Jharkhand High Court
Bimal Rai Son Of Late Bhikan Rai vs The State Of Jharkhand on 24 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:12226-DB
Cr. Appeal (D.B) No. 258 of 2003
[Against the Judgment of conviction dated 05.02.2003, passed by learned
Additional District and Sessions Judge (Fast Track Court) at Saraikela, in
Sessions Trial No.410 of 1997]
1. Bimal Rai Son of Late Bhikan Rai
2. Ganesh Yadav Son of Late Bhagwat Singh
3. Bharat Rai Son of Bimal Rai
All resident of village Bara Gamharia, P.S. Adityapur, District- Seraikella
.... Appellants
Versus
The State of Jharkhand .....Respondent
With
Cr. Appeal (D.B) No. 436 of 2003
Indrajeet Rai Son of Bimal Rai,
Resident of Village Bara Gamharia, P.S. Adityapur,
District-Saraikela- Kharsawa. .... Appellant
Versus
The State of Jharkhand .....Respondent
---------
PRESENT
SRI ANANDA SEN J.
SRI PRADEEP KUMAR SRIVASTAVA J.
--------
For the Appellant : Mr. Naveen Kumar Jaiswal, Adv.
For the State : Mr. Pankaj Kumar, A.P.P.
---------
JUDGMENT
C.A.V. On:-16.12.2024 Pronounced On: 24 /04 /2025
Heard learned counsel for appellants as well as learned Additional
Public Prosecutor appearing for the State.
2. Present criminal appeals are preferred against judgment of conviction
and sentence dated 05.02.2003 passed by S.T. Case No. 410 of 1997 by
Additional District and Sessions Judge (F.T.C.) Saraikella whereby and
2025:JHHC:12226-DB
whereunder the appellants have been held guilty for the offences under
Sections 147 323/149, 302/149 of the I.P.C. and sentenced to undergo
rigorous imprisonment for one year under Section 147 of the I.P.C and
six months R.I. for the offence under Section 323/149 of the I.P.C. and
imprisonment for life for offence under Section 302/149 of the I.P.C. All
the sentences were directed to run concurrently.
FACTUAL MATRIX
3. Factual matrix giving rise to this appeal is that on 11.11.1996 at about
12:00 hours informant Birendra Yadav (P.W.3) went to the flour mill
(Aata Chakki) of his maternal aunt (Mami) for opening the flour mill
where younger son of the appellant (Bimal Rai) told to call upon the
maternal uncle of the informant. Thereafter, informant went to Adityapur
to visit his Mama Sheonath Yadav and was returning with his maternal
uncle and reached near the hotel meanwhile, five persons namely Bimal
Rai, two sons of Bimal Rai, brother-in-law of Bimal Rai and father-in-
law of elder son of Bimal Rai armed with iron rod rushed towards the
informant and his maternal uncle with intention to kill them. It is further
alleged that the accused Bimal Rai, younger son of Vimal Rai, brother-
in-law of Vimal Rai started assaulting maternal uncle of the informant
with iron rod and elder son of Vimal Rai and his father-in-law started
assaulting to informant. It is further alleged that maternal uncle of the
informant (Sheonath Yadav) sustained injuries and fell down on the
ground and on raising alarm several local persons assembled and the
accused persons fled away. The injured was brought to nursing home for
treatment and again for better treatment proceeded to higher centre, but
in the way Sheonath Yadav died. Police arrived on the spot and recorded
the statement of the informant. The motive behind the occurrence was
2025:JHHC:12226-DB
land dispute between the parties.
On the basis of the above information F.I.R. (Exhibit-2) was
registered for the offences under Section 147, 148, 149, 323, 325, 307
and 302 of the I.P.C. against above mentioned five accused persons.
4. Charge of investigation was undertaken by Sub-Inspector Ram Babu
Sharma of Adityapur Police Station. After completion of investigation
the charge-sheet was submitted against all the accused persons.
5. The learned Magistrate after taking cognizance of the offences
committed to the court of Sessions where S.T. No 410/1997 was
registered and proceeded against the appellants. The charges under
Sections 147, 148, 149 and 302 were framed and read over and explained
to the accused persons to which they pleaded not guilty and claimed to
be tried.
In the course of trial altogether nine witnesses were examined by the
prosecution. The case of defence is denial from occurrence and false
implication due to previous enmity. However, no oral or documentary
evidence has been adduced by the defence.
6. Learned trial court after apprising and evaluating the evidence adduced
by the prosecution has held the appellants guilty and sentenced them as
stated above.
7. The learned counsel for the appellants has contended that the learned
trial court has miserably failed to properly appreciate the evidence of
witnesses examined in this case. P.W.1 Rajendra Prasad Yadav put his
signature on inquest report having no personal knowledge about the
occurrence. P.W.2 (Krishna Devi) is the wife of the deceased and is not
an eye witness of the occurrence and has given totally contradictory
evidence as stated by the informant in the F.I.R. P.W.3- Birendra Yadav is
2025:JHHC:12226-DB
the informant. P.W.4- Narendra Kumar Verma is not an eye-witness of
the occurrence. P.W.5 Ravindra Nath Pradhan is formal witness who has
simply identified the signature and writing of the police officer on the
Fard Beyan and P.W.6 (Ramashish Mishra) is the police officer who has
not conducted the investigation rather he has submitted charge-sheet on
the basis of previous investigation of the case. The main investigating
officer has not been examined by the prosecution. P.W.7 (Prithvi Raj
Sahu) is an advocate's clerk who has proved the formal F.I.R. P.W.-8 Dr.
Binay Singh has conducted medical examined the informant Birendra
Prasad Yadav. The injuries found to simple in nature and caused by hard
and blunt substance. P.W.9 Dr. Lallan Choudhary has conducted autopsy
of the deceased (Sheonath Yadav).
It is further submitted that the learned trial court miserably failed to
appreciate that investigating officer of the case has not been examined by
the prosecution which has caused serious prejudice in the defence of
appellants. The evidence of P.W.2 and P.W.3 who have claimed to eye-
witness of the occurrence suffers from material contradictions and
infirmities and also does not find any corroboration from medical
evidence of P.W. 9. The above witnesses have claimed that the deceased
was assaulted by iron rod and the occurrence was also of day light, but
the injury nos.3 and 4 caused to deceased has been found stabbed wound
caused by sharp cutting weapon which cannot be caused by use of iron
rod. Therefore, involvement of present appellants in the alleged offence
stands falsified. It is further submitted that the genesis, manner and place
of occurrence have been mentioned differently at different stages by the
above two eye-witnesses. Under such circumstances, non-examination of
the I.O. has seriously prejudiced the defence. The appellants have been
2025:JHHC:12226-DB
involved in this case only on the basis of previous land dispute without
any cogent and reliable evidence. As a matter of fact, the deceased might
have been killed by someone else and after getting knowledge, the
informant party went to hospital for treatment and after due deliberation
and concoction, the appellants have been made accused in this case. The
P.W.2 and P.W.3 are not consistent in the matter of bringing the manner
of assault and actual participation of the appellants in the alleged offence
as well as the presence of appellants at the spot. Therefore, impugned
judgment and order of conviction and sentence of the appellants is not
justified under law and beyond the weight of evidence available on
record which is liable to be set aside by allowing this appeal.
8. Per contra: learned A.P.P. has opposed the aforesaid contentions raised on
behalf of the appellants and submitted that P.W.2 and P.W.3 are eye-
witnesses of the occurrence who have consistently proved that the
deceased was assaulted by the appellants and P.W.3 has also sustained
injuries in the said incident. Their evidence has remained intact in the
cross-examination. No material contradictions have been brought in their
cross-examination to disbelieve or discard their testimony. Under such
circumstances, non-examination of the I.O. does not affect the
prosecution case which has been proved beyond all reasonable doubt and
the learned trial court after apprising and appreciating over all evidence
available on record and their intrinsic value has rightly convicted the
appellants and sentenced for the offences of murder committed by them.
There is no illegality or infirmity in impugned judgment calling for any
interference by way of this appeal which is fit to be dismissed.
9. We have given anxious consideration to the oral as well as documentary
evidence available on record as adduced by the prosecution and also
2025:JHHC:12226-DB
gone through the impugned judgment and order in the light of
contentions raised on behalf of both side.
11. We find that the appellants have been charged for the offences under
Sections 147, 148 and 302 read with 149 of the I.P.C. The most
important ocular witness of this case are informant (P.W.3) and his
maternal aunt (P.W.2). Other witnesses namely P.W.1 (Rajendra Prasad
Yadav) is a witness of inquest and has only seen the dead body of the
deceased at M.G.M. Hospital. P.W.4 ( Narendra Kumar Verma) has also
claimed that after hearing hulla, he came out from his house situated in
village Gamhari and claims that place of occurrence is about a distance
of 150 yards from his house. He saw crowd of people and Sheonath
Yadav was being taken to nursing home under injured condition. He has
also stated about land dispute between the deceased and appellant Vimal
Rai. Admittedly, this witness is not an eye-witness of the occurrence and
he has also failed to state any particular dispute or scuffle took place
between the parties due to land dispute. P.W.5-Rabindra Nath Pradhan is
an advocate's clerk and his evidence is not relevant as regards the
occurrence.
P.W.6 Ramashish Mishra has only submitted charge-sheet in this case
and he was not a part of investigation.
P.W.7 Prithwiraj Sahay is an advocate's clerk who has proved the
signature of the then Officer Incharge, Adityapur.
P.W.8 Dr. Binay Singh has medically examined the informant and found
following injuries:
(i) Swelling in left hand and tenderness
(ii) Complain of body ache
P.W.9:- Lal Choudhary had conducted the autopsy and found following
2025:JHHC:12226-DB
ante-mortem injuries.
(i) Lacerated wound 7 cm X 2 cm. X bone looking deep over right
parietal region of scalp
(ii) Abrasion 5 cm over frontal region.
(iii)Stab wound 2.5 cm x 5 cm. 5 cm over front of right ear.
(iv) Stab wound 3 cm over back and lower part of right ear.
(v) Linear abrasion 6 cm, 1.5 cm and 1.5 cm above downward over right
side upper part of neck, lower part of right ear.
P.W.3 (Birendra Nath Yadav) is the most important witness and
happens to be informant of this case. Accordingly to his evidence, on
11.11.1996 at about 12:00, he went to Atta Chakki (flour mill) of his
maternal uncle with his maternal aunt where younger son of Bimal Rai
told him to call his maternal uncle then, he started his scooter, but he said
to go by bus and bring his maternal uncle. This witness went by bus and
returned along with his maternal uncle and he just alighted from the bus
and about to reach to place of occurrence meanwhile, Vimal Rai, his both
sons, his brother-in-law and father-in-law armed with iron rods started
assaulting to them. Due to which his maternal uncle (Sheonath Yadav)
sustained injuries and fell down. He has further stated that the brother-in-
law of Vimal Rai and his elder son assaulted to this witness and he
sustained injuries on his left hand. His maternal uncle sustained injuries
on his neck and head. After receiving injuries, he fled away from the
spot. He again came there and saw the dead body of his maternal uncle
where police also arrived and his statement was recorded.
In his cross examination, this witness admits that he was at a close
distance with his maternal aunt at the time when the accused persons
were assaulting him and his maternal aunt was also present at a distance
2025:JHHC:12226-DB
of 20 feet. He also admits that he did not informed about the occurrence
to any local persons residing near the place of occurrence. He further
stated that he cannot say as to who has taken his injured maternal
uncle to hospital. He further admits that at the first time he has
visited police at Aditypur police station where his statement was
recorded. He does not know about any dispute between his maternal
uncle and the accused persons and he has not disclosed about any
land dispute between the deceased and the accused persons before
the police. He was acquainted with other accused persons but not
knowing their names.
P.W.2 (Krishna Devi) has also deposed same line as P.W.3 as regards
calling the deceased from his home by bus at the instance elder son
Bimal Rai. According to her evidence also just when her husband and her
Bhagina (P.W.3) alighted from the bus, accused persons started
assaulting them by iron rods. Her husband sustained injuries on his head
and neck and her Bhagina has also sustained injuries on his hand. The
accused persons fled away after assaulting her husband and Bhagina,
then she managed 2-4 persons for assistance for going to nursing home,
but her husband died in the way.
In her cross-examination, she has claimed that she knows by name
only accused Bimal Rai and she does not the name of other accused
persons. She also admits that in her cross-examination that her Atta
Chakki situtated at the main road where shops of several persons are
situated, but no neighbours assembled at the time of occurrence. She
admits that police arrived at the place of occurrence at about 04:00 PM,
but she had not communicated the message to police. At the time of
occurrence, she did not raised alarm and no local neighbours arrived
2025:JHHC:12226-DB
there. All the accused persons were having iron rods. She alone went to
hospital along with her injured husband by a tempo. She has denied any
enmity with any other persons and also the suggestion of defence that
she is not an eye-witness of the occurrence and has falsely implicated the
accused persons in this case.
12. We have given thoughtful consideration to the eye-witnesses of this case
namely P.W.2 and P.W.3 who have not been able to reproduce the exact
manner of assault, place of occurrence and use of weapon for causing
injuries to the informant and deceased. The post-mortem report
(Exhbit-5) of the deceased clearly goes to show that injury no.3 and 4
were found stabbed wound which may be caused by pointed sharp cut
weapon and other injuries are laceration (Injury No.1), abrasion (Injury
No.2) and linear abrasion (Injury No.3).
Similarly, P.W.3 has also not sustained any visible injury caused by
iron rod as stated by him. It also appears that P.W.2 and P.W.3 have given
different identity of place of occurrence. In view of the above glaring
infirmities and contradictions in the evidence of P.W.2 and P.W.3 cannot
be relied upon. The material contradictions and infirmities creeping in
the evidence of above eye witness could not have been got explained due
to non-examination of the Investigating Officer. The whole prosecution
story has depicted by these two eye-witnesses does not inspire
confidence for making basis of conviction in such a severe offence of
murder. It is trite that the severity of offence attracting severe punishment
imprisonment for life requires the greater degree of proof but in the
instant case the evidence of P.W.2 and P.W.3 appears to be of very shaky
nature. Therefore, we find that the learned trial court has failed to
properly appreciate the evidence of eye-witness in light of post-mortem
2025:JHHC:12226-DB
report and injury sustained by informant as alleged by him at the earliest
stage of the proceeding has not been proved conclusively. Accordingly,
impugned judgment and order of conviction and sentence of the
appellants passed by learned Sessions Judge (Fast Track Court) at
Seraikella in S.T. Case No.410/97 is hereby set aside. These appeals are
Allowed.
13. Appellants are on bail and they are no discharged from their respective
liability of bail bonds and sureties are also discharged.
14. Let the copy of this judgment along with record of trial court be sent back
to concerned Court for information and needful.
(Pradeep Kumar Srivastava, J)
Per Ananda Sen,J.: I agree
(Ananda Sen.J)
Jharkhand High Court, at Ranchi
Date:24 /04 /2025
Amar/- N.A.F.R.
