KARMAN ROY Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) THE appellants have preferred this appeal against the judgment and order of conviction and sentence dated 22.6.1989 passed by the learned 1st Addl. Sessions Judge, Dumka (SP) in Sessions Case No. 206/12 of 1988 sentencing each of them to go RI for life for the offence under Section 302/34, IPC.

(2.) THE prosecution case as per the fardbeyan of the informant, Janki Devi, PW 1, is that, on 19.4.1988 at about 3 p.m., she was sitting at the door of her house. She saw some villagers, armed with lathi, bahangi etc. running towards nursery raising hulla. She also went towards nursery and in her way she saw chaukidar, Budhan Rai, PW 4, also going towards nursery. When she reached near nursery then she saw that her brother, Lal Mohan Rai, was being assaulted at random by the villagers, Karman Rai, Bideshi Rai, Gouri Shankar Rai, Mangru Rai and Mahadeo Rai, all the appellants of village Karnpura with lathi, sabal, bahangi etc. The appellant, Gauri Shankar Rai, assaulted with sabal and the other appellants assaulted with lathi and bahangi to her brother. Her brother, Lal Mohan Rai, sustained injuries on his head due to assault with sabal resulting his death. Thereafter all the appellants fled away. Then she went to her brother who had already died. All the appellants are her gotias who had differences with her brother and finding an opportunity on that day they murdered her brother, Lal Mohan Rai, at nursery. Her fardbeyan was recorded by the S.I., A. Khalique, PW 8, Officer -in -Charge, Kathikund PS, on the same day i.e. on 19.4.1988 at about 9 p.m. in Karnpura New Forest Nursery, Kathikund, on which she gave her LTI.

(3.) PW 4, Budhan Rai, also claims to be an eye -witness who was returning from village Latamtola alongwith Lal Mohan Rai at about 3 p.m. when both of them reached Karnpura nursery on the Bahiar. Lal Mohan Rai entered into the nursery and the appellants started assaulting him. He has deposed that the appellant, Bideshi Rai, assaulted with bahangi and the appellant, Karman Rai, with lathi. Then he fled away from that place. While fleeing away he saw Gauri Shankar Rai coming from the village having a sabal and was proceeding towards nursery. When he further proceeded then he saw the informant, Janki Devi, also going towards nursery. This witness went to his home. Later on PW 1, Janki Devi, went to his home and informed that her brother, Lal Mohan Rai, was murdered and then he went to thana alongwith the informant. The officer -in -charge went to Karnpura alongwith armed forces but this witness, Budhan Rai, PW 4, chaukidar, stayed at the thana. The reasons of the alleged assault was quarrel with the gotias of the deceased who are the appellant. This witness in his cross - examination, para 3, has deposed that the appellant, Bideshi Rai, Karman Rai, Mangru Rai and Mahadev Rai were at the nursery and were working there in planting. At that time no one of the forest department was there. Again he has deposed that the deceased. Lal Mohan Rai was apprehended in a dacoity case. He does not know as to why Lal Mohan Rai had gone to Latamtola. This witness had also gone to Latamtola on that day to serve notice and was returning home. This witness did not go to the nursery where the alleged assault took place. He never raised any hulla rather he fled away. He met Janki Devi at a distance of 50 yards from her house but did not inform her what he saw. Thus, this witness is also not the eye -witness of the alleged occurrence as the nursery was situated at a distance of 30 -40 yards away from the road through which he was passing and claims to have seen that Bideshi Rai assaulted with bahangi and Karman Rai with lathi. He does not whisper anything about the other three appellants as to whether they assaulted the deceased or not. On the other hand, four appellants except the appellant, Gauri Shankar Rai, were already there working at the nursery. This witness does not know as to why the deceased, Lal Mohan Rai, had gone to village, Latamtola and as to why he went to the nursery. As this witness did not go to nursery, this shows that he is not at all an eye -witness who could not have seen the alleged assault from a distance of 30 -40 yards from the road rather he fled away out of fear and he met the informant, Janki Devi who was going towards nursery and also saw the appellant, Gauri Shankar Rai, going towards nursery from his home. Thus, he is not an eye -witness as to whether Gauri Shankar Rai assaulted the deceased with sabal or not. So also the informant who met him on her way to nursery, could not have seen the alleged assault to her brother. However, she has deposed that while she was sitting at her door then she saw all the appellants going towards nursery armed with lathi, bahangi and sabal. While sitting at her door, she also followed them. This evidence of the informant is belied by the evidence of the chaukidar, PW 4, Budhan Rai that four appellants, Karman Rai, Bide shi Rai, Mahadev Rai and Mangru Rai were already there at nursery and were working in planting. He met the appellant, Gauri Shankar Rai, who was armed with sabat, going towards nursery on his way. Thereafter this witness, PW 1, Janki Devi, claims that she also followed them is quite contradictory with the evidence of PW 4, Budhan Rai. She claims herself to be the eye -witness and had deposed that all the appellants assaulted on the head, left leg of Lal Mohan Rai resulting his death. Thereafter, they fled away. She admits that there is no house of anybody near the nursery which is at a distance of one K.M. away from her village. The nursery is situated after the Bahiar and there are 10 -12 houses before the Bahiar. She claims that while her brother, Lal Mohan Rai was returning alongwith chaukidar, Budhan Rai, PW 4, from village Latamtola, then no one was present at nursery. This also contradicts the statement of Budhan Rai, chaukidar, PW 4. Her statement that the appellants reached at nursery half an hour prior to her arrival, is also not supported by any of the witnesses including PW 4, Budhan Rai, chaukidar, who was returning alongwith Lal Mohan Rai from village Latamtola.