BHARATH ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) By these appeals, appellants/convicted accused are challenging the Judgment dtd. 10/4/2014 and Order dtd. 16/4/2014 passed by the learned Adhoc Additional Sessions Judge-I, Bhojpur, Ara, in Sessions Trial No.370 of 2012 between the parties thereby convicting them of offences punishable under Ss. 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.2,00,000.00 payable by each of them for the offence punishable under Sec. 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 Sec. 307 read with 34 of the Indian Penal Code, these appellants/convicted are sentenced to suffer imprisonment for life along with fine of Rs.1,00,000.00 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.2,00,000.00 and in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Sec. 302 read with 34 of the Indian Penal Code. For the offence punishable under Sec. 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.1,00,000.00 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:

(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 1" 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 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 2/6/2012 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 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 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.