1. In spite of repeated calls, none turns up to represent the appellant. However, Shri Mrityunjay Kumar, learned Advocate has volunteered himself to assist the Court as Amicus Curiae and is acclaimed.
2. Sole appellant, Ram Dayal Rai has been found guilty for an offence punishable under Sections 148 IPC, 323/149 IPC, 448/149 IPC, 379/149 IPC, 307 of the IPC and 27 of the Arms Act and sentenced to undergo RI for one year, RI for six months, RI for six months, RI for one year, RI for seven years as well as fined of Rs. 5000/- in default thereof, to undergo RI for six months additionally, RI for five years as well as fined Rs. 2000/- in default thereof, to undergo RI for three months respectively with a further direction to run the sentences concurrently vide judgment of conviction dated 17.01.2012 and sentence dated 21.01.2012 passed by 1st Additional Sessions Judge, Banka in connection with Sessions Trial No. 390/1999, challenged the same under present appeal.
3. PW-6, Vijay Rai who also happens to be an injured gave his Fard-e-beyan on 19.06.1996 while he was admitted at Sub-Divisional Hospital, Banka alleging inter alia that in the preceding night while he along with Narayan Rai, Guru Chanran Rai and Rajendra Rai were sleeping at their Darwaza, appellant, Ram Dayal Rai and his brother-in-law (Bahnoi), Kuldeep Rai along with 5-6 other unknown persons came, apprehended, abused and began to assault. They had also tethered the remaining persons. Thereafter, all of them dragged him inside his house where also he was assaulted and then thereafter, all of them looted away his belongings. At the time of departure, they tied him also and then fired from gun causing injury.
4. The motive for occurrence has been shown on account of land dispute in between him as well as Ram Dayal Rai in the background of the fact that uncle of Ram Dayal Rai namely, Mangru Rai had kept him as his Gharjamai which was not liked by appellant as after death of Mangru Rai, he inherited the property.
5. The defence as is evident from mode of cross-examination as well as from statement recorded under Section 313 of the Cr.P.C. is that of false implication in the background of land dispute.
6. Numerous points have been raised by learned Amicus Curiae during course of assailing the judgment of conviction and sentence. It has been argued that land dispute amongst the parties surviving since before is an admitted fact. Houses of both the parties are adjacent to each other is also an admitted fact. Inter se relationship is also there. In the aforesaid background, having disclosure by the prosecution witnesses that all the accused were carrying unveiled face is indigestible in the background of the fact that no one could volunteer to get himself identified, moreso, being so close to each other.
7. Apart from this, in continuation of his argument, he has submitted that prosecution witnesses themselves admitted that it was a dark night. There happens to be no source of identification and in likewise manner none of the prosecution witnesses averred that they had identified the appellant on the basis of gait, voice and appearance. In likewise manner, from the evidence of PW-6, the informant it is apparent that none had gone to the house of appellant on the day of occurrence itself to see whether appellant was present in the house or not.
8. Further elaborating his submission on this score, it has been submitted by the learned Amicus Curiae that from the evidence of PW-6, the informant it is apparent that wife, mother-in-law along with cousin mother-in-law of informant, all were inside the room having properly locked which was opened by the wife of informant. Then in that circumstance, their non examination happens to be vital in the back ground of inter se relationship coupled with prevailing animosity at least over identification.
9. Now coming to the merit of the case, again it has been submitted that the prosecution case suffers from improbability and in likewise manner learned lower court also acted in mechanical way because of the fact that from the nature of evidence, it is evident that miscreants had raided house of PW-6 to commit dacoity and during course thereof, informant had sustained injury. Therefore, instead of framing charge under Sections 147, 148, 323, 324, 448 with the aid of Section 149 along with Section 307 IPC is found completely misconceived and in place thereof, should have framed charge under Section 397 of the IPC.
10. It has also been submitted that from the Fard-e-beyan, it is apparent that informant had claimed to be shot at by a fire-arm but the doctor PW-4 ruled out presence of any fire-arm injury on the person of PW-6, the informant and perceiving such infirmity during course of trial, they have introduced the story of hurling a bomb causing splinter injury over PW-6. Non presence of injuries on the other inmates of the house, as the bomb was hurled inside a room and further on account of non examination of I.O., the objective finding relating to place of occurrence had not properly been brought up on the record.
11. Now coming to the evidence of remaining witnesses, It has been submitted that after going through the same, it is apparent that they are liar and on account thereof, their testimonies happen to be untrustworthy and unacceptable and as such, is fit to be disbelieved.
12. On the other hand, learned APP while applauding the finding recorded by the learned trial court has submitted that though the learned trial court should have taken a recourse for framing of charge under Section 397 IPC, that does not mean that the finding so perceived and concluding on the basis of conclusive evidence adduced on behalf of prosecution should be thwarted. As such, the conviction and sentence recorded by the learned trial court is fit to be confirmed.
13. During course of trial the prosecution had examined altogether six PWs out of whom PW-1 is Janki Devi, PW-2 is Rajendra Rai, PW-3 is Guru Charan Rai, PW-4 is Dr. Ram Naresh Singh Diwakar, PW-5 is Lok Nath Rai and PW-6 is Bijay Rai.
14. Investigating Officer has not been examined. In likewise manner, Narain Rai, on of the FIR named witness also not been examined. However, its repercussion will be taken up hereinafter.
15. PW-4 had examined injured/informant, PW-6 on 19.06.1996 at 1:30 a.m. and found the following injuries:-
(i) Superficial burn injury with multiple linear abrasion on chest above nipple line extending upto chin front of neck with burning of beard with bleeding at places.
(ii) Superficial burn injury with multiple linear abrasion on posterior part of lower portion of right fore-arm and upper portion of right hand with swelling and tenderness.
(iii) Superficial burn injury on outer end posterior part of left fore-arm and upper portion of hand. -Caused by explosive substance.
16. From injury report, it is evident that injured had sustained only injuries having been caused by explosive substance. Admittedly, fire arm is not an explosive substance nor prosecution during course of his examination had tried to explain the situation. In the aforesaid background now, one has to see the material witnesses whether it has substantiated the charge against the appellant.
17. As stated above, the appellant had not challenged the occurrence rather had challenged his complicity on account of prevailing animosity and that has to be perceived right from inception of the case on the basis of Fard-e-beyan whereunder, apart from having absence of source of identification as well as without having disclosure with regard to the basis over which identification was possible, disclosed the names of appellant and his brother-in-law Kuldeep Rai while remaining were not named and for that first of all the evidence of PW-6 is to be taken into account.
18. During examination-in-chief, he had stated that on 18.06.1996 at 12:00 hours appellant Ram Dayal Rai and his brother-in-law, Kuldeep Rai along with 5-6 unknown miscreants came at his house, caught hold of him, abused and then they took him to his room from where they looted away his belongings. At the time of leaving the place they tied him along with chair and then fired. The firing was made by the appellant. He again hurled bomb causing injury. Thereafter, accused persons left the scene. In para-1 of his cross-examination, he had stated that the house of appellant lies east to his house intervened by none. In para-6 of his cross-examination, he had stated that after hearing the sound villagers came. Villagers chased the miscreants but none had gone to the house of appellant.
19. In para-2 of his cross-examination, he had shown Ram Chanran Rai and Narsingh Rai as his neighbours but none came forward to support the case. In para-4, he stated that his wife, mother-in-law, his cousin mother-in-law were sleeping in a room after closing the door. All the belongings were kept inside the room. In para-5, he had stated that it was summer season and the night was dark. In para-6, he had further stated that he was forced to open the door by the miscreants. The door was opened by his wife. Other members of family also awaken. Faces of miscreants were unveiled. They stayed there for about half an hour and during course thereof, all the members of the family were there. Bomb was hurled only once. Single firing was there.
20. As stated above, wife, mother-in-law of informant did not come forward to support the case along with his neighbours, Ram Chanran Rai and Narsingh Rai. There is admission regarding dark night as well as having the culprits keeping their faces unveiled, however, had not disclosed the source of identification. Not only this, had the appellant been an accused, then in such circumstance, at least, his house should have been raided to see whether there was presence of appellant in his house or not. In likewise manner, none of the villagers came forward to say that during course of chase they have had identified the appellant as one of the members of miscreants or was searched out at his house to find his presence.
21. PW-5 is the witness who had simply deposed on the point of animosity prevailing amongst the parties as well as with regard to seizure of one empty cartridge but he had not spoken that when he had gone to the place of occurrence after occurrence somebody was saying with regard to Ram Dayal Rai being one of the miscreants.
22. PW-1 is Janki Devi who had shown her house at village-Dakwa. She had stated that on the alleged date and time of occurrence while she was sleeping at her house, she got up after hearing sound and had seen that Ram Dayal Rai, Kuldeep Rai along with 4-5 persons engaged in quarrelling with Vijay Rai. Thereafter, they tied Vijay Rai and pushed inside the room and then again tied. They also tied Rajendra Rai, Guru Charan Rai. Ram Dayal Rai shot at Vijay Rai and thereafter took away their belongings. In para-3 she stated that Vijay Rai happens to be son-in-law of her sister. They are residing in same house. There are three-four rooms. In para-4, she had admitted that the house of Ram Charan and accused lies adjacent to her house. She had also admitted inter se relationship. She had also admitted prevailing land dispute. In para-5, she had stated that it was a dark night. She was sleeping. After she awaken, had gone to Vijay Rai and found him injured having gun shot injury. She raised alarm. In para-6, there happens to be contradiction with regard to disclosure of name of appellant. However, for want of non examination Investigating Officer, the aforesaid theme remained idle.
23. PW-2 had stated that he was sleeping in the house of Vijay Rai on the alleged date and time of occurrence. The door was open. About 6-7 persons came out of whom, he identified Ram Dayal Rai and Kuldip Rai. They all tied him along with Guru Charan Rail, Narain Rai, Vijay Rai and thereafter, Ram Dayal Rai shot at Vijay Rai. Again Ram Dayal Rai hurled bomb causing injury. On account of explosion, villagers rushed during midst thereof, the accused persons took away the articles. The villagers untied them. During cross-examination at para-5, he had stated that there are two rooms inside the house of Vijay Rai while they were sleeping at his bungalow which was properly fenced, however, the door was opened. In para-6, he had stated that he had seen the occurrence as Vijay Rai was tied with cord. It was a dark night. There was smoke after explosion. Then thereafter, the miscreants took away the articles. So from his evidence, it is apparent that the occurrence had taken place at bungalow out side the residential house of PW-6 which is found completely controverted by PW-6 as well as PW-1.
24. PW-3 is Guru Charan Rai who had stated that while he along with Rajendra Rai, Narain Rai and Vijay Rai were sleeping in the verandah of Vijay Rai, 6-7 persons came out of whom he had identified Ram Dayal Rai and Kuldeep Rai. All of them were tied by the miscreants and then Vijay Rai was lifted inside the house where he was assaulted. Vijay Rai was saying that take the article but do not assault. However, Ram Dayal Rai shot at as well as hurled bomb. They also took away belongings of Vijay Rai. This witness happens to be inconsistent with PW-2 and in likewise manner happens to be inconsistent with PW-6 also. Furthermore, he happens to the hostile to Ram Dayal Rai as is evident from para-3 of his cross-examination. He had further disclosed the location of the house of appellant as well as Vijay Rai and further disclosed that both the houses are visible. He had further disclosed in para-8 that family members of all the three were sleeping at their respective Darwajas. It was a dark night. In para-9, he had stated that two persons remained at the place where they were while others had taken away Vijay Rai inside the house. After half an hour, he heard sound of firing as well as hurling of bomb. He had further disclosed that first of all Narain Rai untied himself and got released and then thereafter, he was the person who untied all of them and on this score also, there happens to be inconsistency amongst the PWs.
25. After analytical approach of the evidence on the record, it is evident that the prosecution so far occurrence is concerned, happens to be deficient one because of the fact that there was an initial version for causing murderous attack by appellant, Ram Dayal Rai with fire arm but during course of evidence when they found that injury report is not going to support the allegation, then they purposely introduced story of hurling of a bomb and on account thereof, in the background of status of the parties coupled with strained relation and further having failure on the part of prosecution witnesses to perceive activity of appellant, Ram Dayal Rai, at the time of occurrence itself by going to his place lying just adjacent to the house of informant, makes the whole case so far manner of complicity is concerned, doubtful.
26. Consequent thereupon, appellant Ram Dayal Rai is found at least entitle for benefit of doubt whereupon the judgment of conviction and sentence so recorded by the learned trial court is set aside. Appeal is allowed.
27. Since appellant is under custody, he is directed to be released forthwith if not wanted in any other case.
28. I appreciate the active assistance rendered by the learned Amicus Curiae. The first and last pages of instant judgment be handed over to him for the needful.