavity deep over middle of left side of cheek with cutting of maxilla bone.

(iv) Incised wound 5 1/2" x 2" x cutting of left maxilla and lower part of left orbital cavity.

(v) Incised wound 5" x 1" x 2 1/2" with cutting of ramous left mandible from cheek to left side of the neck.

(vi) Incised wound two in number 4" x 1" x bone deep and 3 1/2" x 1/2" x bone deep over right side of the scalp.

(vii) Incised wound 1 1/2" x 1/2" x bone deep over left side of scalp.

(viii) Incised wound 3" x 1/2" x 1" over upper and inner part of right side of the chest.

(ix) Incised wound 1/2" x 1/2" x 1" over upper and middle part of the right side waist.

(x) Incised wound 3" x 1'' x complete cutting of both bones over lower part of back of left forearm.

(xi) Lacerated wound 1/2" x 1/2" x 1/2" with fracture of left medial incisor tooth.

(xii) Incised wound 2" x 1/2" x 1" over upper part of right shoulder.

Injury nos. (i), (iii), (iv), (v) and (x) were grievous in nature and rest were simple. The injuries were caused by sharp cutting substance like Garansi and Farsa. Injury no. (xi) might have been caused by hard and blunt substance like wooden portion of Garansa. Time elapsed since death was within 36 hours. The death was on account of shock and haemorrhage as a result of above mentioned injury particularly injury no. (i) which was sufficient to cause death in ordinary course of nature. The death might have caused after 24 hours and before 36 hours of the holding of post mortem examination.

The death of Rama Rai, on account of use of sharp cutting instrument at the alleged time, is not being challenged which is apparent from the trend of cross-examination. The evidence conclusively establishes that Rama Rai made to death and his death was on account of injuries which were received by sharp cutting instrument. The time of death as alleged is also established. Once the prosecution establishes that the death is homicidal then the evidences are required to be thoroughly discussed.

The prosecution has relied upon the testimony of four eye witnesses. The informant PW 4 who is the Bhabhi of the deceased has deposed that at about 10-11 PM, her Dewar Rama Rai went towards Boring. At darwaja she was sitting along with Satyendra Rai (PW 1), Basmati Devi (PW 3) and Lalmani Devi (PW 2). Her Dewar Rama Rai cried and requested his Kaka to spare his life. The informant and other three witnesses, namely, PWs, 1, 2 and 3 rushed towards the boring and saw Junarbi, Subhash, Jageshwar and Tileshwar putting Rama Rai on earth and in that position Junarbi was cutting him with Farsa, whereas, rest three were cutting him with Garansa and two more persons were standing near the place of occurrence but they were not identified. After finishing their task of doing away the life of Rama Rai, the accused persons escaped and the informant claimed the identification in moon light. The motive claimed by the informant was that the son of Junarbi was taken into custody in connection with one theft case and the stolen articles were recovered by police from the house of Junarbi also. The accused Junarbi was having grudge on account of that. After the accused persons fled away, the informant saw that Rama Rai dead. She has stated that her Dewar used to call Junarbi as Kaka. She further stated that the police came and she detailed about the occurrence. The informant and other witnesses, namely, PWs 1, 2, and 3 were present in their houses. They remain in one house and their presence at the time of occurrence cannot be doubted. PWs 1, 2 and 3 have also set out with the informant and they went near Rama Rai and they have described that Rama Rai was being put on havoc and he was being assaulted and the witnesses have stated that the motive of the occurrence was arrest of the son of Junarbi Rai in a theft case and it was suspected that the deceased being a Chowkidar was instrumental in the arrest of appellant''s son. The evidence of PWs 1, 2, 3 and 4 is consistent and the consistency with regard to manner of occurrence, time of occurrence and place of occurrence is almost identical and there is no variation in their testimony which could be noticed.

Learned counsel for the appellant has stated that these four witnesses who were relied upon by the prosecution are highly interested witnesses as they are the members of the family of the deceased, so they were behind the appellant and their sole aim is that the appellant is convicted and so they have given parrot like evidence which cannot be relied upon. It is also stated that PWs 1 to 4 have stated that other villagers also came out after hearing the shout but they have not been examined by the prosecution only with a view to conceal the truth and the false version was given.

The evidence of PWs 1 to 4 is that the killing was in their presence and when the offence of killing was completed then the accused persons fled away then some villagers have come. There is no evidence that any villagers have witnessed the occurrence. Therefore, the villagers at best were hear say witness and there was no use for the prosecution to examine them from the side of prosecution claiming that the villagers have witnessed the occurrence. If the specific evidence is that the villagers came up to the place of occurrence after the departure of the assailants then there was no purpose of examining them. Non-examination of any villager in the circumstances is well explained and does not go against the prosecution.

Another argument by the learned counsel for the appellant is that in the initial version of the informant there is no mentioning of any source of light and it has been stated before the court subsequently. The source of light was introduced to fill up the lacunae and it was claimed that it was moonlit night, so the identification was doubtful. No doubt the source of light is not mentioned in the fard-beyan. The fard-beyan was recorded just within one hour of the occurrence and soon thereafter, process of cremation happened and immediately after arrival of the police she has narrated the entire sequence as to how the offence was committed and the accused persons were identified. She had no time at all to fabricate the prosecution case or to falsely implicate the accused. In the night all the villages are dark and the villagers passed half of their life without any strong source of light. The place of occurrence is a field where no source of light could have been available in ordinary course of nature. The introduction of moonlit night during evidence cannot be said to be addition even if item of moonlit night is not introduced then also the villagers are very well in identifying his near and dear because the informant and others have seen the occurrence from very nearest place and they were in proximity with the deceased, so the identification of the accused at the time of occurrence cannot be doubted. They had no apparent reason to falsely implicate. Therefore, the submission that the source of moonlit night was subsequently introduced does not create any doubt with regard to identification of the accused.

The place of occurrence has been described by the Investigating Officer who has proved the place of occurrence and has detailed it in paragraph 4 of his evidence wherein he has stated that south of the place of occurrence was house of the deceased. The villagers being present at the field during night is very common event and the villagers goes to his field to watch and protect the usufructs of his labour. It has come in evidence that the Investigating Officer at the time of inspection of the place of occurrence has found that the field was having mustard, wheat and maize and in the circumstances the presence of Rama Rai in the field in the night is very well perceived. The I. O. has stated that blood was found and blood stained soil was seized. The finding of blood at the place of occurrence goes to establish the place of occurrence and the place of occurrence cannot be doubted.

Considering the evidences on the record, it is apparent that the prosecution has been able to prove its case beyond the shadow of all reasonable doubts that the appellant along with others have caused culpable homicide amounting to murder of Rama Rai. The evidence brought on the record conclusively establishes the charge and requires no interference by this Court.

In the result, the judgment of conviction and order of sentence is affirmed and the appeal is dismissed. Since the appellant is on bail, his bail bond is cancelled and he is directed to surrender in the court below to serve out the remaining sentence. The court below is also directed to take necessary steps to see that the appellant is taken into custody. Mr. Rajesh Kumar, Advocate has assisted this Court very well as Amicus Curiae on behalf of the appellant. He is entitled to get the prescribed remuneration from the High Court Legal Services Committee Patna. Let copy of first page and last page of this judgment be handed over to him