Ram Lagan Yadav v. State Of Bihar — 1993 DIGILAW 227 (PAT)

Judgment Loknath Prasad, J. 1. All these three appeals were heard analogous as they had arisen from the common judgment of coviction recorded in S.T. No. 511/89 by the Sessions Judge, Nawadah, dated 11-10-1991 through which he convicted and sentenced the appellant Saudagar Yadav @ Natwar Lal to undergo imprisonment for life under Sectiop 302 of the Indian Penal Code and the remaining five appellants were also convicted and sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code. 2. In Cr. Appeal No. 444 of 1991 Ram Lagan Yadav is the appellant, in Cr. Appeal No. 473 of 1991 Sukhdeo Yadav, Sunil Yadav, Suresh Yadav and Srichand Yadav are the appellants whereas in Cr. Appeal No. 475 of 1991 only Saudagar Yadav is the appellant. This common order will dispose of all these three appeals in question. 3. The facts in short, leading to the conviction of these appellants, are that the informant PW 5 lodged Fardbeyan as against these appellants on 7-8-1989 at about 6.00 p.m. alleging therein that on that very date he along with his uncle Ramautar Chauhan had gone to Civil Court, Nawadah in connection with a title suit of Ramautar Chauhan. It has been alleged that at about 4-00 p.m. they left the Court premises in a rikshaw of Ratnji Chauhan PW 3 for their home situate in mohalla Malgodam of Nawadah town. From there at about 5-00 p.m. or so they left along with his mother for going to village Akauna where they also got a house and when they reached near the mohalla Mangar Bigha near Nawadah Bus Stand, then the appellant Saudagar Yadav @ Natwar Lal stopped the rickshaw and asked Ramautar Chauhan to come to his Mangar Bigha residence so that they could have dialogue for compromising the litigations to which Ramautar Chauhan agreed and then all the three came to Mangar Bigha near the house of one Rajendra Kahar @ Rajendra Prasad Singh. It is also the prosecution case that after that Ramautar Chauhan got down from the rickshaw and asked the informant and his mother to remain there till he come after a talk with Saudagar Yadav and had gone to the upper storey of the house in which Saudagar Yadav was living as a tenant and after ten minutes or so the informant heard the altercation sound of Ramautar and Saudagar and they were hurling abuses. So, he rushed to the upper storey of the house and saw Saudagar giving Pasuli blow on the cheek of Ramautar Chauhan and the appellants Sukhdeo Yadav and Sunil Yadav tying the body of Ramautar with an electric wire and other appellants Suresh Yadav and Srichand Yadav and one Bahnoi of Saudagar pulling down Ramautar and pressing his body and Saudagar Yadav cutting the neck by pasuli. After that the informant came down running and raised alarm. Then all the accused persons escaped away from that house and in that process they were seen by the rickshaw puller Ramji Chauhan and his mother. At that time his father also came and some muhalla people also saw these appellants escaping away. The informant has also alleged the motive in the Fardbeyan that there was some ill-relation between the deceased. Saudagar Yadav and Sunil Yadav because a Harizan had instituted a case against them in which the deceased was doing pairvi on behalf of Harizan and one Kunti Devi had instituted a case against the deceased in which Sunil Yadav and Saudagar Yadav used to do pairvi for Kunti Devi and for this enmity they committed the murder of the deceased in the rented portion of the house of the appellant Saudagar Yadav. 4. Immediately after the occurrence the O.C. Nawadah Police Station, who was on patrolling duty came to the place of occurrence and recorded the Fardbeyan of the informant and took up investigation The deadbody in the pool of blood was found on the upper storey of the house of Rajendra Kahar. The weapon Pasuli and electric wire were also found there, So the Investigating Officer prepared the inquest and seized, these articles from that room and also seized some clothes stained with blood in another room of that h ouse and after investigation submitted charge-sheet as against these appellants. 5. The weapon Pasuli and electric wire were also found there, So the Investigating Officer prepared the inquest and seized, these articles from that room and also seized some clothes stained with blood in another room of that h ouse and after investigation submitted charge-sheet as against these appellants. 5. All the appellants claimed themselves innocent and denied to have committed the murder of the deceased. Appellant Saudagar Yadav also denied that he was the tenant in respect of the room where the deadbody of the deceased was found. It is their evidence that the deceased was a criminal and he got criminal antecedent and as such he had several enemies and litigation was also going on with the family of Jehal Yadav and it is quite possible that those persons might have committed the murder of the deceased and then the appellants have been implicated in this case only out of enmity. 6. The factum of murder of the deceased Ramautar Chauhan, who is uncle of the informant, sometime on 7-8-1989 has not been specifically denied by the defence and the defence has simply denied their participation in this very occurrence. The defence has also not denied the recovery of the deadbody in a pool of blood in the upper storey of the house of one Rajendra Kahar, who has figured as PW 9 but has simply denied that Appellant Saudagar Yadav had no concern with the rooms. Thus, the question for consideration is whether the appellants in furtherance of their common intention committed the murder of the deceased in a house situate in Mangar Bigha P.S. Nawadah in the evening of 7-8-1989 in the manner alleged. 7. To prove the occurrence the prosecution has mainly relied upon the evidence of PWs 5 Krishnandan Chauhan, who is the informant and the main witness of the occurrence and that of the evidence of PW 1, PW 2, PW 3, PW 4, PW 6 and that of the evidence of the doctor, who has figured as PW 11 and Investigating Officer PW 10. The other witnesses are formal witnesses and PW 9 Rajendra Prasad Singh, who is also known as Rajendra Kahar, is the owner of the house where this very occurrence took place. 8. The other witnesses are formal witnesses and PW 9 Rajendra Prasad Singh, who is also known as Rajendra Kahar, is the owner of the house where this very occurrence took place. 8. PW 5 Krishnandan Chauhan, the informant of this case is the main witness because he had seen the entire occurrence and commission to the murder of the deceased Ramautar Chauhan, who is his uncle. It is his evidence that on 7-8-1989 at about 10.00 a.m. or so he had gone of Nawadah Civil Court along with the deceased in connection with a title suit of the deceased and at about 4.00 p.m. he along with the deceased had left the Court premises on a Van Rickshaw of Ramji Chauhan PW 3 (Van Rickshaw is a flat rickshaw without any seat or roof and it is mainly used for carrying goods and also at times passengers are being carried in such rickshaw). It is his evidence that at about 5.00 p.m. or so he reached his house situated in Mohalla Malgodam of Nawadah town and from there he left in that very rickshaw along with| his mother and the deceased for going to their house situate in village Akauna and on the way when they reached near Mangar Bigha Bus Stand then the appellant Saudagar Yadav stopped the rickshaw and asked the deceased to come to his Mangar Bigha rented house for talk of compromise and to settle the dispute to which the deceased readily agreed and all of them had gone near the house of Rajendra Kahar and in the upper floor the deceased had gone with the appellant Saudagar Yadav because Saudagar Yadav was living in some rooms as tenant in the house of Rajendra Kahar. The deceased Ramautar Chauhan asked the informant and his mother to wait in the rickshaw on the road. It is also his evidence that after ten minutes or so he heard loud sound raised by the deceased and this appellant and so he went to upper floor of the house and saw all these appellants including Ram Lagan, who had been identified as Bahnoi of appellant Saudagar Yadav and at that time Saudagar Yadav gave a pasuli blow on the cheek of Ramautar Chauhan. Sunil Yadav and Sukhdeo Yadav tied the body of the deceased by electric wire and other three appellants, namely, Suresh Yadav, Srichand Yadav and Ram Lagan Yadav, who is Bahnoi of Saudagar Yadav pulled down the deceased and pressed his body and then Saudagar Yadav cut the neck of deceased by pasuli and as such he came down raising alarm and then the appellants escaped away and in that process they were identified by his mother, rickshaw puller and also by his father PW 1 and some more witnesses. It is also his evidence that immediately the O. C. Nawadah P. S. came there on a Jeep and he informed him about the occurrence and his Fardbeyan was recorded and after that the police went to the upper floor of the house and found the deadbody of the deceased in a pool of blood and the pasuli containing blood, electric wire and the blanket full of bloodstains were found and seized by the police. 9. Admittedly this witness (PWs) and his mother had gone there along with the deceased in the rickshaw of PW 3 Ramji Chauhan. So, PW 3 Ramji Chauhan and PW 6 Muneshwari Devi, who is mother of the informant are important witnesses. The PW 3, who is rickshaw puller and also claimed that he brought the deceased and PW 5 first of all from Nawadah Civil Court to their Malgodam house and from there they left for village Akauna along with PW 6 also but on the way they met the appellant Saudagar Yadav and as such they had gone to the P.O. house and stayed there on the road and Saudagar Yadav had gone to the upper storey for talk of compromise with the deceased. This witness and PW 6 Muneshwari Devi have also consistently said that after ten minutes or so when the loud sound was heard, PW 5 had gone to the upper storey and immediately came weeping and taking the names of these appellants that they had killed the deceased and they had seen all the appellants immediately after that coming down from the first floor and escaping away and then the police arrived and the deadbody could be recovered in a pool of blood. So, these two witnesses consistently supported the evidence of PW 5 and had seen the accused persons escaping away from the P.O. house immediately after the occurrence. So, these two witnesses consistently supported the evidence of PW 5 and had seen the accused persons escaping away from the P.O. house immediately after the occurrence. 10. PW 1 Shiv Shankar Chauhan is the cousin of the deceased and father of the informant and from his evidence it can be said that the deceased was joint with him and from the evidence of this witness and the other witnesses it can be said that the family of the deceased actually got three houses within Nawadah town, one at Malgodam, where the informant lives with his family, other at Akauna where the family membrs of the deceased were living and one house is in Mangar Bigha, which is on rent. It is the evidence of this winess that at the time of occurrence i. e., on 7-8-1989 at about 5-30 p. m. he left Mangar Bigha house for going to Malgodam but in the meantime he heard the alarm near the house of Rajendra Kahar and he had seen these appellants escaping away and at that very place he saw his son and wife and the rickshaw puller and his son narrated the entire incidents to him and after that the police officer came and they had gone to the upper storey and had seen the deadbody of the deceased in a pool of blood. Similarly, PW 2 Dwarika Chauhan also stated that at that time he was in Mangar Bigha for purchasing cement from the shop of Bajrangi and he had heard the alarm and seen these accused persons escaping away and PW 5 disclosed that these very appellants committed the murder of his uncle. The PW 4 Dharmendra Kumar appears to be an independent witness and this much can be said from his evidence that he was coming behind the rickshaw stopping in Mangar Bigha where the appellant Saudagar Yadav was standing and he took the deceased to the upper storey of the house. 11. The PW 4 Dharmendra Kumar appears to be an independent witness and this much can be said from his evidence that he was coming behind the rickshaw stopping in Mangar Bigha where the appellant Saudagar Yadav was standing and he took the deceased to the upper storey of the house. 11. So, the evidence of these witnesses clearly show that there was litigation between the appellants Saudagar and Sunil on the one side and the deceased on the other side because the deceased was helping a Harizan as against Saudagar and Sunil whereas Kunti Devi was being helped by these two appellants in her litigation with the deceased and in the evening of 7-8-1989 the appellant Saudagar Yadav took the deceased in a house of Rajendra Kahar where some of the rooms of the upper floor were in his possession as a tenant on the pretext of talk of compromise and the other appellants were also present there from before and immediately after that the appellant Saudagar Yadav gave pasuli blow on the cheek and also cut the major portion of the neck of the deceased with the help of other appellants, who caught the deceased and tied his hands by electric wire. 12. Learned counsel appearing on behalf of the appellants tried to diseredit the evidence of these witnesses mainly for the reason that almost all the witnesses except PW 4 Dharmendra Kumar are interested witnesses because they are close relations of the deceased and PW 2 is also the associate of the deceased because he was also facing trial in a criminal case with the deceased and it does not stand to reason that the deceased will go to the house of the appellant Saudagar for talk of compromise leaving behind his Bhabhi and nephew on the rickshaw and non-examination of independent witnesses of that locality clearly indicates that no body had seen the occurrence and subsequently after detection of the murder of the deceased this case was hatched up as against the appellants only out of enmity. It was also submitted that the deceased had criminal antecedents and he had litigation with the family of Jehal Yadav, an influential man of Nawadah and it is quite possible that he was murdered by Jehal Yadav and his men in the late hours of 7-8-1989. 13. It was also submitted that the deceased had criminal antecedents and he had litigation with the family of Jehal Yadav, an influential man of Nawadah and it is quite possible that he was murdered by Jehal Yadav and his men in the late hours of 7-8-1989. 13. No doubt some of these witnesses are closely related but on this score their evidence cannot be discarded and at best their evidence may be examined with great caution and care to arrive at a conclusion if these witnesses are truthful. Now-a-days the general public as a whole and the independent witnesses are generally not inclined to participate during investigation and to figure as prosecution witnesses. In such circum stances and situation the interested witnesses generally figure as witnesses and thus their evidence cannot be discarded as a whole but has to be examined with caution and care to eliminate the likelihood of false implication. In the instant case, the evidence of these witnesses also finds corroboration from various other circumstances and the evidence of the I. O. and the doctor and thus their evidence inspire confidence and it appears that they are truthful. It is the prosecution case that this occurrence took place at about 5.45 p.m. or so on 7-8-1989 and at that time, from the evidence of the I.O. (PW 10), it can be said that he reached the place of occurrence immediately after the occurrence because he was on patrolling duty on a Jeep and on getting alarm he reached the place of occurrence at about 6.00 p. m. or so the Fardbeyan was recorded. From the evidence of the I. O. it is also clear that he found the dead body in the western room of the upper storey of the house of Rajendra Kahar with fresh blood coming out of the body. The major portion of the neck was cut and the pasuli as claimed by PW 5 and the electric wire which was used in the commission of the offence were found near the dead body in that very room with blood stain. A blanket was also found containing blood and huge quantity of blood was also found on the floor which were seized and kept in a pot. All these articles were seized and seizure list was prepared which is Ext. 5 in presence of PW 2 and one Anjani Kumar Mishra. A blanket was also found containing blood and huge quantity of blood was also found on the floor which were seized and kept in a pot. All these articles were seized and seizure list was prepared which is Ext. 5 in presence of PW 2 and one Anjani Kumar Mishra. These material exhibits i.e. material Exhibits 1 to 4 were also produced in Court. Similarly in another room blood stained paijama, bushshirt, lungi, towels etc. were found and Ext. 5/1 i.e. the seizure list and other material Exhibits were also produced in Court. From the suggestions given to this witness i.e. the Investigating Officer in para 20 of his cross-examination it can be said that the defence also admitted that the murder was committed in that very room and when the Investigating Officer came the deceased was not completely dead. 14. From the evidence of the Investigating Officer this fact is also well proved that immediately after the occurrence, the S.P. and the D. S. P. came to the place of occurrence and they too supervised the case and in their presence the statements of the witness were recorded. Thus, it can be said that the informant lodged the F.I.R. immediately after the occurrence, that means within few minutes and all the aforesaid witnesses, who are though interested witnesses, supported the entire occurrence by giving their statements in that very night, that too, in presence of the S. P. and the Investigating Officer. The I. O. immediately found incriminating articles at the place of occurrence and they had no time to give concocted version because the S. P. and the D. S. P. arrived at the spot at that time. The I. O. immediately found incriminating articles at the place of occurrence and they had no time to give concocted version because the S. P. and the D. S. P. arrived at the spot at that time. Moreover, according to the defence version that in fact Jehal Yadav or his men with whom the deceased had enmity might have committed the murder of the deceased and the appellants have been falsely implicated in this case but if at all men of Jehal Yadav committed the murder of the deceased and the evidence on the record indicates that the informant and the witnesses were present near the place of occurrence at that time, then in such situation it is not expected from the informant to allow Jehal Yadav to go scot-free and to implicate the appellants because admittedly the deceaed had enmity with Jehal Yadav and also got some enmity with the appellants and in such situation it is not expected that the informant will spare Jehal Yadav and implicate these appellants as it is human conduct that he will not allow the main culprit to go scot-free. 15. It was also contended on behalf of the appellants that in the Fardbeyan it has been mentioned that the appellant Saudagar Yadav got the neck of the deceased slit by pasuli that means other person cut the neck of the deceased and not the appellant Saudagar Yadav. On the other hand, it is the evidence of the informant that Saudagar Yadav cut the neck by pasuli. The Investigating Officer PW 10 also stated in his evidence that actually the informant had said in the Fardbeyan that the appellant Saudagar cut the neck and he recorded as such but in the Fardbeyan the word "err" after "t^" had been added subsequently by some other person. On perusal of the original Fardbeyan (Ext. 2/1) it can be said that the Investigating Officer has rightly stated that he had written the word only ^r" and the word " 16. Learned counsel for the appellants also submitted that the entire prosecution case appears to be doubtful in view of the post-mortem report and the evidence of the doctor. On perusal of the original Fardbeyan (Ext. 2/1) it can be said that the Investigating Officer has rightly stated that he had written the word only ^r" and the word " 16. Learned counsel for the appellants also submitted that the entire prosecution case appears to be doubtful in view of the post-mortem report and the evidence of the doctor. It was contended that no doubt the doctor found as many as three injuries, one incised on the right side of the cheek, the other incised injury on the neck from right to left side, cutting muscle trachea etc. and the third incised wound above injury No. 2 but the doctor has admitted that rigor mortis was present and the doctor also found semi digested food and admittedly post-mortem examination was held at 7.30 a.m. on 8-8-1989. It was submitted that as rigor mortis was present which sets in after 3 to 4 hours of the death and undigested food was also found, thus, it can be said that the deceased was done to death in the late hours of the night i.e. at about 10.00 p.m. or so and not at 6.00 p.m. On the other hand, learned counsel for the prosecution submitted that the evidence of the doctor fully corroborates the prosecution case because he found injury on the cheek and the major portion of the neck was cut, which according to the doctor, caused immediate death of the deceased and so the findings of the doctor corroborates the evidence of the informant that all these injuries were caused by pasuli, a sharp cutting weapon. So far semi-digested food was found, it has come in evidence of PW 6 and also that of the informant PW 5 that the deceased also took tea and Bhunja at Malgodam house prior to leaving for Akauna. In that situation the doctor has found undigested food in the deadbody. So far rigor mortis is concerned, learned counsel for the prosecution submitted that the Court below has rightly observed and it is also the opinion of the doctor that rigor mortis starts according to weather condition and other circumstances and also the feature of the body is responsible to some extent in this regard, Dr. Modi in his famous book Medical Jurisprudence and Toxicology has observed that in summer season rigor mortis may last up to 18 to 36 hours. Modi in his famous book Medical Jurisprudence and Toxicology has observed that in summer season rigor mortis may last up to 18 to 36 hours. Moreover, the defence has admitted by giving suggestion to the I. O. that when he arrived at the place of occurrence, that means at about 6.00 p.m. or so, there was some life in the deceased. In that view of the matter, practically there is no merit in the submission of the defence counsel that the murder was committed in the late hours of the night of 7-8-1989. The prosecution case further finds support from other important circumstances that is admittedly the deadbody with incriminating articles such as pasuli, electric wire, blood stained clothes etc. were found in two rooms in upper storey of the house of Rajendra Kahar, who has figured as PW 9 and at the relevant time those two rooms were in occupation of the appellant Saudagar Yadav as tenant. No doubt the appellants have claimed that Saudagar Yadav was not the tenant and PW 9, the owner of the house had stated before the I.O. that at the time of occurrence these rooms were in occupation of Saudagar Yadav as tenant but he resiled from this statement and as such he was declared hostile but from the cross-examination of this witness it can be said that he filed an informatory petition on 11-8-1989, that means immediately after the occurrence before the S.D.O. Nawadah through an advocate Tarkeshwar Pd. Sinha (Ext. 7) and admitted in his cross-examination that earl er one Junior Engineer Chhotelal was in occupation as tenant but after his transfer Saudagar Yadav became his tenant because Saudagar Yadav is a relation of Chhotelal. Ext. 7/1 the certified copy of the informatory petition also indicates that this very witness has admitted that the room where the murder of the deceased was committed and the other room in which some blood-stained clothes were seized were in occupation of Saudar Yadav as tenant. Of course, from Ext. 7 it was argued by the counsel for the appellants that in page-2 Ext. 7 it has been mentioned that Jehal Yadav was in occupation of those two rooms and not Saudagar Yadav but on perusal of these documents and evidence of PW 12 it can be said that Page 2 of Ext. Of course, from Ext. 7 it was argued by the counsel for the appellants that in page-2 Ext. 7 it has been mentioned that Jehal Yadav was in occupation of those two rooms and not Saudagar Yadav but on perusal of these documents and evidence of PW 12 it can be said that Page 2 of Ext. 7 had been subsequently inserted with different contents and paper and the type was also different and it also does not contain the signature of the advocate Tarkeshwar Pd. Sinha. From very look of this document (Ext. 7) it appears that subsequent to the issue of certified copy (Ext. 7/1) page-2 has been inserted deleting the name of Saudagar Yadav as tenant and actually the earlier certified copy (Ext. 7/1) is the true certified copy of the petition containing the name of Saudagar Yadav. 17. Thus, from the own admission of the landlord i.e. PW 9 and Ext. 7/1 this fact is well proved that the rooms in the upper storey of the house of PW 9 were in occupation of Saudagar Yadav and in that very room the deadbody, along with pasuli, electric wire etc. was found and in another room some clothes containing blood were found which indicate that Saudagar Yadav and his men i.e. other appellants after committing the murder of the deceased locked the rooms and then escaped away. 18. Moreover, it is the consistent evidence of the informant, PW 1 and other witnesses that those rooms were in occupation of Saudagar Yadav as a tenant. Further more, in the inquest (Ext. 1) and in the seizure list, the Investigating Officer had also mentioned that these two rooms were in occupation of Saudagar Yadav as tenant of Rajendra Kahar. Thus, this fact is well proved that these two rooms were in occupation of the appellant Saudagar Yadav as tenant of Rajendra Kahar and as the deadbody with fresh blood and incriminating articles were found there for that no satisfactory explanation was advanced on behalf of the appellants, then it can be safely said that the appellant Saudagar Yadav with other appellants committed the murder of the deceased in the manner indicated above only due to previous enmity. 19. 19. So, on careful consideration of the entire evidence on the record and the surrounding circumstances as discussed above, this fact is well proved that there was prior enmity between the deceased and the appellants Saudagar Yadav and Sunil Yadav and as such on false pretext appellant Saudagar Yadav brought the deceased in the P. O. house which was in his occupation as tenant and in that place other appellants were also present from before and the other appellants caught the deceased and the main appellant Saudagar Yadav had given blow by pausli and also cut major portion of the neck which caused instantaneous death of the deceased and in that view of the matter, the court below was perfectly justified in convicting the appellant Saudagar Yadav under Section 302 of the Indian Penal Code and the other appellants under Section 302/34 of the Indian Penal Code as they were sharing common intention and they also took active part in helping the main accused in commission of the murder of the deceased. 20. In the result, the appellant Saudagar Yadav is definitely guilty under Section 302 of the Indian Penal Code and the other five appellants under Section 302/34 of the Indian Penal Code and they were rightly convicted and sentenced to undergo imprisonment for life and as such all these appeals are hereby dismissed and conviction and sentence as awarded by the court below are hereby confirmsd and maintained. Appellant Saudagar Yadav is in custody, so he will serve the remaining period of the sentence as awarded by the trial Court and the other five appellants, namely, Ram Lagan Yadav, Sukhdeo Yadav, Sunil Yadav, Suresh Yadav and Srichand Yadav are on bail, and as such their bail bonds are hereby cancelled and the court below is directed to take steps for their apprehension so that they can serve the period of imprisonment awarded by the trial Court. R.N.PRASAD, J. 21 I agree.