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PETITIONER: MAHENDRA RAI

       Vs.

RESPONDENT: MITHILESH RAI & ORS.

DATE OF JUDGMENT:       13/12/1996

BENCH: M.M. PUNCHHI, FAIZAN UDDIN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Faizan Uddin, J. 1.   These two sets of appeals one by the informant Mahendra Rai, cousin brother of the deceased and another by the State of Bihar  are directed against the judgment and order of the High Court  of Patna  passed in  Criminal Appeal No. 272 and 307 of  1988 reversing  the judgment and order passed by the Additional Sessions  Judge (I) Patna at Barh dated 20.5.1988 in Sessions  Trial No. 138/1986 whereby the respondent No. 1 Mithilesh Rai  was convicted  under Section  302 for  brutal murder of  Arun Rai  and sentenced  to  capital  punishment, while the  respondents 2  and 3,  namely, Madan  Rai and Raj Naresh Rai  were  convicted  under  Section  302  read  with Section 109  IPC and  sentenced to undergo life imprisonment and other  two co-accused, namely, Rajendra Rail and Ram Das Rai were acquitted. 2.   The  prosecution  case  was  that  in  the  morning  of 17.5.1985 there  was some  dispute altercation  between  the deceased Arun Rai, a boy aged about 12 years and the accused respondent No.  2 Madan  Rail on  the  price  of  milk.  The deceased Arun  was insisting to sell the milk at the rate of Rs. 5/-  per litre  while the  respondent Madan Rail was not agreeable for  the same. This dispute infuriated the accused respondent No.  3 Raj  Naresh Rai  as well  as the acquitted accused Ram  Das Rai  and Rajendra  Rai who according to the prosecution instigated  the accused  respondent No. 1 and 2, Mithilesh Rai and Madan Rai to kill Arun Rai at any cost. It is alleged  that on  the same  day at  about  12  noon  when deceased Arun  Rai was  sleeping on a cot under a mango tree in an  orchard near  his house, the accused respondent No. 1 armed with  a Kakut,  alongwith his  cousin respondent No. 2 Madan Rai  went there. Accused madan Rai caught hold head of Arun and the respondent Mithilesh Rai gave a heavy blow by a Kakut (chaff-cutter)  on the  neck of Arun Rai. The incident was seen  by  Mahendra  Rai,  PW  11,  Jagdish  Rai,  PW  7, Jageshwar Rai,  PW B, Kalicharan Rai, PW 9 and other persons who also  tried to  apprehend the  culprits but  since  they threatened them  by  saying  that  in  case  they  proceeded further they  would also  meet the same fate. Thereafter the accused persons  ran away  towards their  house. Victim Arun

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Rai  died   on  the   spot.  According  to  the  prosecution respondent no.  3 Raj Naresh Rai is said to have handed over the weapon of offence to the respondent No. 1, Mithilesh Rai sometime  before   the  occurrence,   while  the  two  other acquitted accused  are held  to have  instigated and abetted their sons,  respondents 1  and 2  to commit the said murder sometimes in the morning on the date of occurrence. 3.   At about  3.30 PM  on the  date of  occurrence  Kailash Prasad, PW 13, Officer Incharge of Police-Station Athmalgola received information  about the  commission of  said murder, he, therefore,  after making  an entry  in the Station Diary proceeded to  village Dashinichak  with a police party where he recorded  Fardbeyan, Ext.  10 of Mahendra Rai, PW 11, the cousin of  the deceased  at about  5.30 PM  on the  basis of which a  formal FIR  Ext. 12  was drawn under section 302/34 IPC against  the 3 respondents and the acquitted accused. He prepared an inquest report Ext. 9 at the place of occurrence and seized bloodstained earth. The dead body of the deceased was sent to the hospital, Barh. 4.   In the Barh Hospital, Dr. Shankar Prasad Deokuliar PW 6 performed an  autopsy on  the dead  body  of  Arun  Rail  on 18.5.1985 who  as per  his post  mortem report found a clean cut wound  on the  right side  of the  neck of  the deceased extending from  1" left of midline beyond the lower angle of the mandible  on the  right side  of the diamension 6" x 3", going  deep  up-  to  the  vertebra.  The  doctor  found  an ellipsical clean  cut wound of the size of 3/4" x 1/2" which was communicating  to the  aforesaid injury  and was just to the left  to that  injury.  He  also  found  muscle,  corpid vessels, trachea  and desophaous  severed. The doctor stated that both  the said  juries were antemortem in nature and in his opinion the death was caused due to bleeding as a result of severing  of corpid  vessels. According to the opinion of the doctor  both the  aforesaid injuries  could be  possible even by a single blow by a Kakut (chaff-cutter). 5.   The three  respondents as  well as  the  two  acquitted accused denied  the guilt and pleaded false implication. The respondent No.  1 and the two acquitted accused Rajendra Rai and Ram  Dad Rai  took the  plea of  alibi. Respondent No. 1 Mithilesh stated that he was ill and was under the treatment of Dr.  Mahato, DW 1 and was an indoor patient in his clinic from 16.5.1985  to 19.5.1985.  They adduced defence evidence in support  of their  plea. The  trial court did not believe the morning  incident regarding the altercation on the price of milk. The trail court, however, rejected the defence plea and the  defence evidence  as unreliable  and relying on the prosecution  evidence   convicted  the   respondent  No.  1, Mithilesh Rai under Section 302 for committing the murder of Arun Rai  and awarded death sentence and made a reference to the High  Court for  confirmation  thereof  as  required  by Section 366  (1) Cr.P.C.  The respondent No. 1 Madan Rai and respondent No.  3 Raj  Naresh Rai  were also convicted under Section 302  read  with  Section  109  IPC  for  aiding  and abetting  the   commission  of   an  offence  of  murder  by Mithilesh. The  trial  court,  however,  found  no  reliable evidence with  regard to the involvement or Rajendra Rai and Ram Das  Rai in the rime and, therefore, they were acquitted of the  offences they  were charged  with. On  appeal by the respondents the  High Court,  as said  earlier, rejected the death reference and allowed the appeals by setting aside the conviction and  sentence  awarded  to  the  respondents  and acquitted them  against which  the two  appeals, one  by the cousin of  the deceased  and another  by the State have been preferred. 6.   Learned counsel  for the  appellant urged that the High

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Court has  mis-appreciated the  evidence of  eye  witnesses, namely, Jagdish  Rai, PW  7 and  Jageshwar Rai, PW 8 who are the eye-witnesses,  and also witnesses to the inquest report on the  ground that  they had not given out the names of the assailants, a mention of which should have been found in the inquest report.  He also  submitted  that  the  evidence  of remaining eye-witnesses,  namely, Kalicharan  Rai, PW  9 and Deopati Devi,  PW 10  and the  informant Mahendra Rai, PW 11 have  been   wrongly  rejected   on  the   ground  of  minor discrepancies in  their evidence.  He further submitted that an unrealistic  approach has  been made by the High Court in appreciating the  timings of  the preparation of the inquest report Ext. 9, recording of Fardbeyan Ext.10 and the arrival of the  dead body  in the  hospital which  has resulted into total failure  of  justice.  As  against  this  the  learned counsel appearing for the respondents strongly supported the conclusions recorded and the view taken by the High Court in recording the  order of  acquittal.  According  to  him  the prosecution has failed to establish the genesis by reason of which the  entire prosecution story becomes doubtful and the evidence of the so called eye witnesses is nothing but based on concoction and deliberations. 7.   In  order   to   examine   the   aforementioned   rival contentions, we  have scrutinised  the evidence and material on record by the assistance of learned counsel appearing for the parties.  A perusal  of the  statement of  the informant Mahendra Rai,  PW 11  would  reveal  that  he  made  a  very assertive and categorical statement that at about mid day on 17.5.1988 when he along with Jageshwar Rai, PW 8 was sitting in his  bathan situated  on the  south of  mango tree  under which Arun Rai was sleeping on a cot, he saw the respondents 1 and  2, namely,  Mithilesh Rai and Madan Rai going towards the cot  on which  Arun Rai was sleeping. He further deposed that respondent  No. 2  Madan Rai  cought hold  the head  of deceased Arun  Rai and  the respondent  No. 1  Mithilesh Rai made on  assault on  the neck  of the  deceased by the Kakut (chaff-cutter) with which he was armed. He also deposed that when he  and Jageshwar  Rai, PW  8 made  an attempt to catch hold the  respondents 1  and 2  but they  were threatened by them saying  that they  wold also meet the same fate if they attempt to  catch them  and, therefore, they could not catch the assailants ran away towards their house. Mahendra Rai PW 11 also  stated that at that point of time Jagdish Rai, PW 7 and Kalicharan  Rai, PW  9 had  also arrived  there who were also threatened  by respondent  Mithilesh Rai,  in case they tried to  apprehend them. He also stated that on the arrival of the  police Inspector  Kailash Prasad,  PW 13 he gave him Farbeyan, Ext. 10 to him about the occurrence giving out the names  of   the  assailants.  Similar  is  the  evidence  of Jageshwar Rai,PW   8. These two witnesses, namely, Jageshwar Rail and  Mahendra Rai  have been  fully corroborated on all material aspects  by the  other two  eye witnesses,  namely, Jagdish  Rai,  PW  7  and  Kalicharan  Rai  PW  9  who  have consistently deposed that they also saw the respondent No. 2 Madan Rai  catching hold  the head  of deceased Arun and the respondent No. 1 Mithilesh Rai making an assault on his neck by the  Kakut. This  evidence further finds support from the statement of Mst. Deopati Devi, PW 10 who was there with her minor son  who was  easying just  near the  mango tree under which this  occurrence had  taken place  and she had herself witnessed the occurrence. 8.   We have  also carefully  persued the  evidence of  PW 1 Neeki Rai  and Rao  Deo Rai, PW 4 with regard to the morning altercation and  dispute with the deceased on the payment of price of  the milk  but we  do not  find  any  infirmity  to

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disbelieve their  testimony. We are unable to appreciate the conclusions recorded  by the trial court and accepted by the High Court  that the  said story  is  unbelievable.  In  our opinion the view taken by the trial court and the High Court on this  aspect cannot be accepted. It, therefore, cannot be successfully contended that the prosecution case was wanting in the  matter of genesis. It was, however, submitted by the learned counsel  for the  respondents before  us that such a triffling matter  can hardly  give rise to the commission of an offence  like murder.  It is  difficult  to  believe  the submission as  the commission  of an  offence depends on the frame of  mind of  the offender  which could  not be  easily judged. There  may be  persons who  may take  a very serious view of a triffling matter and there may also be persons who may even ignore serious views. 9.   Coming to the evidence of eye witnesses Jagdish Rai, PW 7 and  Jageshwar Rai,  PW 8 it may be pointed out that their evidence has  been rejected  by the High Court merely on the ground of  discrepancy in  the timings of preparation of the inquest report  Ext. 9  and the  absence of the names of the assailants in the same. However, we find that the High Court committed a patent error in appreciating the same. It may be pointed out  that inquest  reports are prepared as envisaged in Section  174 (1) Cr.P.C. Section 174 Cr.P.C. contemplates the preparation  of an  inquest report by the police officer in the  presence of  two or  more respectable inhabitants of the neighborhood  and draw  up a report of apparent cause of death, describing  such wounds, fractures, bruises and other marks of  injury as may be found on the body stating in what manner or  by what  weapon or instrument (if any) such marks appeared to  have been  inflicted. For  ready reference sub- Section (1) of Section 174 Cr.P.C. is reproduced hereunder:-      "174. Police  to enquire and report      on  suicide,   etc.  (1)  When  the      officer-in-charge   of   a   police      station  or   some   other   police      officer specially  empowered by the      State  Government  in  that  behalf      received information  that a person      has committed  suicide, or has been      killed by  another or  by an animal      or by  machinery or by an accident,      or  has  died  under  circumstances      raising a reasonable suspicion that      some other  person has committed an      offence, he shall immediately given      intimation thereof  to the  nearest      Executive Magistrate  empowered  to      hold    inquests,    and,    unless      otherwise  directed   by  any  rule      prescribed by the State Government,      or by  any general or special order      of the  district or  Sub-Divisional      Magistrate, shall  proceed  to  the      place  where   the  body   of  such      deceased person  is, and  there, in      the  presence   of  two   or   more      respectable  inhabitants   of   the      neighborhood,   shall    make    an      investigation, and draw up a report      of the  apparent  cause  of  death,      describing such  wounds, fractures,      <??> and  other marks  of injury as      may  be  found  on  the  body,  and      stating in  what manner, or by what

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    weapon on  instrument (if any) such      marks   appears    to   have   been      inflicted." (emphasis supplied)      A perusal  of Section  174(1) would  go to show that it does  not   require  anywhere   to  mention   the  names  of assailants. It  was, therefore,  neither incumbent  upon the police officer  Kailash  Prasad,  PW  13  who  prepared  the inquest report,  to mention the names of the assailments nor it was  necessary for  the eye  witnesses  Jagdish  Rai  and Jageshwar Rai  who are the witnesses to the said inquest, to insist the  mention of  the names  of the  assailants in the said inquest  report. As regards the time of the preparation of the inquest report Ext.9 is concerned it is hardly of any consequence in  the present  case. It is not doubt true that Jagdish Rai,  PW 7  stated that  the inquest was prepared at about  sunset   which  could  not  be  said  to  be  correct statements because  according to the High Court the dead boy itself was  received in  the hospital about 11 kms away from the place  of occurrence at about 5 PM but it may be noticed that there  is not  authentic and reliable evidence that the dead body  was received  in the hospital at 5 PM. This apart the statement  of Jagdish  Rai, PW  7 was recorded in August 1986 while the incident had occurred in May 1983 more than a year before.  It is just possible that the witnesses did not remember the  exact time  of the  preparation of the inquest after such  a long  lapse of time. His testimony, therefore, cannot be rejected on this ground alone. 10.  We find that the High Court rejected the ocular version of the  informant Mahendra  Rai, PW 11, Kalicharan Rai, PW 9 and Smt. Deopati Devi, PW 10 on the so called contradictions but the said view taken by the High Court cannot be accepted for two  reasons, firstly,  the discrepancies pointed out by the High  Court are  so insignificant  and minor  that  they hardly have any bearing on material aspect of the case so as to render  the evidence  unrealiable or  even  doubtful  and secondly, the said witnesses were not shown their case diary statements recorded  under Section  161 Cr.P.C.  from  which they  were   sought  to   be  contradicted   nor  the   said contradictions/omissions have  been exhibited  and placed on record. That  being so, merely on the basis of the statement of the  police  officer  Kailash  Prasad,  PW  13  that  the witnesses did  not make  the alleged  statements  cannot  be accepted without  the relevant  portions of their statements being exhibited.  In these  facts and  circumstances we find that the  High Court  was clearly  at  an  error  to  record finding of  innocence of the respondent No. 1 and 2, namely, Mithilesh Rai  and Madan Rai. So far as the respondent No. 3 Raj Naresh  Rai is  concerned we  find that his acquittal is well founded  as in  the  absence  of  any  cogent  evidence against him, no interference in his acquittal can be made. 11.  In the result we allow the appeals partly and set aside the judgment  of the  High Court so far as it relates to the acquittal of  respondents 1  and 2.  We restore the judgment and order  of conviction  <??> by the trial court convicting the respondent  No. 1  Mithilesh Rai  under Section  302 but modify his  sentence by  commuting the  death sentence  into life sentence.  We also  uphold the conviction of respondent No. 2  Madan Rai under Section 302 read with Section 109 IPC and sentence him to undergo life imprisonment.