Criminal Appeal (DB) No. 270 of 1997(P) With Criminal Appeal (DB) No. 309 of 1997(P) (Against the judgment and order of conviction and sentence dated 11.06.1997(sentence passed on 13.06.1997) passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in Sessions Case No. 31 of 1996/6 of 1996) 1. Raja Ram Rai, S/o Dashrath Rai. 2. Madhusudan Rai @ Masudan Rai, S/o Nepali Rai. 3. Sanjeev Rai @ Sanjeev Darbey, S/o Jagarnath Rai alias Jagarnath Darbey. All residents of Vill- Sonarchak, P.S.- Pathargama, Dist.- Godda. ... Appellants (in Criminal Appeal (DB) No. 270 of 1997(P)) Rajendra Rai, S/o Nakul Rai, R/o Vill- Sonarchak, P.S.- Pathargama, Dist.-Godda. ... Appellant (in Criminal Appeal (DB) No. 309 of 1997(P)) Versus The State of Bihar (now Jharkhand) … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI ---- In Cr. Appeal (DB) No. 270 of 1997(P) For the Appellants : Mr. S.P. Roy, Adv. For the Respondent : Mr. Vineet Kr. Vashistha, Spl. P.P. In Cr. Appeal (DB) No. 309 of 1997(P) For the Appellant : Mr. Purnendu Kr. Jha, Adv. For the Respondent : Mr. Vishwanath Roy, Spl. P.P. ---- CAV on : 10/01/2025 Pronounced on: 14/01/2025 Per Rongon Mukhopadhyay, J. : 1. Heard Mr. S.P. Roy, learned counsel for the appellants in Criminal Appeal (DB) No. 270 of 1997(P), Mr. Purnendu Kumar Jha, learned counsel appearing for the appellant in Criminal Appeal (DB) No. 309 of 1997(P) and opposed by Mr. Vineet Kumar Vashistha, learned Special. P.P. as well as Mr. Vishwanath Roy, learned Special P.P. 2 | P a g e 2. Since both these appeals arise out of a common judgment, they are being disposed of by this common order. 3. These appeals are directed against the judgment and order of conviction and sentence dated 11-06-1997 (sentence passed on 13- 06-1997) passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in connection with Sessions Case No. 31 of 1996/6 of 1996 whereby and whereunder the appellant in Criminal Appeal (DB) No. 309 of 1997(P) has been convicted for the offence under Section 302 IPC and Section 27 Arms Act, while the appellants in Criminal Appeal (DB) No. 270 of 1997(P) have been convicted under Section 302/34 IPC and the appellant in Criminal Appeal (DB) No. 309 of 1997(P) has been sentenced to imprisonment for life under Section 302 IPC and rigorous imprisonment for 7 years under Section 27 Arms Act, while the appellants in Criminal Appeal (DB) No. 270 of 1997(P) have been sentenced to imprisonment for life under Section 302/34 IPC. 4. The prosecution case arises out of the fardbeyan of Bhuneshwari Devi recorded on 08-09-1995 in which it has been stated that the informant and her husband Jugut Brahm were returning from the market and they were conversing with each other and as they came near the house of Budhu Yadav, they saw Ramkrishn Kunwar, Madhusudan Rai, Rajendra Rai, Sanjeev Rai and Raja Ram Rai sitting in the culvert and three of the accused were having pistols in their hand. The husband of the informant, due to fear, left his bicycle and started fleeing towards the village at which the accused persons chased and while the shot fired by Raja Ram Rai missed the target, the firing made by Rajendra Rai struck on the right chest of the husband of the informant which led to his death. When the informant raised an alarm, the villagers started assembling and seeing this, the accused persons fled away. The motive behind the incident is a dispute between the deceased and Madhusudan Rai over 12 kathas of land. 3 | P a g e Based on the aforesaid allegations, Pathargama P.S. Case No. 106/95 was instituted under Section 302/34 IPC and Section 27 Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 31 of 1996/6 of 1996. Charge was framed against the accused Rajendra Rai under Section 302 IPC, against the rest under Section 302/34 IPC and against all the accused under Section 27 Arms Act which were read over and explained to the accused in Hindi, to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 10 witnesses in support of its case: P.W.1 Dr. Mantu Kumar Tekariwal was posted as a Civil Assistant Surgeon at Sadar Hospital, Godda and on 09-09-1995, he had conducted autopsy on the dead body of Jugut Brahm and had found the following: (i) Wound of entry- One oval penetrating wound with charring and blackening on right side of chest oblique in dissection about 2½” right to sternums size 1¼” x ¾” x carrion with wound number two that is exit wound. (ii) Exit wound are penetrating wound on right side of back of chest oblique in dissection towards right upper limb size ½” x ½” continuous to injury no. 1 that was the wound of entry about 10” depth. Both the injuries were caused by fire arm. The cause of death was opined to be due to shock and hemorrhage as a result of the above noted ante-mortem injuries caused by firearm leading to cardiorespiratory failure and death. He has proved the post-mortem report which has been marked as Exhibit-1. P.W.2 Bhuneshwari Devi is the informant and the wife of the deceased, who has stated that it was 5:30P.M. and she and her husband were returning home from Pathargama Hatia. When they had reached near the house of Budhu Yadav, Raja Ram, Rajendra, Sanjeev and Madhusudan were seen sitting on the culvert with pistols 4 | P a g e in their possession. They tried to catch hold of her husband, who fled away, but ultimately, he was caught near the door of Arjun Yadav. Raja Ram fired at her husband which missed its target after which Rajendra had fired which struck the right chest of her husband, who fell down and died. She raised a cry of alarm. Jitni Devi, Sushil and Pankaj were returning behind her and when they reached the place of occurrence, the accused persons had fled away. The incident occurred due to the dispute between her husband and Madhusudan over 12 kathas of land. Her fardbeyan was recorded at the place of occurrence by the Police. In cross-examination, she has deposed that there were no other persons with her and her husband. When her husband was fleeing away, she and her husband had raised alarm, at which Budhu Yadav had come out. The Pathargama Pirpainti road is at a distance of 10- 15 hands from the culvert and there were persons travelling on the road. Rajendra had fired at her husband from close range and she was standing nearby. P.W.3 Jitni Devi has stated that she was returning from the market and near Sonarchak More, she had seen Raja Ram, Rajendra, Madhusudan and Sanjeev fleeing away after firing at Jugut Brahm. In cross-examination, she has deposed that she had witnessed the firing. Raja Ram had fired which had missed the target, while the firing made by Rajendra struck Jugut Brahm. The Police had recorded her statement. There was a land-related case pending between Jugut Brahm and Madhusudan. P.W.4 Karuna Devi has stated that she had heard a sound of firing. Her father-in-law had died. She has stated that the assailants had fled away. P.W.5 Sukhdeo Prasad Yadav has not supported the case of the prosecution and was declared hostile by the prosecution. P.W.6 Meera Devi alias Nira Devi has been tendered for cross- examination by the prosecution. P.W.7 Sushil Rai has stated that it was 5:30P.M. and he was in his house when he heard a sound at which he came out and saw 5 | P a g e Jugut Brahm lying dead and his wife weeping. The wife of Jugut Brahm had disclosed that Rajendra Rai, Raja Ram Rai, Sanjeev Rai and Madhusudan Rai had committed the murder of her husband. He has identified his signature on the seizure list which has been marked as Exhibit-2. He has also identified his signature on the inquest report which has been marked as Exhibit-2/1. In cross-examination, he has deposed that he had reached the place of occurrence ten minutes after he heard the sound. P.W.8 Pankaj Brahm has stated that at 5:30P.M., he was going to the market when he heard a sound 50 yards behind him and when he turned around, he saw Jugut Brahm lying dead. The wife of Jugut Brahm did not disclose anything. He had seen Raja Ram Rai, Sanjeev Rai, Madhusudan Rai and Rajendra Rai fleeing away towards the south and he had seen 0.303 pistols in the hands of Raja Ram Rai, Rajendra Rai and Sanjeev Rai. He had put his thumb impression upon the seizure list and inquest report. In cross-examination, he has deposed that Jugut Brahm is his maternal grandfather with whom he is staying for the last one year. He was at a distance of 50 yards from the place of occurrence. He was going alone to the market. P.W.9 Khusram Brahm has stated that due to a land dispute, his father Jugut Brahm had been murdered. In cross-examination, he has deposed that his mother had not disclosed about any other person being involved in the murder, except the four accused persons. P.W.10 Narayan Singh was posted as an Officer-in-Charge of Pathargama P.S. and in course of patrolling on 08-09-1995, he came to know that in village Sonarchak, a person has been murdered. He reached the place of occurrence with Police personnel and recorded the fardbeyan of Bhuneshwari Devi at 6:00PM. He has proved the fardbeyan and the formal FIR which have been marked as Exhibit 3 and 4 respectively. He has proved the inquest report which has been marked as Exhibit-5. He has also proved the challan through which the dead body was sent for post-mortem examination which has been 6 | P a g e marked as Exhibit-6. He had seized the blood-stained earth and a bicycle. He had recorded the fardbeyan of the informant and had also inspected the place of occurrence which is the unmetalled road adjacent to the house of Arjun Yadav in Sonarchak. The dead body was found besides an electric pole and a pool of blood was lying on the ground. There is a culvert about 100 yards on the western side where the accused persons were said to be sitting. He had recorded the statement of the witnesses, obtained the post-mortem report and submitted charge sheet on the orders of the Superintendent of Police. He has proved the station diary entry which has been marked as Exhibit-7. He has proved the seizure list which has been marked as Exhibit-8. The blood-stained earth was produced in Court which has been marked as material Exhibit-I. The challan through which the blood-stained earth was produced before the Court has been marked as Exhibit-9. The receipt from Sushil Rai regarding handing over of the seized bicycle to him has been marked as Exhibit-10. In cross-examination, he has deposed that Jitni Devi had stated before him that Rajendra Rai, Raja Ram Rai and Sanjeev Rai were fleeing away with pistols in their hands while Ramkrishn Kunwar and Madhusudan Rai were fleeing away empty-handed. 6. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Jugut Brahm. 7. It has been submitted by Mr. Purnendu Kumar Jha, learned counsel appearing for the appellant Rajendra Rai in Criminal Appeal (DB) No. 309 of 1997(P) that P.W.3, P.W.7 and P.W.8 are not the eyewitnesses to the occurrence and, in fact, the discrepancies in their evidence have demolished the case of the prosecution. P.W.2 is the solitary eyewitness whose evidence also suffers from major contradictions and absence of any corroboration makes the version of P.W.2 doubtful. The prosecution has not examined Budhu Yadav and Arjun Yadav, who were the material witnesses and absence of any independent witnesses corroborating the evidence of P.W.2 makes the same vulnerable. 7 | P a g e 8. Mr. S.P. Roy, learned counsel appearing for the appellants in Criminal Appeal (DB) No. 270 of 1997(P) has submitted that Rajendra Rai is said to be the main assailant and so far as the present appellants are concerned, no overt act has been alleged against them. Mr. Roy has adopted the submissions advanced by Mr. Purnendu Kumar Jha with respect to the susceptible nature of the evidence of P.W.2. 9. Mr. Vineet Kumar Vashistha, learned Special P.P. as well as Mr. Vishwanath Roy, learned Special P.P. have submitted that the evidence of P.W.2 is consistent, cogent and is supported by the evidence of P.W.3, P.W.7 and P.W.8 as they were the persons who had seen the appellants fleeing away from the place of occurrence. 10. We have heard the learned counsel for the respective sides and have also perused the trial court records. 11. The husband of the informant, while returning home from the market, saw the appellants armed with pistols sitting on a culvert and being apprehensive that he was the target of the appellants, he left his bicycle and tried to flee away, but such endeavour proved unsuccessful as he was intercepted and fatally shot at by Rajendra Rai. The deceased was being accompanied by the informant who had seen the incident from close range. The informant, who has been examined as P.W.2 apart from designating the role played by each of the appellants which is in consonance with her version in the fardbeyan, has also stated about P.W.3, P.W.7 and P.W.8 coming behind her when she and her husband were returning from the market. Barring some minor contradictions, the evidence of P.W.2 has also withstood the rigors of cross-examination as the defence has failed to elicit any incongruity in her evidence. Mr. Jha, learned counsel for the appellant in Criminal Appeal (DB) No. 309 of 1997(P) has tried to impress upon the Court that P.W.3, P.W.7 and P.W.8 are not the eyewitnesses and their version does not support the evidence of P.W.2 but on a careful analysis of their evidence, it is apparent that P.W.7 is not an eyewitness, but the same matrix cannot be applied to P.W.3 and P.W.8. So, far as the evidence of P.W.3 is concerned, though 8 | P a g e her examination-in-chief did not reveal that she was an eyewitness to the incident of firing, but the cross-examination encountered by her is thoroughly detrimental to the case of the defence as the status of P.W.3 has been elevated to the realm of an eyewitness on account of her deposing that the firing made by Raja Ram Rai missed its target, while the firing made by Rajendra Rai led to the instant death of Jugut Brahm which is in compatibility to the case floated by the prosecution. In fact, the eyewitnesses projected by the prosecution are in two parts; one with respect to witnessing the firing and the other is the fleeing away of the appellants. The evidence of P.W.8 supports the fact that the appellants were fleeing away from the place of occurrence with pistols in the hands of some of the appellants. Inconsequential though is the evidence of P.W.7 in witnessing either of the stages, but as we have discussed above, the evidence of P.W.2 has gained strength from the evidence of P.W.3 and P.W.8. Though Rajendra Rai is the main assailant, but the other appellants shared a common intention in order to eliminate Jugut Brahm which can be borne out from the fact that they were sitting in the culvert armed with pistols awaiting the arrival of Jugut Brahm who was perhaps conscious of the impending danger to his life on account of the previous enmity and his making efforts to flee away did not succeed and he was done to death by Rajendra Rai. We, therefore, negate the submission of Mr. S P Roy, learned counsel for the appellants in Criminal Appeal (DB) No. 270 of 1997(P) that no overt act has been alleged against the appellants he is representing, since the entire episode was executed by the appellants in furtherance of their common intention which is palpable from the evidence of the witnesses. 12. We, on the basis of the aforesaid discussions, do not find any reason to interfere in the impugned judgment and order of conviction and sentence dated 11-06-1997 (sentence passed on 13-06-1997) passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in Sessions Case No. 31 of 1996/6 of 1996 and, consequently, we dismiss these appeals. 9 | P a g e 13. Since the appellants are on bail, they are directed to surrender immediately and forthwith before the learned trial court to serve out the rest part of their sentence. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi Dated the 14th Day of January, 2025 Preet/N.A.F.R.