Patna High Court
Shakuntla Devi vs The State Of Bihar on 27 February, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.518 of 2014
Arising Out of PS. Case No.-33 Year-2012 Thana- CHAORI District- Bhojpur
======================================================
1. Bharath Roy Son of Late Vishnu Roy.
2. Uma Shankar Roy @ Uma Roy Son of Bharath Roy.
3. Sunil Roy Son of Sri Bharat Rai.
All resident of Village Purhara, P.S. Chauri, District Bhojpur.
... ... Appellants.
Versus
The State of Bihar
... ... Respondent.
======================================================
WITH
CRIMINAL APPEAL (DB) No. 583 of 2014
Arising Out of PS. Case No.-33 Year-2012 Thana- CHAORI District- Bhojpur
======================================================
Shakuntla Devi W/O Sri Bharat Rai Resident of Village- Purhara, P.S.-
Chauri, District- Bhojpur.
... ... Appellant.
Versus
The State of Bihar
... ... Respondent.
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 518 of 2014)
For the Appellants : Mr. Ajay Kumar Thakur, Advocate.
Mr. Ravindra Kumar, Advocate.
For the State : Mr. Binod Bihari Singh, A.P.P.
For the Informant : Mr. Madanjeet Kumar, Advocate.
(In CRIMINAL APPEAL (DB) No. 583 of 2014)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate.
Mr. Ravindra Kumar, Advocate.
For the State : Mr. D.K.Sinha, A.P.P.
For the Informant : Mr. Madanjeet Kumar, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE SANDEEP KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
Date : 27-02-2023
By these appeals, appellants/convicted accused are
challenging the Judgment dated 10th April, 2014 and Order dated
16th April, 2014 passed by the learned Adhoc Additional
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Sessions Judge-I, Bhojpur, Ara, in Sessions Trial No.370 of
2012 between the parties thereby convicting them of offences
punishable under Sections 302 read with 34 and 307 read with
34 of the Indian Penal Code. Appellants/convicted accused
Bharath Roy, Uma Shankar Roy alias Uma Roy and Sunil Roy
{in Criminal Appeal (DB) No.518 of 2014} were sentenced to
suffer imprisonment for life till their natural death along with
fine of Rs.2,00,000/- payable by each of them for the offence
punishable under Section 302 read with 34 of the Indian Penal
Code and in default of payment of fine, they are directed to
undergo simple imprisonment for six months. For the offence
punishable under Section 307 read with 34 of the Indian Penal
Code, these appellants/convicted are sentenced to suffer
imprisonment for life along with fine of Rs.1,00,000/- payable
by each of them and in default of payment of fine, they are
sentenced to suffer simple imprisonment for six months.
Appellant/convicted accused Shakuntla Devi {in Criminal
Appeal (DB) No.583 of 2014} is sentenced to suffer
imprisonment for life along with a direction to pay fine of
Rs.2,00,000/- and in default of payment of fine, to undergo
simple imprisonment for six months for the offence punishable
under Section 302 read with 34 of the Indian Penal Code. For
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
the offence punishable under Section 307 read with 34 of the
Indian Penal Code, she is sentenced to suffer imprisonment for
life apart from a direction to pay fine of Rs.1,00,000/- and in
default of payment of fine, to undergo simple imprisonment for
six months. 50% of the amount of fine is directed to be paid to
the family of the deceased persons. Both these appeals are
being decided by this common Judgment as they are arising out
of the same Sessions Case and the same Judgment and Order is
impugned in both these appeals. For the sake of convenience,
the appellants shall be referred to in their original capacity as
"an accused" hereinafter.
2. Facts in brief leading to the prosecution of the
accused persons projected from the police report can be
summarized thus:
(a). Accused no.1 Bharath Roy is husband of
accused no.4 Shakuntla Devi and father of accused no.2 Uma
Shankar Roy and accused no.3 Sunil Roy. Deceased Kamlesh
Roy and Satyendra Roy are his brothers. Deceased Bikash Roy
and Vijay Roy are sons of deceased Kamlesh Roy. Deceased
Shanti Devi is wife of deceased Satyendra Roy. According to
the prosecution case, these accused persons have committed five
murders, two amongst them were murders of real brothers of
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
accused no.1 Bharath Roy, two murders were those of his
nephews and one murder was that of his sister-in-law.
(b). Prosecution witnesses, P.W.1 Akash Kumar @
Vikky Kumar is son of deceased Satyendra Roy, P.W.2 Shanti
Devi is widow of deceased Kamlesh Roy, P.W.3 Sonam Kumari
is daughter of deceased Satyendra Rai, P.W.4 Rubi Kumari, who
is First Informant in this case, is daughter of deceased Kamlesh
Roy and P.W.5 Runam Kumari is daughter of deceased Kamlesh
Roy. P.W.6 Jitendra Roy, who is turned hostile to the
prosecution after proving the formal documents, i.e., inquest
notes, is real brother of accused no.1 Bharath Roy and deceased
Kamlesh Roy as well as deceased Satyendra Roy.
(c). According to the prosecution case, all four
accused persons so also all five deceased and prosecution
witnesses Akash Kumar @ Vikky Kumar, Shanti Devi, Sonam
Kumari, Rubi Kumari, Runam Kumari and Jitendra Roy were
resident of village-Purhara falling within the jurisdiction of
Police Station-Chaori in District-Ara. Accused No.1 Bharath
Roy was Manager of Thakur Bari situated in the village. Rinku
Devi, Mukhiya of the village had paid an amount of Rs.30,000/-
for repair of said Thakur Bari to Satyendra Roy (since
deceased). Said Satyendra Rai in turn had handed over that
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
amount to accused no.1 Bharath Roy. However, according to
the prosecution case, accused no.1 Bharath Roy still insisted on
payment of amount given by Mukhiya Rinku Devi and had
along with his family members murderously assaulted six
persons from the prosecution party out of which five succumbed
to the wounds inflicted on them leaving behind sole survivors
P.W.1 Akash Kumar @ Vikky Kumar son of deceased Satyendra
Roy.
(d). It is averred by the prosecution that members
of the prosecuting party including the deceased had set up two
brick-kilns in the vicinity of their house and near the field. At
about 8 to 08.30 A.M. of 31.05.2012, P.W.1 Akash Kumar @
Vikky Kumar accompanied by his father Satyendra Roy (since
deceased), mother Shanti Devi (since deceased), his uncle
Kamlesh Roy (since deceased) and his cousin Bikash Roy (since
deceased) and Vijay Roy (since deceased) had been to the said
brick-kilns for routine work. When they were breaking coal for
the purpose of firing the brick-kilns, all accused persons came at
the brick-kiln. They were armed with knives and lathies.
Accused no.1 Bharath Roy demanded money from Satyendra
Roy (since deceased) and started abusing. When he was
informed that money has already been paid, accused no.1
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Bharath Roy snatched knife from accused no.2 Uma Shankar
Roy and gave blows thereof on chest of Kamlesh Roy. Accused
No.3 Sunil Roy had given blow of knife on chest of P.W.1
Akash Kumar @ Vikky Kumar. When his father Satyendra Roy
was pulling him back, accused no.3 Sunil Roy had given blows
of knife on chest of Satyendra Roy. Accused No.2 Uma
Shankar Roy snatched the knife from accused no.1 Bharath Roy
and gave blow thereof on chest of Vijay Roy. Accused No.3
Sunil Roy gave a blow of knife on the neck of Bikash Roy. In a
similar way, accused no.4 Shakuntla Devi snatched the knife
from accused no.3 Sunil Roy and gave blow thereof on chest of
Shanti Devi , wife of Satyendra Roy. All injured fell down. P.W.
4 Rubi Kumari was also assaulted by lathi by the accused
persons.
(e). The injured were then taken to the Sadar
Hospital, Ara but while on the way, Kamlesh Roy, Bikash Roy,
Satyendra Roy and Shanti Devi succumbed to the injuries
sustained by them. Vijay Roy was referred to the P.M.C.H.
Patna but on the way, he also succumbed to the injuries. P.W.1
Akash Kumar @ Vikky Kumar was required to take medical
treatment for one and half months at the P.M.C.H. Patna for the
wound suffered by him.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(f). In the meanwhile, Police Station-Chaori had
received information about "Maar-Peet" at village-Purhara at
about 09.00 A.M. of 31.05.2012. P.W.9 Rana Ran Vijay Kumar
then went to village-Purhara and recorded the First Information
Report lodged by P.W.4 Rubi Kumari at the village itself at
11.00 A.M. He claims to have found six injured persons near
the brick kiln at the field and at Karaha (water channel) in the
field. He claims to have sent those injured by police vehicle and
public transport vehicle to the Sadar Hospital, Ara. The F.I.R.
lodged by P.W.4 Rubi Kumari has resulted in registration of
Crime No.33 of 2012 at Police Station-Chaori against the
accused persons for the offences punishable under Sections 341,
323, 324, 325, 326, 307, 447, 302 read with 34 of the Indian
Penal Code.
(g). During the course of investigation, P.W.9 Rana
Ran Vijay Kumar, the Investigating Officer, had visited the spot
of the incident. He found 8 lathies as well as one shoe of Foeve
Company apart from a cover of knife. Those articles were
seized by him. From search of house of accused persons, he
seized a pair of shoes of accused no.3 Sunil Roy, which were
stained with blood, one shoe of accused no.1 Bharath Roy,
which was stained with blood and mobile phones vide Seizure
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Memo (Ext.7). Confessional statements of accused no.2 Uma
Shankar Roy and that of Bharat Roy were recorded and two
knives stained with blood came to be seized under Seizure
Memo (Ext.8) at about 7 P.M. of 31.05.2012. The Investigator
took inquest notes upon examining dead bodies and those were
dispatched for autopsy. Injured P.W.4 Rubi Kumari was also
sent for medical examination.
(h). P.W.10 Dr. Ashok Kumar Pandey had
performed post-mortem examination on dead body of Satyendra
Roy, Kamlesh Roy and Shanti Devi on 31.05.2012 at the Sadar
Hospital, Ara. P.W.11 Dr. Rajiv Kumar, Medical Officer at
Primary Health Centre, Peero, had medically examined P.W.4
Rubi Kumari on 01.06.2012. P.W.12 Dr. Arun Kumar Singh of
P.M.C.H. Patna had conducted post-mortem examination on
dead body of Vijay Kumar on 01.06.2012. P.W.13 Dr. T.A.
Ansari of the Sadar Hospital, Ara, had medically examined
P.W.1 Akash Kumar @ Vikky Kumar on 31.05.2012.
(i). Routine Investigation followed and had
resulted in filing of the chargesheet against all four accused
persons for the offences punishable under Sections 447, 341,
323, 324, 325, 326, 307 and 302 read with 34 of the Indian
Penal Code.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(j). After committal of the case, the learned trial
court had framed the charge and explained it to the accused
persons. They pleaded not guilty and claimed trial.
(k). In support of prosecution case, the prosecution
has examined in all 13 witnesses. Those are:
(i). P.W.1 Akash Kumar @ Vikky Kumar. He
claims to be an injured eye witness.
(ii). P.W.2 Shanti Devi, widow of deceased
Kamlesh Roy who is claiming to be an eye
witness.
(iii). P.W.3 Sonam Kumari, daughter of deceased
Satyendra Roy who is claiming to be an eye
witness.
(iv). P.W.4 Rubi Kumari, daughter of deceased
Kamlesh Roy who is claiming to be an eye
witness.
(v). P.W.5 Runam Kumari, daughter of deceased
Kamlesh Roy who is claiming to be an eye
witness.
(vi). P.W.6 Jitendra Roy, who turned hostile to the
prosecution.
(vii). P.W.7 Rajendra Roy, Panch witness on seizure.
He also turned hostile to the prosecution.
(viii). P.W.8 Harinandan Singh, ASI of Police
Station-Chaori. He brought seized articles
before the court during trial.
(ix). P.W.9 Rana Ran Vijay Kumar, the
Investigating Officer.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(x). P.W.10 Dr. Ashok Kumar Pandey, Medical
Officer of Ara-an Autopsy Surgeon .
(xi). P.W.11 Dr. Rajiv Kumar, Medical Officer of
Primary Health Centre, Peero who had
examined P.W.4 Rubi Kumari.
(xii). P.W.12 Dr. Arun Kumar Singh, Autopsy
Surgeon at P.M.C.H., Patna.
(xiii). P.W.13 Dr. T.A. Ansari, Medical Officer of
Sadar Hospital, Ara, who had examined
P.W.1 Akash Kumar @ Vikky Kumar on
31.05.2012.
(l). Defence of the accused persons was that of
total denial. They alleged that members of the prosecuting party
indulged in "Maar-Peet" against them causing injuries to them
and they are falsely implicated in the crime in question. It is
also defence of the accused persons that the counter case in
respect of the incident is also registered on the basis of F.I.R.
lodged by accused No.2 Uma Shankar Roy. However, they did
not enter in defence by examining defence witnesses.
(m). After hearing the parties, by the impugned
Judgment and Order, the learned trial court was pleased to
convict and sentence the accused persons as indicated in the
opening para of this Judgment. Feeling aggrieved thereby,
accused no. 1 Bharath Roy, accused no. 2 Uma Shankar Roy @
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Uma Roy and accused No. 3 Sunil Roy have preferred Criminal
Appeal (DB) No. 518 of 2014 whereas accused no. 4 Shakuntla
Devi has preferred Criminal Appeal (DB) No. 583 of 2014
which are being decided by this common Judgment.
3. We have heard Mr. Ajay Kumar Thakur, the
learned counsel appearing for the appellants at sufficient length
of time. He argued that evidence of prosecution shows that on
two occasions, two different police officers visited spot of the
incident and took the injured to the hospital. P.W.2 Shanti Devi
has admitted in her cross-examination that A.S.I. Upadhayaya of
Police Station Chaori came on the spot first in point of time and
took some of the injured to the hospital. Her evidence shows
that within one minute police came on the spot. It is further
argued that P.W.4 Rubi Kumari has admitted in her cross-
examination that police came on the spot at 10:00 A.M. and had
arrested the accused persons in 1½ to 2 hours. It is further
argued by placing reliance on evidence of P.W.5 Runam Kumari
that accused persons were taken to the hospital by police for
treatment and injured from her family were taken to the hospital
by public transport vehicle by Bhuwar, P.W.6 Jitendra Rai and
P.W.2 Shanti Devi. By relying on evidence of P.W.9 Rana Ran
Vijay Kumar, the learned counsel for the appellants argued that
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
evidence of this witness shows that he visited the spot of the
incident at 10.15 A.M. and saw six persons lying injured near
the brick-kilns and claims to have dispatched these injured to
the Ara Hospital with PSI Surendra Paswan. In submission of
the learned counsel for the appellants, this evidence goes to
show that even prior to taking the injured from the prosecuting
party for treatment, accused persons were taken for medial
treatment to the hospital at Peero by police officer named
Upadyaya who is not examined by the prosecution in this case.
Next submission of the learned counsel for the appellants is to
the effect that the FIR lodged by P.W.4 Rubi Kumari had
actually reached to the concerned court of the Chief Judicial
Magistrate on 02.06.2012 and this delay in sending the F.I.R. to
the court indicates concoction by the prosecution. It is further
submitted that place of the occurrence is not proved by the
prosecution as the Investigating Officer says that the place of
occurrence is in the field and at Karaha (water channel) in the
field of Krishna and others. Coal dust was not seen on dead
bodies though it is alleged by the prosecution that they were
breaking coal. This fact is established from the inquest report.
By placing reliance on testimony of hostile witness P.W.6
Jitendra Roy, it is argued that A.S.I. Harinandan who has
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
recorded the statement of this witness at the hospital is also not
examined by the prosecution. It is also submitted that though the
prosecution claimed that the assault is also by lathies, medical
evidence is not supporting the prosecution case on this aspect as
no injuries by lathies were found on the persons of the deceased
as well as the injured. Evidence of the Investigating Officer
shows that eight lathies were seized vide Seizure Memo (Ext.6)
from the harvested field and those lathies were stained with
blood. Evidence on record shows that all deceased got incised
injuries except injury to P.W.4 Rubi Kumari and Bikash. This
creates doubt in the prosecution case. The learned counsel for
the appellants also argued that the investigation conducted by
P.W.9 Rana Ran Vijay Kumar is totally defective. Evidence on
record shows that accused persons were taken to the hospital by
the very first police officer who reached on the spot of the
incident. However, though none of the accused person is stated
to be returned to the house thereafter, the Investigating Officer
says that he arrested the accused persons at 03:00 P.M. and had
effected recoveries from their house as well as well, at their
instance. The Investigating Officer was confronted with injury
report of the accused persons. It is submitted that the F.I.R.
lodged by Raju Roy was not brought on record and he was not
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
examined. The accused persons were injured in the incident in
question and the prosecution has not explained the injuries
suffered by the accused persons in the incident in question.
Therefore, on account of defective investigation, suppression of
facts and the first version about the incident, delay in sending
the F.I.R. to the concerned court, the incident resulting in
registration of cross case so also due to non-explanation of
injuries on the accused persons by the prosecution a serious
shadow of doubt is casted on prosecution case entitling the
accused persons for acquittal.
4. To buttress the submission so advanced, the learned
counsel for the appellants relied on the following Judgments:-
I. Meharaj Singh (L/Nk.) Vs. State of U.P.
reported in (1994) 5 Supreme Court Cases 188.
II. Thanedar Singh Vs. State of M.P. reported in
(2002) 1 Supreme Court Cases 487.
III. Arjun Marik and Others Vs. State of Bihar
reported in 1994 Supp (2) Supreme Court Cases
IV. State of Rajasthan Vs. Teja Singh and Others
reported in (2001) 3 Supreme Court Cases 147.
V. State of Bihar Vs. Harinandan Singh reported
in 1970 (e) PLJR-HC 1753405.
VI. Ravishwar Manjhi and Others Vs. State of
Jharkhand reported in (2008) 16 Supreme
Court Cases 561.
VII. Subramani and Another Vs. State of T.N.
reported in AIR 2005 Supreme Court 1983.
VIII. Chotkau Vs. State of Uttar Pradesh reported
in AIR 2022 Supreme Court 4688.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
IX. State of Rajasthan Vs. Daud Khan reported in
(2016) 2 Supreme Court Cases 607.
X. Nallabothu Ramulu @ Seetharamalah and
Others Vs. State of Andhra Pradesh reported
in (2014) 12 Supreme Court Cases 261.
XI. Suresh Singhal Vs. State (Delhi
Administration) reported in (2017) 2 Supreme
Court Cases 737.
XII. Darshan Singh Vs. State of Punjab and
Another reported in (2010) 2 Supreme Court
Cases 333
XIII. Anand Ramchandra Chougule Vs. Sidari
axman Chougala and Others reported in
(2019) 8 Supreme Court Cases 50.
XIV. Kashiram and Others Vs. State of M.P.
reported in (2002) 1 Supreme Court Cases 71.
XV. Rizan and Another Vs. State of Chandigarh
reported in AIR 2003 Supreme Court 976.
XVI. Raghunath Vs. State of Haryana and Another
reported in (2003) 1 Supreme Court Cases 398.
XVII. Sudhir and Others Vs. State of M.P. reported
in AIR 2001 Supreme Court 826.
XVIII. Nathi Lal and Others Vs. State of U.P. and
Another reported in 1990 (Supp) Supreme
Court Cases 145.
XIX. State of M.P. Vs. Mishrilal (Dead) and Others
reported in (2003) 9 Supreme Court Cases 426.
5. The learned Prosecutor supported the impugned
judgment and order by arguing that eyewitnesses have
supported the prosecution case.
6. We have considered the submissions so advanced.
We have also perused the records and proceedings minutely. We
have also gone through each and every Judgment cited on behalf
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
of the appellants.
7. According to the prosecution case, in all five
persons were done to death by the accused persons in the
morning hours near the brick-kiln at about 08:00 A.M. to 8:30
A.M. of 31.05.2012 at village Purhara in District Ara apart from
an attempt to commit murder of P.W.1 Akash Kumar @ Vikky
Kumar and hurt to P.W.4 Rubi Kumari. Therefore, at the outset,
it is incumbent on the part of the prosecution to establish
homicidal death of following persons which according to the
prosecution case were murdered by the accused persons :-
1. Kamlesh Roy.
2. Bikash Roy
3. Vijay Roy.
4. Satyendra Roy.
5. Shanti Devi w/o Satyendra Roy.
The defence had not disputed the factum of death of
these five persons occurring on 31.05.2012.
8. To establish homicidal death of these persons, the
prosecution has relied on ocular version coming on record from
the Autopsy Surgeons P.W.10 Dr. Ashok Kumar Pandey and
P.W.12 Dr. Arun Kumar Singh apart from evidence of near and
dear ones of the deceased as well as documentary evidence in
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
the form of inquest notes and reports of post mortem
examination. Homicidal death of these persons is not in much
dispute. P.W.1 to P.W.5 have candidly deposed about homicidal
death of these five persons, who are closely related to them,
occurring on 31.05.2012 and their evidence on this aspect is not
challenged by the defence. Their evidence is gaining
corroboration from the documentary evidence in the form of
inquest notes at Exts-15, 15-1 to 15-4, which are proved by
P.W.9 Rana Ran Vijay Kumar, the I.O. Evidence on record
shows that on the way to the hospitals they succumbed to death.
8(a). P.W.10 Dr. Ashok Kumar Pandey, Medical
Officer of the Sadar Hospital, Ara conducted post-mortem
examination on dead bodies of four deceased, namely,
Satyendra Roy, Kamlesh Roy, Bikash Roy and Shanti Debvi. It
is in his evidence that on 31.05.2012, i.e,, on the date of incident
itself, at 01:50 P.M., he conducted post-mortem examination on
the dead body of Satyendra Rai and found following anti-
mortem injuries on the said dead body :-
(i).Incised wound 2.3 cm x 0.3 cm on left side of chest
below 4th intercostal space x cavity deep mid line.
(ii) Incised wound 2.3 cm x 0.3 cm on right side of
chest below 6th intecostal space x cavity deep.
(iii) Incised wound 2.3" cm x 0.3" cm x muscle deep
on right leg laterly.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
This Autopsy Surgeon vouched that Satyendra Roy
died due to Cardio Respiratory failure caused by hemorrhage
and shock due to injuries no.(i) and (ii), which were caused by
knife or any penetrating sharp cutting weapon. The report of
post-mortem examination at Ext.17 is corroborating the version
of this witness.
8(b). P.W.10 Dr. Ashok Kumar Pandey further
deposed that thereafter he conducted post-mortem examination
on dead body of Kamlesh Roy and had noticed the following
two anti-mortem injuries on dead body :-
(i) Incised wound 2.3 cm x 0.3 cm X cavity deep on
left side of chest-qutero laterally in 4th inters coastal
space.
(ii) Incised wound 2.3 cm x 0.2 cm X cavity deep, on
right side of upper abdomen.
As per version of this Autopsy Surgeon, Kamlesh
Roy died due to cardio respiratory failure caused by
hemorrhage and shock due to injuries no.(i) and (ii) which were
caused by sharp cutting, penetrating weapon such as knife. The
post-mortem report of Kamlesh Rai proved by this witness is at
Ext.18 and the same is corroborating his testimony.
8(c). P.W.10 Dr. Ashok Kumar Pandey further
testified that thereafter he conducted post-mortem examination
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
on dead body of Bikash Kumar Roy and found the following
anti-mortem injury on his dead body :-
(i) Incised wound 2.3 cm x 0.3 cm x muscle deep on
left side of neck at its root.
This Autopsy Surgeon testified that Bikash Kumar
died due to cardio respiratory failure caused by hemorrhage and
shock caused by the injury to his neck. According to his version,
the said injury is possible by sharp cutting weapon such as
Chhura. The report of post-mortem examination of dead body of
Bikash Kumar Roy is at Ext.19. Evidence of the autopsy
surgeon is gaining corroboration from this document.
8(d). P.W.10 Dr. Ashok Kumar Pandey further stated
that thereafter he conducted post-mortem examination on dead
body of P.W.2 Shanti Devi and found the following anti-mortem
injury on her chest :-
(i) Incised penetrating wound 2.3 cm x 0.3 cm x
cavity deep on left side of chest anterioraly in 5 th
inter costal space.
As per her version of this Medical Officer, Shanti
Devi died due to cardio respiratory failure caused by
hemorrhage and shock caused by the injury and the said injury
is possible by sharp cutting penetrating weapon such as Chaku
or Chhura. The post-mortem report proved by this witness is at
Ext.20. In cross-examination, this Autopsy Surgeon has
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
reiterated that death was due to excessive bleeding and shock
and he had not found any injury on dead bodies, caused by hard
and blood substance.
8(e). Evidence on record shows that Vijay Kumar
was referred to P.M.C.H. Patna but he died on the way. Post-
mortem examination on his dead body was conducted on
01.06.2012 by P.W.12 Dr. Arun Kumar Singh of P.M.C.H.
Patna. This witness deposed that he had found following anti-
mortem injury on the dead body :-
(i) One punctured (stabbed) wound of 2" x 1" x
cavity deep of size on right side of chest, 5" right
from mid line 5 1/2" right and above from
umbilicus and 7" below from right nipple.
This injury had resulted in puncturing of the lever
and diaphragm of the deceased. As per version of this Medical
Officer the wound was caused by sharp and pointed weapon like
Chhura.
8(f). This is all in evidence of the Autopsy
Surgeons regarding the cause of death of five victims in this
case. Evidence of both these Autopsy Surgeons shows that the
victims scummed to the wounds sustained by them on vital parts
of their body. This evidence coupled with ocular evidence
coming from near relatives of the victims and documentary
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
evidence in the form of inquest reports and post mortem reports
is sufficient to hold that the prosecution has established the fact
that Kamlesh Roy, Bikash Roy, Vijay Roy, Satyendra Roy and
Shanti Devi w/o of Satyendra Roy died homicidal death on
31.05.2012.
9. Now, the question which falls for consideration
is whether the accused persons or any of them have committed
this offence of commission of murder of five persons. Prior to
consideration of evidence on this aspect, it will be apposite to
place on record medical evidence in respect of wounds sufferred
by P.W.1 Akash Kumar @ Vikky Kumar and P.W.4 Rubi
Kumari, who are alleging to have suffered those injuries during
the course of incident. This is necessary because if it is
established that these two witnesses were injured in the incident
in question then they assumes the character of 'injured
witnesses'.
9(a). P.W.11 Dr. Rajiv Kumar was posted at
Primary Health Centre, Peero and in pursuant to the official
requisition of police on 01.06.2012, he medically examined
P.W.4 Rubi Kumari. As per version of this Medical Officer, he
found following injuries on person of Rubi Kumari at 09.45
A.M. of 01.06.2012:
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(i) An abrasion on left forearm at extensour surface
of forearm of about 2" x ¼".
(ii) Swelling on left forearm at extensor surface.
This Medical Officer has proved the injury report
of P.W.4 Rubi Kumari and it is at Ext.21. In cross-examination,
he stated abrasion was superficial in nature and there was no
external mark on swelling. Version of this Medical Officer thus
shows that he notice two wounds on the person of P.W.4 Rubi
Kumari immediately on the next day of the incident, indicating
that she sustained these injuries during the course of the incident
dated 31.05.2012.
9(b). In a similar way, P.W.13 Dr. T.A. Ansari,
Medical Officer of Sadar Hospital, Ara, had examined P.W.1
Akash Kumar @ Vikky Kumar on the date of the incident, soon
after the incident, i.e., at about 10.15 A.M. of 31.05.2012.
Evidence of this Medical Officer shows that he noticed incised
wound over right chest of Akash Kumar @ Vikky Kumar of size
2" x 1/2" x deep cavity. P.W.13 Dr. T.A. Ansari has
categorically deposed that condition of the injured was serious
and as such he was referred to P.M.C.H., Patna for further
treatment. As per version of this Medical Officer, the wound
was caused by a sharp cutting weapons within 6 hours of his
examination. The injury report of P.W.1 Akash Kumar @ Vikky
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Kumar is at Ext.23 and the same is corroborating the version of
this medical officers. There is nothing worth mentioning in
cross-examination of this witness. It is thus crystal clear that
P.W. 1 Akash Kumar @ Vikky Kumar had sustained this wound
on his chest during the course of the incident which took place
prior to about 2 hours to his medical examination.
10. We are thus having advantage of evidence of
injured witness, namely, P.W.1 Akash Kumar @ Vikky Kumar
in the case in hand. As stated above, this witness is proved to
have suffered serious wound on his chest at the time of the
incident and this fact is certified by P.W.13 Dr. T.A. Ansari, who
had examined him soon after the incident. It is not even
remotely suggested to P.W.1 Akash Kumar @ Vikky Kumar that
he had sustained wound on his chest in some other incident than
the incident in question, during the course of his cross-
examination. Hence we see no reason to doubt the statement of
this witness that he was injured in the incident in question.
Principles of appreciation of evidence of injured witnesses can
be found in catena of Judgments rendered by the Hon'ble
Supreme Court. In the matter of Bonkaya V/s. State of
Maharashtra reported in 1995 (2) SCC 447, Hon'ble Supreme
Court has held that injured witnesses are stamped witnesses
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
whose presence on the scene of occurrence admits no doubt and
as being themselves victims, they did not leave the real
assailants and substitute them with innocent persons. It is well
settled that evidence of injured eye witness cannot be discarded
in toto on the ground of inimical disposition towards the
accused or improbabilities of narrating the details of actual
attack. Evidence of the injured witness has to be scrutinized
with caution taking into account the factum of previous enmity
and tendency to exaggerate and to implicate as many as
possible. Witnesses who are natural ones and are the only
possible eye witnesses in the circumstances of a case cannot be
said to be interested witnesses. A witness is interested only
when he derives some benefit from the result of the litigation.
Evidence of injured witnesses if otherwise reliable and
trustworthy, then it carries more weight and cannot be thrown
away merely because the same is not corroborated by any
independent witness. Little Discrepancies cannot make
evidence of injured witnesses unacceptable, when their evidence
as a whole has a ring of truth.
11. As stated in foregoing paragraphs, one branch
of the family headed by accused no.1 Bharath Roy had,
according to the prosecution case, eliminated his two brothers,
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
two nephews and one sister-in-law. Five witnesses, who claim
to have seen this incident of massacre are one son of the
deceased, one widow and three daughters of deceased persons.
Thus eye witnesses are closely related to the deceased and also
to the accused persons. One may argue that eye witnesses
being closely related to the victims of this offence are naturally
having inimical dispositions against the accused persons. In this
context, it is apposite to put on record the law relating to the
appreciation of evidence of the related witnesses and the
witnesses having enmity against the accused. In the matter of
Balraje alias Trimbak Vs. State of Maharashtra, reported in
(2010) 6 SCC 673, the Supreme Court has explained that when
the eye witnesses are stated to be interested and inimically
disposed towards the accused, it has to be noted that it would
not be proper to conclude that they would shield the real culprit
and rope in innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically. The court would be
required to meticulously analyze the evidence of related
witnesses and those witnesses who are inimically disposed
towards the accused. But if after careful analysis and scrutiny
of their evidence, the version given by the witnesses appears to
be clear, cogent and credible, there is no reason to discard the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
same. Thus, close scrutiny of evidence of such type of
witnesses is required to be done and if their evidence is found to
be trustworthy, the same can be accepted. In Dalip Singh v.
State of Punjab, AIR 1953 SC 364, the Supreme Court in
paragraph-26 observed thus:
"26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close
relative would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high and
there is personal cause for enmity, that there is
a tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid for
such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However, we
are not attempting any sweeping
generalisation. Each case must be judged on
its own facts. Our observations are only made
to combat what is so often put forward in cases
before us as a general rule of prudence. There
is no such general rule. Each case must be
limited to and be governed by its own facts."
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Similarly, in Masalti Versus State of U.P., A.I.R.
1965 SC 202, following are the observations of the Supreme
Court in paragraph-14:
"14. ..... There is no doubt that when a
criminal court has to appreciate evidence
given by witnesses who are partisan or
interested, it has to be very careful in
weighing such evidence. Whether or not there
are discrepancies in the evidence; whether or
not the evidence strikes the court as genuine;
whether or not the story disclosed by the
evidence is probable, are all matters which
must be taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence of partisan or interested witnesses.
Often enough, where factions prevail in
villages and murders are committed as a
result of enmity between such factions,
criminal courts have to deal with evidence of
a partisan type. The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
justice. No hard-and-fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be rejected
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
because it is partisan cannot be accepted as
correct."
In Harbans Kaur Versus State of Haryana,
(2005) 9 SCC 195, the Supreme Court has held thus in
paragraph-6:
"6. There is no proposition in law that
relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be
shown when a plea of partiality is raised to
show that the witnesses had reason to shield
actual culprit and falsely implicate the
accused."
Similarly, in Namdeo Versus State of
Maharashtra, (2007) 14 SCC 150, the following are the
observations of the Supreme Court in paragraph-38:
"38. ... it is clear that a close relative cannot
be characterised as an "interested" witness.
He is a "natural" witness. His evidence,
however, must be scrutinised carefully. If on
such scrutiny, his evidence is found to be
intrinsically reliable, inherently probable and
wholly trustworthy, conviction can be based
on the "sole" testimony of such witness.
Close relationship of witness with the
deceased or victim is no ground to reject his
evidence. On the contrary, close relative of
the deceased would normally be most
reluctant to spare the real culprit and falsely
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
implicate an innocent one."
12. Keeping in mind this position of law regarding
appreciation of evidence of inimical as well as related
witnesses, let us examine the version of alleged injured and
eyewitnesses in order to ascertain whether they had actually
witnessed the incident and their evidence is intrinsically
reliable, inherently probable and wholly trustworthy in order to
place explicit reliance on the same for recording conviction.
13. P.W.1 Akash Kumar @ Vikky Kumar, whose
father Satyendra Roy has died in the incident in question and
who had sustained serious incised wound on right side of his
chest has deposed that at about 08.00 to 08.30 A.M. of
31.05.2012, he along with his father Satyendra Roy, mother
Shanti Devi, uncle Kamlesh Roy and cousins Bikash Roy and
Vijay Roy were at their brick kiln, breaking the coal for firing
the brick kilns. At that time, accused no.1 Bharath Roy armed
with lathi, accused no.2 Uma Shankar Roy armed with knife
and lathi, accused no.3 Sunil Roy armed with knife and lathi as
well as accused no.4 Shakuntla Devi armed with lathi came at
that spot. P.W.1 Akash Kumar @ Vikky Kumar further testified
that then accused no.1 Bharath Roy demanded money paid by
Mukhiya Rinku from his father Satyendra Rai and his father
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
replied that money is already paid and nothing is in balance.
Then, accused no.1 Bharath Roy while hurling abuses, snatched
knife from his son accused no.2 Uma Shankar Roy and gave
blows thereof on chest of Kamlesh Roy. P.W.1 Akash Kumar
@ Vikky Kumar further stated that when he shouted, accused
no.3 Sunil Roy gave a blow of knife on his chest and when his
father Satyendra Roy tried to pull him back, accused no.3 Sunil
Roy gave blows of knife on chest of his father Satyendra. His
father Satyendra Roy fell down in Karaha (water channel) in
the filed. P.W.1 Akash Kumar @ Vikky Kumar further stated
while in the witness box that accused no.2 Uma Shankar Roy
snatched knife from accused no.1 Bharath Roy and gave blows
thereof on chest and abdomen of Vijay Roy. Accused no.3
Sunil Roy gave blow of knife on neck of Bikash Roy and
assaulted Shanti Devi by lathi. He further stated that accused
no.4 Shakuntla Devi snatched knife from accused no.3 Sunil
Roy and gave a blow thereof on chest of Shanti Devi w/o
Satyendra. He further testified that P.W.4 Rubi Kumari who is
daughter of his uncle Kamlesh Roy was assaulted by accused
no.3 Sunil Roy by means of lathi and, therefore, she ran away
towards their house. As per version of P.W.1 Akash Kumar @
Vikky Kumar, then injured were taken to the hospital by public
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
transport vehicle but except Vijay Roy, all died on the way to
the hospital and Vijay Roy died on the way from the Sadar
Hospital to P.M.C.H., Patna. As per version of this witness,
accused no.1 Bharath Roy is Manager of Thakur Bari in the
village for repair of which Mukhiya Rinku had paid Rs.30,000/-
to Satyendra Rai and Satyendra Rai had, in turn had already
paid that amount to accused no.1 Bharath Roy. This is all what
this injured witness says about the incident in question leading
to the death of his five family members.
14. To test the veracity of version of this injured
witness P.W.1 Akash Kumar @ Vikky Kumar, he was
thoroughly cross examined by the defence. His cross-
examination reveals that his house is situated at a distance of
100 yards from the brick-kiln where the incident took place. It
is elicited from his cross-examination that they all were siting at
a distance of abouty 5 to 6 meters from the brick-kiln. In order
to test truthfulness of his version, he was questioned about the
weapons held by the accused persons during the course of his
cross examination but he has reiterated correctly weapons held
by all accused persons individually and has further answered
that it was accused no.1 Bharath Roy, who was the first
assailant to start assaulting the members of the prosecuting
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
party. He stated that they did not assault accused in defence
and showed ignorance about the injuries on the accused
persons. There is nothing in cross-examination of this witness
to doubt his version. There is no suggestion to this witness that
the accused persons or any of them were not present on the spot
of the incident at the time of the incident.
If we compare evidence of this injured witness with
medical evidence coming from the mouth of P.W.10 Dr. Ashok
Kumar Pandey, P.W.11 Dr. Rajiv Kumar, P.W.12 Dr. Arun
Kumar Singh and P.W.13 Dr. T.A. Ansari, then it is seen that
version of this injured witness is perfectly in tune with the
medical evidence on record, which we have already discussed
in foregoing paragraphs. Suffice to reiterat that dead body of
Satyendra Roy, as stated by this witness P.W.1 Akash Kumar @
Vikky Kumar, was found to be having two incised wounds on
chest and dead body of Kamlesh Roy was found to be having
two incised wound one on chest and another at abdomen.
Dead body of Bikash Roy was found to be having one incised
wound on the left side of neck. Dead body of Shanti Devi was
also found to be having one incised wound on chest and dead
body of Vijay Roy was found to be having one punctured
wound on right side of chest. This witness from the medical
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
evidence on record is also proved to be having one incised
wound on his chest requiring treatment as indoor patient at the
P.M.C.H. for one and half months. As it is proved that this
witness had suffered the wound on his chest in the incident in
question, it is difficult to dislodge this clear, cogent and
consistent version of P.W.1 Akash Kumar @ Vikky Kumar
merely for the reason that he has shown ignorance to the
wounds suffered by the accused persons which we will dwell
upon in the later part of the Judgment. At this juncture, suffice
to state that wounds suffered by the accused persons were
simple in nature as seen from the injury certificates produced
by them on record at Exhibit-B to B2. We are unable to find
out anything from the evidence of this witness to disbelieve his
version about the incident in question which he himself had
witnessed and suffered a stab wound thereat.
15. P.W.2 Shanti Devi is widow of deceased
Kamlesh Roy and as per her version, while sitting at the door of
ladies room of her house, at about 08.00 to 08.30 A.M. of the
date of the incident, she saw all accused persons proceeding
from the front of her house towards her brick-kilns while armed
with lathis and knives. So far as holding the weapons by the
accused is concerned, her version is perfectly in tune with the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
version of P.W.1 Akash Kumar @ Vikky Kumar. She further
stated that her family members were at the brick-kiln, breaking
the coal. She stated that she saw accused no.1 Bharath Roy
taking knife from accused no.2 Uma Shankar Roy and
assaulting Kamlesh Roy by that knife. She further testified that
then accused no.2 Uma Shankar Roy took knife from the
accused no.1 Bharath Roy and gave blow thereof to Vijay Roy.
P.W.2 Shanti Devi further deposed that accused no.3 Sunil Roy
gave blow of knife and lathi to P.W.1 Akash Kumar @ Vikky
Kumar so also to Satyendra Roy and Bikash Roy. She further
stated that accused no.4 Shakuntla Devi initially gave blow of
lathi and thereafter that of knife taken from accused no.3 Sunil
Roy to deceased Shanti Devi. She further deposed that accused
no.3 Sunil Roy assaulted P.W.4 Rubi Kumari by means of lathi.
As per version of P.W.4 Shanti Devi, she herself and Raju took
injured by jeep to the Sadar Hospital, Ara and on the way, all
injured except Vijoy Roy and Akash died. On the way to
P.M.C.H. Patna, Vijay also died. She stated that P.W.4 Rubi
Kumari was treated at Ara. She has also disclosed the reason
for the incident, i.e. payment of money by the Mukhiya of the
village to Satyendra Roy for the purpose of Thakur Bari.
Presence of all accused persons on the spot of the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
incident i.e., at the brick klins of the prosecution party is not at
all challenged in the cross-examination of this witness also. In
her cross examination, she stated that she had seen the incident
which lasted for about half an hour from her door but she had
not seen injuries on the person of the accused. As per her
version, the brick kiln was at the distance of 20 steps on the
eastern side of her house. She stated that after the incident
police reached the spot in one minute and took some of the
injured to the hospital. Injured left by the police went to the
hospital subsequently. She stated that A.S.I. Upadhyay of
Chaori Police Station had come there. She admitted that
counter case is filed in respect of this incident by accused
persons.
16. P.W.2 Shanti Devi is a rustic lady residing in
remote village Purhara. Though the appellants are trying to
make a capital of her statement in the cross-examination that
A.S.I. Upadhyay came on the spot within one minute of the
incident and though the appellants are attempting to show that
A.S.I. Upadhyay had, in fact, taken the accused persons to the
hospital immediately from the spot, we are unable to accept this
interpretation of version of P.W.2 Shanti Devi by the appellants.
The learned counsel for the appellants probably wants to take
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
aid of letters written by police officer Upadhyay while
forwarding the accused persons to the hospital to show that, in
fact, the accused persons had sustained grievous wounds and
that they were taken to the hospital first by the police officer
named Upadhaya. This submission is totally misconstrued.
This witness had not stated that Police Officer Upadhaya was
the first to reach on the spot or that said Upadhaya had taken
the accused to the hospital after one minute from the incident.
Injury reports on which appellants are placing reliance though
not formally proved by examining the concerned medical
witness, undoubtedly shows that injuries on the accused persons
were simple in nature. Neither the injury certificate nor the
forwarding letters of police shows that the accused persons
were taken to the Primary Health Centre, Peero in the morning
hours of 31.05.2012. In the matter of Shivaji Sahabrao
Bobade and another Vs. State of Maharashtra reported in
(1973) 2 Supreme Court Cases 793, the Hon'ble Supreme
Court has reiterated that evidence of rural witnesses should not
be judged by same standard of exactitude and consistency as
that of urban witnesses, regard being kept for the way of life in
rural areas. In the case in hand also scene of murder is rural
and witnesses are rustics. Therefore, their behavioural pattern
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
and perspective habits are required to be judged keeping in
mind these aspects and sophisticated approach cannot be
adopted by the court while weighing and appreciating evidence
of such villagers who have lethargic ways of life. If core of
testimony of such rustic villager is truthful and in tune with the
probability then their sluggish chronometic sense is required to
be ignored. It is in this sense, we will have to appreciate
statement of P.W.2 Shanti Devi coming on record from her
cross-examination that police came within one minute of the
incident and took some of the injured to the hospital. The
printed F.I.R. itself shows that Police Station-Chaori is at a
distance of several kilometers away from the place of the
incident and, therefore, on the face of record, this statement of
P.W.2 Shanti Devi cannot be construed to mean that it was
A.S.I. Upadhyay from that police station who came on the spot
immediately within one minute and took the accused persons to
the Primary Health Centre, Peero. We, therefore, see no reason
to disbelieve version of this witness regarding the mode and
manner of assault which is perfectly in tune with the version of
the injured witness P.W.1 Akash. She may not be perfectly
correct in judging the distance between her house and brick-kiln
where the incident took place but there is nothing in her cross-
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
examination to suggest that the spot of the incident was not
visible from her house. There is no material in cross-
examination of this witness to disbelieve her version.
17. The third witness is P.W.3 Sonam Kumari, who
is daughter of the deceased Satyendra Roy. As per her version,
she came out of her house when she heard hulla at the brick-
kiln. She testified that she saw accused no.1 Bharath Roy
quarreling with her father Satyendra Roy. As per her statement,
then accused no.1 Bharath Roy took knife from accused no.2
Uma Shankar Roy and gave blows thereof on chest of Kamlesh
Roy. She further stated that accused no.3 Sunil Roy gave blows
of knife to Satyendra causing his fall in the Karaha. P.W.3
Sonam Kumari further stated that accused no.2 Uma Shankar
Roy assaulted Vijay and Bikash by knife and accused no.4
Shakuntla Devi assaulted Shanti Devi by knife. She deposed
that accused no.3 Sunil Roy gave a blow of knife to P.W.1
Akash Kumar @ Vikky Kumar. Then, as stated by this witness,
P.W.2 Shanti Devi, P.W.6 Jitendra Roy and three-four persons
took the injured persons to the hospital at Ara. She also
disclosed the reason behind the incident as disclosed by other
prosecution witnesses. Her cross-examination reveals that by
standing at the spot of the incident, she saw who assaulted
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
whom but she expressed her ignorance about the police taking
the accused persons to the hospital in injured condition. She
stated that the incident of assault lasted for 5-7 minutes. From
her cross-examination, it is elicited that body and clothes of her
family members were having stains of coal as at the time of the
incident they were breaking coal for firing the brick-kiln.
18. We have carefully examined evidence of P.W.3
Sonam Kumari in its entirety. She is also a natural witness to
the incident in question, her house being located in the close
proximity to the spot of the incident. The said spot was hardly
at the distance of 100 yards from her house as seen even from
the materials elicited from the cross examination of P.W.1
Akash Kumar @ Vikky Kumar. The incident has resulted in
death of 5 adult persons due to wounds sustained by them. As
such, the incident must have lasted for a fairly long time,
giving an opportunity to this witness to see the incident.
Accused persons are her close relatives. It is not shown that
P.W.3 Sonam Kumari has personal enmity with them who are
her uncle, aunt and cousins. Her evidence in no way gives
inference that she is falsely dragging any of the accused persons
in the crime in question. Her presence on the scene of the
occurrence so also presence of the accused persons thereat is
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
established beyond reasonable doubt from her evidence which
is not at all shattered in her cross-examination. Moreover,
version of this witness P.W.3 Sonam Kumari is gaining full
corroboration from evidence of injured witness P.W.1 Akash
Kumar @ Vikky Kumar and another eye witness P.W.2 Shanti
Devi.
19. P.W.4 Rubi Kumari is daughter of deceased
Kamlesh Roy. She is the First Informant in this case. The
F.I.R. lodged with promptitude by this witness is at Ext.5. Her
evidence coupled with the evidence of P.W.9 Rana Ran Vijay
Kumar, the Investigating Officer, goes to show that the F.I.R.
statement of this witness (Ext.5) came to be recorded at 11.00
hours of 31.05.2012 at village Purhara itself where the incident
took place at about 08.00 to 08.30 hours of that day. The
contemporaneous documents, i.e., F.I.R. (Ext.5) reiterats this
fact of recording of F.I.R. statement of this witness at 11.00
A.M. of that day.
As per version of P.W.4 Rubi Kumari, their brick-
kiln was at a distance of 100 yards from her house. She further
testified that at about 08.00 to 08.30 A.M. of 31.05.2012 her
family members viz. Kamlesh Roy, Bikash Roy, Vijay Roy,
Satyendra Roy, Shanti Devi and P.W.1 Akash Kumar @ Vikky
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Kumar went to the brick-kiln for breaking the coal for firing the
kiln. She heard shouts and, therefore, she went on the spot.
This First Informant further testified that she saw the accused
persons quarreling with Satyendra Roy over the issue of money.
She stated that then accused no.1 Bharath Roy assaulted
Kamlesh by means of knife, accused no.2 Uma Shankar
assaulted Vijay by means of knife. P.W.4 Rubi Kumari vouched
that accused no.3 Sunil Roy assaulted Satyendra Roy, Bikash
Roy and Akash Roy by means of knife. She further stated that
accused no.4 Shakuntla Devi assaulted Shanti Devi w/o
Satyendra Roy, by means of knife and to her by means of lathi.
This witness deposed about disclosing the incident to the police
at her village itself and recording of her F.I.R. statement.
From cross examination of this witness, it is brought
on record that accused no.1 Bharath Roy was demanding
money of Thakur Bari and deceased Satyendra Roy was telling
that the money is already paid. In cross examination, she stated
that "Maar-Peet" lasted for one or two minutes. She stated that
she is the first to give statement to the police disclosing the
incident. As per her version in the cross-examination, the
police came on the spot at 10.00 A.M. She stated that police
arrested Bharath, Uma Shankar and Sunil but showed ignorance
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
about the injuries, if any, on the person of the accused. Time of
arrest is not elicited from her cross-examination. Over all
scrutiny of evidence of P.W.4 Rubi Kumari as such shows that
accused persons never disputed their presence on the scene of
the occurrence. Her evidence regarding presence of the
accused persons on the scene of the occurrence is virtually not
challenged at all. Presence of any of the accused persons on
the scene of the occurrence is not challenged in cross-
examination of any prosecution witness. On the contrary,
accused persons are not disputing the fact that they had been to
the spot of the incident for demanding money given by
Mukhiya to the members of the prosecuting party for the
purpose of repairing Thakur Bari. Even the certified copy of
the F.I.R. lodged by Uma Shankar Roy which has resulted in
registration of the cross case and which is at Ext.-A on the
record of the trial court establishes presence of the accused
persons on the scene of the occurrence at the time of the
occurrence. Material elicited from cross examination of this
witness cannot be read to mean that immediately on visiting the
spot, police arrested the accused Bharath Roy, Uma Shankar
Roy and Sunil Roy for taking them to the Primary Health
Centre, Peero. Different sentences in cross examination of
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
P.W.4 Rubi Kumari cannot be conjointly read to mean this.
Half hearted cross examination of P.W.4 Rubi Kumari by the
defence does not allow us to infer that the accused persons were
arrested at 10.00 A.M. itself by the police for carrying them to
the Primary Health Centre, Peero. Evidence of P.W.4 Rubi
Kumari is perfectly in tune with the F.I.R. lodged by her within
two hours from the incident. Her evidence is gaining
corroboration in material particulars from the version of other
eye witnesses examined by the prosecution and there is nothing
in her cross-examination to doubt her version about the
incident. That apart P.W.4 Rubi Kumari is also an injured
witness having suffered the injuries in the incident itself. On
01.06.2012, she was examined by P.W.11 Dr. Rajiv Kumar and
she was found to have suffered an abrasion on her left forearm
apart from swelling. There is no suggestion to this witness that
the said injury was self inflicted injury. Therefore, presence of
this witness on the scene of the occurrence in order to have an
opportunity to her to witness the incident cannot be doubted in
any manner. She is a witness of truth.
20. P.W.5 Runam Kumari is another daughter of
deceased Kamlesh Roy and sister of P.W.4 Rubi Kumari. She is
also an eyewitness to the incident. Her evidence shows that after
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
hearing hulla, she went from her house to the brick kiln which
was just at a distance of 100 yards from her house. She claims to
have seen accused No.1 Bharath demanding money from her
uncle Satyendra. She disclosed that accused No.1 Bharath
assaulted Kamlesh by taking knife from accused No.2 Uma
Shankar. She stated that accused No.3 Sunil assaulted Satyendra
Rai on chest by knife, Vikash on neck so also P.W.1 Akash. She
testified that accused No.2 Uma Shankar assaulted Vijay by
means of knife and accused No.4 Shakuntala assaulted deceased
Shanti Devi by taking knife from Sunil. She had also stated that
accused Shakuntala assaulted her sister- P.W.4 Rubi Devi by
Lathi. She has spoken about death of her family members
because of the wounds sustained by them. In cross-examination,
she had shown ignorance on sustaining injuries by the accused
persons. She stated that accused Bharath, Uma Shankar and
Sunil were taken to the hospital for treatment. However, the
time of taking them to the Hospital by police is not elicited from
her during the course of her cross-examination and, therefore,
such half hearted cross-examination cannot be stretched to mean
that immediately after the incident, police took the accused
persons to the hospital for treatment. This witness stated that
injured persons from her family members were taken to hospital
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
by P.W.6 Jitendra, P.W.2 Shanti Devi and Bhuwar. Evidence of
this witness is also totally in tune with evidence of other eye
witnesses. The same is clear, cogent and consistent. There is
nothing in cross-examination of this witness to discredit her
version. Merely because she has shown ignorance in respect of
injuries suffered by the accused persons, her substantive version
cannot be jettisoned. Such suppression seems be for the
reason of fear of rejection of her testimony by the Court. No
overwhelming importance can be given to this aspect.
21. P.W.6 Jitendra Roy is one of the brother of
accused No.1 Bharath Roy and deceased Kamlesh and
Satyendra. He had turned hostile to the prosecution on material
aspects. Therefore, his evidence is of no assistance either to the
prosecution or to the defence. His version which is consistent to
the prosecution case regarding taking injured Satyendra,
Kamlesh, Shanti Devi, Vikash, Vijay and Vikky to the hospital
and about being a witness to the Inquest notes, which is in tune
with the prosecution case at the most can be relied upon.
According to prosecution case, this witness had also lodged the
FIR while at the hospital but during substantive evidence before
the Court he disowed this fact. Moreover, once it is seen that
P.W.4 Rubi Devi had informed commission of cognizable
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
offence to police first in point of time resulting in registration of
the FIR, subsequent disclosure of the incident to the police by
somebody else cannot be treated as the FIR of the incident.
Even if such statement is reduced into writing, it takes colour of
the statement under Section 161 of the Cr.P.C. Hence, even
police statement of this witness cannot be read in evidence to
compare the same with the version in the F.I.R. of P.W.4 Rubi
Devi and argument to that effect advanced by the learned
counsel for the appellants deserves to be rejected.
22. P.W.7 Rajendra Roy who is also related to the
prosecuting party and the accused party has turned hostile to the
prosecution. However, his evidence which is consistent with the
prosecution case and which is to the effect that in his presence
P.W.4 Rubi Kumari had lodged the FIR and that FIR bears his
signature can be accepted. Similarly, his evidence regarding
effecting seizure by the police can be relied. However, on
material particulars he has not supported the version of the
prosecution. We are not getting any satisfactory reason to hold
that this witness was deliberately made to turn hostile to the
prosecution by the prosecution itself. Such argument advanced
by the learned Advocate for the appellants is far fetched and
cannot be accepted. This witness had feigned ignorance about
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
the incident though during investigation he claimed to have
witnessed the incident. The FIR lodged by P.W.4 Rubi Kumari
cannot be doubted merely because it contains signature of this
hostile witness. It cannot be said that the FIR of P.W.4 Rubi
Kumari is antedated only because this witness is resident of
some other village.
23. These all are the private witnesses examined by
the prosecution. Except P.W.6 Jitendra Roy and P.W.7 Rajendra
Roy, all other prosecution witnesses have fully supported case
of the prosecution of horrid murder of five members of their
family. Evidence of all these witnesses regarding the mode and
manner of the incident is clear, cogent and consistent. There is
no iota of doubt emerging on record from cross-examination of
any of this witnesses regarding presence of the accused persons
on the scene of the offence at the time of the occurrence. All of
them had identified the accused persons in dock as perpetrator
of the crime in question. Except minor discrepancy regarding
the time span during which the occurrence lasted and distance of
their house from the brick kiln nothing more can be brought on
record from cross-examination of these witnesses. They all had
witnessed the incident of gruesome murders of five members of
their family at the brick kiln. Principle as to how evidence of
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
such witnesses is to be appreciated can be found in the judgment
of the Hon'ble Supreme Court in Bharwada Bhoginbhai
Hirjibhai Vs. State of Gujarat reported in AIR 1983 Supreme
Court 753. It is held by the Hon'ble Supreme Court that
overbearing importance cannot be given to minor discrepancies
in evidence of witnesses. The reasons for this can be found in
para-5 of the said judgment which reads thus:-
(1) By and large a witness cannot be
expected to possess a photographic memory
and to recall the details of an incident. It is
not as if a video tape is replayed and the
mental screen.
(2) Ordinarily, it so happens that a
witness is overtaken by events. The witness
could not have anticipated the occurrence
which so often has an element of surprise. The
mental faculties therefore cannot be expected
to be attuned to absorb the details.
(3) The powers of observation differ
from person to person. What one may notice,
another may not. An object or movement
might emboss its image on one person's mind,
whereas it might go unnoticed on the part of
another.
(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the main
purport of the conversation. It is unrealistic to
expect a witness to be a human tape recorder.
(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guesswork on the spur of the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it
depends on the time-sense of individuals
which varies from person to person.
(6) Ordinarily a witness cannot be
expected to recall accurately the sequence of
events which take place in rapid succession or
in a short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.
(7) A witness, though wholly truthful
is liable to be overawed by the Court
atmosphere and the piercing cross-
examination made by the counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up details
from imagination on the spur of the moment.
The sub-conscious mind of the witness some
times so operates on account of the fear of
looking foolish or being disbelieved though
the witness is giving a truthful and honest
account of the occurrence witnesses by him -
perhaps it is a sort of a psychological defence
mechanism activated on the spur of the
moment.
(8) Discrepancies which do not go
to the root of the matter and shake the basis
version of the witnesses, therefore, cannot be
annexed with undue importance. More so
when the all important "probabilities -factor"
echoes in favour of the version narrated by the
witnesses".
24. If tested on these principles, evidence of
eyewitnesses discussed by us in foregoing paras is certainly
intrinsically reliable, inherently probably and wholly
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
trustworthy. There are no suggestions to these close relatives to
the effect that they were not present on the scene of occurrence
at the time of the incident. Their brick kilns were situated in the
vicinity of their house and, as such, they becomes natural
witnesses to the incident of murder of five members from their
family in the incident in question. Similarly, these prosecution
witnesses are also close relatives of the accused persons and,
therefore, it cannot be said that they would falsely implicate the
accused persons in the crime in question which took place for a
paltry some of rupees thirty thousand given by the Mukhiya
for repair of Thakurbari. In absence of any material to that
effect, it cannot be said that an innocent is dragged in the
incident by any of the witness to satisfy his personal grudge.
There are no suggestion to any of the witnesses that they are
having any personal grudge against any of the accused persons.
The documentary evidence relied and placed on record by the
defence in the form of the FIR lodged by accused No.2 Uma
Shankar cements presence of the accused persons on the spot of
the incident at the time of the incident. Cautious scrutiny of
evidence of the above stated eyewitnesses does not allow us to
reject their testimony mechanically only because they are
related to the deceased and the injured.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
25. Now comes evidence of the Investigating Officer
P.W.9 Rana Ran Vijay Kumar, Police Station Officer of Chaori
Police Station. This witness has disclosed the line of
investigation conducted by him. It is in evidence of P.W.9 Rana
Ran Vijay Kumar that at about 9:00 A.M. of 31.05.2012 his
Police Station received information that there is incident of
"Maa-Peet" at village Purhara. Hence, by taking Sanaha entery
he left the Police Station along with P.S.I Surendra Paswan,
Harinandan Singh and others. He reached village Purhara at
10:15 A.M. He saw one female and five male injured persons
lying in an unconscious condition near the brick kiln and at
Karaha as well as field. He testified that those injured were sent
to the Sadar Hospital, Ara, by Police Jeep with Surendra Paswan
so also by the transport vehicle. Then he recorded statement of
Rubi Kumari at about 11:00 A.M. and obtained her signature
and signed that statement (Exhibit-5) after obtaining signature
of P.W.7 Rajendra Roy. P.W.9 Rana Ran Vijay Kumar further
deposed that house of the members of the prosecuting party was
at a distance of 100 yards from the spot of the incident which
was near the brick kiln and the field. He noticed coal lying
there. Injured were lying in a pool of blood in Karha and the
filed. The Investigating Officer had spoken about seizure of
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
cover of knife, broken bangles and eight sticks stained with
blood from the spot of the incident vide seizure memo Ext-6. He
had stated that he searched house of the accused persons and
under seizure memo Ext.-7 had seized pair of blood stained
shoes of accused No.3 Sunil, one blood stained shoe of accused
No.1 Bharath as well as mobile phones. This seizure memo
Ext.-7 dated 31.05.2012 shows that the seizures were effected
after searching house of the accused persons and at that time
i.e., 12:30 noon the accused persons were not present thereat.
P.W.9 Rana Ran Vijay Kumar further deposed that thereafter
returning to the Police Station at about 2:30 P.M. he registered
Crime No.33 of 2012 against the accused persons by preparing
formal printed FIR (Ext.-10). As per his version at 3:00 P.M. he
arrested accused persons and recorded confessional statements
of accused No.1 Bharath and accused No.2 Uma Shankar,
which has resulted in recovery of two knives from the Well.
Those knives were seized by him vide seizure memo (Ext.-8).
These seizures, as seen from the documents at Ext.-8 were
effected at 7:00 P.M. of 31.05.2012. The Investigating Officer
proved the inquest reports Ext.-15, 15-1 to 15-4 of deceased
persons and has also spoken about seizure of clothes of
deceased persons.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
26. During cross-examination P.W.9 Rana Ran Vijay
Kumar has stated that village Purhara is about 13 to 14 Kms
away from the Police Station and time of 1:15 hours is required
to reach that village. Initially, this Investigating Officer during
his cross-examination has stated that he had not seen injuries on
the accused persons but thereafter has accepted the fact that he
saw some injuries on accused persons. He stated that the
accused persons might have been sent to the Primary Health
Centre, Piro, under requisition signed by Police Officer named
Upadhyay. The Investigator further admitted that at 11:30 P.M.
of 31.05.2012 on report of accused No.2 Uma Shankar Roy,
cross-case came to be registered vide Crime No.34 of 2012.
27. We have already taken note of the certified copy
of the FIR in the cross-case registered at the instance of accused
No.2 Uma Shankar Roy which is at Ext.-A on the record of the
learned trial Court. Unfortunately, the cross-case was not tried
along with the case in hand which ought to have been done in
normal course. On this aspect the learned counsel for the
appellants has relied on judgments in the matter of Sudhir and
others (supra) as well as State of M.P. Vs. Mishrilal (Dead)
and Others (supra). At this juncture, it is apposite to quote
observation of the Hon'ble Supreme Court in Nathi Lal and
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Others Vs. State of U.P. and Another reported in 1990 (Supp)
Supreme Court Cases 145 which reads thus:
"2. We think that the fair
procedure to adopt in a matter like the
present where there are cross-cases, is to
direct that the same learned Judge must try
both the cross-cases one after the other. After
the recording of evidence in one case is
completed, he must hear the arguments but
he must reserve the judgment. Thereafter he
must proceed to hear the cross-case and after
recording all the evidence he must hear the
arguments but reserve the judgment in that
case. The same learned Judge must thereafter
dispose of the matters by two separate
judgments. In deciding each of the cases, he
can rely only on the evidence recorded in that
particular case. The evidence recorded in the
cross-case cannot be looked into. Nor can the
Judge be influenced by whatever is argued in
the cross-case. Each case must be decided on
the basis of the evidence which has been
placed on record in that particular case
without being influenced in any manner by
the evidence or arguments urged in the cross-
case. But both the judgments must be
pronounced by the same learned Judge one
after the other."
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
The rationale behind adopting this procedure is to
avoid the conflicting judgments over the same incident.
However, this rule of prudence is not observed in the case in
hand but that does not result in vitiation of the trial. Ultimately,
evidence in one case cannot be looked into while deciding the
other case. Hence, we are supposed to decide the case in hand
on its own merits as per the evidence adduced therein.
28. With the aid of this evidence of the Investigator it
is vehemently argued that there is suppression of facts,
suppression of the earliest version of the incident, delayed
transmission of the FIR to the Court for bolstering up of the
prosecution case by antedating it. It is argued that investigation
conducted by him is defective. Planthora of case law is cited on
these aspects on behalf of the appellants. For better
understanding of this aspect, let us have a brief resume of the
statutory provisions. Chapter- XII of the Code of Criminal
Procedure 1973 (hereinafter referred to as the Code) deals with
information to the police and their powers to investigate.
Section 154 of the Code mandates that information of
commission of cognizable offence, if given orally, should be
reduced in writing by the Officer-in-Charge of a Police Station
or under his direction. Such information is required to be signed
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
by the informant and the substance thereof is required to be
entered in the prescribed book. That is how the FIR statement
as well as the printed formal FIR is drawn by the police. If
information of commission of cognizable offence is received or
if Officer-in-Charge of the Police Station has reason to suspect
commission of cognizable offence then as prescribed by Section
157 of the Code, he has to forward a report to the Magistrate
empowered to take cognizance of such offence. Mandate of
Section 157 thus requires forwarding of the FIR to the
Magistrate forthwith. The word forthwith in Section 157(1) of
the Code is to be understand in the context of the given facts
and circumstances of each case. No straitjacket formula in
respect of such time of forwarding the police report can be made
applicable to all cases. Similarly only when ocular evidence is
found to be unreliable and unacceptable then only a long delay
in transmitting the police report as envisaged by Section 157 of
the Code can make the prosecution case suspect. The delay by
itself without anything more cannot assume any overbearing
importance. Moreover for making out this point, foundational
facts regarding the delay are required to be elicited from the
Investigator or other relevant prosecution witnesses. At this
juncture, it is just to quote relevant observation of the Supreme
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Court in the matter of State of Rajasthan Vs. Daud Khan
reported in (2016) 2 Supreme Court Cases 607, which is as
follows:
"26......
The purpose of the "forthwith"
communication of a copy of the FIR to the
Magistrate is to check the possibility of its
manipulation. Therefore, a delay in
transmitting the special report to the
Magistrate is linked to the lodging of the FIR.
If there is no delay in lodging an FIR, then any
delay in communicating the special report to
the Magistrate would really be of little
consequence, since manipulation of the FIR
would then get ruled out. Nevertheless, the
prosecution should explain the delay in
transmitting the special report to the
Magistrate. However, if no question is put to
the investigating officer concerning the delay,
the prosecution is under no obligation to give
an explanation. There is no universal rule that
whenever there is some delay in sending the
FIR to the Magistrate, the prosecution version
becomes unreliable. In other words, the facts
and circumstances of a case are important for
a decision in this regard."
Similar is the ratio of rulings in Chotkau (Supra),
Mehraj Singh (supra), Thander Singh (supra), Arjun Marik
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(Supra) Teja Singh (supra), Harinandan Singh (supra) and
Nallabothu Ramalu (supra) cited by the learned counsel for the
appellants. Special report to the Magistrate or the concerned
Court sent under Section 157 of the Code is one of the external
check for determining whether the FIR was lodged at the time it
is alleged to have been recorded. There can be valid reasons for
the delay in dispatch of the FIR and the delay by itself cannot
form the basis for inferring that the entire prosecution case is
false and fabricated.
29. In the case in hand, entire argument of the learned
counsel for the appellants that there is delay in transmitting the
FIR to the competent Court is based on mere endorsements
made by the learned C.J.M. on the printed FIR as well as the
FIR statement of PW 4 Rubi Kumari which are at Exts.-10 and
15 respectively. The endorsement of the learned Chief Judicial
Magistrate on both these documents is dated 02.06.2012 and
that endorsement is to the effect that 'seen'. Thus, endorsement
on both these documents is only to the effect that the learned
Chief Judicial Magistrate had 'seen' these documents i.e., the
FIR and printed FIR on 02.06.2012. These endorsements of the
learned Chief Judicial cannot be stretched too long to mean that
these documents reached in the Court of learned Chief Judicial
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Magistrate on 02.06.2012. The printed FIR was prepared at
2:30 P.M. of 31.05.2012 and the FIR statement came to be
recorded at 11:00 A.M. of 31.05.2012. In fact, in order to make
out the point of delayed transmission of the FIR to the
competent Court, the defence ought to have cross-examined
P.W.9 Rana Ran Vijay Kumar for eliciting from him as to when
he has dispatched special report as envisaged under Section 157
of the Code to the Competent Court. However, not a single
question was put to the Investigating Officer during his cross-
examination for making a foundation for raising such argument
of delayed transmission of the FIR to the competent Court. The
learned counsel for the appellants tried to make out a
superstructure of this argument without there being any
foundational fact for the same in cross-examination of the
Investigating Officer. Hence, we find no merit in contention of
the learned counsel for the appellants that the FIR was belatedly
transmitted to the competent Court for antedating it or for
bolstering up the prosecution case.
30. It was tried to demonstrate that Sanha entry in
respect of the information received by P.W.9 Rana Ran Vijay
Kumar at about 9:00 A.M. of 31.05.2012 is not produced on
record and this amount to suppression of material facts by the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
prosecution. Mere information received on phone by a Police
Officer without any details as regards to identity of accused or
the nature of injuries caused to the victim as well as names of
culprit cannot be treated as FIR nor such Sanha become relevant
in order to ascertain first and earliest version of the incident.
Evidence of P.W.9 Rana Ran Vijay Kumar is clear on this
aspect. He has fairly disclosed that at 9:00 A.M. of 31.05.2012
he received information regarding "Maar-Peet" at Purhara. He
was not cross-examined to elicit that at 9:00 A.M. itself, he was
informed about the names of the assailants, names of the injured
and other details of the incident. Hence, mere non-production of
Sanha entry along with the charge sheet before the Court is of
no consequence. However, out of curiosity we have gone
through the record and proceedings and we noted that along
with the police report/case-diary that Sanha entry is already
enclosed. Hence, no substance can be found in this argument
advanced on behalf of the appellants that the said Sanha entry
was suppressed by the prosecution.
31. It was urged before us that accused persons were
arrested by police immediately after the incident and then they
were taken for medical examination but still defective
investigation conducted by P.W.9 Rana Ran Vijay Kumar shows
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
that recoveries were effected from them when they were
undergoing medical treatment in the hospital at Peero. We have
noted chronology of events that took place during the course of
investigation from evidence of P.W.9 Rana Ran Vijay Kumar
and compared it with the contemporaneous documentary
evidence. As per version of P.W.9 Rana Ran Vijay Kumar, the
accused persons were arrested at 3:00 P.M. of 31.05.2012.
However, prior to that he had effected seizure of Lathi, broken
bangles, shoe etc. from the spot of the incident vide seizure
memo (Ext.-6). It is seen from his evidence coupled with the
documentary evidence that house of the accused persons came
to be searched in their absence at about 12:30 noon of
31.05.2012 resulting in recovery of shoes, mobile phones etc.
vide seizure memo Ext.-7. Presence of the accused persons at
their house is not seen either from evidence of this witness or
from contemporaneous seizure memo Ext-7. At about 7:00 P.M.
of 31.05.2012 on the basis of confessional statement of the
accused, as disclosed by P.W.9 Rana Ran Vijay Kumar, articles
such as knife came to be recovered vide seizure memo Ext-8.
Prior to that, the accused was already arrested at 3:P.M. as
disclosed by this witness.
32. The defence, during the course of the trial had
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
placed on record police requisition forwarding the accused
persons for medical examination to the PHC, Peero. On the
backside of those requisitions the Medical Officer had written
injury reports of accused Bharath Roy, Uma Shankar Roy and
Sunil Roy. The learned trial Court had exhibited these
documents as Exts-B, B/1 and B/2. As stated by us, injuries
mentioned in those injury reports of these accused were certified
to be simple in nature by the Medical Officer. There is nothing
in these forwarding letters or injury reports to doubt version of
P.W.9 Rana Ran Vijay Kumar and to hold that though the
accused persons were taking medical treatment as indoor
patients, their confessions were shown to have been recorded
by the Investigating Officer at the Police Station at the same
time. These documents as Exts-B, B/1 and B/2 do not show that
the accused persons were admitted as indoor patients for their
medical treatment at the Primary Health Centre, Peero, for
simple injuries sustained by them. No effective cross-
examination on this aspect is there on record. Therefore, it is not
possible to hold that the investigation conducted by the
Investigator is totally defective and overweight the trustworthy
ocular evidence regarding the incident coming on record
through the eyewitnesses. Taking such hyper technical view,
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
truthful evidence of the prosecution witnesses cannot be
dislodged.
33. Now comes the argument of the learned counsel
for the appellants that the accused persons were also injured in
the incident in question as seen from the documents at Ext-B
collectively, and the prosecution has not explained injuries
sustained by the accused persons. Evidence of prosecution
witnesses cannot be rejected outrightly on the ground that the
prosecution witnesses have not explained the injuries on person
of the accused. In such contingency, it becomes the duty of the
Court to proceed to search out the truth from the material
available on record with a view to find out how much of
prosecution case is proved beyond all reasonable doubt.
Approach of rejecting the prosecution case in its entirety for
non-explanation of injuries sustained by the accused persons is
totally erroneous. In the matter of Mohan s/o Suryabhan
Chandan, V/s. The State of Maharashtra through PSO
Telhara, reported in 1995 Cri. L.J.. 3022, it is held in para 8 of
this ruling thus :-
"It needs mention that the non-explanation of the
injury on the person of the accused is the factor
which is to be taken into account in judging the
veracity of the prosecution case. However, no
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
obligation is cast on the prosecution to explain the
injuries on the person of the accused in all the
cases. The obligation is to be discharged in two
types of cases (1) if very serious or severe injury is
received by the accused and not superficial; and
(2)the injury must have been caused at the time of
occurrence in question. These aspects have been
dealt by the Lordships of the Supreme Court in the
case of Jagdish V., State of Rajasthan."
34. The prosecution as such is not required to explain
minor superficial injuries. Where the evidence adduced by the
prosecution is clear and cogent so also probable, consistent and
creditworthy then it certainly outweigh the effect of omission on
the part of the prosecution to explain the injuries on the accused.
35. Now let us examine whether the right of private
defence has to be pleaded specifically or it is open for the court
to consider such plea if the same arises from the material on the
record and whether in the case in hand the appellants are
entitled for benefit of such plea. In the matter of Munshi Ram
and Ors. Vs. Delhi Administration reported in (1968) 2 SCR
455, the Supreme Court has observed that it is not necessary to
plead self defence but such plea is open for consideration if the
same arises from the material available on the record. The
learned counsel appearing for the appellants has rightly relied
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
on the Judgment in the matter of Darshan Singh (supra) on this
point and in paragraph 58 of the said Judgment, this position has
been vividly summarized thus:
"58. The following principles emerge on scrutiny
of the following judgments:
(i) Self-preservation is the basic human instinct
and is duly recognized by the criminal
jurisprudence of all civilized countries. All free,
democratic and civilized countries recognize the
right of private defence within certain reasonable
limits.
(ii) The right of private defence is available only
to one who is suddenly confronted with the
necessity of averting an impending danger and
not of self-creation.
(iii) A mere reasonable apprehension is enough to
put the right of self defence into operation. In
other words, it is not necessary that there should
be an actual commission of the offence in order to
give rise to the right of private defence. It is
enough if the accused apprehended that such an
offence is contemplated and it is likely to be
committed if the right of private defence is not
exercised.
(iv) The right of private defence commences as
soon as a reasonable apprehension arises and it is
co-terminus with the duration of such
apprehension.
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
(v) It is unrealistic to expect a person under
assault to modulate his defence step by step with
any arithmetical exactitude.
(vi) In private defence the force used by the
accused ought not to be wholly disproportionate
or much greater than necessary for protection of
the person or property.
(vii) It is well settled that even if the accused does
not plead self-defence, it is open to consider such
a plea if the same arises from the material on
record.
(viii) The accused need not prove the existence of
the right of private defence beyond reasonable
doubt. (emphasis supplied)
(ix) The Indian Penal Code confers the right of
private defence only when that unlawful or
wrongful act is an offence.
(x) A person who is in imminent and reasonable
danger of losing his life or limb may in exercise of
self defence inflict any harm even extending to
death on his assailant either when the assault is
attempted or directly threatened."
36. Burden to establish plea of self defence is
always on the accused and he can show that he is entitled to
exercise the right of private defence from the material on record
brought by the prosecution by preponderance of probabilities.
It is not necessary that for discharging the burden to establish
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
the plea of self defence, the accused must examine defence
witnesses. Such plea can be taken by introducing the same in
cross-examination of prosecution witnesses or by raising it in
statement under Section 313 of the Code or by adducing
defence evidence. Even if the plea of right of private defence is
not introdueced in these ways, it is still open for the defence to
raise same during any stage by relying on probabilities and
circumstances. To claim a right of private defence extending to
voluntarily causing death, in this case the accused has to show
that there were circumstances giving rise to reasonable grounds
for apprehending that either death or grievous hurt would be
caused to them had they not exercised the right of private
defence by assaulting the members of the prosecution party.
Ultimately as envisaged by Section 99 of the Indian Penal
Code, the right of private defence in no case extends to the
inflicting or more harm that it is necessary to inflict. To
appreciate the evidence on this aspect in the case in hand, it
would be apposite to quote relevant observations of the
Supreme Court in V. Subramani and another (supra) relied by
the learned counsel for the appellants. Para-12 and 14 thereof
(relevant portions) reads thus:
"12. The number of injuries is not always a
safe criterion for determining who the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
aggressor was. It cannot be stated as a
universal rule that whenever the injuries
are on the body of the accused persons, a
presumption must necessarily be raised that
the accused persons had caused injuries in
exercise of the right of private defence. The
defence has to further establish that the
injuries so caused on the accused proba-
blise the version of the right of private
defence. Non-explanation of the injuries
sustained by the accused at about the time
of occurrence or in the course of altercation
is a very important circumstance. But mere
non-explanation of the injuries by the
prosecution may not affect the prosecution
case in all cases. This principle applies to
cases where the injuries sustained by the
accused are minor and superficial or where
the evidence so clear and cogent, so
independent and disinterested, so probable,
consistent and creditworthy, that it far
outweighs the effect of the omission on the
part of the prosecution to explain the
injuries. (See Lakshmi Singh v. State of
Bihar, (AIR 1976 SC 2263). A plea of right
of private defence cannot be based on
surmises and speculation. While
considering whether the right of private
defence is available to an accused, it is not
relevant whether he may have a chance to
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
inflict severe and mortal injury on the
aggressor. In order to find out whether the
right of private defence is available to an
accused, the entire incident must be
examined with care and viewed in its
proper setting........
14. In order to find whether right of private
defence is available or not, the injuries
received by the accused, the imminence of
threat to his safety, the injuries caused by
the accused and the circumstances whether
the accused had time to have recourse to
public authorities are all relevant factors to
be considered. Similar view was expressed
by this Court in Biran Singh v. State of
Bihar (AIR 1975 SC 87). (See: Wassan
Singh v. State of Punjab (1996) 1 SCC 458;
Sekar alias Raja Sekharan . State
represented by Inspector of Police, T.N.
(2002 (8) SCC 354).
With this legal position on record, let us approach
the case in hand in order to ascertain whether in this case of
mass murders, the accused have probablised the plea of self
defence.
37. During the course of trial, as stated by us in
forgoing paragraphs, the defence had placed on record certified
copy of the FIR in Crime No.34 of 2012 for offences under
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Section 341, 323 and 504 read with Section 34 of the Indian
Penal Code registered against the deceased accused and P.W.1
Akash Kumar @ Vikky Kumar. It is at Ext-A in the record and
proceedings of the learned trial Court which had admitted it in
evidence. Bare perusal of this FIR lodged by accused No.2
Uma Shankar Roy shows that the accused herein had been to the
brick kiln of the deceased victims for demanding money. It is
clear that the victims had not gone to the place of the accused
persons. Trustworthy evidence of prosecution witnesses such as
P.W.1 Akash Kumar @ Vikky Kumar, P.W.2 Shanti Devi, P.W.3
Sonam Kumari, P.W.4 Rubi Kumari and P.W.5 Runam Kumari
shows that while going to the brick kiln of the victims of the
crime in question, the accused persons had carried knives and
lathis with them. It is not brought on record from the entire
evidence adduced by the prosecution that the victims of the
crime in question including P.W.1 Akash Kumar @ Vikky
Kumar were armed with dangerous weapons. On the contrary
evidence on record shows that all five deceased and P.W.1
Akash Kumar @ Vikky Kumar were breaking the coal at the
brick kiln set up by them. We have already noted injuries
sustained by five deceased persons leading to their death while
deciding the question as to whether the prosecution has proved
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
that they died homicidal death. To repeat, deceased Satyendra
Roy had sustained two incised wounds on his chest, deceased
Kamlesh Roy had sustained one incised wound on his chest and
the other at right side of abdomen. Deceased Vikash Roy had
sustained incised wound at the root of his neck. Deceased Shanti
Devi had sustained incised penetrating wound on her chest
whereas deceased Vijay Kumar Roy had suffered punctured stab
wound on his chest. All these deceased could not even reach to
the hospital for getting medical treatment and they succumbed
to the injuries suffered by them on the way to the hospital. It is
only P.W.1 Akash Kumar @ Vikky Kumar who suffered incised
wound on his chest could manage to survive by taking treatment
for about one and half month at the P.M.C.H., Patna. As against
this only three accused persons namely, accused No.1 Bharath
Roy, accused No.2 Uma Shankar Roy and accused No.3 Sunil
Roy were found to have sustained simple injuries in the nature
of lacerated wounds, swelling, abrasion etc. All injuries suffered
by these accused persons were reported by the Medical Officer
to be simple in nature caused by hard and blunt object, as seen
from their injury reports which are admitted in evidence by the
learned trial Court. Evidence of P.W.9 Rana Ran Vijay Kumar,
the Investigating Officer, shows that he found some sticks on
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
the scene of the occurrence. Thus, with such evidence on record
it cannot be said that the accused persons have probablized the
plea of their self-defence and in exercise of that right they are
justified in culling five persons. It cannot be said that there was
imminence of threat to safety of the accused persons who
themselves had gone to the place of the occurrence armed with
the deadly weapons. With this evidence, it cannot be held that
the accused persons were not having any time to take recourse
to the public authorities. In this view of the matter, it cannot be
said that the appellants had probablized the plea of their self-
defence and thereby justified the killing of five persons by
assaulting them by means of sharp edged weapon. On the basis
of surmises and speculations, it cannot be said that the
appellants had acted in exercise of right of their private defence
and thereby caused death of five persons who were closely
related to them.
38. Insignificant argument that the inquest notes are
not mentioning that clothes and bodies of the deceased were not
stained with blood fails to impress us. The purpose of the
inquest notes is not to check this aspect.
39. As discussed in forgoing paragraphs, we are of the
firm view that evidence of eyewitnesses examined by the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
prosecution, namely, P.W.1 Akash Kumar @ Vikky Kumar
Kumar, P.W.2 Shanti Devi, P.W.3 Sonam Kumari, P.W.4 Rubi
Kumari and P.W.5 Runam Kumari is trustworthy, reliable and
free from all reasonable doubts. They are natural witnesses to
the incident which took place at the brick kiln situated near their
house. We see no reason to hold that the place of occurrence is
not proved by the prosecution. Evidence of all these witnesses
coupled with evidence of P.W.9 Rana Ran Vijay Kumar is clear
on the aspect of place of occurrence which was near the brick
kiln and at the field and water channel in that field were dead
bodies were found. As the offence was committed at the brick
kilns of the deceased which were situated in the vicinity of their
house, presence of the family members of the deceased at the
place of occurrence cannot be doubted and in this view of the
matter they all have assumed the position natural witnesses to
the crime in question. Evidence of these witnesses is clear and
cogent. They withstood the rigor of cross-examination and their
version is fully corroborated by the medical evidence adduced
by the prosecution. It is not shown from the evidence that these
eyewitnesses had desire to implicate some of the accused
falsely. The accused persons are their close relatives. Hence,
evidence of all these eyewitnesses deserves to be acted upon. It
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
is argued that prosecution has failed to examine relevant
witnesses including Police Officer named Upathyay who had
taken the accused persons to the Primary Health Centre, Peero
and Police Officer Harinandan Singh who had recorded the FIR
of hostile witness P.W.6 Jitendra Roy. There cannot be two
FIRs in a case. Statement of hostile witness P.W.6 Jitendra Roy
cannot be treated as FIR but it is police statement under Section
161 of the Code. As P.W.6 Jitendra has himself not supported
the case of the prosecution, non-examination of A.S.I.
Harinandan Singh, who had recorded his statement, is of no
consequence. Similarly, when evidence adduced by the
prosecution is sufficient to bring home the guilt to the accused
then non-examination of other witnesses though available is of
no consequence. If trustworthiness of the evidence adduced and
available on record is establish then there may be other
witnesses available who could also have been examined but
were not examined cannot create any doubt in the prosecution
case. It is only when available evidence suffers from infirmity
and cannot be acted in absence of other evidence, which though
available has been withheld from the Court then question of
drawing adverse inference against the prosecution may arise.
Such is not the case in hand. Hence, we find no merit in
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
submission of the learned counsel for the appellants that the
prosecution has withheld material witnesses.
40. With the available evidence on record and from
the proved circumstances we are of the considered opinion that
the accused persons, in furtherance of their common intention
had inflicted wounds on five deceased persons as well as on
P.W.1 Akash Kumar @ Vikky Kumar. They caused simple hurt
to P.W.4 Rubi Kumari. However, the question which now falls
for consideration is whether the accused persons who acted in a
league and inflicted blows on vital parts of five deceased
persons, had committed the offence of murder punishable under
Section 302 of the Indian Penal Code as well as the offence of
attempting to commit murder of P.W.1 Akash Kumar @ Vikky
Kumar punishable under Section 307 of the Indian Penal Code.
41. Culpable homicide is a genus and murder is its
species. The Indian Penal Code practically recognizes three
degrees of culpable homicide. Culpable homicide of the first
degree is the gravest form which is defined as 'murder' and is
made punishable under Section 302 of the IPC. The next may
be termed as 'culpable homicide of second degree', which is
made punishable under first part of Section 304 of the IPC. The
last degree of culpable homicide is 'culpable homicide of third
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
degree' which is made punishable under second part of Section
304 of the IPC. Barring the cases covered by an exception to
Section 300 of Indian Penal Code, culpable homicide is murder
if an act by which the death is caused is done with the intention
of causing death. Otherwise, for making out the offence of
murder punishable under Section 302 of the IPC, the
prosecution is firstly required to establish that a bodily injury is
present on the victim. Secondly, the prosecution is required to
establish nature and size of the injury on the victim. Then the
prosecution is enjoined to prove that there was intention to
inflict the particular injury, by adducing clear and cogent
evidence for clarifying that such an injury was not accidental or
unintentional. Possibility of injury of other kind intended by the
appellant/accused is required to be ruled out. Lastly, the
prosecution has to establish that the injury so caused was
sufficient to cause death in the ordinary course of nature. If all
these factors are established, then only the offence defined
under Section 300 of the IPC and punishable under Section 302
of IPC is made out. Similarly, it is well settled that in the
offence under Section 307 of Indian Penal Code all the
ingredients of offence of murder are present except the death of
the victim. As such where all ingredients of Section 300 of
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
Indian Penal Code are lacking, the accused cannot be convicted
under Section 307 of Indian Penal Code. Section 307 of Indian
Penal Code does not take into consideration the effect of the act
of the accused except as a measure of punishment to be imposed
on him. In order to constitute the offence under Section 307 of
Indian Penal Code actus reus and the requisite mens rea both
must concur and the intention precedes the act attributed to the
accused. The offence punishable under Section 307 of the IPC is
made out when the accused have intended to commit murder
and in pursuance of that intention does any overt act towards
commission of murder. In order to establish the offence
punishable under Section 307 of the IPC, the prosecution is
required to establish the intention or knowledge of committing
murder and doing of an act towards it. Thus, Section 307 of the
IPC contemplates intention or knowledge and not the
consequence of the actual act done for the purpose of carrying
out the intention.
42. Reverting to the facts of the case in hand, as noted
by us, the accused persons had inflicted blows of sharp cutting
weapons on vital parts of bodies of all five deceased persons. As
seen from the medical evidence adduced by the prosecution,
deaths of Kamlesh Roy, Bikash Roy, Vijay Roy, Satyendra Roy
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
and Shanti Devi were resulted because of cardio respiratory
failure caused by haemorrhage and shock due to injuries
sustained by them on vital parts of their body such as neck,
chest and abdomen. Thus, we have no doubt in our mind that
blows of sharp cutting weapons were inflicted by the accused
persons on the victims with an intention to cause death of their
victims. Seat of injury and the weapons used for causing
wounds so also the force by which the blows were given on the
victims makes it clear that the accused persons were knowing
that they were likely to cause death of the victims by inflicting
blows by sharp edged weapons. Therefore, the prosecution has
established that in furtherance of their common intention, the
appellants had caused murders of five victims, thereby
committing the offence punishable u/s 302 R/w 34 of the Indian
Penal Code. Similarly, it is proved from evidence on record that
in furtherance of their common intention the accused persons
had attempted to commit murder of P.W.1 Akash Kumar @
Vikky Kumar by inflicting blow of sharp cutting weapon on his
chest leading to his hospitalization for a one and half month at
P.M.C.H., Patna. The blow was inflicted on his chest with
sufficient force making the intention to eliminate him crystal
clear. Thus, the prosecution has also proved commission of the
Patna High Court CR. APP (DB) No.518 of 2014 dt.27-02-2023
offence punishable under Section 307 read with Section 34 of
the Indian Penal Code.
43. As we have carefully gone through the entire case
laws relied by the appellants and as we have acted upon the
ratio which can be culled out from those rulings, we are not
intending to reproduce the ratio by quoting relevant paragraphs
from those judgments, for burdening this otherwise lengthy
judgment.
44. In the result, both these appeals are devoid of
merit and they are accordingly dismissed.
(A. M. Badar, J)
( Sandeep Kumar, J)
P.S./Mkr./Bhardwaj/
Aditi Sharma/-
AFR/NAFR A.F.R.
CAV DATE 24.01.2023.
Uploading Date 28.02.2023
Transmission Date 28.02.2023
