Lal Mohan Rai and Others vs State of Bihar

Hari Shankar Prasad, J.—This appeal is directed against the judgment dated 20.3.1996 and order of sentence dated 23.5.1996 passed in Sessions Trial No. 115/94/38/94, whereby and whereunder the learned First Additional Sessions Judge. Dumka convicted and sentenced the appellants to undergo RI for life Under Sections 302/149, IPC and appellants Lal Mohan Rai. Sahdeo Rai, Koka Rai @ America Rai and Badari Rai were further sentenced to undergo RI for two years for the offence u/s 148, IPC and other six appellants, namely, Bindu Rai @ Bhatku Rai, Bulu Rai @ Birbal Rai, Kashi Rai, Anil Rai. Nehru Rai and Dukhan Rai were sentenced to undergo RI for one year for the offence u/s 147, IPC but sentences were directed to run concurrent.

The prosecution case in brief is that Prabhu Rai gave a fardbeyan on 15.11.1993 at 7.30 pm in Masalia Hospital before S.P. Singh, SI of Masalia PS in injured condition that on the same day at 10 a.m. Badri Rai, Koka Rai, Nehru Rai, Bhat- ku Rai @, Bulu Rai, Bindu Rai, Lalmohan Rai, Sahdeo Rai, Anil Rai, Kashi Kai, Dukhan Rai,. Munna Rai. wife of Lalmohan Rai, wife, of Gandadhar Rai, wife of Munsi Rai and 19-12 unknown persons were cutting paddy crops of his field and were making bundles and taking the same to their evidence. Besides Hasuli for cutting paddy crops, they were armed with tangi, gandasa and with bow and arrow. They had kept weapons also and were cutting paddy crops and carrying the same in bundles. 10-12 unknown persons, after leaving cutting of paddy crops, were looking rest in the bush of Rahar. In the meantime he and his brother Matru Rai, his father Mohan Rai, neighbour Chuddu Rai. Manish Kujju Rai. Jagdish Rai and Lalmohan Rai of village Dhawargaon came there and objected to their cutting paddy crops as those persons on 14.11.1993 had also cut paddy crops of'' his two fields and on that very day his father was not in the house and had gone to Dumka and when he returned from Dumka informant told about this occurrence and a decision was taken on 14.11.1993 to go to PS tomorrow but today also accused persons, armed with lethal weapons, started cutting paddy crops, then they asked them not to cut paddy crops but on their request not to cut paddy crops they started abusing them and were out to commit their murder on this very field and Badri Rai, Lal Mohan Rai, Sahdeo Rai, armed with tangi, Koka Rai armed with farsa and others armed with lathi rushed to commit murder and wanted to commit murder then these persons started fleeing away and appellants and others chased them and assaulted them. They assaulted Mohan Rai, villager Chuddu Rai and Manish Lal Mohan Rai, with tangi, farsa and lathi and they fell down on the ground. After falling on the ground, Mohan Rai, Chuddu Rai and Manish Lalmohan Rai were crying for water then his mother rushed with water but all of them rushed to assault his mother and after chasing her they assaulted with fists and slaps and threw the water on the ground and thereafter they assaulted these persons till their death and those persons, who have suffered least injury, fled away from there to save their lives. On the basis of this Jardbeyan a case bearing Masalia PS Case No. 53/93 dated 15.1L1993 Under Sections 147, 148, 149, 341, 323, 324, 325, 379, 307 and 302, IPC was registered and police after investigation submitted charge-sheet against the appellants. Cognizance in the case was taken and case was committed to the Court of Sessions and the learned trial Court after taking evidence both oral and documentary, came to a finding and convicted the appellants and sentenced them as aforesaid.

The defence has taken a plea that the prosecution side had hired some outsiders to commit the murder of some of the appellants and on arrival they were demanding money but due to non-payment of money they committed murder of the deceased. The prosecution has examined altogether 11 witnesses. PWs 1. 2. 3, 4, 6 and 8 have figured as eye-witnesses to the occurrence and they have deposed as eyewitnesses. PWs 5 and 7 are doctors and PW 9 is the 10 of the case. PW 11 is a local Pramukh and PW 10 is a hearsay witness.

The murder of Mohan Rai, Lalmohan Rai and Chuddu Rai has not been denied by the defence and defence has come out with a story that prosecution side had hired some criminals for commission of murder of the persons of defence side and on arrival of those hired criminals, since no payment was made to them as agreed upon, they fell upon the members of prosecution party, who hired them and committed their murder. Admittedly there are three persons namely, Mohan Rai, Lalmohan Rai and Chuddu Rai, who had been killed either by the appellants or by the persons hired by the members of the prosecution side. But, admittedly, these three persons were murdered.

PW 5 is a doctor, who has conducted post mortem examinations on the dead bodies of Mohan Rai, Lalmohan Rai and Chuddu Rai. According to this witness, he conducted the post mortem examination on the dead body of Mohan Rai at 10.50 am on 17.11.1993 and found the following ante mortem injuries on the dead body of the deceased.

"(i) Lacerated wound 3" x 1/2" bone deep over the parietal occipital region left side.

(ii) Lacerated wound 2" x 1/2" x scalp deep over the left parietal region.

(iii) Lacerated wound 2" x 1/2" x scalp deep on the occipital region.

On dissection of the scalp there was fracture of the left parietal bone that is injury No. (f) : on further dissection connecting brain and meanings found lacerated and collection of blood found in the cranium.

(iv) Diffuse swelling over the right side of chest.

On dissection there was fracture of 7th and 8th ribs. On further dissection connecting pleura and lunges found lacerated and collection of blood found in the thoracic cavity.

(v) Diffuse swelling over the right forearm with fracture of radius and ulna.

(vi) Diffuse swelling over the left fore arm with fracture of both radius and ulna.

(vii) Diffuse swelling over the lower end of the left leg above the ankle joint with fracture of both tibia and fibula."

The doctor has come to the opinion that death was caused due to shock and haemorrhage as a result of injury Nos, (i) and (iv) which were sufficient to cause death in ordinary course of nature and he came to opinion that weapons used for these injuries was hard and blunt substance may be that injury Nos. (i) and (iv) were caused with the back portion of kulhciri and farsa and injury Nos. (ii), (iii}, (v), (vi} and (vii) were caused by lathi or back portion of kulhari or farsa. He also found that time elapsed since death was within 48 hours.

Further on 17.11.1993, PW 5 con- ducted the post mortem examination on the dead body of Lalmohan Rai at 11.40 am and found the following ante mortem in- juries :-

"(i) Lacerated wound 4" x 1/2" x scalp deep over the left parietal occipital region.

(ii) Lacerated wound 2" x scalp deep over the right parietal occipital region.

(iii) Lacerated wound 2" x 1/2" x scalp deep over the occipital region.

On dissection of the scalp nothing abnormality defected.

(iv) Diffuse swelling over whole of the chest.

On dissection there was fracture of 3rd to 12th ribs of right side and 7th to 12th ribs of left side. On further dissection there was laceration of connecting pleura and lungs and huge collection of blood found in the thoracic cavity.

(v) Diffuse swelling over the left forearm with fracture of both radius and ulna.

(vi) Diffuse welling over left lower end of let with fracture of the both tibia and fibula."

In the opinion of the doctor, death was caused due to haemorrhage and shock as a result of injury No. (iv), which was sufficient to cause death in ordinary course of nature and weapon used was some hand and blunt substance. Injury No. 4 was possible with the back end of farsa and tangi and the rests injuries were cause with lathi. Time elapsed since death was within 48 hours.

Further on 17,11.1993, PW 4 conducted the post mortem examination on the third deceased Chuddu Rai and found the following ante mortem injuries on his person :-

"(i) Lacerated wound 3" x 1" x scalp deep over the occipital region of the scalp.

(ii) Lacerated wound 3" x 1" x 1/2" in the scalp mid line.

(iii) Lacerated wound 2" x 1/2" x scalp deep on the right tempo parietal region.

On dissection of the scalp nothing abnormality detected.

(iv) Diffuse swelling over the right side of the chest.

On dissection there was fracture of the 7th and 8th ribs. On further dissection connecting pleura and'' lungs found lacerated and collection of blood found thoracic cavity.

(v) Diffuse swelling over the left forearm with fracture of both radius and ulna.

(vi) Diffuse swelling over the both lower ends of the leg above the ankle joint with fracture of both lower ends of tibia and fibula."

In the opinion of doctor, death was caused due to hacmorrahage and shock as a result of injury No. (iv), which was sufficient to cause death in ordinary course of nature and weapon used was some hard and blunt substance for all the injuries and injury Nos. (i) to (iv) may be possible with lathi or back portion of tangi or farsa. Time elapsed since death was within 48 hours. Post mortem reports were marked as Exls. 2, 2/1 and 2/2 respectively.

PW 7 is another doctor, who examined Prabhu Rai on 15.11.1993 at 7.30 pm and found the following injuries :-

"(i) Lacerated wound of 2" x 1/2" x 1/4" on the back portion over the vertex.

(ii) Lacerated wound 1" x 1/4" x 1/8" over the vertical part of the right little finger."

According to doctor, both the injuries were found to be simple in nature caused by hard and blunt substance and within 12 hours of the examination (Ext. 3).

Further. PW 7 has examined Mataru Rai on 16.11.1993 and found the following injuries :-

"(i) Abrasion 2 1/2" x 1" on the left knee joint.

(ii) Bruise 4" x 1/2" on right arm labial size.

(iii) Abrasion 1/4" x 1/4" over the scalp over the occipital bone.

(iv) Abrasion 1/4" x 1/4" on the left shoulder joint.

(v) Scratch 2" x 2" over the scalp on left parietal region."

According to doctor, all the injuries were simple in nature caused by hard and blunt substance and each of the injuries was found to the within .36 hours at the time of examination.

On the other hand, PWs 1, 2, 3, 4, 6 and 8 have appeared as eye-witnesses and all of them have deposed that the appellants along with others turned-up there and assaulted Injured persons as well as deceased with back portion of tangi, farsa and lathi According to these witnesses the appellants were applying back portion of tangi and farsa for causing injuries on the persons of the deceased and also on Mataru Rai and Prabhu Rai but they have not stated that anyone of them, while using farsa or tangi, committed assault with sharp edge portion of the weapons and doctor has also found those injuries whether ante mortem in nature or so, have been caused by back portion of langi, farsa and lathi. Evidence of PWs 1, 2, 3. 4," 6 and 8 corroborates the medical evidence, when ante mortem injures on the persons of the deceased and injuries on Prabhu Rai and Mataru Rai are found by PWs 5 and 7 to have been caused by blunt portion or back portion of tangi, farsa and lathi.

PW 10 is hearsay witness, who learnt at 3-4 in the evening on coming back his home that three persons have been murdered in Katahara and at about 7 pm Officer-in-Charge and Jamadar of the Police Station came and enquired1 from him and he told them that he has learnt that some murders have been taken place. As per direction of Police Party he went with Pramukh of the area. He further deposed that on the next day police seized 380 bundles of paddy crops from a house. The police also seized one bundle of paddy crops from the place where the dead body were lying. He deposed that there were blood stained stones, which were also seized by I.O. and the I.O. (WP 9) prepared three seizure lists and he put signatures on them (Exts. 11 to 11/2). He also identified the signatures of Brajnandan Jha, who has signed in his presence (Exts. 11 /3 to 11 /5).

PW 11 is Brajnandan Jha. He is also a hearsay witness and he has also proved the seizure lists.

On the other hand, five witnesses have been examined on behalf of the defence. DW 1 is Lakhin Soren. He has been declared hostile.

DW 2 is Ram Chandra Singh, who says that on the alleged date of occurrence he was going to the doctor and when he was passing through that very area, he saw that Lal Mohan Rai, Chuddu Rai and Mohan Rai were having some discussions with some unknown persons, who were demanding money and they were having lathi and bags. They assaulted these three persons and he watched the occurrence from a distance of about 100 years, He stayed there 10-15 minutes and then left the place. He did not chase them out of fear. He further deposes that at the time of alleged assault, appellants and other persons were not there."

Dw 1 is Daroga Singh. He was in the house on the alleged date of occurrence at about 10 am and he went to Katahara village and saw that bad elements were assaulting Itwari Rai. Mahim Rai, Bhama Rai and Chuddu Rai. The bad elements were assaulting them as they were not being paid money by these persons, who had hired them.

DW 4 in Amar Kumar-who has proved the two certificates in the handwriting of Shri. C.S. Jha (Exts. A and B).

DW 5 is Sadanand Raut. He is an Advocate clerk. He is also a formal witness. who has come to prove Exts. C and D.

In course of hearing of this appeal, the learned counsel for the appellant assailed the judgment and pointed out that eye- witnesses namely, PWs 1, 2, 3, 4, 6 and 8 have in their statements recorded u/s 161, Cr PC before police stated that appellants and others assaulted the deceased with tangi and pliarsa but they have now, in their evidence before the Court, changed their earlier statements made before the I.O. of the case u/s 161, Cr PC and have stated that assault was made by them on the deceased and others with the blunt portion or back portion of tangi and pharsa. This is a development on the earlier statement made by the witnesses to the I.O. of the case because in their statements before I.O. they have not stated like this that assailants used back portion or blunt portion of tangi and pharsa and so, this is a clear cut development on earlier statement. Further contention of the defence was that when assailants were armed with tangi and fharsa and they were assaulting so many persons including the deceased, it cannot be believed that they will use back portion'' or blunt portion of pharsa and tangi and if this piece of evidence of eye-witnesses is accepted to be true that assailants assaulted the deceased with blunt portion or back portion of tangi and pharsa. then it will mean that not a single witness or so-called eye-witnesses have not in fact seen the occurrence. It was further pointed out that it can be believed that if one person was assaulting, he may use back portion or blunt portion of tangi or pharsa but when assailants were more than one, it cannot be believed th?t all of them assaulted with blunl portion or back portion of tangi and pharsa because in that case it will mean that the assailants had come to an understanding among themselves that in whether situation they may be placed, they will not use pharsa or tangi and cause injuries by sharp aged weapons but will use back portion or blunt portion of tangi and pharsa. It was pointed out that this ultimately leads to the inference that not a single witness is "an eye-witness and the other persons who are said to have sustained injuries also by blunt portion or back portion of tangi and pharsa are not injuries so caused but in order to show that they were eye-witnesses, some injuries have been developed by them on their bodies. It was also pointed out that if the statement of eye-witnesses namely, PWs 1, 2, 3, 4, 6 and 8 arc accepted and they are found to be actually eye-witnesses to the occurrence, then it will mean that assailants have no intention to commit murder of the deceased and, therefore, this will not come u/s 302, IPC but it will come u/s 304, Part-II of the Indian Penal Code because their intention was not to commit murder. It was also pointed out that after postmortem report of the deceased arid after finding of the PW 5 and PW 7 that all ante-mortem injuries on deceased and other injuries on Mataru Rai and Prabhu Rai (PW 1 and PW 6) have been found to have been caused by hard and blunt substance these witnesses namely. PWs 1, 2, 3, 4, 6-and 8 have changed their earlier statements made before PW 9 who is I.O. of the case, as eye-witnesses and deposed in the Court that they saw the assailants assaulting with back portion or blunt portion of tangi and pharsa. It was also pointed by the defence that prosecution side had hired goondas for committing murder of persons of defence side and on failure of prosecution party to make payment of money as agreed in between them, assaulted the deceased and others and in that assault, three persons succumbed to their injuries and evidence of defence witnesses-to that effect fits into the case and, therefore, appellants are innocent and they deserve acquittal.

On the other hand, on perusal of evidence on record it appears that PW 1 Mataru Rai and PW 6 Prabhu Rai also sustained injuries caused by hard and blunt substance and, therefore, their presence at the time of occurrence cannot be ruled out. PW 6 Prabhu Rai sustained two injuries whereas PW 1 Mataru Rai sustained as many as five injuries and, therefore, their presence at the place of occurrence cannot be ruled out. From the evidence of PW 5 who conducted postmortem examination, it appears that ante-mortem injuries have been caused within forty eight hours of the postmortem examination. Occurrence is said to have taken place at 10.00 am on 15.11.1993 and postmortem was done from 10.00 am to 11.40 am on 17.11.1993 and doctor has found ante-mortem injuries caused within forty eight hours of the postmortem examination and variation of one or two hours this way or that way is not material. Thus, the time of occurrence also fits with the P.M. examination. Further, if the defence version is believed to be true that prosecution party had fired criminals or goondas to commit murder of some of them of the defence side, then such persons who are alleged to have come with the intention for committing murder and they were paid persons, then it also cannot be believed that they would come with such weapons the they may land themselves in trouble because defence have also not stated that these hired persons committed murder of the deceased by using lathi only or with blunt portion or back portion of sharp aged weapons. If this will be the fact they must have come with lethal weapons. But on the other hand, PW 1 and PW 6 have sustained injuries and their presence at the P.O. cannot be ruled out. Further, other eye-witnesses have also seen the occurrence bul it is just possible that PW 1 and PW 6, (led away from the place of occurrence for fear of their lives and other witnesses saw the occurrence but from some distance and, therefore, they could not exactly see as to how assailants assaulted the deceased but it is clear that PW. 1 and PW 6 sustained injuries caused by hard and blunt, substance. The evidence of eye-witnesses is consistent on the point of assault and that, evidence is also corroborated by the medical evidence).

In course of submission, learned counsel for the appellants drew my attention to 1991 (2) PLJR 648 and submitted that when medical evidence does not support the prosecution case, the appellants or accused persons are entitled to benefit of doubt. It is also there that even if medical evidence does not support injury caused lo the eye-witnesses, even then accused persons will be entitled to benefit of doubt. In the instant ease, witnesses had stated before I.O. that the deceased were assaulted by tangi. farsa and sword but later on these witnesses have changed their respective statements in the Court and have stated that the assailants assaulted the deceased and injured him with tangi or farsa but from the back portion or blunt portion of tangi or farsa, as a result of which, those injuries have been found to be caused by hard and blunt substance. But the earlier statement was not like that and, therefore, the evidence of these witnesses does not support the injuries caused to eye-witnesses and also to the deceased and. therefore, appellants are entitled to acquittal.

My attention was also drawn to (2003) SCC (Cri) 544 wherein it. has been held that eye-witnesses are interested persons being brother of the deceased who inimically deposed against the accused persons, It was further held that they have exaggerated the statement, evidence not wholly reliable and. therefore, investigation was found to be defective and accused persons was acquitted. It was also held that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact who faced with the testimony of a single witness, the Court may classify oral testimony into three categories as wholly reliable, wholly unreliable neither wholly reliable nor wholly unreliable and in the first two cases, there is no difficulty arises in the third categories of cases. While dealing with the third category of witnesses for corroboration, the Court has to be circumspect and has to look for corroboralion for material particulars by reliable testimony direct or circumstantial, before acting upon testimony of a single witness as it was pointed out that in the present case, the so-called eye-witnesses are telling lie because if cannot be a fact that so many persons armed with tangi and farsa will assault by back portion of the tangi or farsa and this leads to inference that they have not seen the occurrence and the evidence given by defence witnesses fits into the ease as prosecution party had hired criminals and since they were not paid before as agreed upon, they assaulted the deceased and as a result of which, deceased died.

There are two witnesses who are eye-witnesses as they have sustained injuries caused by hard and blunt substance. It is also a fact that these two witnesses also sustained injuries by hard and blunt substance and they did not sustain injuries caused by tangi and farsa and when appellants who were armed with tangi and farsa did not cause such injuries to the injured eye-witnesses by the sharp aged portion of tangi and farsa, it is but natural that they assaulted the deceased with back portion of the tangi and farsa. So far as finding by doctors are concerned, they have fully supported the prosecution ease that deceased sustained ante mortem injuries caused by hard and blunt substance and they have- also opined that such ante mortem injuries are possible by back portion or blunt portion of tangi and farsa.

From the nature of injuries caused on the person of the deceased, it is clear that intention of the appellants was not to cause murder but to cause injuries not amounting to murder and, therefore, their case falls u/s 304, Part II of the Indian Penal Code. Since they are lying in custody for longtime and faced rigors of trial for so many years, the period already undergone by them in jail will meet the ends of justice. Hence, all the appellants, above named, are directed to be released on bail, if not wanted in any other case.

With this modification, this appeal is dismissed.