Ram Dayal Rai vs The State of Bihar

On repeated calls, none appeared and so, Mr. Navin Kumar, learned Advocate has been requested to assist the court as an Amicus Curiae.

Appellant, Ram Dayal Rai vide judgment of conviction dated 01.07.2015 has been found guilty for an offence punishable under Section 341 IPC and

sentenced to undergo RI for 1 month, under Section 324 IPC and sentenced to undergo RI for 3 years as well as to pay fine appertaining to Rs. 3000/-

in default thereof, to undergo SI for 3 months, under Section 307/34 IPC and sentenced to undergo RI for 10 years as well as to pay fine of Rs.

5,000/- and in default thereof, to undergo SI for 6 months additionally with a further direction to run the sentences concurrently vide order of sentence

dated 07.07.2015 passed by Additional Sessions Judge-1st, Samastipur in Sessions Trial No. 497/2013.

PW-2, Tipan Rai while was admitted at PMCH gave his Fard-e-beyan on 09.06.2010 to the effect that on 02.06.2010 at about 7.30 PM while he

was returning from Dumri after procuring K-oil from quota over his bicycle and reached near bunglow of Chittu Babu, Ram Dayal Rai, Meghan Rai,

Rajan Rai of village-Chapra Dumri, PS-Shahpur Patori, Distt-Samastipur all co-villagers, and Badhwa of village-Bilat Chowk, PS-Mahnar, Distt-

Vaishali who were armed with pistol met. Ram Dayal Rai asked for road leading to village, Jaunpur whereupon he directed him to accompany. Till

then, Ram Dayal who was armed with pistol aimed at his head and shot at causing injury over his back, left side, as a result of which fell down. He

raised alarm and during course thereof, had seen 4-5 persons having at some distance who were also armed with deadly weapon but, he had not

identified them. There happens to be one house in the vicinity. Then thereafter, he became unconscious and has been taken to PMCH under such

condition. When he regained sense, he found himself admitted at PMCH where he is being treated. It has also been disclosed that after appearance of

the persons, the accused persons ran away. Baso Rai (PW 1) stood as a witness over the aforesaid Fard-e-beyan.

After registration of Patori PS Case No. 119/2010 investigation commenced and concluded by way of submission of charge-sheet against appellant

including others (absconding) whereupon trial commenced and concluded by way of recording finding of guilt and sentence against the appellant,

hence this appeal.

Defence as is evident from the mode of cross-examination as well as statement recorded under Section 313 CrPC is that of complete denial. It has

further been pleaded that on account of village politics, appellant has been falsely implicated.

In order to substantiate its case, prosecution had examined altogether 9 PWs who are PW-1, Baso Rai, PW-2, Tipan Rai, PW-3, Umesh Rai, PW-

4, Arun Rai, PW-5, Naresh Rai, PW-6, Kundan Kumar, PW-7, Surendra Pd. Rai, PW-8, Dr. Binod Kumar Gupta and PW-9, Vijay Thakur. Side by

side had also exhibited Ext-1, Signature of informant over Fard-e-beyan, Ext-1/1, Endorsement over Fard-e-beyan, Ext-2, Formal FIR, Ext-2/1,

Signature of officer In-charge over Formal FIR, Ext-3, Injury report, Ext-4 & 4/1, Discharge certificates. As disclosed hereinabove, nothing has been

adduced in defence.

Learned Amicus Curiae while assailing the judgment of conviction and sentence has submitted that the finding recorded by the learned lower court

happens to be unreasonable and that being so, is fit to be set aside. Furthermore, it has also been submitted that the prosecution has to prove its case

beyond all reasonable doubt, which the prosecution failed. On the other hand, it changed the initial version in order to suit with the circumstances and

by such activity, though claimed against the appellant to be author of the injury but, is found completely unreliable. In its continuance, it has been

submitted that Fard-e-beyan was recorded in presence of PW-1. There was no discloser at the end of PW-2/informant that he along with PW-1 was

returning from ration shop while PW-1 had claimed during course of evidence that he along with PW-2, informant were returning from Dumri Market.

In likewise manner, it has also been submitted that in the Fard-e-beyan, there happens to be specific discloser that the informant was returning after

taking K-oil from PDS shop over bicycle but, during course of evidence is not at all found supported by PW-1. When the evidence of PW-1 is taken

together with the evidence of PW-2, victim/informant, it is apparent that they are inconsistent to such extent that it became highly unsafe to rely upon

their testimony. In its continuity, It has also been submitted that from the Fard-e-beyan, it is evident that informant had not shown presence of anybody

at that very time when the alleged occurrence took place and further narrated that soon after sustaining fire arm injuries he became unconscious,

however, PWs-4, and 5 have stated that the informant had not fallen unconscious rather he was conscious, they talked with him and on query he

disclosed the appellant, Ram Dayal Rai to be his assailant.

It has also been submitted that another infirmity which is visualizing from the prosecution case is that appellant as well as informant happens to be

co-villagers. Then in that circumstance, was it possible for the appellant to inquire from the informant regarding way to Jaunpur, that too, at the

outskirt of his village near Harijan Tola and further, accompanying the informant who was moving towards his house. Furthermore, it has also been

submitted that there was no source of light and so, the proper identification would have been possible. Then it has been submitted that the victim might

have been assaulted at some different place in different manner by different person but, on account of village politics, appellant has been implicated.

On the other hand, controverting the submissions advanced by Amicus Curiae, learned APP submitted that from the evidence of doctor it is

apparent that the victim sustained fire arm injury and on account thereof, the event of having been assaulted by fire arm goes out of controversy. Then

had submitted that during course of cross-examination of all the witnesses including that of PW-2, informant, it is apparent that nothing substantial has

been suggested nor the appellant has been able to procure from the side of the prosecution that there was persisting animosity amongst the parties or

there was any sort of grievance and in absence thereof, it could not be said that without any rhyme or reason, instead of arraying author of the injury

to be an accused will implicate stranger. Consequent thereupon, the evidence available on the record justifies the finding which did not attract

interference. Accordingly, appeal be dismissed.

PW-8, is Dr. Binod Kumar Gupta who on 2nd June, 2010 was posted at PMCH, Patna and was on duty under surgical emergency. On that day, at

about 11.15 P.M, he had examined Tipan Rai and found the following:-

Penetrating wound of size ½†x ½†depth not determined, Surrounded tattooing covering the area of 5†diameter. Patient was operated in the

unit of Dr. I. S. Thakur during course of which following injuries have been found:-

 (1) Stomach interior part dimension was 2â€​x1â€​.

 (2) Posterior injuries 1â€​x1â€​.

 (3) In rheum 1 ft proximat to the I.C. injunction ½â€​x ½â€​.

 (4) In the signout coloum 2â€​ x 1â€​

 (5) Haematoma red colour misoplasm of size 5â€​ x 2â€​

One bullet was recovered from the posterior aspect of interior abdominal wall. X-ray plate No. 6346 showed a radiodense cylindrical of level of L4-L5

vertebra.

Nature of injury caused by firearm, during course of cross-examination, he has stated that the word blackening or charring mark were not used.

Furthermore, he had stated that nature of injury could have ascertained by the Doctor who had earlier examined the patient.

PW-2 is the informant, who had deposed that on the alleged date and time of occurrence, at about 7.30 P.M, he was coming from Dumri Bazaar

along with Baso Rai. When they reached near the bunglow of Chittu Babu, met with four persons namely Ram Dayal Rai, Rajan Rai, Meghan Rai

and Badhwa who were armed with pistol. They inquired from him the way of Jaunpur whereupon, he had disclosed them to follow, meanwhile, Baso

Rai had gone to pee. The accused persons cordoned him and then, shoot at causing injury over back. He fell down. Become unconscious. He

regained sense after so many days and then found herself admitted at PMCH. Police came and recorded his fard-beyan in presence of Baso Rai.

Then read over to him and finding it correct, he put his signature. Baso Rai also put his LTI. He was operated upon and treated for seventeen days

and then thereafter, was discharged. Identified the accused. During cross-examination at Para-5, he had stated that he along with Baso Rai were

coming from Dumri Bazaar after purchasing vegetable, sugar. At Para-6, he had stated that he along with Baso Rai were coming over bicycles

separately. Then at Para-7, had stated that Ram Dayal Rai had inquired about the way to Jaunpur and again corrected Badhwa had asked. In Para 8,

he had stated that houses of different persons lie at some distance from the place of occurrence. At Para 9, he had stated that it was not So dark. Sun

set was at about 6.45 P.M. It was evening and not night. In Para-10, he had stated that he had received single fire arm injury. In court, he had shown

scar mark of the injury. He became unconscious, so, he is unable to say what had happened during intermediary period. Then had stated that Harijan

Toli lies at a distance of three Rassi from the place of occurrence. One Rassi happens to be 20 lagga. One lagga happens to be six hands. In para 11,

he had stated that he was discharged after 17-18 days. In Para-12, he had stated that he had not disclosed to the Patori Police that Baso Rai was

along with him but, had disclosed before the Patna Police. In Para -13, he had further stated that he had stated before the police that Baso Rai sat to

urinate. In para 14, he had further stated that he had made statement before the police that Ram Dayal Rai shot from behind while the other accused

persons have cordoned him from front side. In para 15, he had stated that he was on bicycle at the time of assault, while accused persons on foot. At

para 16, he had stated that he had not narrated in the fard-beyan that he was coming after taking k-oil from PDS Dealer and was proceeding on

bicycle. In para 17, he had stated that he will procure attendance of PDS Dealer for evidence. Then had denied the suggestion that he had sustained

injury at the end of unknown criminal but, on account of dispute over property, he had falsely implicated Ram Dayal Rai. He had further stated that

Baso Rai is his cousin brother.

PW-1, is the Baso Rai, he had deposed that on the alleged date and time of occurrence, he along with Tipan Rai were coming from Dumri Bazar.

Whey they reached near the bunglow of Chittu Babu, Ram Dayal, Rajan Rai, Meghan Rai and Badhwa were present since before armed with pistol.

He sat to urinate. Badhwa inquired from Tipan Rai with regard to way to village Jaunpur whereupon, Tipan directed to follow. They all proceeded.

Then he saw Ram Dayal taking out pistol and shot at Tipan causing injury over his right side of back. He raised alarm attracting 2-4 persons.

Subsequently, others also came whereupon Tipan was lifted to his house and from there to PMCH, where he remained for 17 days. After 4 days,

fard-beyan of informant Tipan was recorded whereupon, he had also put his LTI. Identified the accused. During cross -examination at Para 5, he had

stated that when they proceeded from the market, darkness had fallen. When he heard the sound of firing at that very time, he was in a way to his

house. After hearing sound of firing, he raised alarm attracting so many persons including Umesh Rai, Naresh Rai, Arun Rai and others. Neither

Chittu Rai nor his son came at the place of occurrence. In para 7, he had stated that he heard the sound of firing from the distance of 10 lagga. In

Para 8, he had stated that they were coming on bare foot. Then had denied the suggestion that they had not seen any occurrence. In para 11, he had

stated that his statement was recorded at PMCH. Then thereafter, no statement was recorded. At para 14, he had stated that after the injury, Tipan

Rai immediately became unconscious. Whenever, he regained sense, he talked with him and had disclosed regarding the occurrence. Then had said

that he was operated upon at the PMCH. In para 17, he was unable to identify the accused from the witness cage and further claimed that after going

near to the dock, he would identify the accused. There also happens to be some sort of remark over the lighting arrangement having been installed

inside the court room by the court itself.

PW-3 is Umesh Sah, who had stated that on the alleged date and time of occurrence, he was returning from the market. As soon as reached near

bungalow of Chittu Rai, he had seen Baso Rai along with Tipan Rai. He had also seen Ram Dayal Rai, Meghan Rai, Rajan Rai and Badhwa who

inquired about the way to Jaunpur whereupon, Tipan directed to accompany. When they proceeded 2-4 steps ahead, Ram Dayal Rai shot at Tipan Rai

from behind. Baso raised alarm whereupon, he along with others rushed leaving their bicycle whereupon accused persons ran away. Baso took away

Tipan to hospital. Identified the accused. In Para 4, he had stated that he came to know about the occurrence over the alarm raised by Baso. When

he reached at the place of occurrence, he found Tipan Rai lying on the ground, Baso was present there. Ambulance was called and then, Tipan was

taken away. At Para 6, he had stated that he had made statement before the police but during course thereof, he had not stated that Baso along with

Tipan were collectively going.

PW-4 had stated that on the alleged date and time of occurrence, he was returning from the market. There was commotion whereupon, he

reached at the place of occurrence where found Tipan Rai in an injured condition. On query, Tipan disclosed that Ram Dayal along with 4-5 persons

shot at him. Then thereafter, the family members of Tipan came and took him to hospital. Then thereafter, he was declared hostile. At Para 3, he had

admitted that he had made statement before the police but, with regard to being an eye-witness, he declined to have made statement before the police.

Identified the accused.

During cross-examination at para 6, he had stated that Ram Dayal as well as Tipan are co-villagers. At Para 7, he had stated that when he

reached at the place of occurrence at that very time, Tipan was conscious, he was lying. Family members of Tipan have come and took him away,

then had denied the suggestion that on account of village politics, he had deposed falsely.

PW-5, had also during course of his examination-in-chief stated that at the time of occurrence, he was returning from the market. When he was

about to reach bunglow of Chittu Rai, rushed after hearing sound of firing. When he reached at the place of occurrence, he found Tipan Rai in an

injured condition lying. He lifted him. He inquired regarding the assailant whereupon he disclosed that Ram Dayal had shot at. Then thereafter, they

raised alarm attracting so many persons who took Tipan to PMCH. He had further claimed identification of Ram Dayal but, he had stated that the

person who is standing in the dock has been seen by him for the first time. He had not seen him at an earlier occasion. At para 3, he had stated that

for the last 30 years, he resided outside. In Para 4, he had stated that before his arrival at the place of occurrence, 2-4 four persons of Tola was there

since before. He had further stated that Tipan was going ahead to him along with one more person but, he is unable to disclose his name. In para 6, he

had stated that after hearing firing sound, so many persons of Tola came and then thereafter, he was lifted. He had also stated that k-oil and bicycle

was lying which was taken away but by whom, he is unable to say. In para 8, he had stated that Tipan Rai had not become unconscious because of

the fact that on query he had disclosed regarding the occurrence.

PW-6, is the part I.O. who had apprehended the accused and then submitted charge-sheet against Ram Dayal and one more. Then had stated that

case was investigated by Surendra Prasad from 7.7.2010 to 08.2.2012 and then thereafter, by the O.C, Naimuddin Ansari on account of his transfer.

Then thereafter by Mahesh Kumar and then by Jageshwar and then by him. Exhibited other documents. Identified the accused. During cross-

examination at Para-10, he had admitted that he had not recorded statement of the witness during course of investigation nor visited the place of

occurrence.

PW-7 is the Surendra Prasad Rai, the main I.O. He had deposed that on 02.06.2010, he was S.I posted at Patori P.S. He was entrusted with the

investigation of Patori P.S. Case No. 119/2010 on 07.7.2010. He had seen the FIR. Gone to the Place of occurrence, He had recorded the statement

of Basudeo Rai. Inspected the Place of occurrence as pointed out by the aforesaid witness which happens to be east to Harijan tola of village Chapra

Dumari near bunglow of Chittu Babu, Dumri bazaar lies about 200 yards north thereto. It happens to be short cut (Pagdandi Rasta) where, occurrence

has been alleged to have taken place having boundary East- field of Chitranjan Singh, West- field of Suman Singh, South bunglow of Chittu Singh,

north field of Chitranjan Singh. Recorded the statement of witnesses. He had not met with the informant as was at Patna. Conducted raid and found

the accused absconding. Received. Supervision note. Received injury report. Then the court had found some anomaly whereupon, questioned. The

witness had admitted the mistake. Then, thereafter he handed over the charge on account of having been transferred. During cross-examination,

Para-8, 9, there happens to be contradiction relating to fard-beyan which ought not to be. At para 10, had stated that save and except bunglow of

Chittu Singh house of none other lies in the surrounding of Place of occurrence. Then had denied the suggestion that he had done perfunctory

investigation. In para-13, he had admitted that he had not found bicycle, bucket of the k-oil at the place of occurrence. PW-9, is the formal witness, an

Advocate Clerk who had exhibited discharge certificate issued by the PMCH.

From the evidence available on the record, it is evident that sustaining of firearm injury by PW-2, Tipan Rai goes out of controversy. The only

point for consideration is with regard to proper identification of the appellant being the assailant. In this regard, it is to be noticed that both the parties,

that means to say, informant as well as appellant happens to be the co villagers and on account thereof, there was no occasion for the appellant to ask

for the way to Jaunpur from the informant. It is also evident that at an initial stage, the informant had not shown PW-1, Baso Rai his cousin brother

being along with him. Informant had disclosed that he along with Baso were coming from Dumri market after purchasing vegetable over bicycle

which is found contrary to his earlier version and to that extent, contradiction has been put to him while, PW-1 had stated that they both were coming

on their food. Informant had claimed that soon after sustaining of the injury, he became unconscious and regained sense at PMCH, after two days

where his fard-beyan was recorded while PW-4 and 5 have stated that he had not become unconscious rather was conscious and had talked with

them, and disclosed the name of the appellant. Now the aforesaid inconsistency are seen in the background of evidence of PW-8, doctor, it is evident

that with regard to nature of the injury, the doctor had opined that let it be at the end of the doctor who had attended the injured at the first instance.

That means to say, before coming to PMCH, PW-2, informant was already taken to the doctor which, none of the witness had deposed. Furthermore,

during course of investigation, the Investigating Officer failed to investigate on that very score.

It is also evident from the deposition of the witnesses that darkness had fallen. It is true that being a co villager, the same would not be a hurdle in

proper identification of the co-villager as, apart from the gait, the informant had an occasion to talk. Really such event materialized is a circumstance

which has to be perceived. Right from initial version, informant had stated that he was coming over bicycle even during cross-examination, Para 6, he

had stated that he along with Baso Rai were returning over bicycle separately. Then, whether, he got down from the bicycle while indulging in

conversation with the accused /appellant is found absent. Whether informant continued to proceed over bicycle is also found absent. That means to

say, unless and until, there was an occasion available before the accused to join with the informant and to follow, then and then only, he would have

been in a position to give such kind of injury otherwise, being on bicycle, having been shot at from behind would have projected the injury showing

upward direction as victim was at upper ladder while being on bicycle while assailant was at lower side being on bare foot which, PW-8, during course

of examination had not corroborated.

Giving anxious consideration to the facts and circumstances of the case, in spite of the fact that PW-2, victim had sustained firearm injury but

manner wherein appellant has beenv shown to have shot at the victim appears to be suspicious one, consequent thereupon, the judgment of conviction

and sentence recorded by the learned lower court is set aside. Appeal is allowed.

Appellant is on bail, hence is discharged from the liability of bail bond.

The first and last pages of the instant judgment be handed over to the learned Amicus Curiae for the needful.