Kanchan Rai and Another vs The State of Bihar

M.L. Visa, J.—Appellants, namely, Kanchan Rai and Sheo Janam Rai being aggrieved by the judgment and order dated 27.8.1991 passed by 6th Additional Sessions Judge, Ara, in Sessions Trial No. 392 of 1988 convicting and sentencing both the appellants to undergo R.I. for 1 year each u/s 323 of the Indian Penal Code (in short, ''IPC'') and further convicting and sentencing appellant Sheo Janam Rai to undergo R.I. for 1 year u/s 379 IPC but ordering his both the sentences to run concurrently, have preferred this appeal. The prosecution case, in short, is that on 28.3.86 at about 6 P.M. appellant Kanchan Rai was cutting the branches of ''Sahjan'' tree standing in the ''Angari'' of the house of informant Ramagya Rai (PW-1). When Jhaleshari Devi (PW-5), wife of informant, raised protest, appellant Kanchan Rai abused her and went to his house and came with appellant Sheo Janam Rai and co-accused Dhananjay Rai with ''Dab'' and ''lathi and they all ran to assault Jhaleshari Devi who out of fear ran in her ''Angari'' but both the appellants and co-accused Dhananjay Rai chased her and entered the ''Angari'' of the house of the informant and appellant Kanchan Rai with an intention to kill her gave a ''Dab'' blow which hit on the head of Jhaleshari Devi and appellant Sheo Janam Rai and co-accused Dhananjay Rai started assaulting her with lathi and brickbats. The informant, his son Dinesh Kumar Rai (PW-4) and witnesses namely, Ram Bishun Rai (PW-2) and Ram Kishun Rai (PW-3) alongwith others went there and tried to rescue Jhaleshari Devi. Appellant Sheo Janam Rai and co-accused Dhananjay Rai assaulted Dinesh Rai with lathi and brick-bats and snatched the wrist watch worth Rs. 350/- from his hand and thereafter they fled away. The informant went to police station and submitted a written report (Ext. 1) and a case against both the appellants and co-accused Dhananjay Rai was registered under sections 448, 323, 324 and 307 IPC by drawing a formal FIR. After investigation charge-sheet under sections 448, 323, 324, 307, 379 and 337/34 IPC was submitted against both the appellants and co-accused Dhananjay Rai. Cognizance of the case was taken. Thereafter case of co-accused Dhananjay Rai was separated and referred to CJM, Bhojpur for his trial under the Juvenile Justice Act because he was a child. Charge u/s 307/34 against both the appellants and charges under sections 379 and 324 IPC against appellant Sheo Janam Rai were framed. After trial the court below did not find charge u/s 307/34 IPC framed against both the appellants proved but it held both the appellants guilty u/s 323 IPC and further held appellant Sheo Janam Rai guilty u/s 379 IPC and accordingly convicted and sentenced them as indicated above.

The case of appellants before the court below was of complete denial of occurrence and false implication for the reason that at the time of occurrence informant and his companions had assaulted them for which they lodged a criminal case against them. Three witnesses were examined on behalf of the appellants before the court below.

In order to prove its case the prosecution has examined 8 witnesses. Ramagya Rai (PW-1) is the informant. Dinesh Kumar Rai (PW-4) and Jhaleshari Devi (PW-5) are son and wife respectively of informant and are said to be injured persons. Jay Nath Rai (PW-6), another son of informant is a tendered witness. Ramji Singh (PW-7) is the doctor who had examined son and wife of informant. Murat Ram (PW-8) is a formal witness who has proved FIR (Ext. 4) Ram Bishun Rai (PW-2) and Ram Kishun Ram (PW-3) are the witnesses on the occurrence. Rajeshwar Singh has also been numbered as PW-6 who is I.O. in this case in spite of the fact that Jay Nath Rai, another son of informant, has been numbered as PW-6.

PW-1 Ramagya Rai, informant, has said that on 28.3.86 at about 6 PM appellant Kanchan Rai was cutting the branches of ''Sahjan'' tree standing in the ''Angari'' and when his wife made protest appellant Kanchan Rai by abusing her went to his house and immediately thereafter came alongwith appellant Sheo Janam Rai and co-accused Dhananjay Rai and then all the three ran to assault his wife and when his wife ran inside the ''Angari'' of the house, both the appellants and co-accused Dhananjay Rai followed her and appellant Kanchan Rai gave a ''Dab'' blow aiming at her neck but it struck on her head and when his son Dinesh and other witnesses tried to rescue his wife, appellant Sheo Janam Rai gave lathi blow on the head of his son who fell down and appellant Sheo Janam Rai snatched his wrist watch. About co-accused Dhananjay Rai he has stated that he assaulted his younger son with brick-bat causing injury on his lip. He has further said that after occurrence he went to police station where he submitted written report (Ext. 1). In cross-examination he has admitted that appellants had also filed a counter case which on the day of his giving evidence was pending in the court of Sri Akram Rizwi, Judicial Magistrate but at the same time has said that he is not an accused in that case but his sons Ganesh Rai, Ramesh and Bhola Ram Kishun are accused in that case. In para 8 of his cross-examination he has said that none of the appellants made any attempt to assault him.

Jhaleshari Devi (PW-5) is the wife of informant and she has said that at the time of occurrence she saw that appellant Kanchan Rai was cutting the branch of her ''Sahjan'' tree and when she asked him not do so, he did not listen to her and appellant Sheo Janam Rai armed with lathi and co-accused Dhananjay Rai armed with brickbat came there and she then entered in the ''Angan'' of her house where appellant Kanchan Rai gave a ''Dab blow on her head and her husband then caught hold of appellant Kanchan Rai and thereafter appellant Sheo Janam Rai gave lathi blow to her son Dinesh who fell down and appellant Sheo Janam Rai snatched his wrist watch and co-accused Dhananjay Rai assaulted her son Jay Nath Rai by brick-bat causing injury on his lip. In para 9 of her cross-examination she has admitted that wife of appellant Sheo Janam Rai had filed a criminal case against her son but according to her that case had been lodged after institution of her case.

Dinesh Kumar Rai (PW-4) has said that at the time of occurrence he was at his ''Darwaja'' when he heard cries and then he went in his ''Angan'' where he saw that appellant Kanchan Rai gave a ''Dab'' blow on the head of his mother and he also tried to give another blow but he was caught by his father and appellant Sheo Janam Rai assaulted him with lathi on his head and when he fell down appellant Sheo Janam Rai snatched his wrist watch and his brother Jay Nath Rai was assaulted by co-accused Dhananjay Rai with a brick. He has said that after occurrence he and another injured went to hospital and cause of occurrence was a ''Sahjan'' tree.

Ram Bishun Rai (PW-2) has said that on hearing ''hulla'' he went in the Angan of informant where he found both the appellants present there and appellant Kanchan Rai gave a ''Dab'' blow to the wife of informant and he also tried to give another ''Dab'' blow but informant caught hold of him and appellant Sheo Janam Rai assaulted Dinesh Kumar Rai with lathi and snatched his wrist watch. Co-accused Dhananjay Rai assaulted the younger son of informant with a brick. In cross-examination he has admitted that he is an accused in the counter case lodged by the appellants. In para 6 of cross-examination he has said that when he reached the place of occurrence by that time wife of informant had already been assaulted. Similarly, Ram Kishun Rai (PW-3) has also stated that on hearing ''hulla'' he went to the house of informant where he saw that appellant Kanchan Rai gave a ''Dab'' blow on the head of wife of informant and he again tried to give another blow but informant caught hold of him and appellant Sheo Janam Rai assaulted Dinesh Kumar Rai with lathi and snatched his wrist watch and co-accused Dhananjay Rai assaulted Jay Nath Rai with bricks. In cross-examination he has admitted that he is also one of the accused in the counter case and is own brother of Ram Bishun Rai (PW-2).

Ramjee Singh (PW-7), in his evidence, has said that on 28.3.1986 he was posted at Ara Sadar Hospital and on that day at about 11.30 PM he examined Jhaleshari Devi and found one lacerated wound 2" x 1/2" x muscle deep on scalp and age of this injury was within six hours and injury was simple in nature caused by hard and blunt substance. On the same day at 11.35 PM he examined Jai Nath Rai and found one lacerated wound 1/4" x 1/4" x 1/4" on the lower lip and nature of this injury was also simple and it was caused by hard and blunt substance. He has added that on the same day at 11.40. PM he examined Dinesh Kumar Rai and found one lacerated wound 1/2" x 1/4" x 1/4" on the back of scalp and this injury was also simple in nature and was caused by hard and blunt substance. He has proved injury reports marked Exts. 3 to 3/2. In cross-examination he has stated that ''Dab is used for cutting and injury found on Jhaleshari Devi cannot be caused by natural assault by ''Dab and Injury on Jhaleshari Devi may be caused by fall on the ground and injuries on all the three injured were superficial. He has further said that injuries on all the three persons were possible by brick-bats.

Rajeshwar Singh (PW-6) is the I.O. in this case. He has said that he inspected the place of occurrence on 29.3.86 at about 6.30 AM and he found blood stains at the place of occurrence and sent requisition (Ext. 2) for medical examination of injured persons. In cross-examination he has said that he found one branch of ''Sahjan'' tree but he did not seize that branch. He has further admitted that he did not send marks of blood for chemical examination and has denied that marks found were of betel spit.

The case of prosecution as narrated in the written report of informant is that appellant Kanchan Rai gave a ''Dab blow on the head of Jhaleshari Devi (PW-5), wife of informant. The evidence of informant, Jhaleshari Devi herself, Dinesh Kumar Rai (PW-4), Ram Bishun Rai (PW-2) and Ram Kishun Rai (PW-3) who are eye witnesses to the occurrence is also that appellant Kanchan Rai gave a ''Dab'' blow on the head of Jhaleshari Devi. The medical evidence does not support this story of prosecution because the doctor who examined Jhaleshari Devi within six hours of the occurrence has clearly stated that he found only lacerated wound on the head of Jhaleshari Devi which was superficial in nature and this injury cannot be caused by a ''Dab''. Considering this fact as well as the fact that there was no attempt to repeat the blow on Jhaleshari Devi, the court below came to a conclusion that there is no evidence on record to infer that appellants made any attempt to commit murder of Jhaleshari Devi. On the basis of this conclusion the court below held that prosecution has failed to prove charge u/s 307/34 IPC against the appellants but it has held that evidence of Jhaleshari Devi shows that she was assaulted by appellant Kanchan Rai and on this ground it has found appellant Kanchan Rai guilty u/s 323 IPC for assaulting Jhaleshari Devi. When there is a specific case of prosecution that appellant Kanchan Rai gave a ''Dab'' blow on the head of Jhaleshari Devi and evidence was also led to this effect but when this part of prosecution case did not find support from the medical evidence, the finding of the court below that because Jhaleshari Devi has stated that she was assaulted by appellant Kanchan Rai, therefore, charge u/s 323 IPC against the appellant Kanchan Rai is proved is not a correct finding. If the evidence of Jhaleshari Devi that she was assaulted by appellant Kanchan Rai with a ''Dab'' was not proved how it can be inferred that appellant Kanchan Rai is responsible for the injury which was found on Jhaleshari Devi which was caused by hard and blunt substance in spite of the fact that the charge against him that he assaulted her with ''Dab failed. It is the own case of prosecution that at the time of occurrence he was armed with ''Dab and no injury caused by ''Dab on Jhaleshari Devi was found. In absence of any other type of evidence that he inflicted injury on Jhaleshari Devi by other means he cannot be held responsible for the injury which was found on Jhaleshari Devi in this case. Apart from PWs 2 and 3 other witnesses who have deposed on the point of occurrence are informant, his wife and his son. PWs 2 and 3 are own brothers and they have admitted that they are accused in the counter case lodged by appellants. In this view of the matter, they are also not independent witnesses. Although the court below has not given any value to the evidence of Tara Muni (DW-1), wife of appellant Sheo Janam Rai who has said that at the time of occurrence Dinesh along-with Kishun and others came to her house, assaulted her and Ramesh took away a box containing cash and clothes for which a case had been lodged and DW-3 who has proved the copy of complaint petition (Ext. B), formal FIR (Ext. A) and chargesheet (Ext. C) but then at the same time it has not considered the evidence of DW-2, the doctor who in his evidence has said that on 30.3.86 he examined Taramuni, wife of Sheo Janam Rai and found a lacerated wound 3" x 1/4" x skin deep and two contusions on her body and the age of these injuries was within 36 years (sic--hours?) to 48 years (sic--hours?). Notwithstanding the defence of appellants I find that in the written report (Ext. 1) the informant has stated that appellant Kanchan Rai gave a ''Dab'' blow on the head of his wife and appellant Sheo Janam Rai and co-accused Dhananjay assaulted her with lathi and brick but no injury by lathi or brick was found on the body of Jhaleshari Devi. Besides this, in the written report, informant has not specifically stated that appellant Sheo Janam Rai snatched the wrist watch from Dinesh Kumar Rai. He has levelled general allegation that all the appellants after snatching wrist watch from Dinesh fled away.

It is true that l.O. in his evidence has admitted that when he visited the place of occurrence he found some blood marks but at the same time he has admitted that he did not take any step for collecting those blood marks and sending it for chemical examination. In this view of the matter it is difficult to say that marks which he found at the place of occurrence were marks of human blood.

Considering the entire evidence on record I find that the case as made out in the written report of informant and in the evidence of witnesses claiming themselves either to be injured persons or eye-witnesses does not find support from the medical evidence. I, therefore, find that prosecution has not been able to prove the charges against the appellants beyond all reasonable doubts. In the result, this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellants is hereby set aside. The appellants who are on bail, are discharged from the liability of their bail bonds.