Bal Krishna Jha, J.
1. Both the appeals are directed against the judgment dated 24-9-1987: of learned Additional Sessions Judge-III, Arrah in Sessions Trial No. 78/1981 convicting and sentencing the appellants under Sections 302/149/148/147/323, I.P.C. and Section 27 of the Arms Acts, so they were heard together and are being disposed of by this common judgment.
2. The appellant, Parasnath Rai, son of Rambrichh Rai, has been convicted under Section 302, I.P.C. and sentenced to rigorous imprisonment for life. The rest six appellants, Laldhari Rai, Jokhu Rai, Raja Ram Rai, Paras Rai, son of Ramdash Rai, Butan Rai and Ramadhar Rai (since dead) have been convicted under Section 302/149, I.P.C. and sentenced to rigorous imprisonment for life. The appellant, Ramadhar Rai (since dead) has further been convicted under Section 147, I.P.C. and sentenced to rigorous imprisonment for one year. The appellants, Parasnath Rai, son of Rambrichh Rai, Laldhari Rai, Jokhu Rai, Raja Ram Rai, Paras Rai, son of Ramdesh Rai and Butan Rai, have again been convicted under Section 148, I.P.C. and sentenced to rigorous imprisonment for two years. The appellants, Ramadhar Rai (since dead) and Butan Rai, have again been convicted under Section 323, I.P.C. and sentenced to rigorous imprisonment for six months. The appellants, Parasnath Rai, son of Rambrichh Rai and Laldhari Rai, have again been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for two years. All the sentences awarded to them, however, have been ordered to run concurrently.
3. On 15-11-1978, the informant, Jamuna Rai, P.W. 11, lodged F.I.R. alleging inter alia that on the same day he was getting the paddy crops of his land situated in Bagichabadhar of village Dhansoi harvested by his nephew, Rajendra Rai (deceased), his sons, Karunanidhan Rai, P.W, 7, Vijay Pratap Rai, P.W. 6, Premahankar Rai, P.W. 4 and nephew Shambhar Rai, P.W. 9. The land in question measuring about 42 decimals was recorded in the name of his father, Sriram Rai and has been under his cultivating possession. On the same day at about 8/9 a.m., the appellants, Parasnath Rai, son of Rambrichh Rai, Laldhari Rai with guns, Jokhan Rai and Paras Rai, son of Ramdash Rai, with Gadasa, Butan Rai and Raja Ram Rai with Bhala and Ramadhar Rai (since dead) with Lathi along with 10/15 unknown came in the said field and the appellant, Parasnath Rai, son of Rambrichh Rai, protested them from harvesting the paddy crops on the ground of land in question belonging to them. At this, the informant, asserted his title and cultivating possession of the land in question. This resulted in the exchange of hot words whereupon the appellant, Parasnath Rai, son of Rambrichh Rai, ordered to kill and he fired from his countrymade gun which hit in the chest of his nephew, Rajendra Rai. He fell down died on the ground. The appellant, Laldhari Rai, fired from his countrymade gun at Shambhu Rai and injured him. The appellants, Butan Rai and Ramdhar Rai (since dead) clubbed Karunanidhan Rai with lathi and he sustained injuries on his forehead. The appellant, Paras Rai, son of Ramdash Rai, assaulted Vijay Pratap Rai, with lathi. After committing the occurrence of assault and murder, the accused persons fled away in the eastern direction. The motive behind the occurrence was alleged to be the claimed and counter-claimed over the P.O. land. According to the informant out of the total area of 42 decimals of the disputed plot, the appellant, Parasnath Rai, son of Rambrichh Rai of village Amarpur got a deed of gift for 14 decimals of land executed in his favour by Most. Gunla, wife of Bishwanath Rai. The informant also claimed that land on the strength of execution of a deed of Will in favour of him, Chandramohan Rai and Rajendra Rai (deceased) by Meghbarain Rai, father-in-law of Most. Gunia. The informant further alleged that khata in plot No. 42 decimals of land is same one and he has got litigation in respect of disputed land besides others with Most, Gunia.
4. On 15-11-1978 at about 11 a.m., the informant, Jamuna Rai, P.W. 11, along with his son, Vijay Pratap Rai, P.W. 6 and Karunanidhan Rai, P.W. 7, went to Dhansoi O.P. and gave his fardbeyan (Ext. No. 5) before the A.S.I., Md. Zafar. On the basis of his fardbeyan a formal F.I.R. was drawn up (Ext. No. 6) and case was registered against all the seven accused-appellants under Sections 147/148/149/307/302 and 120(B) of the Indian Penal Code besides Section 27 of the Arms Act and the investigation follows. On completion of the investigation, S.I., Gangeshwar Sharma, P.W. 10, submitted charge-sheet and after observing the legal formalities the case was committed to the Court of Sessions and all the accused-appellants were placed for trial before the learned Additional Sessions Judge-III, Arrah.
5. In the eventual trial the prosecution examined 11 witnesses to prove its case. The accused-appellants also led the evidence of 4 witnesses in support of their defence of their innocence and false implication because of their inimical relationship with the prosecution witnesses. According to defence, Most. Gunia was in possession of southern most portion of 14 decimals of land out of the total area of 42 decimals of land of the disputed plot and had executed a deed of gift of the same in favour of the appellant, Parasnath Rai, son of Ram Brichh Rai. She was getting the said land cultivated by her brother Umashankar Rai. There was a proceeding under Sections 144 and 145 of the Cr. P. C. in between the informant side and Most. Gunia which ended in favour of Most. Gunia. Their further specific defence was that on the alleged date and time of occurrence unlawfully the prosecution side with fire arms went to the disputed land and interfered in the harvesting of the paddy crops by Naihar People of Most, Gunia. They fired which accidentally hit Rajendra Rai and he died. They also took the plea of right of private defence.
6. The learned trial Judge considered the oral and documentary evidence of both the sides and believed the evidence of the prosecution witnesses. He convicted and sentenced the appellants as indicated above.
7. Consequent upon the death of the appellant, Ramadhar Rai in Criminal Appeal No. 519 of 1987 during the pendency of the hearing, the appeal stands abated against him.
8. As stated above, the prosecution has examined altogether 11 witnesses in support of his case. Out of them, P.W. 2, Jagilal is a witness of the inquest report. He has proved the inquest of the dead body of Rajendra Rai prepared by A.S.I. Jafar Khan (Ext. No. 3) in presence of him and that of witness Lachhaman Prasad (P.W. 3). He proved his signature and that of Lachhman Prasad on the inquest report (Ext. Nos. 4 and 4/1 respectively). P.W. 3, Lachhaman Prasad, has been tendered for cross-examination and nothing material was to be extracted in cross-examination. P.W. 8, Chandrashekhar Singh is a seizure list witness of the blood stained earth seized from the place of occurrence. He proved his signature and also of Kameshwar Rai on the seizure list (Ext. Nos. 4/4 and 4/5 respectively). In cross-examination his evidence is that Jakhmi is the daughter of Most. Gunia and Most. Gunia has initiated a proceeding under Section 107, Cr. P. C. against him and others.
9. P.W. 1, is Dr. D. N. Sinha who had conducted postmortem examination on the dead body of Rajendra Rai and examined the other members of the prosecution party. P.W. 10, is Gangeshar Sharma, S.I. of Police. He conducted part investigation in this case and submitted charge-sheet. The remaining six witnesses, namely, Prem Shankar Rai, P.W. 4, Raghubarsharan Rai, P.W. 5, Vijay Pratap Rai, P.W. 6, Karunanidhan Rai, P.W. 7, Shambhar Rai. P.W. 9 and Jamuna Rai, P.W. 11, the informant, are the eye-witnesses to the occurrence.
10. The evidence of Dr. D. N. Sinha, P.W. 1 is that on 16-1-1978 at 9 A.M. he conducted postmortem examination on the dead body of Rajendra Rai and found the following ante-mortem injuries:
(1) Punctured wound oval 2' diameter with inverted margin and lacerated margin ecchymosis on the left side of chest, inside left nipple. No blackening or scorching was found.
(2) On deep dissection, he found fracture of left 4th and 5th ribs and lower part of sternum. The pericardium was found torn and lacerated wound 2' x 1' on front of both the ventricles of the heart. Six pellets were found embedded in the myochardium and heart chambers were empty. Left pleural space contained 10 ounces of clotted blood in left lung. He found lacerated wound in the middle portion 1/2' x 1/2'. Right lung was also lacerated 1' x 1/2' with 20 pellets and embedded. Right pleural space contained 10 to 12 ounces of clotted blood and pellets were also found.
According to him death was due to shock and haemorrhage caused by fire arm injuries like gun. The time elapsed since death and postmortem examination was 24 to 26 hours. He further stated that 70 small pellets and one large pellet and two wads were recovered from the dead body which were sent to the police in sealed cover. He proved the postmortem report (Ext. No. 1). According to his opinion, the injuries found on the dead body of Rajendra Rai were sufficient in ordinary course of nature to cause death. In cross-examination he failed to say about the distance from which the fire was done at the deceased Rajendra Rai.
On the same day, he examined Shambhar Rai, P.W. 9 and found the following injuries on his person:
(1) One lacerated wound 2' x 1/4' x 1/4' on forehead.
(2) Linear abrasion 1' on left pelvis.
(3) Two bruises of 1' x 1/2' and 1/2' x 1/4' on left arm and left buttock respectively.
According to him injuries found on the person of Shambhar Rai were simple in nature and caused by hard and blunt substance such as lathi and were also possible by barrel of the gun.
On the same day, he also examined Karunanidhan Rai, P.W. 7 and found the following injuries on his person:
(1) A bruise 1/2' x 1/4' near left arm shoulder joint.
According to him injuries found on the person of Karunanidhan Rai were simple in nature caused by hard and blunt substance such as lathi.
On the same day, he also examined Vijay Pratap Rai, P.W. 6 and found the following injuries on his person:
(1) One bruise 1/2' x 1/4' on left arm near shoulder joint.
According to him, injuries found on the person of Vijay Pratap Rai, were simple in nature caused by hard and blunt substance.
He proved the injury reports (Ext. Nos. 2, 2/1 and 2/2 respectively).
11. The evidence of P.W. 11, Jamuna Rai, the informant, is that on the date of occurrence at about 8/9 a.m. while he was getting his paddy crops harvested by Karunanidhan Rai, P.W. 7, Prem Shankar Rai, P.W. 4, Vijay Pratap Rai, P.W. 6 and Shambhar Rai, P.W. 9 and Rajendra Rai (deceased) in his field, a mob of 20/22 persons variously armed came there from the eastern direction. Out of them, he identified all the seven appellants, Parasnath Rai of village Amarpur and Laldhari Rai with guns, Jokhu Rai and Paras Rai of village Dhansoi with Garasa, Butan Rai and Raja Ram Rai with Bhala and Ramadhar Rai (since dead) with lathi. When Parasnath Rai of village Amarpur protested from harvesting the paddy crops he (the informant) claimed to have cultivated the paddy crops and insisted for its harvesting. At this, the appellant, Parasnath Rai of village Amarpur abused and exhorted and fired from his gun which hit in the left side of the chest of Rajendra Rai and he fell down dead on the ground in the adjacent western land of Bhola Rai. Thereafter, the appellant, Laldhari Rai, fired at Shambhar Rai which missed and then he assaulted him with the butt portion of his gun on his forehead. Shambhar Rai fell down injured on the ground whereupon the appellant, Jokhu Rai and Raja Ram Rai assaulted him with lathi portion of Bhala. The appellants, Ramadhar Rai (since dead) with lathi and Butan Rai with lathi portion of Bhala assaulted Karunanidhan Rai. The appellant, Paras Rai of village Dhansoi assaulted Bijay Pratap Rai from the lathi portion of Garasa. On hulla, the witnesses, Lachhaman Prasad, Chandreshekar and others assembled whereupon the accused-appellants made good escape in the northern direction. Then he along with Vijay Pratap Rai and Karunanidhan Rai went to Dhansoi O. P. where his fardbeyan was recorded by the A.S.I. and he put his signature (Ext. No. 4/6) on the fardbeyan (Ext. No. 5). The A.S.I. visited the P.O., prepared sketch map, found blood stained earth and also trampling marks on the paddy crops. He prepared the inquest report of the dead body of the deceased Rajendra Rai and seized bloodstained earth. The dead body of the deceased Rajendra Rai was sent to Buxar for postmortem examination. He has further stated that the P.O, land appertaining to new khata No. 399 and khasara No. 1936 having an area of 42 decimals is situated in village Dhansoi and is subdivided into three parts. The northern most portion belonged to Meghbaran Rai, middle portion belonged to Rajendra Rai, the deceased and the land under dispute, the southern most portion belonged to him (the informant). He has further stated that in the recent Revisional Survey Khatian of disputed plot he has one share, Meghbaran Rai has one share and Nathuna Rai, Chandramohan Rai and Shambhar Rai, all the three have got one share. His further evidence is that Pyari Rai, was his grandfather and had three sons, namely, Sriram Rai, his father, Durga Prasad Rai and Banaropan Rai and their branches are as hereunder :
Pyari Rai
|
-----------------------------------------------
| | |
Sri Ram Rai Durga Rai Banaropan Rai
| | |
Jamuna Rai --------------- Meghbaran Rai
(P.W.11) | | X
Informant Nathuni Rai Basudeo Rai |
| | -Radhika |
----------------- | | |
| | | | | Bishwanath Rai
Vijay Prem Bijay | | X
(P.w.6) Shankar Mall | | =Gunia
(P.W.1) | | |
| | |
| | Jokhani=Binod Kumar
| |
---------------- ------------------
| | | |
Rajendra Birendra Sambhar Chandra
(deceased) (P.W.9) Mohan
He has stated that the appellant, Laldhari Rai is own brother of his wife Meghbaran Rai alias Megh Narain Rai, son of Banaropan Rai died in 1971. Bishwanath Rai, the sole son of Meghbaran Rai alias Megh Narain Rai died one year before of the death of his father leaving behind his wife Gunia and a daughter Jokhani. He has further stated that all the three branches of his family are separate and have been recorded separately in the survey and accordingly they are in possession of their shares. He has admitted that there is joint cultivation of the land of his family and that of Nathuni Rai and Basudeo Rai, the branches of Durga Rai. He has admitted in his cross-examination that Most. Gunia had executed a deed of gift in favour of her daughter, Jokhani. He has also admitted that there was a proceeding under Section 144, Cr. P. C. in between him and Most. Gunia with respect to 14 decimals of land of the disputed plot which was decided in favour of Most, Gunia. Thereafter, at the instance of Paras Rai, the Samdhi of Most. Gunia, the proceeding under Section 144, Cr. P. C. was converted under Section 145, Cr. P. C. He has also admitted that he had preferred a revision which was dismissed and in spite of this he had cultivated the entire 41 decimals of lands of the disputed plot. He has also admitted that the mutation of the disputed land has already been made in favour of Most. Gunia and rent receipts of disputed land along with the land in the share of Meghbaran Rai are also issued to Most, Gunia. He has also admitted that in the Chakbandi the disputed land measuring 14 decimals has been shown in the name of Most. Gunia and rest in their names. At para 9 of his cross-examination he has admitted that disputed plot has been divided into three parts measuring 14 decimals each but he has denied his litigation with Most. Gunia in respect of 14 decimals of the southern most portion of the land. According to him he is in possession of the southern most portion of the disputed land measuring 14 decimals and has got dispute with Most. Gunia with respect to northern most portion of the land. The accused-appellants claimed the entire land of 42 decimals of the disputed plot in which Most. Gunia had already executed a deed of gift of 14 decimals of land in favour of her daughter. He has admitted that there is no documentary evidence to show as to who is in possession over which portion of 14 decimals of the land. At para 12 of his cross-examination his evidence is that in course of occurrence the accused fired at Rajendra Rai but there with no repetition of firing. He has denied the suggestion that after forming an unlawful mob he interfered in the harvesting of the paddy crops by the Naiher people of Most. Gunia and fired which accidentally hit Rajendra Rai and he died.
12. The evidence of P.W. 4, Prem Shankar Rai, is that at the relevant hour of occurrence he along with the deceased Rajendra Rai, Karunanidhan Rai, Vijay Pratap Rai and Shambhar Rai, was harvesting the paddy crops grown by them in their field. Jamuna Rai was standing and getting the paddy crops harvested by them. The land in possession belonged to them. In the mean time, a mob of 15 to 20 persons came in the field in which he identified all the seven appellants, namely, Paras Nath Rai and Laldhari Rai with Gun, Butan Rai and Raja Ram Rai with Bhala and Jokhan Rai and Paras Rai, son of Ramdash Rai, with Garasa and Ramadhar (since dead) with lathi. The appellant, Parasnath Rai, son of Rambrichh Rai, armed with gun protected them from harvesting the paddy crops whereupon they claimed the land under their cultivating possession and insisted upon its harvesting. The appellant, Parasnath Rai, abused and exhorted to commit their murder. Thereafter, he fired from his gun which hit in the left side of the chest of Rajendra Rai and he fell down on Palhari of the field of Bhola Rai situated adjacent west and he died. Laldhari Rai fired at Shambhar Rai but the same missed and then he assaulted him with the butt portion of the gun. The appellant, Ramdhar Rai (since dead) assaulted Karunanidhan Rai with lathi. The appellant, Butan Rai, also assaulted Karunanidhan Rai with butt portion of the Bhala. The appellant, Paras Rai, son of Ramdash Rai, assaulted Vijay Pratap Rai. He is the son of the informant, Jarnuna Rai, PW 11. In cross examination at para 7, he has admitted that Vijay Pratap Rai, PW 6, and Karunanidhan Rai, PW 7, are his own brothers. At para 14 of his cross examination his evidence is that the P.O. land is their khatiyani land having an area of 42 decimals in three sub plots and on the relevant date he was harvesting the paddy crops in the southern most portion of the disputed plot. He has also admitted that at the instance of the widow of Late Bishwanath Rai, a proceeding under Sections 144 and 145, Cr.P.C. was initiated against them. In cross examination at para 16 he has admitted that his family got three pattidars, i.e., he himself, Rajendra Rai (deceased) and widow of Bishwanath Rai. At para 17 he has admitted that the widow of Bishwanth Rai had cultivated Khagra paddy corps in the southern most portion of the disputed plot.
13. The evidence of PW 5, Raghubarsharan Rai, is that at the alleged time of occurrence while he was harvesting paddy crops in his land situated at a distance of 1/2 Bigha from the P.O. land he heard the sound of firing. He saw the dead body of Rajendra Rai lying on the Palhari of Bhola Rai. He saw a mob of 20/25 persons fleeing away from the place of occurrence armed with guns, garasa and bhala. Out of them he identified the two appellants, Parasnath Rai and Laldhari Rai, who were armed with gun. He also saw Karunanidhan Rai, Vijay Pratap Rai and Shambhar Rai injured and learnt from Jamuna Rai that the appellant, Parasnath Rai committed the murder of Rajendra Rai.
14. PW 6, Vijay Pratap Rai, PW 7, Karunanidhan Rai and PW 9, Shambhar Rai are the injured witnesses/Their evidence is that on the alleged date of occurrence at about 8/9 a.m. they along with Prem Shankar Rai, PW 4, and deceased Rajendra Rai were harvesting the paddy crops grown by them in their field. Jamuna Rai. PW 11, the informant, was standing on the Aar of the field. In the mean time, a mob of 20 to 25 persons armed with lathi, bhala, gun, and garasa came there in which they identified the appellants Parasnath Rai of village Amarpur and Laldhari Rai with gun. Paras Rai of village Danasoi and Jokhu Rai with garasa, Raja Ram Rai and Butan Rai with bhala and Ramadhar Rai (since dead) with lathi. The appellant, Parasnath Rai of village Amarpur claimed the land with cultivated paddy crops and protested them from harvesting. They did not agree whereupon there was exchange of hot words and the appellant, Parasnath Rai, fired from gun which hit in the chest of Rajendra Rai and he fell down dead on the Balhari of Bhola Rai adjacent west to the P.O. land. The appellant, Laldhari, fired from his gun at Shambhar Rai, PW 9 but the same did not hit him and thereafter he assaulted him with the butt portion of the gun. The appellant, Paras Rai of village Dhansoi assaulted Vijay Pratap Rai (PW 6) from the lathi portion of garasa on his left arm. The appellant, Ramdhar Rai (since dead) assaulted Karunanidhan Rai, PW 7, with lathi and the appellant, Butan Rai, assaulted him from lathi portion of bhala. The appellants, Ramdhar Rai (since dead) and Butan Rai, from lathi portion of bhala also assaulted Karunanidhan Rai, PW 7 and injured him. The appellant, Raja Ram Rai and Jokhu Rai assaulted him from the lathi portion of bhala and garasa. After committing the occurrence of assault and murder, the accused persons made good their escape in the western direction. Thereafter, the informant, Jamuna Rai, PW 11 along with Vijay Pratap Rai, PW 6 and Karunanidhan Rai, PW 7 went to Dhansoi O.P. and lodged F.I.R. PW 6 Vijay Pratap Rai and PW 7, Karunanidhan Rai, have put their signatures on the fardbeyan (Ext. 4/2 and 4/3).
PW 6, Vijay Pratap Rai, has admitted in his cross examination at para 7 that Most. Gunia is the wife and Jokhni is the daughter of late Bishwanath Rai. He has also admitted that a proceeding under Section 145, Cr.P.C. is pending in between them and Most. Gunia. PW 6, Vijay Pratap Rai, has denied the suggestion that in fact on the alleged date at the relevant hour of occurrence the prosecution party variously armed had gone to harvest the paddy crops of Most. Gunia, forcibly which was being harvested by her Naihar people and in course of which they fired which by chance hit Rajendra Rai and he died.
P.W. 7, Karunanidhan Rai, has admitted in his cross examination that Most. Gunia is the wife and Jokhni is the daughter of Late Bishwanath Rai, son of Meghbaran Rai. At para 12 of his cross examination his evidence is that at the relevant hour of occurrence they were harvesting the paddy crops in the southern most portion of the disputed plot.
P.W. 9, Shambhar Rai, has stated, in his cross examination that the disputed plot measuring 14 kathas finds entered in Khatiyan (Ext. No. F/2) in the name of Sriram Rai, Nathuna Rai and Jamuna Rai, the informant, in which Meghbaran Rai has got no share. He has also admitted at para 3 of his cross examination that a proceeding under Section 145, Cr.P.C. is going on in between them and Most. Gunia in respect of disputed land. He has also admitted at para 3 of his cross examination that they are not in possession of the share portion of the land of Most. Gunia. He has claimed to have stated before the police that Laldhari Rai assaulted him with the butt portion of the gun but the evidence of PW 10, Gangeshwar Rai, is that this witness, Shambhar Rai, had not stated before him that the appellant, Laldhari, assaulted him with the butt portion of the gun.
15. PW 10, Gangeshwar Sharma, the then Officer Incharge of Rajpur Police Station partly investigated this case. He has proved the fardbeyan (Ext. No. 5), formal F.I.R. (Ext. No. 6), inquest report (Ext. No. 7), seizure list (Ext. No. 8), sketch map of the P.O. land (Ext. No. 9) and Paras 1 to 20 of the case diary (Ext. No. 10). In cross examination he has proved the memo of evidence (Ext. No. A).
It may be pointed out there that the main Investigating Officer of this case, Mohd. Jafar, has not been examined by the prosecution.
16. On the other hand, the appellants have also led the evidence in their defence and have examined 4 witnesses. They are, Pashupatinath Upadhyay, DW 1, Ram Nagina Rai, D.W. 2, Satya Narayan Rai, D.W. 3 and Kapildeo Rai, DW 4.
The evidence of Pashupatinath Upadhyay DW 1 is that Paras Rai is on the litigation term with the informant, Jamuna Rai and there was a proceeding under Section 145, Cr.P.C. in between them. He has proved the certified copy of the deposition of Jamuna Rai in the aforesaid proceeding (Ext. No. B).
DW 2, Ram Nagina Rai, has stated that Bishwanath Rai, son of Meghabaran Rai, died leaving behind his wife, Gunia Devi and daughter, Jokhni Devi. After the death of Meghbaran Rai, Most. Gunia, came in possession of his entire land measuring 10 to 12 Bighas. Most Gunia, executed the Bakshishnama of her entire land to her daughter, Jokhni Devi and in turn Jokhni Devi executed Khorisnama of the said land in favour of her mother. After the death of Meghbaran Rai, Most. Gunia used to get her land cultivated by her brother Umashankar Rai. His further evidence is that the land in Bagicha Badhar belonging to Most. Gunia is in three parts and southern most portion is under the possession of Most. Gunia in which at the relevant time of occurrence there was Khagra Paddy crops. Umashankar Rai had grown the crops.
The evidence of DW 3, Satya Narayan Rai is also on the line of the evidence of Ram Nagina Rai, DW 2. He has also deposed that the land of Most. Gunia in Bagicha Badhar is in three parts and she is in possession of southern most portion in which there was khagradhan on the alleged date of occurrence which was transmitted to her brother, Umashankar Rai.
D.W. 4, Kapildeo Rai, is a formal witness and has proved the rent receipts (Ext. Nos. C and C/2) issued in favour of Most. Gunia Khorisnama (Ext. No. D) and Vasiyatnama (Ext. No. E).
17. On behalf of the appellants learned counsel argued that in spite of registration of F.I.R. on 15-11-1978 it was received in the Court on 18-11-1978, so there was more than three days delay in the receipt of the F.I.R. in the Court which has remained unexplained by the prosecution . A reliance has been placed on the case of Bijoy Singh v. State of Bihar, reported in 2002 (3) PLJR 1 (SC) : (2002 Cri LJ 2623), wherein it has been held that 'in a criminal case and particularly in a murder case, F.I.R. is a vital piece of evidence, immediate sending of the report is the mandate of law - delay in lodging the F.I.R. often results in embellishment, which is a creature of an after though-delay, wherever found is required to be explained by the prosecution if the delay is reasonably explain no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version to rule out implication of any innocent-insisting upon the accused to seek an explanation of the delay is not the requirement of law it is always for the prosecution to explain such delay sending of the special report is the only check on the working of police agency, imposed by law which is required to be strictly followed.'
In this connection, it may be pointed out that in the case in hand the occurrence took place at about 8/9 a.m. on 15-11-1978. The F.I.R. was registered on the same day at about 5.30 p.m. and the First I.O. Mohd. Jafar, visited the P.O. The investigation with ancillary procedure steps followed immediately with the seizure of blood stained earth, preparation of the inquest report, preparation of the sketch map of the P.O. land and examination of the witnesses. It shows that the F.I.R. was instituted without delay just after the occurrence and on the basis of which some material steps were immediately taken in the direction of investigation, so there was compliance of requirement of Section 157, Cr.P.C. Under Section 157, Cr.P.C. receipt of information in the court is not condition precedent for the commencement of the investigation and it is not the case of the appellants that they have been prejudiced by the delayed receipt of the F.I.R. in the Court.
18. Learned counsel for the appellants in Criminal Appeal No. 519 of 1987 further contended that the prosecution has failed to substantiate the charge under Section 302 read with Section 149 of the I.P.C. against them, so their conviction under the aforesaid Section is fit to be set aside.
18A. On behalf of the appellants, it was again contended that the prosecution has failed to examine the available independent witnesses, so the evidence of related interested witnesses cannot be relied upon for their conviction. PW 4, Prem Shankar Rai, vide para 11 and PW 11, Jamuna Rai, vide para 8, have stated that soon after the departure of the accused appellants from the place of occurrence, the witnesses, Jagilal, Lachhaman Prasad, Chandrashekhar Rai and many others assembled and they narrated to them about the occurrence. The prosecution has neither examined them nor has furnished any explanation. The prosecution has examined PW 4, Prem Shankar Rai, PW 6, Vijay Pratap Rai and PW 7, Karunanidhan Rai, the sons of the informant, Jamuna Rai, PW 11, PW 9, Shambhar Rai, first cousin of the deceased Rajendra Rai, and PW 5, Rabhubarsharan Rai is Pattidar of the informant, who were closely related and interested witnesses.
It has been held in the case of Arjun Marik v. State of Bihar, reported in 1994 Supp (2) SCC 372 that 'mere relationship of the witnesses cannot be the sole basis to discard the evidence if otherwise found to be believable and trust worthy.'
19. On behalf of the appellants, it was lastly argued that the prosecution has failed to establish that the southern most portion of the disputed plot belonged to them and they had grown the paddy crops, so the trial Court ought to have disbelieved, the testimony of eye witnesses and discarded the prosecution case. According to the prosecution the disputed plot bearing Khata No. 399, Khesra No. 1936 having an area of 42 decimals is situated in Bagicha Badhar of Village Dhansoi. It is sub-divided in three parts measuring 14 decimals each. There is no documentary evidence to show the portion wise possession of the disputed plot. According to the evidence of PW 11, Jamuna Rai, the informant, the northern most portion belonged to Meghbaran Rai, middle portion beloned to Rajendra Rai, the deceased and the land under dispute, the southern most portion belonged to him (the informant). He has admitted in his cross examination at para 8 that with respect to disputed land there was a proceeding under Section 144 and 145 of the Cr.P.C. in between him and Most. Gunia which was decided against him. He also preferred revision but he lost and in spite of that he had grown that paddy crop in the disputed portion of the land. This sort of evidence on P.O. finds support from the evidence of the other material witnesses. It is further established from the prosecution evidence that on 15-11-1978 at 8/9 a.m. while the prosecution party was cultivating the paddy crops in the disputed land the accused persons variously armed appeared and the appellant, Parasnath Rai, son of Rambrichh Rai of village Amarpur protested them from harvesting and on refusal he fired from his country made gun which hit in the chest of Rajendra Rai and he died. The Dr. S.N. Sinha, PW 1, who held autopsy on the dead body of the deceased Rajendra Rai opined that his death was due to shock and haemorrhage caused by fire arm injuries like gun and in ordinary course of nature the injuries were sufficient to cause death and according to the prosecution the appellant, Parasnath Rai, son of Rambrichh Rai of village Amarpur was responsible for causing fire arm injuries on the dead body of the deceased, Rajendra Rai, so the medical evidence is in consonance with the prosecution case. The material witnesses have been subjected to detailed cross examination but except minor contradictions nothing substantial could be elicited in the cross examination to disbelieve their testimony and discard the prosecution case.
20. In Criminal Appeal No. 578 of 1987, the appellant, Parasnath Rai, son of Rambrichh Rai of village Amarpur has been convicted under Sections 302/148, I.P.C. and Section 27 of the Arms Act.
The evidence adduced on behalf of the prosecution clearly indicates that this appellant along with others variously armed appeared on the P.O. and at first he protested the prosecution party from harvesting paddy crops. There was violent altercations whereupon this appellant fired from his gun which hit in the chest of Rajendra Rai and he died. The act of the appellant was without any premeditation, so he is found guilty under Section 304, Part II of the I.P.C. and not under Section 302, I.P.C. His conviction is altered from Section 302 to Section 304, Part II of the I.P.C. and he is sentenced to undergo R.I. for 10 years. His conviction and sentence under Section 148, I.P.C. and Section 27 Arms Act as recorded by the trial Judge is maintained. With the above modification in the judgment and order of conviction and sentence passed against the appellant, Parasnath Rai, son of Ram Brichh Rai of village Amarpur, this Criminal Appeal No. 578 of 1987 is dismissed. He is on bail, so his bail bond is cancelled with a direction to surrender before the Court below immediately to serve out the imposed term of sentence.
In Criminal Appeal No. 519 of 1987, the appellants, Lalchari Rai, Jokhan Rai, Raja Ram Rai, Paras Rai, son of Ramdash Rai and Butan Rai, have been convicted under Section 302/149, I.P.C. and 148 , I.P.C. The appellant, Laldhari Rai, has again been convicted under Section 27 of the Arms Act.
It appears from the evidence adduced on behalf of the prosecution that these appellants variously armed appeared at the place of occurrence along with the appellant, Parasnath Rai of village Amarpur but committed no overt act whatsoever against the deceased Rajendra Rai. Therefore, the prosecution has failed to establish the charge under Section 302/149. I.P.C. against these appellants. Their conviction and sentence under Sections 302/149, I.P.C. is set aside and they are acquitted of this charge. The conviction and sentence of all these 5 appellants under Section 148, I.P.C. and the conviction and Sentence of the appellant, Laldhari Rai under Section 27 of the Arms Act as recorded by the trial Judge is affirmed. With the above modification the Criminal Appeal No. 519 of 1987 is dismissed. All these appellants are on bail, so their bail bonds are cancelled with a direction to surrender immediately before the Court below to serve out the imposed term of sentence.
Learned counsel, Mr. Manoj Kumar Sinha appointed as amicus curiae for assisting the Court in Criminal Appeal No. 578 of 1987 will get the fees from the Patna High Court Legal Service Committee, Patna.
A. K. Sinha, J.
21. I agree.