Ashok Rai vs The State Of Bihar
2023 Latest Caselaw 4285 Patna

       IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.462 of 2017
        Arising Out of PS. Case No.-163 Year-2012 Thana- LALGANJ District- Vaishali
  ======================================================

Ashok Rai Son of Rambilash Rai, Resident of Village- Etwarpur, P.S. Lalganj, District- Vaishali.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 838 of 2017 In CRIMINAL APPEAL (SJ) No.1336 of 2017 Arising Out of PS. Case No.-163 Year-2012 Thana- LALGANJ District- Vaishali ====================================================== Upendra Rai and Anr

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

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

(In CRIMINAL APPEAL (DB) No. 462 of 2017) For the Appellant/s : Mr.Jitendra Narain Sinha, Adv For the Respondent/s : Mr. Dilip Kumar Sinha, APP, For the informant : Mr. Ashok Kumar, Adv. (In CRIMINAL APPEAL (DB) No. 838 of 2017) For the Appellant/s : Mr.Natraj Verma. Adv. For the Respondent/s : Mr. Dilip Kumar Sinha, APP For the informant : Mr. Ashok Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 05-09-2023

1. The two appeals have been heard together and

are being disposed of by this common judgment. Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

2. We have heard Sri Jitendra Narain Sinha, the

learned Advocate in Cr. APP (DB) No. 462 of 2017

(Ashok Rai Vs. The State of Bihar) and Mr. Natraj

Verma, the learned Advocate for appellants/ Upendra

Rai and Sunil Rai in Cr. APP (DB) No. 838 of 2017 and

Mr. Ashok Kumar, the learned advocate for the

informant. Mr. Dilip Kumar Sinha, the learned counsel

for the State has assisted us in both the appeals,

3. The appellant/ Ashok Rai has been convicted

under Section 302 and 325/34 of the I.P.C. vide

judgment dated 20.03.2017 passed by the learned 8 th

Additional Sessions Judge, Hajipur, Vaishali in

Sessions Trial No. 287 of 2014 arising out of Lalganj

P.S. Case No. 163 of 2017 and by order dated

24.03.2017, he has been sentenced to under go R.I.

for life, to pay of fine of Rs. 10,000/- and in default of

payment of fine to further suffer imprisonment for four

months. The entire amount of fine was directed to be

given to the wife of the deceased, namely, Baby Devi Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

(P.W. 7). Appellant / Ashok Rai has further been

convicted under Section 325/34 of the I.P.C. and for

that offence he has been directed to undergo R.I. for

five years, to pay a fine of Rs. 5,000/- and in default

of payment of fine to further suffer imprisonment for

two months.

4. Appellants / Upendra Rai and Sunil Rai (Cr. APP

(DB) No. 838 of 2017) have only been convicted and

sentenced under Section 325/34 of the I.P.C. whereby

they have been directed to undergo R.I. for five years,

to pay a fine of Rs. 5,000/- and in default of payment

of fine to further suffer imprisonment for two months

vide the same judgment and order of conviciton. The

sentences against all the three appellants have been

directed to run concurrently.

5. Baby Devi (P.W. 7) who is the wife of the

deceased had lodged the first information report vide

Lalganj P.S. Case No. 163 of 2017 dated 06.10.2012

against the appellants and others for the offences Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

under Sections 147, 148, 149, 341, 323, 324, 325,

307 and 504 of the I.P.C. Later, with the death of her

husband (late Awdhesh Rai) Section 302 of I.P.C. was

added vide order dated 30.10.2012. It was alleged by

her that the accused persons including the appellants

were trying to put up pegs for erecting a hut on a land

which had fallen in the share of her family and on her

protest, the accused persons started abusing her.

Later, many people came to the rescue of P.W. 7. It

was at that time that P.W. 7, Indu Devi (P.W. 3) and

Sumitra Devi (not examined) were injured.

Appellant/Ashok Rai is said to have given a Sawal

(Khanti) blow as a result of which he became seriously

injured. Later, he was taken to hospital.

6. As the prosecution story unfolds, after some days

of treatment in P.M.C.H., the husband of P.W. 7 died.

7. It further appears from the records that initially

chargesheet was submitted against the appellants

whereas Rajdeo Rai, Mina Devi and Banarsi Devi were Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

not sent up for trial as they were found to be innocent.

However, cognizance was taken against all six namely

the appellants and the aforenoted persons who were

not initially sent up for trial.

8. The Trial Court after examining nine witnesses on

behalf of the prosecution and five on behalf of the

defence, convicted the appellants as aforenoted and

acquitted co-accused Mina Devi, Banarsi Devi and

Rajdeo Rai of all the charges.

9. The learned counsel for the appellants has

submitted that the case lodged against them is

absolutely false. The land over which the occurrence is

said to have taken place had fallen in their share over

which a hut had already been erected. It was a blatant

attempt on the part of the prosecution to remove that

hut, only for the purposes of divesting the appellants

and others from their possession of the land in

question. It has further been urged that a Title Suit

and a Partition Suit were pending before the Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

competent court and even if it be assumed that the

shares interse parties had not been fully demarcated,

for all practical purposes, the land over which the

occurrence is said to have taken place was in the

possession of accused persons which was attempted to

encroached upon by the members of the prosecution

party.

10. Mr. Jitendra Narain Sinha, learned advocate for

appellant/Ashok Rai has further argued that none of

the witnesses actually saw the occurrence but only

because in a fight between the agnates, unfortunately

one Awdhesh Rai died, the opportunity was grabbed by

the prosecution to lay the blame of killing him on

appellant/Ashok Rai who is the husband of P.W.7.

11. The postmortem report of the deceased has not

been proved and the explanation offered is that the

doctor who had conducted the postmortem

examination had been transferred to Delhi. Only one

Dr. Shashi Bhushan Prasad (P.W. 8) has been Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

examined to prove the injuries suffered by the

deceased and three of the injured witnesses, two out

of whom have been examined at the trial.

12. So far as, appellants / Upendra Rai and Sunil Rai

are concerned, Mr. Natraj Verma, learned advocate

representing them has submitted that it is very difficult

for anyone of the witnesses to have specifically pointed

about the specific role and act played by the

aforenoted two appellants in a melee where both sides

had clashed amongst each other. Be that as it may,

he has submitted that the injuries suffered by the three

victims namely Baby Devi, Indu Devi and Sumitra Devi

(not examined) were found to be simple in nature. He

has further submitted that since the sentence of the

aforenoted appellants were not suspended at the

appellate stage, they remained in jail for five years

thereby completing their term and have now come out

of jail.

13. Mr. Dilip Kumar Sinha, the learned Additional Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

Public Prosecutor has submitted that there is complete

consistency in the deposition of the witnesses about

the deceased having been assaulted by "Sawal" by

appellant / Ashok Rai. The deceased remained

unconscious all-through otherwise his statement would

have been recorded in the meanwhile. There is a

definite reason for not proving the postmortem report

and that is the non-availability of the doctor who had

conducted the same. Nonetheless, the postmortem

report has been brought on record and exhibited.

There could be no doubt, Mr. Sinha urges, that

appellant / Ashok Rai was the author of the fatal injury

leading to the death of the deceased. Since the other

victims have also deposed about the specific roles

played by appellants / Upendra Rai and Sunil Rai,

there is no reason to interfere with the judgment and

order of conviction and sentence of the aforenoted two

appellants, who so far as their sentences are

concerned, have been dealt with rather leniently. Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

14. Similar arguments have been advanced by Mr.

Ashok Kumar, the learned counsel for the informant,

who has submitted that a partition suit was pending

between the parties but the land in question fell in the

share of the prosecution side. It was only when an

attempt was made by the accused person including

the appellants to erect a hut at the place of occurrence

that a protest was registered by P.W. 7, which led to a

full-fledged unilateral attack by the accused persons on

the members of the prosecution party. The witnesses

have consistently deposed before the Trial Court that

all the accused persons who were wielding lathi and

iron rod and assaulting the members of the prosecution

party indiscriminately. If the victims could be saved, it

was only by a whisker and not because of the

prosecution party being in a position to ward off the

attack on them.

15. We have examined the evidence of all the

witnesses including those of the defence witnesses. Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

What is very striking to note is that though most of the

witnesses have spoken before the Trial Court in the

same sequence in which P.W. 7 has narrated about the

occurrence in the F.I.R. as also before the Trial Court

but during their cross examination, each one of those

witnesses has admitted to have reach the place of

occurrence after the assault was over.

16. All the aforenoted witnesses have spoken about

their having seen the injured persons and the deceased

bleeding because of the assault.

17. In this context, it would be necessary to refer to

the deposition of the witnesses in seriatim.

18. Baijnath Rai (P.W. 1) is related to P.W. 7. He

has specifically stated in the cross examination that he

reached the place of occurrence alognwith other

agnates and found that Baby Devi, Indu Devi, Sumitra

Devi and Awdhesh Rai had fallen on the ground and

were bleeding. He has gone to the extent of saying

that all the four injured persons had become Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

unconscious when he had reached the place of

occurrence. He has also admitted that there was a Title

Suit pending between the parties in which the

prosecution side were the defendants. That he was not

making a correct statement, the learned advocate for

the appellant/Ashok Rai has submitted, is evident from

the fact he did not know about the family arrangement

specially with respect to the land given to the accused

persons in lieu of the land over which the occurrence

had taken place.

19. Similarly, Dinesh Rai (P.W. 2) who stands in

special relation of elder brother-in-law of P.W. 7 has

stated that there was a dispute with respect to the

possession of land in question. When he had reached

the place of occurrence on hulla, he had found that all

the four persons were injured. This, therefore, makes

it very obvious that he had not seen the actual part of

the assault and had only narrated what was told to

him.

Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

20. Indu Devi (P.W. 3), one of the injured witnesses

has very curiously stated before the Trial Court that

after the occurrence, the entire family sat down and

decided as to who should be named in the F.I.R.

Another statement of P.W. 3 which makes her wholly

unreliable is that all the accused persons assaulted

Awdhesh Rai (deceased) with "Sawal" which is not the

prosecution case at all.

21. Yogendra Rai, who is the father of the deceased

(P.W. 4) has but denied the suggestion that after

about one month and twelve days of the occurrence,

he told the police about the persons whom he wanted

to be made accused in this case. He has also admitted

of the pendency of the Title Suit no. 532 of 2005

between the parties. He had also reached the place of

occurrence along with his agnates after the actual part

of the assault was over. He has specifically stated in

his cross-examination in paragraph 37 that when he

had reached the place of occurrence, he found all the Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

injured persons lying on the ground.

22. Similar statements have been made by other

witnesses.

23. Arun Kumar Rai @ Munna Rai (P.W. 5) is the

person who claims to have taken the deceased to the

hospital for treatment. Nowhere, has he stated about

the condition of the deceased for all the while that he

received treatment in P.M.C.H.

24. We get no idea from his deposition whether the

deceased ever regained consciousness. The doctor who

treated the other injured persons and the deceased has

also not stated anything about the health condition of

the deceased. All that he had to offer to the Trial Court

was that he had found lacerated wound of 4 X ½ inch

dimension which was muscle deep. There is no

reference of the place where the wound was caused.

The patient, at the time of treatment, in deep coma,

and had been bleeding. The wound was found to have

been caused by hard and blunt substance. Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

25. The investigation also does not appear to have

been made in a proper manner.

26. The I.O. of this case, namely, Surendra Sharma

(P.W. 9) made no enquiry with respect to the

allocation of land in favour of the parties in the family

arrangement. Though, he had seen the blood stained

clothes of the victims but he never made any attempt

to seize them. Only one of the injured persons was

examined by him namely Indu Devi. Rest of the

injured persons according to him were not in a position

to speak.

27. Mr. Sinha, the learned advocate for the

appellants submits that the veracity of this statement

is not borne out if the deposition of the other witnesses

are to be believed. What however is relevant to note is

that P.W. 9 had visited the place of occurrence and he

did not find any remnant of any hut having been

erected or that the earth at any place was found dug

up. There was no wall, either new or old, at the place Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

of occurrence. He has further stated that before him,

Arun Kumar, the person who had taken the deceased

to the hospital did not state anything about anybody

having assaulted anyone of the victims including the

deceased by a "Sawal".

28. In this context, if the deposition of the defence

witnesses is analyzed, it would appear that their

statements before the Trial Court is not worth

accepting. The I.O. did not find any sign of any hut at

the place. The defence version to that extent does not

appear to be correct that they were attempted to be

ousted by the prosecution side.

29. From a conspectus of all these facts, it appears

that because of no final determination having been

made by Courts of law with respect to the respective

shares of the parties and the issue regarding the claim

of the parties with respect to the land in question

remaining sub-judice, a fight might have taken place in

which unfortunately three persons stood injured and Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

one ultimately succumbed to the injuries.

30. Seen in this context, we find that Baby Devi

(P.W. 7) has really been consistent that the deceased

was assaulted by appellant/ Ashok Rai on his head by

khanti. She has but not stated about any repetition of

blows by the appellant/ Ashok Rai.

31. Thus, we find that even though appellant/Ashok

Rai would be imputed with the motive of causing such

bodily injury which would have, in all likelihood, caused

the death but the intention to cause death was

missing. If appellant/Ashok Rai was armed with lathi,

he could have first assaulted P.W. 7 who had actually

started protesting against the so called action of the

accused persons. The intention to kill would have been

reflected if there had been any repetition of blow. In

the fight, perhaps the attack by appellant/Ashok Rai

proved fatal but without any intention to cause death.

32. The appellant/Ashok Rai, therefore, can only be

held to be guilty under Section 304 (Part I) of the Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

I.P.C. which provides for punishment for culpable

homicide not amounting to murder.

33. So far as the appellants/ Upendra Rai and Sunil

Rai are concerned, the simple nature of injuries

suffered by their targets, the conviction under Section

325 of I.P.C. is justified.

34. Thus, we convert the conviction of

appellant/Ashok Rai (Cr. APP (DB) No. 462) from

Section 302 to one under Section 304 (Part I) of the

I.P.C.

35. He has been sentenced to undergo imprisonment

for life. We find that in the attending circumstances, a

ten years rigorous imprisonment would be sufficient to

meet the ends of the justice.

36. The sentence imposed upon appellant/Ashok Rai

is also thus altered to ten years rigorous imprisonment.

37. We however do not find any justification for

reducing the amount of fine which the appellant/Ashok

Rai shall be required to pay to P.W. 7.

Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

38. Appellant/Ashok Rai is in jail and has served the

sentence for more than ten years. Since, we have

altered the sentence of appellant/Ashok Rai to ten

years, he is directed to be released forthwith from jail

if not detained or required in any other case, provided

the amount of fine is paid.

39. The fine shall be deposited at the instance of the

appellant/Ashok Rai in Court and the learned Trial

Court shall have it disbursed to P.W. 7.

40. The sentence of the appellants/Upendra Rai and

Sunil Rai is not being altered for the reason that they

have already served out their sentences and are now

out of jail.

41. No order is required to be passed with respect to

appellants/ Upendra Rai and Sunil Rai who have

already served their sentences. However, their

liabilities under the bail bonds are cancelled.

42. Criminal Appeal (DB) No. 462 of 2017,

therefore, stands partially allowed whereas, Criminal Patna High Court CR. APP (DB) No.462 of 2017 dt.05-09-2023

Appeal (DB) No. 838 of 2017 stands dismissed.

43. Let a copy of this judgment be dispatched to the

Superintendent of concerned jail for record and

compliance.

44. The records of this case be also returned to the

concerned court below forthwith.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J)

sunilkumar/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          11.09.2023
Transmission Date       11.09.2023