Arjun Rai Gariba Rai Kariba Rai (In 21) v. Raj Kishore Yadav Raj Kishore Rai (In 44)

Rekha Kumari, J.:—All the above three appeals arise out of the same judgment and as such, they have been heard together and are being disposed of by this common judgment.

2. The appellants call in question the legality of the impugned judgment rendered by Shri Sohailur Rahman, Addl. Sessions Judge IX, Patna in S.Tr Nos. 899 and 900 of 1986/21 and 20 of 1988 under which he has convicted all the three appellants under section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life.

3. The prosecution version which led to the trial of the appellants is as follows:—

4. On 11.11.1984 at 5.30 P.M the informant Ramprit Rai was roaming around his paddy field situated east of his village towards Brahmasthani Badhar and inspecting the paddy crops raised in the field when he heard the cries of his brother Mahendra Rai, and on this he rushed towards that side and when he reached near Brahmasthan, he saw appellant Haridwar Rai @ Hari Rai with blood stained sword, appellant Gariba Rai @ Arjun Rai with blood stained Farsa, appellant Raju Yadav (appellant Raj Kishore Yadav) armed with lathi— all belonging to the village Subhau Tola to which the informant also belongs, alongwith co-accused Madan Mistry with blood stained Fasuli, Haridwar Singh armed with iron rod, fleeing North of the road and uttering that they had cleared their way by killing him (the deceased). The informant raised alarm on which Dinesh Singh, Daroga Rai and others reached from the side of Badhar and they also saw and identified the appellants and other accused fleeing towards north. The informant then went to the place from where the sound of crying was coming and found Mahendra Rai lying dead in the Southern end of the field of one Jai Ram of his village with multiple injuries and the neck having been cut from behind. It is also alleged that there was an occurrence of loot in village Sadisopur prior to this occurrence in which the police had taken search of the houses of the appellants Gariba, Raj Kishore and others and they suspected that Mahendra Rai (deceased) had given clue to the police and so the appellants alongwith other co-accused committed the murder of the deceased when he was returning from his duty.

5. On the same day at 10.30 P.M the Fard Beyan of the informant was recorded by the S.I R.P Singh, Officer In-charge, Bihta P.S, near the dead body of the deceased on Subhau Tola Babupur Kachcha Road near Brahmasthan. On the basis of the Fard Beyan formal F.I.R was drawn up. The police investigated the case and after completing investigation submitted charge sheet against all the five accused, including accused Haridwar Singh (since dead) and accused Madan Mistry, who absconded.

6. The appellants have pleaded not guilty to the charge under sections 302, 134 I.P.C framed against them. Their defence is that the deceased had several enemies and he was murdered by some of his enemies and the accused persons have been falsely implicated out of suspicion.

7. The prosecution examined four witnesses to prove the charge. Among them, P.W 1 is Daroga Rai and P.W 2 is Ram Prit Rai, the informant. P.W 3 is Dr. Jawahar Lal, who had conducted the Postmortem examination of the deceased. P.W 4 is Rajendra Prasad Singh, the Investigating Officer.

8. The appellants examined one witness, namely, Mahesh Prasad Singh, who is a formal witness and has simply proved a letter (Ext. ‘A’) of Rural S.P, Patna.

9. The learned Sessions Judge after considering the evidence of the P.Ws and the documents filed by both the sides convicted the appellants and sentenced them as mentioned above.

10. The points that have been urged in the appeals are that the witnesses to the occurrence are interested witnesses and that their evidence is not sufficient to prove the charge against the accused persons. Their presence at the P.O and see the appellants fleeing away from there is also doubtful.

11. In order to determine the above points I have gone through the entire evidence on record.

12. P.W 2, the informant, has deposed that on 11.11.1984 at about 5 P.M he was inspecting his paddy field in Badhat near Brahmsthan when he heard the cries of “BACHHAO BACHHAO” and he identified the cries to be of his elder brother Mahendra Rai and he rushed and saw the appellant Haridwar Rai with sword, Gariba Rai with Farsa, Raju Rai with lathi and coaccused Madan Mistry with Fasuli, Haridwar Singh with iron rod assaulting Mahendra Rai with their respective weapons. He has further stated that when he reached near Brahmsthan all the five assailants fled towards North and that the Sword, Farsa, Fasuli which they were holding were stained with blood. His evidence then is that besides him, Daroga Rai (P.W 1) and Dinesh Rai also saw the occurrence and that when he went to his brother, he found him lying dead in the field of one Jai Ram Rai and his neck was cut from behind, both the arms were fractured, head was injured at places, besides injuries on the back and leg which was swollen.

13. The evidence of this witness also is that when the accused persons were running away they were uttering that they had cleared the way by killing Mahendra Rai. He has stated that all the five accused were named in a loot case of Sadisopur and the Sub-Inspector of Police had come in investigation in that case and had taken search of their houses and the S.I had taken his brother Mahendra Rai with him for identification of their houses and hence, the accused persons suspected that Mahendra Rai had called the police.

14. P.W 1 has stated that on 11.11.1984 at the time of sun set he was inspecting the paddy crops raised in his field near Brahmsthan when he heard the cries of Mahendra Rai and he went towards that side and saw that the appellant Haridwar Rai armed with sword, Gariba Rai armed with Farsa, Raju Rai armed with lathi and co-accused Madan Mistry armed with Fasuli, Haridwar Singh armed with iron rod were assaulting his brother Mahendra Rai. He ran to save his brother and when he reached near the Brahmsthan, the assailants started fleeing towards North. He has further stated that the sword of Haridwar Rai was stained with blood and Farsa of Gariba Rai and Fasuli of Madan Mistry were also stained with blood and that when he reached near his brother in the field of Jai Ram, he found him lying dead and his neck was almost completely cut from behind and both of his arms were fractured. His evidence also is that Mahendra Rai was a Gangman in Railway under P.W 1 and that when the accused were fleeing they uttered that their way had been cleared by the murder.

15. Thus, from the evidence of the above two witnesses, it is clear that both of them have supported the prosecution case and corroborated each other. Both of them are indeed own brothers of the deceased and as such, are interested witnesses. But it is the settled law that mere interestedness is no ground to disbelieve the testimony of witnesses, when facts show that the testimony is otherwise trustworthy. The only safeguard in such cases is that the court should be cautious in relying on such evidence.

16. Now, the evidence of P.W 2, the informant, shows that he was a Gangman in Railway and he was doing duty on the date of occurrence at a distance of about 200 yards from Bechchu Tola on Railway Line and his paddy field was situated on his way to his village which was at a distance of 200 yards West from Brahmsthan and that the paddy had grown about waist high at that time. His evidence further is that he had left his duty at about 4-4.30 P.M and it took him about 10-20 minutes to reach his field and he was going around his field to see the crops when he heard the cries of his brother. The presence of this witness in his field near the P.O at the time of occurrence is, hence, quite natural. His evidence also is that his field was at a distance of about 75 yards from Brahmsthan, and the field of Jai Ram where his brother was lying dead, was at a distance of 6-7 steps from Brahmsthan and it took him about 1 minute to reach Brahmsthan and that the accused persons were at a distance of 75 yards from him when they were fleeing. It is, hence, also evident that this witness could see the appellants fleeing armed with weapons. The occurrence, as per prosecution case, of course, had taken place in the month of November at about 5.30 P.M when the sun had set. But as the appellants were co-villagers and known to the witness from before, I do not think there was any difficulty for the witness to identify the appellants.

17. The Fard Beyan (Ext. 5) also corroborates the testimony of the informant (P.W 2). The occurrence as alleged took place on 11.11.1984 at 5.30 P.M and the Fard Beyan was recorded on the same date at 10.30 P.M, when from the formal F.I.R it appears that the distance of P.O from the police station is about 8 K.Ms So, there was no delay in recording the Fard Beyan and as such, there was no possibility of concoction in it. In the Fard Beyan, of course, this witness did not state that he had seen the actual assault being committed on the deceased by the assailants as has been stated by him in court and in fact at paragraph 20 of his cross-examination, he has volunteered that he had only seen the assailants fleeing. But simply for such exaggeration, the entire evidence of this witness cannot be discarded. His evidence also is that the police did not read over the Fard Beyan to him. But the Fard Beyan shows that the witness himself had read it and then put his signature. Therefore, it cannot be said that the police did not properly record the statement of this witness. However, whatever may be the truth, the evidence of this witness is unimpeachable that he had seen the appellants and other Co-accused fleeing from the P.O with weapons in their hands immediately after the occurrence and after the accused persons fled he went to the field of Jai Ram and found the deceased lying dead with the injuries on his body.

18. It may be mentioned here that the evidence of P.W 2 is that the Chaukidar had gone to the P.S to report and he had sent information to the Chaukidar. It appears that on the basis of the report of the Chaukidar, Station Diary entry was made. The copy of the station diary entry has been marked as Ext. ‘E’. It was argued that the station diary entry, should have been treated as F.I.R The entry, however, shows that neither the name of any accused nor the circumstances under which the murder was committed is mentioned therein. The learned Addl. Sessions Judge was, thus, justified in holding that such cryptic statement of a Chaukidar cannot be treated as F.I.R and the Fard Beyan (Ext. 5) on that account cannot be said to be hit by Section 162 Cr. P.C It may further be mentioned here that the station diary entry shows that the Chaukidar had gone to report about the murder of Mahendra Singh on an information received from a person. The evidence of the informant also is not that he had any talk with the Chaukidar regarding occurrence before the Chaukidar went to the police station. Hence, it cannot also be said that the informant had no knowledge as to who actually had assaulted his brother and subsequently he concocted the case.

19. It has been suggested to this witness that the deceased had several enemies and they killed him and he did not see the occurrence and falsely deposed against the accused persons. But the witness has denied all these suggestions. There is nothing also in his evidence as to why he would depose falsely against the accused persons. It has also been suggested to this witness that his father wanted to purchase the land which was purchased by the father of the appellant Raju Rai; but he has denied this allegation also. So it cannot be said that on account of this grudge he falsely implicated the appellants. As the witness is the own brother of the deceased, the learned Additional Sessions Judge has rightly mentioned that it is also not expected that he would spare the real culprits and falsely implicate the innocent persons.

20. As regards P.W 1 his evidence is that all his brothers were joint and he used to look after the cultivation. It has already been mentioned that the paddy crops had became waist high and the village of the witness was near the field of this witness. It is, therefore, also natural that this witness had gone to see the crops of his field. His evidence also is that he was at his field, north of Brahmsthan. Hence, he could also reach the P.O at the cries of his brother. He has stated that he does not know as to where Ramprit was at that time, but this is not unnatural because both the witnesses were going around their field separately and hence, it is quite natural that he did not know where the other was at time of cries of their brother, and so from this, the presence of this witness at the P.O cannot be doubted. This witness, of course, in his evidence has claimed to have seen the accused persons assaulting the deceased, but from the evidence of P.W 2 and the Fard Beyan, it appears that he (P.W 2) was first to reach Brahmsthan and this witness had reached there almost simultaneously. Hence, it is doubtful that this witness had seen the actual assault. But his evidence is also unassailable that he had seen and identified the appellants and other co-accused fleeing from the P.O with weapons in their hands and then had found the deceased lying dead in the field of Jai Ram with the injuries on his person.

21. This witness, indeed, is not a charge sheeted witness and the evidence of I.O (P.W 4) shows that he did not examine this witness. But the Fard Beyan shows that he is named therein as one of the witnesses who had reached the P.O and seen the assailants fleeing. P.W 2 in his evidence has also corroborated it. Hence, his presence at the P.O cannot be doubted.

22. It has been submitted on behalf of the appellants that as this witness was not examined by the I.O and for the first time he deposed in court, no reliance should be placed on his evidence.

23. The impugned judgment shows that as the informant in his evidence has stated that the appellant Raju Rai is the grandson of the Chaukidar and that the I.O did not examine this witness (P.W 1) and he did not seize blood stained earth, blood stained clothes of the deceased and a shoe of the deceased found at the P.O, the learned Addl. Sessions Judge has held that the investigation of the I.O- is perfunctory and tainted. I also find from the evidence of the I.O that he has given an explanation that as the witness (P.W 1) was not available, he could not examine the witness. But the evidence of P.W 4 (I.O) shows that after recording Fard Beyan of the informant and before inspection of the P.O, he had recorded the statements of the witnesses; and after inspection of the P.O he had sent the dead body for postmortem. The dead body challan (Ext. 4) shows that the same was despatched on 12.11.1984 at 6.30 A.M Hence, it seems that the I.O was present at the P.O throughout the night and had recorded the statements of the witnesses in the meantime. So, when this witness is named in the Faro Beyan as witness and the Fard Beyan further mentions that in his presence the same was recorded, it is really strange that the I.O did not care to record the statement of this witness. This and the other circumstance mentioned by the learned lower court, clearly suggest that the explanation of the I.O is not convincing and the conduct of the I.O during investigation was not fair. This witness (P.W 1) has also stated that he had given his statement before the I.O It is thus quite probable that the I.O deliberately did not record the statement of this witness. Therefore, though the appellants were deprived to test the testimony of this witness with his previous statements under section 161 Cr. P.C, the evidence of this witness cannot be thrown out only on this ground. The court in such circumstance, however, has to test the evidence of the witness with other facts and circumstances appearing on record, and it appears from the evidence of this witness that except the exaggeration mentioned above, there is absolutely nothing in the evidence of this witness also to disbelieve his testimony. It has been suggested to this witness that the appellant Raj Kishore Yadav used to read with the grandson of his uncle and as there was quarrel between them, he falsely implicated the appellants. But the witness has denied the suggestion that there was any such quarrel and he falsely implicated the appellants. Therefore, it cannot be said that on account of alleged enmity the witness falsely implicated the appellants.

24. It may be pointed out here that the prosecution has filed the statements of P.Ws 1 and 2 (Exts. 7 and 7/1) recorded under section 164 Cr. P.C to show that the evidence of these witnesses are corroborated by their statements under section 164 Cr. P.C But it appears from the lower court record that the informant while filing a protest petition, had produced the witnesses for their statements before the Magistrate and the statements were recorded. But as held by the Apex Court in the case of Mahavir Singh v. The State of Haryana, reported in (2001) 7 SCC 148, so far as the statements (other than confession) are concerned, they cannot be recorded under section 164 Cr. P.C unless the person who makes such statement is produced or sponsored by the I.O Therefore, in this case also the Magistrate could not legally record the statement of the witnesses under section 165 Cr. P.C and hence, they are not admissible under section 157 of the Evidence Act, to corroborate the testimony of the witnesses made in court. But even if the above statements are not taken into consideration, I have already shown that the evidence of these two witnesses is quite trustworthy that they had seen the appellants and other co-accused fleeing from the place of occurrence immediately after the occurrence.

25. The evidence of P.W 2, as already mentioned, is that prior to the occurrence the police, in a loot case, had come to search the houses of the appellants and other co-accused and the police had taken Mahendra Rai (deceased) with him to locate their houses. The appellants have filed copy of the charge sheet (Ext. ‘B’) of Bihta P.S Case No. 193/84 to show that none of the accused of this case was the accused in the said case. But the charge sheet shows that the appellant Kariba Rai @ Arjun Rai was charge sheeted in that case and the evidence of P.W 4 is that the accused persons were accused in PS. Case No. 197/84 under sections 395 and PS. case No. 193/84 under section 392 I.P.C The evidence of P.Ws 1 and 2 is also consistent that when the accused persons were fleeing away they were uttering that they had cleared their way by killing the deceased. Therefore, it is quite probable that as the deceased had helped the police in locating the house of the accused persons in the above case, the accused persons were aggrieved with the deceased. So, it is also clear that the accused persons had a motive to eliminate the deceased.

26. It may also be mentioned here that though it is proved that the accused persons had grudge against the deceased, from this it cannot be said that the informant and his family members were inimical against the accused persons because they were not the aggrieved persons and so, it cannot be said that there was any enmity between the informant and the accused persons and hence, he also implicated them. As the evidence of P.Ws 1 and 2 show that they had seen the assailants fleeing, it cannot also be said that out of suspicion they implicated the appellants and other accused persons.

27. It may further be pointed out that the above motive had not been put to the appellants when they were examined under section 313 Cr. P.C But nothing has been shown by the appellants that they were prejudiced on account of this omission. So, the prosecution case is not affected on account of this omission.

28. Thus, on a close scrutiny of the evidence of P.Ws 1 and 2, I find that though both of them are interested witnesses and they have made some exaggeration in their evidence, their evidence is quite reliable and consistent that they had seen the appellants and other co-accused fleeing from the place of occurrence immediately after the occurrence with weapons in their hands and they had found the deceased with multiple injuries in the field of Jai Ram.

29. P.W 3, the doctor, has deposed that on 12.11.1984 at 2.30 P.M he conducted the postmortem examination on the dead body of Mahendra Rai and found the following antemortem injuries on the person of the deceased:

(i) One incised wound 5″ × 2 1/2″× cutting the skull bone and opening the brain cavity on the left occipito-perietal region.

(ii) One incised wound 4″ × 1″ on occipital region × cutting the skull bone and exposing the brain.

(iii) One incised wound 4 1/2″ × 1″ × cutting the skull bone 3/4″ below the above injury.

(iv) One incised wound 8″ × 3 1/2″ × cutting the verbital column spinal cord, muscle and vessel of the neck opening on the upper part.

(v) One incised wound 2″ × 1/4″ × cutting the varia and ulna of the fore-arm-dorsum.

(vi) One swelling 1″ × 1″ on the back of right thigh.

(vii) One bruise 2″ × 1″ in front of the right knee.

30. According to the doctor injuries 1 to 5 were caused by sharp cutting weapon, such as sword, Hasuli, Farsa and injuries 6 and 7 were caused by hard and blunt substance, such as lathi, iron rod and injuries 1 to 5 were grievous in nature and were sufficient to cause death. He has further opined that the death was due to shock and haemorrhage caused by the aforesaid injuries within 24 hours but not less than 6 hours of the postmortem examination.

31. Thus, from the evidence of the doctor, it is clear that the deceased had received incised wound caused by sword, Farsa etc. and had also received injuries caused by hard and blunt substance, such as lathi, iron rod and the death was caused due to the above injuries. The evidence of the doctor, hence, also corroborates the testimony of P.Ws 1 and 2. The doctor had examined the deceased on 12.11.1984 at 2.30 P.M and according to him, the death was caused within 24 hours of the postmortem examination. According to the prosecution case and the evidence of P.Ws 1 and 2, the occurrence causing the death had taken place on 11.4.1984 at 5.30 P.M Therefore, the time of death given by the doctor also corroborates with the time of the alleged occurrence. It is also not disputed that the deceased examined by the doctor is the deceased Mahendra Rai of this case.

32. The evidence of the I.O (P.W 4) is that on 11.11.1984 he was the Officer in-charge of Bihta P.S and on that date at 10.30 P.M he went to Subhau Tola and recorded the Fard Beyan of Ramprit Rai. He has further stated that he inspected the P.O which was a Kutcha road emanating from Subhau Tola and going towards Babupur and on both sides of the road there were paddy fields and that the dead body of the deceased was lying in the paddy field of on Jai Ram and the paddy crops at that field were trampled at an area of 5′ × 10′. He has also stated that the blood had fallen near the dead body in the field.

33. The evidence of the I.O, hence, also supports the case of the prosecution as regards the place of occurrence. In cross-examination this witness has stated that he did not prepare any seizure list of the blood stained earth. He has further admitted that he had found a shoe of the deceased near the P.O, but he did not seize it. But, it has already mentioned that the I.O was not fair in his investigation. So, on account of these laches on his part, it cannot be said that no occurrence took place at the alleged place of occurrence.

34. In this case, from the Fard Beyan it appears that besides P.Ws 1 and 2, one Dinesh Singh had also reached the P.O on hearing the cries of the deceased, but he has not been examined. P.W 2 has explained that out of fear of the accused persons Dinesh Singh is not ready to give evidence. So, no adverse inference can be drawn against the prosecution case for non-examination of this witness.

35. In the Fard Beyan, it is also mentioned that several other persons of the village had also assembled at the P.O, but the Fard Beyan is clear that they had reached after the accused persons had fled away. So, their evidence is not material in this case and if they have not been examined, that also does not affect the prosecution case.

36. Thus, on a careful consideration of the facts, circumstances and evidence on record it appears that though both P.Ws 1 and 2 are interested witnesses, their evidence is quite trustworthy that on the alleged date and time they heard the cries of their brother, deceased Mahendra Rai and when they went towards the place from where the sound was coming, they saw the appellants alongwith the other co-accused fleeing with sword, Farsa etc. in their hands and they also saw their brother Mahendra Rai lying dead in the field of one Jai Ram with multiple injuries on his person. The evidence of these witnesses, which has been corroborated by the evidence of the doctor and the Investigating Officer, hence proves that the appellants and other accused persons committed the murder of the deceased Mahendra Rai. As all the appellants and other accused were armed with weapons and were fleeing together from the P.O after murder, it is also evident that they all shared the common intention to commit the murder of the deceased.

37. It may be pointed out here that in the Fard Beyan the name of Raj Kishore Yadav is not mentioned as accused though the name Raju is mentioned therein. The appellant Raj Kishore Yadav, hence, has filed a voter list (Ext. C) to show that Raju and Raj Kumar are two different persons, but the Addl. Sessions Judge has rightly held that when P.Ws 1 and 2 have identified him in court during their evidence, it cannot be doubted that the appellant Raj Kishore facing trial is the real person.

38. In view of the discussions made above, it is clear that the prosecution has been able to prove the charge under section 302/34 I.P.C against the appellants and the learned Addl. Sessions Judge was justified in convicting them thereunder and in sentencing them as mentioned above.

39. In the result, all the three appeals are dismissed. Since all the appellants are on bail, their bail bonds are cancelled with a direction to surrender in the court below to serve out the sentence imposed upon them. In case the appellants fail to surrender, the learned trial court shall take all steps so as to take the appellants in custody for the purpose.

Rajendra Prasad, J.:—I agree.