Gurucharan Rishi vs The State Of Bihar
2023 Latest Caselaw 5106 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.1348 of 2019
     Arising Out of PS. Case No.-33 Year-2016 Thana- KRITYANAND NAGAR District- Purnia
     ======================================================

GURUCHARAN RISHI Son of Kamleshwari Rishideo Resident of Village- Mareli, P.S.-Bounsi, District-Araria.

... ... Appellant/s Versus The State of Bihar.

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 508 of 2022 Arising Out of PS. Case No.-33 Year-2016 Thana- KRITYANAND NAGAR District- Purnia ======================================================

1. KALESHAR RISHI @ KALESHWAR RISHI S/o Late Parmeshwar Rishi R/o village- Baijnath Nagar, P.S.- K. Nagar (Sri Nagar), District- Purnea.

2. Kharchan Rishi @ Kharchandra Rishi S/o Kaleshar Rishi @ Kamleshwar Rishi R/o village- Baijnath Nagar, P.S.- K. Nagar (Sri Nagar), District- Purnea.

... ... Appellant/s Versus The State of Bihar.

... ... Respondent/s ====================================================== Appearance :

     (In CRIMINAL APPEAL (DB) No. 1348 of 2019)
     For the Appellant  :      Mr. Gopal Kumar Jha, Advocate
     For the Respondent :      Mr. Ajay Mishra, APP
     (In CRIMINAL APPEAL (DB) No. 508 of 2022)
     For the Appellants :      Mr. Bijendra Kumar Singh, Advocate
                               Mr. Kr. Dhananjay Singh, Advocate
     For the Respondent :      Mr. Ajay Mishra, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 06-10-2023

Both these appeals are filed under Section 374(2) of

the Code of Criminal Procedure, 1973 (hereinafter referred to as Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

'the Code') wherein the three appellants-convicts have assailed

the judgment of conviction dated 13.02.2019 and order of

sentence dated 18.02.2019, rendered by learned 5th Additional

District & Sessions Judge, Purnea in Sessions Trial

No.412/2016 and 68/2017 (CIS No.422/2016 and 68/2017, Tr.

No.368/2016), arising out of K. Nagar (Sree Nagar) P.S. Case

No.33 of 2016, whereby the present appellants have been

convicted for the offences punishable under Sections 341, 323

and 302/34 of the Indian Penal Code and sentenced to undergo

RI for life under Sections 302/34 of the Indian Penal Code and

to pay a fine of Rs.2000/- each and in default of payment of

fine, the appellants have to undergo RI for two months. The

appellants have also been sentenced to undergo SI for one

month under Section 341 of the Indian Penal Code. The present

appellants have further been sentenced to undergo RI for one

year under Section 323 of the Indian Penal Code. All the

sentences are directed to run concurrently.

2. The prosecution story in brief is as under:

On 02.02.2016 at 08:00 p.m., when the husband of

the informant was returning from Phulauri Chowk to his house,

appellants, Kaleshwar Rishi, Kharchan Rishi and Gurucharan

Rishi dragged him into the courtyard situated in the house of Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

Kaleshwar Rishi and assaulted him with lathi, danda (stick),

shoes besides fists and slaps. The husband of the informant

sustained injury near his eyes. The husband of the informant

anyhow managed to flee and reached to his house and became

unconscious. Next morning, the informant brought her husband

to Sadar Hospital, Purnea and the doctor referred her husband to

Katihar Medical College but, the informant could not bring his

husband to Katihar Medical College for treatment as she was

not having sufficient money.

3. It is pertinent to note at this stage that for the

occurrence which took place on 02.02.2016 at 08:00 p.m., the

fardbeyan of the informant came to be recorded on 08.02.2016

and thereafter the FIR came to be registered on 09.02.2016

before the concerned police station. The said FIR was initially

registered under Sections 341, 323, 307 and 34 of the Indian

Penal Code. However, thereafter the injured succumbed to the

injuries and, therefore, Section 302 of the Indian Penal Code

was also added by the Investigating Agency.

4. After registration of the FIR, the Investigating

Officer carried out the investigation, recorded the statement of

the witnesses, collected the necessary evidence and thereafter

filed charge-sheet against the appellants-accused before the Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

concerned Magistrate Court. However, the learned Magistrate

committed the case under Section 209 of the Code to the Court

of Sessions where the same was registered as Sessions Trial

No.412/2016 and 68/2017.

5. Before the Trial Court, the prosecution has

examined six witnesses and produced the documentary

evidence. Thereafter the statement of the accused under Section

313 of the Code came to be recorded. After conclusion of the

trial, the Trial Court passed impugned order and, therefore, the

two appellants have jointly filed Criminal Appeal (DB) No.508

of 2022 whereas another appellant-convict has filed Criminal

Appeal (DB) No.1348 of 2019.

6. Heard Mr. Gopal Kumar Jha and Mr. Bijendra

Kumar Singh for the appellants and Mr. Ajay Mishra, learned

APP appearing on behalf of the State.

7. Learned counsel for the appellants have mainly

submitted that there are major contradictions in the deposition

of the prosecution witnesses and in fact there is no eye witness

to the occurrence in question. It is further submitted that PW-2,

PW-3, PW-4 and PW-5 are in fact not eye witnesses to the

occurrence in question. However, they are projected as the eye

witnesses. Learned counsel appearing for the appellants, at this Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

stage, have referred the deposition of the aforesaid witnesses

and thereafter also referred the deposition given by PW-6, the

Investigating Officer.

8. Learned counsel thereafter would submit that

though the alleged occurrence took place on 02.02.2016 at

08:00 p.m., the informant who is the wife of the deceased has

lodged the FIR on 08.02.2016. Thus, there is delay in lodging

the FIR in which the present appellants-accused have falsely

been implicated. At this stage, it is also contended that even the

prosecution has also failed to prove the motive on the part of the

appellants to commit the alleged offence. Learned counsel,

therefore, urged that this appeal be allowed and thereby the

impugned order of conviction passed by the concerned Trial

Court be quashed and set aside.

9. On the other hand, the learned APP has opposed

these appeals. Learned APP has referred the deposition of the

prosecution witnesses and thereafter contended that the

independent witness, i.e., PW-2 Prakash Mukhia, the wife of the

deceased and the father of the deceased have supported the case

of the prosecution. The said witnesses have specifically narrated

the manner in which the occurrence took place, the role played

by each of the appellants and the said version of the prosecution Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

witnesses has been supported by the medical evidence and,

therefore, the Trial Court has rightly passed the order of

conviction against the present appellants. Learned APP,

therefore, urged that when the prosecution has proved the case

against appellants-accused beyond reasonable doubt, the Trial

Court has not committed any error. Hence, both these appeals be

dismissed.

10. Having heard the learned counsel appearing for

the parties and having gone through the materials placed on

record, it would emerge that PW-5 Anita Devi is the informant.

Her fardbeyan was recorded by the concerned police authority

on 08.02.2016. In her fardbeyan, the informant has stated that

the occurrence took place on 02.02.2016 at 08:00 p.m. near

Phulauri Chowk opposite to the house of Ashok Rishi. It is

alleged in the fardbeyan that all the accused gave blows with

lathi and danda (stick) etc. The said occurrence took place near

the house of Kaleshwar Rishi. The husband of the informant

was dragged and thereafter he came to the house and became

unconscious. In the morning, the injured was taken to Sadar

Hospital, Purnea where the concerned doctor examined him and

the injured was referred to Katihar Medical College. However,

the informant was not having sufficient money for the treatment Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

of her husband and, therefore, he was not taken to the said

Medical College.

10.1. At this stage, deposition of PW-5 before the

court is examined. It is stated by her in examination-in-chief

that she was preparing food at 08:00 p.m. in her house and her

husband had gone to purchase the vegetable in co-operative

market. When her husband reached near the house of Ashok, all

the three accused dragged her husband and he was taken to the

Aangan (courtyard) of Kaleshwar and assault was made with

brick and rod. She also reached at the place of occurrence after

hearing hulla and she has seen the accused making the assault

on her husband. Thereafter her husband was taken to Sadar

Hospital, Purnea for treatment. However, he was referred to

Katihar. It is also stated that she was not having sufficient

money for the treatment and, therefore, the injured was not

taken to Katihar for further treatment and in the Sadar Hospital,

Purnea, her husband died and thereafter on the same day, she

lodged the FIR.

10.2. The said witness in her cross-examination

stated that her husband died in Sadar Hospital, Purnea and in the

same day morning her husband was taken to the said hospital.

She has further stated that at the time of occurrence, 10-20 Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

persons of the Muhalla were present. However, she did not

know the name of such persons.

11. At this stage, we would also like to refer the

deposition of PW-4 Ramvilash Rishi who is father of the

deceased. The said witness has stated in his examination-in-

chief that the occurrence took place at about 08:00 p.m. At that

time, he was present in his house. He heard hulla near the house

of Kaleshwar and, therefore, he alongwith his daughter-in-law,

Anita and younger son Jaikant reached at the place of

occurrence and thereafter they saw that all the accused were

giving stick and fists blow to Manoj Rishi (son of the witness).

It is further stated that because of the said occurrence, Manoj

Rishi became unconscious at the spot. Manoj Rishi was kept in

the house during night hours. However, in the morning, he was

taken to Sadar Hospital, Purnea. The concerned doctor referred

the patient to Katihar Medical College. However, the injured

was not taken to Katihar as they were not having sufficient fund.

During course of treatment, the injured died in Sadar Hospital,

Purnea. Thereafter police came to the hospital and dead body of

the deceased was sent for post-mortem.

11.1. During cross-examination, the said witness has

stated that he reached to the place of occurrence. He had seen Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

the scuffle and 50-100 persons gathered at the said place. The

scuffle had taken place in the courtyard surrounded by Taati

(bamboo plate structure). The said witness further stated during

cross-examination that nobody had lifted Manoj Rishi from the

spot and Manoj became unconscious at the place of occurrence.

After 10-15 minutes, he ran way from the place of occurrence.

At the time of scuffle, nobody has tried to hold the accused

persons. It is also stated that during night hours, he did not

inform the police. Manoj Rishi was taken to the hospital in the

morning. However, in the morning also police was not

informed. Manoj Rishi died after eight days in the hospital.

12. PW-2 Prakash Mukhia is the witness who has

stated in his examination-in-chief that the occurrence took place

prior to two years from the date of his deposition. At that time,

he was returning after taking medicine to his house. When he

reached near the house of Kaleshwar Rishi, he saw that all the

three accused were giving blows with lathi to Manoj Rishi.

12.1. During cross-examination, the said witness

stated that he had not met brother-in-law of Kharchan Rishi

prior to the date of occurrence and he had seen the scuffle which

took place on the road. He has specifically admitted in the cross-

examination that at the time of occurrence, 2-4 persons were Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

present and it was dark night at about 08:00 p.m. and, therefore,

he had not seen that who is giving blow to the injured. He has

further admitted that police has not inquired from him.

13. PW-3 Bina Devi has stated in her examination-

in-chief that at the time of occurrence, she was sleeping in her

house. She heard hulla and saw that the accused were giving

blow with lathi and also giving stick and fists blow to Manoj

Rishi. The said witness also narrated about the injuries sustained

by Manoj Rishi. She further stated that thereafter the accused

fled away from the spot. She further stated that after the injured

was taken to the hospital after 3-4 days when he was brought

back to his house, Manoj Rishi died.

13.1. During cross-examination, she has admitted

that it was a dark night and, therefore, it was difficult for her to

see that who has given the blow with the weapon to the injured.

She has also admitted that the police has not inquired from her

about the occurrence.

14. PW-1 Dr. Vishnu Prasad Agarwal is the doctor

who was posted as Medical Officer at Sadar Hospital, Purnea on

11.02.2016. The said witness has stated that at about 10:10 a.m.,

he had conducted the post-mortem on the dead body of the

deceased Manoj Rishi. The said witness found following ante- Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

mortem injuries on external examination:

"(i) Rigor Mortis was present on all four limbs.

(ii) Linear abrasion of size 1" in light of left infraorbital area was black in colour.

(iii) Abrasion 1/2" x 1/4" on right knee joint black in colour.

On dessection Head & Neck - NAD. Chest- Heart right chamber was full of blood and left chamber was empty.

Lungs- both were pale.

Abdomen- Peritonial cavity contains foul smalling deep straw colour fluid about 1.5 litre in amount.

Lever, Spleen, Kidney were conjusted reptured of transverse colon.

Stomach was empty small and large intestine contains gas and fecal matter Urenary bladder was empty.

Time elapse since death within 24 hours, cause of death in my opinion the cause of death due to peritonitis due to large intestinal perforation caused by hard and blunt weapon because there was sign of physical assault."

15. PW-6 Gopesh Kumar Yadav is the Investigating

Officer who has carried out the investigation of the present case.

The said witness has stated that on 08.02.2016, he was In-charge

of the concerned police station and the investigation of the said

case was taken over by him. He has recorded the statement of

the witnesses and collected the necessary evidence. The dead

body of the deceased was sent for post-mortem. Prior to that, the Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

inquest report was prepared and after the investigation was over,

he had filed the charge-sheet against the accused persons.

15.1 During cross-examination, the said witness has

stated that he had not recorded the statement of Dhiren Rishi,

Narayan Rishi who were residing near the place of occurrence.

The said witness also not recorded the statement of the injured

who was in the hospital. He has also stated that witness

Ramvilash has not stated before him while giving the statement

that when he reached at the place of occurrence, his daughter-in-

law has also accompanied him. The said witness further stated

that Anita Devi has also not stated in her statement given before

the police that she reached at the place of occurrence after

hearing hulla.

16. From the aforesaid evidence led by the

prosecution before the Trial Court, it would emerge that the

prosecution has projected PW-2 Prakash Mukhia, PW-3 Bina

Devi, PW-4 Ramvilas Rishi and PW-5 Anita Devi as the eye

witnesses to the occurrence. However, if the deposition of the

aforesaid witnesses including the cross-examination is carefully

examined, it is revealed that there are major contradictions in

the deposition of the aforesaid witnesses. In the fardbeyan, the

informant has given one story whereas in the deposition given Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

before the court, the said witness has narrated other story. From

the evidence produced on record, it is revealed that the

informant Anita Devi was not present at the place of occurrence.

Even the Investigating Officer has admitted in his cross-

examination that Ramvilas Rishi who is father-in-law of the

informant has also not stated before the police while giving the

statement under Section 161 of the Code that Anita Devi was

present alongwith him at the place of occurrence. In the

fardbeyan, the informant has stated that her husband came to the

house and thereafter he became unconscious whereas Ramvilas

Rishi has stated before the court that his son Manoj Rishi

became unconscious at the place of occurrence. Even there is

also discrepancy with regard to the place of occurrence. The so

called eye witness PW-2, Prakash Mukhia who is projected as

independent witness by the prosecution has admitted during

cross-examination that it was dark night at about 08:00 p.m.

and, therefore, he is not sure that which accused has given blow

with which weapon to the injured. The so called eye witness

PW-2 Prakash Mukhia has stated that only 2-4 persons were

present at the place of occurrence when the occurrence took

place whereas PW-4 Ramvilas Rishi has stated that 50-100

persons were gathered at the place of occurrence. Similarly, Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

informant Anita Devi, PW-5 has stated that only 10-20 persons

gathered at the place of occurrence and at the time of

occurrence. It is also revealed from the cross-examination of

PW-2 Prakash Mukhia that the police did not record his

statement and, therefore, it appears that for the first time the said

witness was produced before the court by the prosecution.

Similar is the case with PW-3 Bina Devi who has also stated

during her cross-examination that the police did not inquire with

her. She has also admitted during cross-examination that it was

a dark night and, therefore, she could not identify or see that

which person has given blow with which weapon to Manoj

Rishi.

17. It is also not in dispute that the alleged

occurrence took place on 02.02.2016 at 08:00 p.m. for which the

FIR was lodged on 08.02.2016. Thus, there is a gross delay in

lodging the FIR and it is the specific case of the appellants-

convicts that they have been falsely implicated in the alleged

occurrence. It is also reflected from the record that though the

injured became unconscious in the night immediately after the

occurrence took place, he was taken to the Sadar Hospital,

Purnea for the first time in the morning. Thereafter it is also an

admitted position that the concerned doctor at Sadar Hospital, Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

Purnea referred the injured to Katihar Medical College however,

the patient/injured was not taken to the concerned hospital at

Katihar for further treatment.

18. From the aforesaid evidence led by the

prosecution before the Trial Court, we are of the view that PW-

2, PW-3, PW-4 and PW-5 are projected as eye witnesses.

However, Pws.-4 and 5 are the near relative of the injured and

they are the interested witnesses and, therefore, their testimony

is required to be scrutinized carefully. PW-2 and PW-3 are

though independent witnesses, their testimony is not required to

be believed because of the fact that both these witnesses have

specifically admitted during cross-examination that their

statements were not recorded by the police during course of

investigation and for the first time they have given the

deposition before the court. They have also admitted that it was

a dark night and, therefore, it was not possible for them to see

whether the present appellants-accused only have given blow

with particular weapon to the deceased or not.

19. In view of the aforesaid facts and circumstances

of the present case, we are of the view that the prosecution has

failed to prove the case against the present appellants-convicts

beyond reasonable doubt and, therefore, the concerned Trial Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

Court has committed an error while recording the order of

conviction and sentence against the present appellants hence,

the said order is required to be interfered with.

20. Accordingly, both these appeals stand allowed.

The impugned judgment of conviction dated 13.02.2019 and

order of sentence dated 18.02.2019 passed by learned 5 th

Additional District and Sessions Judge, Purnea in connection

with Sessions Trial No.412/2016 and 68/2017 (CIS

No.422/2016 and 68/2017, Tr. No.368/2016) arising out of K.

Nagar (Sree Nagar) P.S. Case No.33 of 2016 is quashed and set

aside. The appellant, namely, Gurucharan Rishi in Criminal

Appeal (DB) No.1348 of 2019 and appellants, namely, Kaleshar

Rishi @ Kaleshwar Rishi and Kharchan Rishi @ Kharchandra

Rishi in Criminal Appeal (DB) No.508 of 2022 are acquitted of

the charges levelled against them by the learned trial court.

Since appellant, namely, Gurucharan Rishi is on bail, he is

discharged from the liabilities of his bail bond and appellants,

namely, Kaleshar Rishi @ Kaleshwar Rishi and Kharchan Rishi

@ Kharchandra Rishi are in jail, they are directed to be released

forthwith, if their presence is not required in any other case.

21. It goes without saying that if the appellants have

paid the fine imposed by the learned Trial Court, the same shall Patna High Court CR. APP (DB) No.1348 of 2019 dt.06-10-2023

be returned to them.

22. Let the LCR of both these appeals be sent back

to the concerned lower court.

(Vipul M. Pancholi, J.)

( Chandra Shekhar Jha, J.)

Sanjay/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          11.10.2023
Transmission Date       11.10.2023