Umesh Rai & Ors vs State of Bihar

Earlier a report was called for from the Superintendent of Police, Vaishali (Hajipur), with regard death/alive status of all the appellants, from

which it appears that appellant no. 2, namely, Mahendra Rai has died during pendency of the appeal, as such, this appeal with regard to appellant

no. 2 Mahendra Rai stands abated.

This� appeal� is� against� the� judgment� of� conviction� dated 26.02.2003 and order of sentence dated 28.02.2003,

passed by Shri Jagdish Kumar Sinha, the then 5th Additional Sessions Judge, Vaisahli at Hajipur, in Sessions Trial No. 25/98, by which the

appellants, above named, stood convicted under Section 307 of the Indian Penal Code (hereinafter referred to as the �IPC�) and were

sentenced to undergo R.I. for 05 years. Further accused � appellants, namely, Mahendra Rai, Rajiv Kumar @ Rajiv Rai @ Kalua and Umesh

Rai were convicted under Sections 323 and 147 of the IPC and were sentenced to undergo R.I. for 01 year and R.I. for six months under each

Section respectively and accused - appellants, namely, Rakesh Kumar @ Papa and Sudhir Kumar Rai @ Lobha were further convicted under

Section 324 and 148 of the IPC and were sentenced to undergo R.I. for 03 years under Section 324 of the IPC and R.I. for 01 year under

Section 148 of the IPC. All the sentences were directed to run concurrently.

Prosecution case as per the fardbeyan of Arun Kumar Rai (informant) recorded by the police of Town Police Station on 04. 05.1996 at 7.45

P.M.� in short� is� that on the same day i.e. on 04.05.1996� that� the� informant� was� going� to� his� bathan�

at� about 6. A.M. from his house and when he reached near the house of one Lakhan Rai, then the accused � appellant Mahendra Rai, who

armed with iron rod, Rajeev Kumar @ Kalua, armed with lathi, Sudhir Kumar @ Lohba armed with pistol, Rakesh Kumar @ Papa armed with

Gupti and the appellant Umesh Rai armed with rod surrounded him and on the order of Mahendra Rai to kill him, appellant Rakesh Kumar @

Papa gave Gupti blow on the head of informant, due to which he fell down and thereafter, Mahendra Rai assaulted him with iron rod on his head

and appellant Sudhir Kumar assaulted him with butt portion of the pistol and appellant Umesh Rai assaulted him by means of lathi indiscriminately.

On hulla, villagers, namely, Suresh Rai, Dasrath Rai, Panchhi Rai and Ram Pravesh Rai came there running away and at the appellants started

fleeing away but at the time of fleeing away, appellant Rajeev Kumar @ Kalua took away his wrist watch and appellant Sudhir Kumar @ Lohba

took away an amount of Rs. 1,000/- from his pocket.

On the basis of the said fardbeyan of informant, Hajipur Town P.S. Case No. 139/98 was registered. Police after investigation submitted

charge-sheet. Cognizance of the offence was taken and the case was committed to the court of Sessions, which ultimately came to the file of

Jagdish Kumar Sinha, the then 5th Additional Sessions Judge, Vaishli at Hajipur for trial and disposal.

Charges were framed against the accused, namely, Umesh Rai, Mahendra Rai and Rajeev Rai @ Kalua nder Section 323, 147 and 307 of the

IPC and against accused Sudhir Kumar Rai @ Lohba and Rakesh Kumar @ Papa under Section 148, 324 and 307 of the IPC.

In order to substantiate the charges, prosecution has examined altogether eight witnesses, they are; P.W. 1 � Panchhi Rai, P.W. 2 �

Basudeo Rai, P.W. 3 � Rampravesh Rai, P.W. 4 � Dasrath Rai, P.W. 5 � Suresh Rai, P.W. 6 � Arun Rai (informant and injured), P.W.

7 � Doctor Amarnath Jha, who treated and examined the injured and P.W. 8 � Amar Nath Jha ( Investigating Officer.)

On behalf of the defence also two witnesses have been examined, the are; D.W. 1 � Lakhan Rai and D.W. 2 � Meghan Rai.

Post trial, learned Trial Court convicted the appellants and sentenced them in the manner as stated above.

Being aggrieved, the appellants preferred the present appeal.

Contention of learned counsel for the appellants is that the prosecution has failed to establish the actual place of occurrence as according to

F.I.R., and evidence of P.W. 6, the occurrence took place at the darwaza of one Lakhan Rai but as per the I.O., the occurrence took place in the

open field of one Sitaram Rai and he also found the sign of scuffle on the said field. It has also been submitted that the manner of occurrence as

alleged by prosecution witnesses does not find corroboration from medical evidence as witnesses have stated that Rakesh Kumar @ Papa

assaulted on the head of the informant by means of Gupti, however, on medical examination no sharp cutting injury was found on the person of

injured and furthermore all the witnesses are members of family of the informant and no independent witness of the place, where the alleged

occurrence took place, was examined. It has further been submitted that the defence witnesses, namely, Lakhan Rai, on whose darwaza, the

occurrence was alleged to have taken place clearly stated that no occurrence took place on his darwaza and defence witness, namely, Meghan

Rai, who is neighbour of the Lakhan Rai has also stated that no occurrence took place on darwaza of Lakhan Rai on the alleged date of

occurrence. Further submission of learned counsel for the appellants is that so far P.W. 2 is concerned, the I.O. was confronted with the evidence

of P.W. 2 and he has stated that no such statement was made by P.W. 2 in his earlier statement and further, there is no eye-witness of the

occurrence except the informant himself as the prosecution case itself shows that they had come after the occurrence, however, the trial court

without considering all these facts has convicted the appellants under Section 307 and other Sections of IPC, which is not sustainable in the eye of

law.

On the other hand, learned counsel for the State as well as learned counsel for the informant has supported the finding of guilt recorded by

learned Trial Court and have submitted that all the witnesses have stated about assault to P.W. 6 (informant) and P.W. 6 himself being injured in

this case, veracity of evidence of this witness cannot be doubted, which has also found corroboration from the medical evidence, in which injuries

were found on the person of P.W. 6 and, therefore, there is no infirmity in the impugned judgment of trial court and conviction of the appellants

under Section 307 of the IPC and conviction of some of the appellants under Section 147 and 323 of the IPC and conviction of some of the

appellants under Section 148 and 324 of the IPC, are just and proper.

Considered the rival submission of the parties. From perusal of evidence of P.W. 6. it appears that P.W. 6 is the informant and he has stated in

his evidence that accused Mahendra Rai ordered to kill him, on which, appellant Rakesh Kumar @ Papa gave Gupti blow on the head of

informant, due to which he fell down and thereafter, Mahendra Rai assaulted him with iron rod on his head and appellant Sudhir Kumar assaulted

him with butt portion of the pistol and appellant Umesh Rai assaulted him by means of lathi indiscriminately. His evidence also disclosed that the

occurrence took place on the darwaza of Lakhan Rai.

P.W. 1 has not supported the case of prosecution as he has stated in his evidence that he had not seen the occurene.

P.W. 2 to P.W. 5 have supported the manner of occurrence as stated by P.W. 6 (informant) and the same has also been corroborated by the

fardbeyan of informant. However, what I find that the evidence of P.W. 2 is the contradictory to his earlier statement made before the police and

I.O. has also been confronted with regard to evidence of P.W. 2 and he has also stated that P.W. 2 has not stated so in his earlier statement, that

creates a reasonable doubt about credibility of P.W. 2. Apart from that so far place of occurrence is concerned, according to F.I.R and evidence

of P.W. 6 (informant), the occurrence took place at the darwaza of Lakhan Rai but the I.O., who has been examined in this case, has stated in

para � 2 of his evidence that the occurrence took place on a ploughed field of one Sitaram Rai and he also found the sign of scuffle there, as

such, there appears to be a contradiction with regard to actual place of occurrence. Besides that witnesses have stated that appellant Rakesh

Kumar @ Papa assaulted P.W. 6 (informant) on his head by means of Gupti, but the Doctor, who examined the injured has found one lacerated

wound injury on head caused by hard and blunt substance that also goes to created a doubt so far manner of occurrence is concerned. No doubt,

doctor has found the injury on the head and other parts of the body of P.W. 6 but all the injuries were found simple in nature. In this case defence

has also examined two witnesses one Lakhan Rai, on whose darwaza, the occurrence alleged to have taken place and another Meghan Rai but the

evidence of Lakhan Rai shows that no occurrence, on the alleged date, took place on his darwaza, the said version of Lakhan Rai has also been

substantiated by the evidence of Meghan Rai, who was neighbour of Lakhan Rai and he has also stated that no occurrence had taken place at the

darwaza of Lakhan Rai.

Further, though it has come that it was father of informant, who took the informant to hospital but surprisingly enough, the father of informant

has not been examined in this case for the reasons best known to the prosecution. All the aforesaid infirmities and inconsistencies casts a serious

doubt on the genuineness of the prosecution story, however, learned Trial Court has not considered all these infirmities, while convicting the

appellants under Sections 307 and other Sections of IPC and in such a situation, appellants at least deserves the benefit of doubt.

Accordingly, this appeal is allowed. Judgment of conviction dated 26.02.2003 and order of sentence dated 28.02.2003, passed by Shri

Jagdish Kumar Sinha, the then 5th Additional Sessions Judge, Vaisahli at Hajipur, in Sessions Trial No. 25/98, is set aside.

As the appellants are on bail, they are discharged from liabilities of bail bonds.