BACHU RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In the present Appeal filed under Section 374(2) read with section 389(i) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.) the appellant has challenged his conviction and sentence passed in Sessions Trial No. 21 of 1997. The sole appellant was initially charged jointly with his father for commission of offence under Section 302/34 of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C."), however, his father namely-Jagat Rai died during pendency of the trial itself. The sole appellant was finally held guilty and convicted by judgment of conviction dated- 21.11.2012 for commission of offence under Section 302/34 of the I.P.C. and by order dated: 30.11.2012 he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,00000/-. In default of payment of fine, he has been further directed to undergo imprisonment for two years. The judgment of conviction and sentence was passed by Sri Narsingh Prasad, learned Additional Sessions Judge 2nd, Muzaffarpur ( hereinafter referred to as the "trial judge") in Sessions Trial No. 21 of 1997 ( arising out of Bochaha P.S. Case No. 50 of 1996).

(2.) Short fact of the case is that on 06.06.1996 at about 13.00 Hours (1.00 P.M.) 'fardbyan' of Sumitra Devi (wife of deceased) was recorded by Sub Inspector of Police in the Police Station i.e. Bochacha Police Station and on the same day a formal F.I.R. vide Bochaha P.S. Case No. 50 of 1996 was registered at 6.00 P.M. for offence under Sections 302/34 of the I.P.C. against:- (1) Bachu Rai ( appellant), S/o Jagat Rai, (2) Jagat Rai, S/o Dhaneshwar Rai, (3) Kishori Rai, S/o Babu Lal Rai, (4) Nantun Rai, S/o Jagat Rai and (5) Laxman Rai, S/o Muneshwar Rai. In the 'fardbyan' informant disclosed that on 06.06.1996 at 10.00 A.M. her husband namely-Lal Babu Rai ( deceased) was in field with his she-buffalo for grazing the field and informant was going there for providing meal to her husband. In the meanwhile, she noticed that her 'pattidar' namely-Bachu Rai, Jagat Rai, Kishori Rai, Nantun Rai and Laxman Rai carrying 'bhala' in their hands by force were ploughing the field of the informant. Her husband asked the accused not to do the same. In the meanwhile, Bachu Rai (appellant) went inside house of one Jogi Rai and carrying 'bhala' in his hand arrived at the place of occurrence and gave 'bhala' blow on the chest of her husband. Her husband after getting injury on chest, putting hand on his chest tried to flee away, however, he was caught by accused-Kishori Rai. Jagat Rai, Nantun Rai and Laxman Rai from 'Bhala' which they were carrying in their hands gave blow on arm and thigh and other parts of his husband. Her husband fell down there. Thereafter, the informant with a view to save her husband started raising 'hulla', then co-villager namely-Shivlal Rai ( P.W. 9), Bindu Hazari (not examined), Siya Ram Rai ( P.W. 12) and others arrived running. Informant's son-Manoj Rai also came and they with her 'gotni' [wife of brother of the husband of the informant] tried to lift him, however, due to injury her husband had already died. Subsequently, with the help of villagers she carried her husband on a cot to Bochacha hospital where doctor declared him dead and then the informant reached the Police Station with the dead body of her husband and gave her 'fardbyan'. The said 'fardbyan' was read over to her and after finding the same as correct she put her thumb impression on the said 'fardbyan'. On the basis of said 'fardbyan' a formal F.I.R. vide Bochaha P.S. Case No. 50 of 1996 was registered. During investigation accusation against three accused persons namely: Bachu Rai (appellant), Nantun Rai and Jagat Rai was found true, and as such, on 11.09.1996 against them charge-sheet was submitted keeping investigation pending against others.

(3.) After submission of charge sheet the learned Magistrate took cognizance of offence and on 02.12.1996 the case was committed to the court of Sessions. After commitment, on 07.07.1997 charge was jointly framed against appellant-Bachu Rai and his father-Jagat Rai for offence under Section 302/34 of the I.P.C., however, during trial co-accused: Jagat Rai died, and as such, trial proceeded only against the appellant. During trial, to prove its case on behalf of the prosecution altogether twelve witnesses were examined. Out of twelve witnesses, P.W. 2 - Manoj Kumar ( son of the deceased), P.W. 3 -Lakshaman Rai ( another son of deceased), P.W. 4 -Amod Kumar ( one another son of the deceased), P.W. 6 - Palti Devi (mother of the deceased and own grand-mother of the appellant) and P.W. 7 - Sumitra Devi ( wife of deceased as well as informant of the case) were examined as eye witnesses. Besides the aforesaid witnesses, one Bilas Rai ( P.W. 5) who was independent witness has also been examined as eye witness to the occurrence. P.W. 9 - Shiv Lal Rai, P.W. 10 - Ram Babu Rai, P.W. 11 - Kapal Sahni and P.W. 12 - Siya Ram Rai ( co-villagers) have deposed regarding the said occurrence. P.W. 9 - Shiv Lal Rai and P.W. 10 -Ram Babu Rai have stated that while they reached at the place of occurrence they saw the injured (deceased) and at the same time they had noticed that appellant was carrying 'bhala' with mark of blood. P.W. 11 and P.W. 12 though have stated that they had seen this appellant with other accused persons, but they deposed as if 'bhala' blow was given by Jagat Rai. P.W. 8 - Dr. Mumtaj Ahmad had conducted post-mortem examination on the dead body and he proved the post-mortem examination report, which was marked as Ext. 2. In this case Investigating Officer was not examined. However, formal F.I.R. including 'fardbyan' was got proved by P.W. 1 - Kailash Paswan, who was an Advocate Clerk and he claimed that he was conversant with the writing and signature of the Police Officer who had written 'fardbyan' and formal F.I.R. After conclusion of the prosecution evidence, on 19.03.2004 statement of accused under section 313 of the Cr.P.C., 1973 was recorded in which he simply denied the charges, however, no defence witness was laid on his behalf.