ABHINAI KUMAR RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) SEQUENCE of events, of which horrendous act was a fall out, can be traced to a preceding trifle matter, as it was alleged that preceding the day of incident, Ram Badan Singh, Incharge Homeguard personnel, posted at BTPS bus stand check post, had asked the nearby shopkeeper to supply tea for him, and in the following morning, which was the fateful day, finding glass of tea not available in his room, he questioned and reprimanded Abhinai Kumar Rai, another homeguard personnel posted in the said check post who, on being questioned, turned amok, reacted and consequently took out rifle from the magazine room and shot Ram Badan Singh, Incharge Homeguard, who was washing clothes near a handpump in the courtyard, with all brutality which was possible to be unkind and cruel to his fellow homeguard personnel.

(2.) THE prosecution case, without much of factual details, as made out, further depicts that Shobha Kant Jha (P.W.3) was on sentry duty and two other homeguard personnels, namely, Prabhu Yadav (P.W.4) and Anil Kumar Choudhary (P.W.6) were cooking meal in the kitchen. It was alleged that shortly after Abhinai Kumar Rai (hereinafter referred to as the appellant) fired shots on Ram Badan Singh (hereinafter referred to as the deceased), he wanted to make successive firing, pursuant to which he was overpowered by Shobha Kant Jha (P.W.3), who relieved him of his rifle. Evidence of Prabhu Yadav (P.W.4) did suggest that he immediately informed the Police Officer of Chakia Outpost, and the Police Officer having visited the place of occurrence, recorded fardbeyan of Shobha Kant Jha at 9.20 hours on 1st February, 1992, pursuant to which investigation followed. In the process of collection of evidence, the Police Officer, it is stated, recorded statement of witnesses, yisited place of occurrence, seized cartridges and empty shells of cartridges from the place of occurrence, prepared inquest report over the dead body, got autopsy held and eventually laid charge sheet before the Court against the appellant. In the trial that followed, State examined ten witnesses, of whom barring Anant Nand Prasad (P.W.10), who was a formal witness, others who rendered their evidences during trial to lend assurance to the accusations attributed to the appellant, happened to be homeguard personnel posted at the checkpost, the doctor, who held autopsy over the dead body of the deceased, and Sergeant Major, who examined firearm to determine its effectiveness.

(3.) SHRI Lala Kailash Bihari, who appeared as amicus curiae in the appeal, has addressed the court in much details and has sought to assail the findings recorded by the court below on various premises. It was sought to be urged that the finding recorded by the doctor was not in conformity with the ocular account given by the eye witnesses, not only about distance from which the deceased suffered gun shot injuries by the appellant, but also about nature of injuries and also the posture of the deceased. Contentions were raised that though the deceased was shown to have suffered injuries from close range, as has been the statement of the witnesses, the doctor had not noticed charring and blackening around the wound which would negate the ocular account given by the witnesses. The other plank of argument canvassed on behalf of the appellant was that the immediate cause of incident, which was projected to be the genesis of the incident, was so trifling that a person was not expected to have reacted so strongly to take recourse to extreme step of executing killing of a homeguard companion personnel. In quick succession, it was sought to be urged that evidences placed on the record failed to suggest that Shobha Kant Jha, too who stated to have overpowered the appellant shortly after firing, had a rifle with him and though he had a scuffle with the appellant, it was most unlikely that apprehending danger, which was looming over his head of getting injured at the hands of the appellant, he would not use his arms in self -defence. Failure of the State to place on the record, written complaint made by Ram Badan Singh, Incharge homeguard, to Shri K. Dutta, a superior Police Officer, was also taken to be a ground to suspect the bona fide of the prosecution allegation atrributed to the appellant. Yet, it is urged that it would appear from the evidence of none else but Shobha Kant Jha (P.W.3) that adjacent to the said check post; a number of shops situate, and the said check post itself is beside bus stand, which was a busy place, but no witness either from the neighbouring shops or the bus stand had come to lend assurance to the prosecution allegation. It is stated that a duty register is maintained in the checkpost, as has been the evidence of the witnesses, but even the said duty register was not placed on the record. While commenting on the credibility of the witnesses about Shobha Kant Jha having suffered gun shot injuries at the hands of the appellant, it was urged that both Anil Kumar Choudhary and Prabhu Yadav, in view of narrations made by them, did not appear to be ocular witness to the successive firing resorted to by the appellant causing gun shot injury in the neck of Shobha Kant Jha. and even the doctor, who clinically examined him, had noticed only scratch on posterior part of ear in the neck and that injury too in estimation of the doctor, was possible by scratch of neck.