Peela Rai v. State Of Bihar

Patna High Court CR. APP (SJ) No.264 of 1996 dt.31-01-2013 2 of the charge under section 307 of the IPC.

3. During the pendency of this appeal, appellant no.1, namely, Peela Rai died as is evident from the report of Superintendent of police, Bhojpur ( Ara) dated 11.12.2012.

4. In brief, the prosecution case, is that fardbeyan of P.W 1 was recorded on 6.7.1985 at about 4.00 p.m. in railway hospital, Danapur by the ASI of Khagaul police station. P.W 1 stated in his fardbeyan that on 5.7.1985 while he was going to his home and reached near the house of the appellant Peela Rai at about 7 p.m, all the appellants came there and appellant Peela Rai gave garasa blow which hit on his head whereas the appellant no.2, namely, Bijoy Rai, gave twice bhala blows causing injuries on his left shoulder as well as back and having received of the aforesaid injuries, he fell down on earth and thereafter, the appellant no.3, Sushil Rai gave lathi blow to him. He raised alarm which attracted the witnesses and after that the appellants fled away from there. After the aforesaid occurrence, he was brought to railway hospital, Danapur where his treatment was done.

5. Fardbeyan of P.W 1 was sent to concerned police station and accordingly, Chandi P.S. case no.28/1985 was registered for the offences under sections 307, 324, 323/34 of the Indian Penal Code and the matter was investigated by the police and after completion of investigation, police submitted charge sheet against the appellants for the offences under sections 307 and 324/34 of the Indian Penal Code.

6. The cognizance of the offences was taken and Patna High Court CR. APP (SJ) No.264 of 1996 dt.31-01-2013 3 accordingly, case of the appellants was committed to the court of sessions, in usual way.

7. All the appellants were jointly charged for the offence punishable under section 307 of the Indian Penal Code whereas the appellants no. 1 and 2 were jointly charged for the offence punishable under section 324 of the Indian Penal Code and the appellant no.3 was separately charged for the offence punishable under section 323 of the Indian Penal Code. The appellants denied the charges and claimed to be tried.

8. In support of its case, altogether three witnesses were examined on behalf of the prosecution and furthermore, prosecution got exhibited signature of P.W 1 on fardbeyan as exhibit 1, injury report as exhibit 2 and fardbeyan as exhibit 3. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they completely denied the prosecution story. The defence also examined one defence witness and got proved certificate issued by District Agricultural officer, Bhojpur at Ara.

9. The learned trial court, having relied upon the testimony of P.Ws 1 and 2, passed the impugned judgment of conviction and sentence order in the manner as stated above.

10. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and sentence order arguing that according to the prosecution case itself, the alleged occurrence took place on 5.7.1985 at about 7 p.m, and fardbeyan of P.W 1 was recorded on 6.7.1985 at 4 p.m, but formal FIR was drawn on

8.7.1985 and no explanation of the aforesaid delay was given by the Patna High Court CR. APP (SJ) No.264 of 1996 dt.31-01-2013 4 prosecution . He further submitted that except P.W 1, so-called injured of this case, not a single independent witness came forward to support the prosecution case. He further submitted that P.W 1 stated in his fardbeyan that all the three appellants assaulted him and he got five injuries on his person but when he was examined by P.W 2, only three injuries were found on his person. It is further contended by him that it is the specific case of P.W 1 that appellant Peela Rai gave garasa blow causing injury on his head and P.W 2 has found one injury on scalp of P.W 1 and, therefore, the aforesaid injury is attributed towards appellant Peela Rai. He further stated that altogether, three injuries were found on the person of P.W 1 and all the injuries were incised wounds whereas it is the specific case of P.W 1 that at the time of alleged occurrence, the appellant no.2 was armed with bhala and he gave twice bhala blows to P.W 1 causing injury on his left shoulder and back but no penetrating wound has been found on the person of P.W 1 and doctor P.W 2 has, specifically, admitted at para 2 of his examination-in-chief that the injuries found on the person of P.W 1 were caused by bhala or garasa and, therefore, there is doubt about prosecution story and, as a matter of fact, P.W 1 had not sustained any injury caused by bhala.

11. On the other hand, learned Addl. Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and sentence order submitting that P.W 1 has supported his case and his testimony is corroborated by P.W 2 who examined P.W 1 after the alleged occurrence.

12. As I have already stated that, altogether, three Patna High Court CR. APP (SJ) No.264 of 1996 dt.31-01-2013 5 prosecution witnesses were examined on behalf of the prosecution in course of trial. Out of the aforesaid prosecution witnesses, P.W 3 is formal witness and he proved fardbeyan and formal FIR as exhibits 3 and 4 respectively.

13. P.W.1, Sarjug Meth is the informant as well as injured of this case and he stated that the appellant no.1, Peela Rai gave garasa blow causing injury on his head and after that the appellant no. 2 Bijoy Rai gave bhala blow causing injury on his left shoulder and, thereafter, the appellant no.3 Sushil Rai assaulted him with lathi. P.W.1 has admitted in his examination-in-chief that only one single bhala blow was given by the appellant no.2 and the aforesaid bhala blow hit on his left shoulder. P.W.2 has found one incised wound on left shoulder of P.W.1 and he has admitted at para 6 of his cross- examination that bhala is sharp cutting pointed weapon. It is well known fact that bhala produces penetrating wound and, therefore, it can, easily, be said that P.W 1 had not sustained any bhala injury on his person rather he sustained all injuries by sharp cutting weapon and, therefore, the aforesaid circumstance creates doubt about this fact that the appellant no.2 had given bhala blow to P.W 1.

14. So far as statement of P.W.1 in respect of the appellant no.3 is concerned, P.W 1 has stated that the appellant no.3 assaulted him with lathi but no injury caused by lathi was found on the person of P.W 1. Therefore, in my view, the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts.

15. On the basis of the aforesaid discussions, this criminal appeal is allowed. The impugned judgment of conviction as well as Patna High Court CR. APP (SJ) No.264 of 1996 dt.31-01-2013 6 sentence order dated 28.9.1996 passed by learned Addl. Sessions Judge II, Bhojpur at Ara in Sessions trial no. 109/1988 are, hereby, set aside in respect of the appellants no. 2 and 3. Accordingly, appellants no. 2 and 3 are acquitted of the charges framed against them. They are on bail. They are discharged from the liability of their bail bonds.

16. So far as the appellant no.1 is concerned, he has already died. So, his appeal has become infructous and accordingly, his appeal stands dismissed being infructous. Shahid/ AFR