Allowed

Sukhram Rai and Anr. v. The State Of Bihar

Patna HC26 Jun 2018CR. APP (SJ)/514/2015

Case brief

AI extract

What is this about?

The High Court dismissed both appeals challenging convictions for causing death and affray. The court set aside the convictions due to reliance on hostile witnesses, inconsistencies regarding the site of the incident, injury reports suggesting the prosecution was the aggressor, and fatal lapse in not examining the Investigating Officer.

What did the court decide?

Judgment of conviction and sentence set aside; appellants discharged from liability.

Sukhram Rai and Anr. Vs The State Of Bihar — Murder and Culpable Homicide | Patna HC (2018)

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.514 of 2015

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Arising Out of PS.Case No. -169 Year- 1993 Thana -NOKHA District- SASARAM (ROHTAS)

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=========================================================== 1. Sukhram Rai , S/o Late Daroga Rai 2. Budhan Rai , S/o Late Brij Lal Rai, both resident of village-Khairhi, P.S. Baghaila, District- Rohtas .... .... Appellant/s

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Versus

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The State of Bihar

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.... .... Appellant/s Versus .... .... Respondent/s With

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=========================================================== Criminal Appeal (SJ) No. 541 of 2015

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Arising Out of PS.Case No. -169 Year- 1993 Thana -NOKHA District- SASARAM (ROHTAS)

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=========================================================== 1. Lallan Rai , S/o Late Brijlal Rai 2. Ashok Rai , S/o Sukhram Rai 3. Saroj Rai , S/o Sukhram Rai 4. Jitendra Rai , S/o Sukhram Rai, All resident of village- Khairhi, P.S.- Baghaila, District- Rohtas

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.... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance: (In CR. APP (SJ) No.514 of 2015) For the Appellant/s : Mr. Krishna Prasad Singh-Sr. Advocate Mrs. Meena Singh-Advocate Mr. Bhaskar Shankar-Advocate For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P. (In CR. APP (SJ) No.541 of 2015) For the Appellant/s : Mr. Krishna Prasad Singh-Sr. Advocate Mrs. Meena Singh-Advocate Mr. Bhaskar Shankar-Advocate For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT Date: 26-06-2018

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Since both the appeals arise out from common

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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judgment of conviction and sentence on account thereof, have been heard analogously and are being disposed of by a common judgment.

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Vide judgment of conviction dated 06.08.2015 and order of sentence dated 12.08.2015 passed by the 1^st Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.333 of 1994. Appellants Sukhram Rai, Budhan Rai have been found guilty for an offence punishable under Section 147 of the I.P.C. and sentenced to undergo S.I. for one year, under Section 323 I.P.C. and sentenced to S.I. for one month, under Section 341 I.P.C. and sentenced to undergo S.I. for one month while appellants Lallan Rai, Ashok Rai, Saroj Rai and Jitendra Rai have been found guilty for an offence punishable under Section 304 of the I.P.C. and sentenced to undergo R.I. for four years, under Section 147 of the I.P.C. and sentenced to undergo S.I. for one year, under Section 341 of the I.P.C. and sentenced to undergo S.I. for one month with a further direction to run the sentences concurrently.

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Bijendra Rai (PW-4) gave his fard-bayan on 16.10.1993 at about 3.00 p.m. while he was admitted at State Dispensary Nokha before A.S.I. of Nokha P.S. alleging inter alia that there happens to be channel lying South to his village. That channel is presently filled up, whereupon so many villagers encroached upon including he himself for the last five years and the land is being used

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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as a kitchen garden as well as for keeping manure. In order to repair the ridge, he along with his brother Indrajit Rai had gone and engaged themselves in repairing the ridge, during course thereof, his agnate Lallan Rai, Ashok Rai, Saroj Rai and Jitendra Rai armed with lathi came and protested. They further directed not to repair, but as they declined to obey on account thereof, Lallan Rai ordered followed with a blow over his head while his brother Indrajit Rai was assaulted with lathi by Ashok Rai, Saroj Rai and Jitendra Rai as a result of which, he became unconscious and fell down. His another brother Satyendra Singh rushed in rescue, who was assaulted by Budhan Rai, Sukhram Rai in the midst of way. On hue and cry, villagers including Shivadhar Singh (PW-9) and Santosh Singh (PW-3) rushed and rescued them. Then thereafter, they were taken to hospital where they are being treated.

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On the basis of aforesaid fard-bayan, Nokha (Baghaila) P.S. Case No.167 of 1993 was registered followed with investigation. It is also apparent that during course of investigation, Indrajit Rai died on 23.10.1993, whereupon chargesheet was submitted under Section 302 along with other allied Sections of the I.P.C. facilitating the trial meeting with the ultimate result, subject matter of instant appeal.

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defence case, as is evident from mode of cross-

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examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that on the alleged date and time of occurrence, prosecution party after forming an unlawful assembly came over their land and forcibly tried to dispossess, which was resisted by them and on account thereof, they were assaulted at the lands of the prosecution party and for that, on the fard-bayan of Jitendra Rai, Nokha (Baghaila) P. S. Case No.168 of 1993 was registered. To substantiate the same, oral as well as documentary evidence has been laid.

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In order to substantiate its case, prosecution had examined altogether six PWs, who are PW-1, Satyendra Rai, PW-2, Kariman Rai, PW-3, Santosh Singh, PW-4, Bijendra Rai, PW-5, Shivadhar Singh and PW-6, Dr. Jitendra Nath Singh. Side by side, had also exhibited as Exhibit-1, signature of the informant over fardbayan, Exhibit-2 series, injury report relating to respective injured, in likewise manner, defence had also examined one DW, Hira Lal Tiwari as DW-1 as well as had also exhibited as Exhibit-A series, injury report, X-ray report relating to the respective injured, Exhibit-B, formal F.I.R. of Nokha (Baghaila) P. S. Case No.168 of 1993 and Exhibit-3, fard-bayan of Nokha (Baghaila) P. S. Case No.168 of 1993.

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While assailing the judgment impugned, it has been submitted on behalf of learned counsel for the appellants that having a

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glance over the judgment impugned speaks a lot, which if taken into consideration, could not justify the finding whatever been recorded by the learned lower Court. To substantiate the same, it has been submitted that the learned lower Court failed to consider that I.O. has not been examined. That being so, considering the material development in the evidence of the PWs, it has caused severe jolt to the interest of the defence and further, in the background of countercase having been admitted at the end of the prosecution party including injuries over the person of the accused and further, being exhibited at the end of the PW-6, doctor and further, having been admitted at the end of the prosecution witnesses that dispute arose with regard to government land located contiguous to the land of the accused/ appellants and so, the non-examination of the I.O. has cast serious doubt over the manner as well as genesis of occurrence having flashed at the end of the prosecution. Consequent thereupon, the finding recorded by the learned lower Court would not survive.

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It has also been submitted that when there happens to be admission at the end of the prosecution witnesses that accused were also admitted at Nokha Hospital on the alleged date and time of occurrence and further, as per evidence of PW-6, had exhibited injury report relating to respective appellants being an injured and further, having version and counter-version, then in that circumstance, the

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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learned lower Court would have considered and which happens to be the crux of the case, who happens to be the aggressor. From the judgment impugned, it is evident that the learned lower Court had not recorded its reason or opinion on that very score.

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It has also been submitted that it has not been brought at the end of the prosecution that post mortem was done over the dead body of the deceased Indrajit Rai, who is said to have died at Patna on 23.10.1993 and in absence thereof, it could not be said that on account of assault, as alleged by the prosecution ultimately cost his life. That means to say, on account of failure at the end of the prosecution to connect the death of the deceased with the occurrence, so alleged, in the aforesaid background, the appellants would not have been convicted for an offence punishable under Section 304 of the I.P.C. and that happens to be the reason behind that the learned lower Court was very much confused on account of which, failed to distinguish whether the offences so alleged would attract Section 304 Part-I of the I.P.C. or Section 304 Part-II of the I.P.C. In the aforesaid facts and circumstances of the case, it has been urged that the judgment impugned would not survive, whereupon is fit to be set aside.

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On the other hand, learned Additional Public Prosecutor while supporting the finding arrived at by the learned lower Court has submitted that from the defence version itself

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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occurrence has not been denied. So, an occurrence took place. Now, one has to see in what manner that means to say, as per version of the prosecution or as per the version of the accused. From the judgment impugned, it is apparent that learned lower Court had minutely observed the evidences available on the record and concluded by inferring the occurrence in terms of prosecution version, whereupon appellants have rightly been convicted and sentenced for. Accordingly, these appeals sans merit and are accordingly, fit for dismissal.

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From the deposition of the witnesses, it is apparent that in due course of time, they have thought and accepted that blood is thicker than water and that happens to be reason behind that informant (PW-4) had gone volte face to prosecution, whereupon was declared hostile. Though, he had corroborated the version with regard to assault, but had not named the appellants to be the assailant. In likewise manner, PW-5 had also deflected the prosecution and was accordingly, declared hostile. Now, the remains the evidence of PW1, PW-2 and PW-3, out of whom, PW-1 is one of the injured while PW-2 is the father and PW-3 is the nephew.

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PW-1, during course of his examination-in-chief, had stated that on the alleged date and time of occurrence while he reached at the P.O., had seen Lallan Rai, Ashok Rai, Saroj Rai and

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Patna High Court CR. APP (SJ) No.514 of 2015 dt.26-06-2018

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Jitendra Rai armed with lathi, who forbade not to repair the ridge, which was resisted by his brothers Indrajit Rai and Bijendra Rai. Being annoyed there with, Lallan Rai ordered to kill and then, inflicted lathi blow over the head of Indrajit Rai. Ashok Rai had also inflicted lathi blow over his head followed by Saroj Rai and Jitendra Rai. During midst thereof, Budhan Rai and Sukhram Rai also arrived armed with lathi. Then thereafter, Lallan Rai, Ashok Rai, Saroj Rai, Jitendra Rai brutally assaulted Indrajit Rai. When Bijendra Rai intervened, he was also assaulted. When he intervened, he was assaulted by Sukhram Rai and Budhan Rai. Then thereafter, Santosh Singh, Shivadhar Singh and other co-villagers rushed with lathi, whereupon accused persons fled there from. Thereafter, he along with his both brothers were taken to Nokha Hospital over cot by the villagers where they were treated. Police came at the Nokha Hospital and recorded fard-bayan of Bijendra Rai and then thereafter, Indrajit Rai was taken to Patna Hospital. He was privately treated and during course thereof, he died on 23.10.1993. Identified the accused. During cross-examination at Paras-5 and 6, he was cross-examined over the family status. In Para-7, there happens to be cross-examination over the P.O. and during course thereof, he had stated that channel lies South as well as East to his village. Then had disclosed that his family had encroached an area of 10-15 feet long, 10-15 feet width of the

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Aahar land, which belongs to the Bihar Government. Road lies west to the aforesaid land. There happens to be ditch 4-5 feet deep and west to that ditch, land of accused Sukhram Rai lies. Then had disclosed the area of the land of Sukhram having 30-40 feet East to West and 30-40 feet North to South. Then had stated that land lies just in front of the channel land having been occupied by them. In Para-8, he had stated that they have not taken permission from any government officials while encroaching over the channel land and after filling up, encroaching the same. In Para-9, he had stated that accused persons were present at the field since before the occurrence. Indrajit Rai was assaulted just adjacent to the ridge. At that very time, he was 10-15 yards away from him. He was not armed with any weapon. He was not chased rather he was confined and then, assaulted. In Para-10, he had stated that Santosh Singh, Shivadhar Singh along with 8-10 persons lifted them to hospital. Then thereafter, his brother Bijendra Rai had gone to police station. Then had stated at Para-12 that accused persons have also instituted a case relating to the same occurrence, which is also running in the same Court. Then had denied that they had assaulted the accused persons. Then had stated that they have not seen injuries over the person of the accused persons, but again stated that while they were at hospital, they heard that accused persons were also injured, but he is unable to say, who had disclosed the same.

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Then had said that he had not shown the P.O. to the police. In Para13, his attention has been drawn towards his previous statement and that happens to be material one. In Para-14, he denied the suggestion that no such type of occurrence had taken place as suggested by them rather they tried to encroach upon the land lying adjacent to the land of the accused/ appellants, which was protested by them, whereupon brutally assaulted and for that, counter-case was instituted and only to put safeguard upon their interest, this case has been instituted as a counter-case.

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PW-2 is the father, who had deposed that on the alleged date and time of occurrence, while he was brushing his mouth at the bank of the channel, he had seen Indrajit Rai and Bijendra Rai being engaged in putting ridge. At that very time, Lallan Rai, Ashok Rai, Saroj Rai, Jitendra Rai armed with lathi came and forbade them, but his sons did not obey, whereupon Lallan Rai ordered to kill as a result of which, all of them, began to assault Indrajit Rai. Ashok Rai and Lallan Rai gave lathi blow over his head and rest over other parts of body. Bijendra Rai was also assaulted by all of them. On hue and cry, when villagers arrived then thereafter, the accused persons fled there from. It has further been disclosed that Satyendra Rai was assaulted by Budhan Rai and Sukhram Rai with lathi over his head. Then thereafter, injured were taken to hospital wherefrom Indrajit Rai

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was taken to Patna, during course of treatment, he died. During crossexamination at Para-4, he had admitted that they have encroached upon the land of channel at the Eastern as well as Western side of the road. It had further been disclosed that they have not taken permission from any of the authority with regard to possession. Then had admitted that he has got no land adjacent to the channel land. Then had stated that land of accused lies adjacent to the land of channel having possessed by the accused. Then at Para-6, had stated that land was coming in possession of him for the last 20 years. There was no protest at an earlier occasion. On the day of occurrence, only ridge was prepared. Then had stated that Indrajit Rai, Bijendra Rai and Satyendra Rai were assaulted, who fallen down in the field adjacent to the ridge. They have not assaulted the accused persons. Then had stated that after falling of Indrajit, Bijendra and Satyendra came. They came one by one and they were assaulted in similar fashion. In Para-7, he had further denied to have seen the accused lying in an injured condition. In Para-8, he had stated that they have gone to hospital wherefrom Bijendra and Satyendra had gone to police station. Police came along with them to hospital. He had not made statement before the police at the hospital as he was unconscious. He gone over scooter being driven by Satyendra. He had also gone to Patna. He had seen the accused persons admitted at Nokha Hospital. Then at Para-9, there

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happens to be contradiction. In Para-10, he had admitted that accused persons also instituted a case, which is also running in the same Court. Then had denied the suggestion.

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PW-3 is the nephew of the informant. He had stated that on the alleged date and time of occurrence while he was at his cowshed, he had seen Indrajit and Bijendra engaged in preparing ridge. At that very moment, Lallan Rai, Ashok Rai, Jitendra Rai, Satyendra Rai armed with lathi came and forbade them. Indrajit Rai and Bijendra Rai did not accept their instruction on account thereof, they indulged in an altercation and during course thereof, Lallan Rai, Ashok Rai assaulted with lathi over Indrajit Rai followed by Jitendra Rai, Saroj Rai, Satyendra Rai rushed from his house, who was intercepted by Sukhram Rai and Budhan Rai during midst of way and was assaulted by lathi. Villages came on alarm seeing whom, the accused persons fled away. Then thereafter, the injured was taken to hospital and there from Indrajit Rai was taken to Patna, who during course of treatment died. During cross-examination at Para-5, he had stated that at the time of assault, 7-8 villagers came at his cowshed, but he is unable to disclose their names. In Para-6, he had admitted presence of counter-case relating to the same occurrence. Then had stated at Para-7 that road lies adjacent East to the P.O. land. Adjacent west to that road, there happens to be government land, which has

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been encroached by the accused persons, who got it amalgamated with their land. In Para-8, he had admitted that both the parties indulged in marpit relatingto the land lying West to the road. In Para9, he had further stated that he had seen Sukhram Rai, Ashok Rai and Jitendra Rai in an injured condition, who were also admitted at Nokha Hospital. He had further stated at Para-10 that while Indrajit Rai was being taken to hospital, he along with Bijendra Rai had gone to police station where Bijendra Rai handed over a blank sheet after putting his signature, but he had not given any statement there. In Para-11, he had stated that as soon as Satyendra Rai came out from his house, he was assaulted by Sukhram Rai and Budhan Rai, whereupon Satyendra went inside his house in order to save himself. In Para-13, he had stated that no occurrence took place with regard to repairing of the ridge. He had not seen anybody indulged in repairing the ridge.

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PW-6 is the doctor, who had examined Indrajit Rai, Bijendra Rai and Satyendra Rai on 16.10.1993 at about 11.45 a.m. and onward. During course of cross-examination, he had also admitted and exhibited the injury report having prepared by him concerning appellants/ accused Santosh Singh, Sukhram Rai and Jitendra Rai. Considering the nature of the oral evidence, the details thereof, have not been given.

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From the material available on the record, it is

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evident that there happens to be material development in the evidence of PW-1, Para-13, PW-2, Para-9 and for want of I.O., the accused has been prevented to bring those parts on record in legal manner as provided under Section 145 of the Evidence Act read with Section 162 of the Cr.P.C. Furthermore, from the evidence of PW-3, it is evident that he had admitted the topography of the P.O. to be on account of an attempt at the end of the prosecution to encroach over the land lying West to the road which the accused persons have amalgamated with their plots since before the occurrence and for that, both the parties brandished their weapon. PW-3 had also admitted that both the parties have indulged in marpit, also admitted presence of injuries over the person of the accused, who were also admitted at Nokha Hospital found corroborated by the evidence of PW-6. Furthermore, he had not deposed relating to assault over informant (PW-4). Apart from this, as stated hereinabove, the informant (PW-4), one independent witness Shivadhar Singh (PW-5) had not substantiated the prosecution version and so, they were declared hostile. Apart from this, when the evidence of PW-1 has been gone through, it is apparent that though he had tried to conceal, but during course of cross-examination admitted while they were admitted at State Dispensary Nokha, they came to know that accused persons have also been admitted on account of being injured. Furthermore, so

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far occurrence is concerned, PW-1 and PW-2 have shown the place of occurrence to be East to the road, the place which happens to be part and parcel of the channel having illegally encroached by them. That means to say, there happens to be inconsistency amongst the witnesses so far P.O. is concerned and on that very score also, the non-examination of the I.O. is found fatal to the prosecution. Furthermore, their conduct clearly suggest that they have tried to conceal the active mode of manner of occurrence, hazardous to the prosecution.

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In Lahu Kamlakar Patil and another vs. State of Maharashtra reported in (2013)6 SCC 417 , it has been held:-

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“18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar[(2010) 6 SCC 1], this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar[(1996) 2 SCC 317], it has

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been opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar[(2000) 9 SCC 153], Rattanlal v. State of Jammu and Kashmir[(2001)6 SCC 407] and Ravishwar Manjhi and others v. State of Jharkhand[(2007) 13 SCC 18], has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his nonexamination creates a lacuna in the case of the prosecution.

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Considering the evidence in its totality

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inconsonance with the failure at the end of the prosecution party in order to properly identify, who happens to be the aggressor as from the evidence of PW-3, it probablizes the prosecution party to be the

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aggressor coupled with inconsistency over the place of occurrence admitting marpit amongst the parties due to which, accused/appellants also sustained injuries coupled with non-examination of I.O. causing serious prejudice to the appellants did not inspire confidence with regard to reliability of the evidence of the prosecution witnesses.

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That being so, the judgment of conviction and sentence recorded by the learned lower Court is set aside. Both the appeals are allowed. Appellants are on bail, hence are discharged from its liability.

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(Aditya Kumar Trivedi, J)

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Vikash/-

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AFR/NAFR	A.F.R.
CAV DATE	N.A.
UploadingDate	27.06.2018
Transmission Date	27.06.2018

Sukhram Rai and Anr. v. The State Of Bihar

Case brief

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Sukhram Rai and Anr. v. The State Of Bihar

Case brief

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