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2000 DIGILAW 1122 (PAT)

Mohit Yadav v. State Of Bihar

2000-09-15

M.L.VISA, NARAYAN ROY

body2000
Judgment M.L.Visa, J. 1. Both these appeals have been heard together and are being disposed of by this common judgment because both the appeals are directed against the judgment and order dated 16.10.93 passed by 2nd Addl. Sessions Judge, Saharsa in Sessions Case No. 121 of 1992/120 of 1992 convicting and sentencing appellant Mohit Yadav to undergo imprisonment for life under section 302/34 of the Indian Penal Code (In short, I.P.C.) and convicting and sentencing the remaining appellants to undergo R.I. for three years under section 201 I.P.C. 2. The prosecution case in short is that on 4.4.92 at about 8.30 PM appellant Mohit Yadav took the deceased Pravin Kumar Yadav, son of informant, with him from his house for singing bhajan (devotional song). Thereafter the infomant took his meal and went to the house of his neighbour Motilal Yadav (PW 1) and slept at his darwaja where he generally used to sleep. On the next day in the morning at about 4.30 AM when the informant awoke he found that his neighbour Motilal Yadav (PW 1) was giving fodder to his cattle and appellants Karpuri @ Kapuri Yadav, Surendra Yadav, Chulhai Yadav and Satto Yadav were standing below the darwaja and appellant Mohit Yadav was laying a boy wrapped in a cloth on a chawki and when informant enquired from him whom he was laying down all the appellants fled away. When the informant and Motilal Yadav (PW 1) removed the cloth from the face of the boy they found he was Pravin Kumar Yadav, who was dead and blood was oozing out from his nose and mouth and neck was swollen with a black mark on it. The informant started weeping on which his neighbours, namely, Maheshwar Yadav (PW 5), Bateshwar Yadav (PW 2), Ramjee Yadav (not examined) and others came there and informant told them that the appellants after killing his son Pravin Kumar Yadav had kept his body on a chawki and had fled away. The fardbeyan (Ext 2) of informant was recorded by A.S.I. Ashok Kumar Rajak (PW 11) at police station on 5.4.92 at 13.30 hrs. About the motive of occurrence the informant in fardbeyan has stated that about 8-10 days prior to occurrence he had some dispute with the appellants Surendra Yadav, Karpuri Yadav and Mohit Yadav over the matter of demand of a sum of Rs. About the motive of occurrence the informant in fardbeyan has stated that about 8-10 days prior to occurrence he had some dispute with the appellants Surendra Yadav, Karpuri Yadav and Mohit Yadav over the matter of demand of a sum of Rs. 2,000/- and for this reason the appellants committed the murder of his son after pressing his neck. On the basis of fardbeyan of informant a case under section 302/34 I.P.C. was registered against the appellants and the police after investigation submitted charge sheet against all the appellants under section 302/34 I.P.C. After taking cognizance the case was committed to the court of Sessions where charge under section 302/34 I.P.C. was framed against all the appellants who denied the charge against them and they were put on trial. The case of defence as it appears from the trend of cross examination of prosecution witnesses is complete denial of their participation in the murder of son of deceased and their innocence and false implication in this case. 3. Altogether 11 witnesses have been examined to prove its case, Puhuplal Yadav (PW 8) is the informant. Dr. Udai Chandra Mishra (PW 10) is the doctor who had conducted autopsy on the dead body of deceased. Satya Narayan Yadav (PW 4) has been tendered. Karilal Yadav (PW 3) has simply stated that he had seen five persons running away in the south but he did not identify anybody and he has been declared hostile. Maheshwari Yadav (PW 5) has simply stated that he had gone to the place of occurrence and had seen the dead body of the deceased. He has also been declared hostile. Inerdeo Yadav (PW 6) has simply said that one day in the morning he had seen informant and his family members sitting sad. He has also been declared hostile. Shyam Sunder Yadav (PW 7) has said that on Monday morning he had seen all the appellants moving fast towards west of village and thereafter he found informant weeping and he was told by informant that appellants had killed his son. Gulab Devi (PW 9) is the mother of deceased and wife of informant who was told by informant that appellant Mohit Yadav had taken away his son for singing bhajan and on the next day in the morning she was told by informant that appellants had committed the murder of his son. Gulab Devi (PW 9) is the mother of deceased and wife of informant who was told by informant that appellant Mohit Yadav had taken away his son for singing bhajan and on the next day in the morning she was told by informant that appellants had committed the murder of his son. Motilal Yadav (PW 1) had seen the appellant Mohit Yadav taking away deceased with him for singing bhajan and on the next day in the morning he had seen five persons out of one putting the dead body of son of informant on a chawki but he could not identify any one of them. Baleshwar Yadav (PW 2) had seen the dead body of deceased at the darwaja of Motilal Yadav and he also saw the informant weeping there saying that his son had been murdered but did not tell the name of muderer. He has been declared hostile by the prosecution. 4. Dr. Udai Chandra Mishra (PW 10) in his evidence has stated that on 6.4.1993 at about 12.00 noon he conducted post mortem examination on the dead body of Pravin Kumar Yadav and found that the body was of a twelve years old male child and he found the following antemortem injuries on it. (i) Bruise with ecchymosis found on the anterior and upper part of the neck. Look of the face was congested. Froth coming out of mouth. Eye balls protuding with congesion. On dissection of the neck on frontal part large amount of haematoma with laceration of large vessels was found and lacerated injury on trachial cartilages with congestion of its mucus membrane (inner wall) was found. According to him death was caused due to above injuries which were caused by strangulation and time elapsed since death was 6 to 72 hrs. and injuries were sufficient to cause death in normal course of events. He has proved the post mortem examination report which is marked as Ext.1. His evidence proves that death of deceased Pravin Kumar Yadav was homicidal and the time of death tallies with the time as alleged by prosecution. 5. Puhuplal Yadav (PW 8), the informant, in his evidence has said that on a Saturday at about 8.00 PM appellant Mohit Yadav took away his son for singing bhajan. At that time two more persons were with him but he could not identify them. 5. Puhuplal Yadav (PW 8), the informant, in his evidence has said that on a Saturday at about 8.00 PM appellant Mohit Yadav took away his son for singing bhajan. At that time two more persons were with him but he could not identify them. He thereafter went to the bunglow of Motilal Yadav for sleeping because he used to sleep there and on the next day at about 4.00 AM when he awoke he found that appellant Mohit Yadav was putting a boy wrapped in chadaar (bed sheet) on a chawki kept at the bunglow of Motilal Yadav and other appellants, namely, Karpuri Yadav, Surendra Yadav, Chulhai Yadav and Satto Yadav were standing near darwaja and when he enquired what was the matter all the five appellants fled away. At that time Motilal Yadav was giving fodder to his cattle and he also went near the boy and when the cloth was removed from the face of boy it was found that he was Pravin who had already died and blood was oozing out from his nose, neck was swollen and one hand and one leg were found fractured. The informant started weeping on which witnesses, namely, Bateshwar Yadav (PW 2), Maheshwari Yadav (PW 5), Ramjee Yadav (not examined) and others came there and thereafter a number of other persons also assembled there. In para 6 of his evidence he has said they about 8-9 months prior to occurrence he along with appellants Mohit Yadav, Karpuri Yadav and Surendra Yadav had gone to Punjab for earning where appellants Mohit Yadav and Karpuri had taken out a sum of Rs. 5,000/- from his waist which he came to know when he returned to village and a punchayati was held in which appellants Mohit Yadav and Karpuri Yadav were ordered to pay a sum of Rs. 4,000/- to him but they paid only a sum of Rs. 2,000/- and for the balance money he used to make demand from them and for this reason there was a bickering between him and the appellants. 6. 4,000/- to him but they paid only a sum of Rs. 2,000/- and for the balance money he used to make demand from them and for this reason there was a bickering between him and the appellants. 6. Motilal Yadav (PW 1), in his evidence, has said that on one Saturday at 8-8.30 PM he was at his darwaja when he saw that appellant Mohit Yadav called deceased Pravin Kumar Yadav and took with him for singing bhajan and thereafter he and Puhuplal Yadav after taking meal went to sleep and on the next day at about 4.30 AM he woke up and started giving fodder to his cattle and at that time Puhuplal Yadav after awaking was sitting on a chawki. He saw five persons coming to his darwaja and out of them four remained at his darwaja and fifth one who was carrying Pravin, wrapped in a chadaar in his lap put Pravin on a chawki and when he and informant removed the cloth from the face of Pravin they found that Pravin was dead and there was a black mark on his neck and his left leg was fractured. He has said that he could not identify anyone among those five persons. Although he has been declared hostile because according to the prosecution in his earlier statement he had stated that appellant Mohit Yadav had put the dead body of the son of informant on a chawki and other appellants were standing at the darwaja but I find that his evidence if taken as it stands definitely supports the case of prosecution that appellant Mohit Yadav had taken away the deceased with him on the night of Saturday for singing bhajan and on the next day early in the morning the dead body of son of informant was kept on a chawki by one of the five persons who had come there. 7. 7. Shyam Sunder Yadav (PW 7) in his evidence has stated that one day early in the morning at 4.00 AM when he was returning from Bahiyar to village he saw all the five appellants moving fastly towards south and when he came to his home he heard informant weeping at the gohal of Motilal Yadav and when he went there the informant told him that the appellants after committing murder of Pravin Kumar had fled away and he also saw the dead body of Pravin Kumar who was son of informant and was aged about 11 years. He has further stated that informant had some dispute with appellant Karpuri because money of informant was taken by appellant Mohit and a punchayati was held in which appellant Mohit had to pay a sum of Rs. 2,000/- to informant. In his cross examination which was held on a subsequent day he has stated that because of darkness he could not see the faces of those persons who were found by him running away. 8. Gulab Devi (PW 9), the wife of informant, has said that on a Saturday at 8.00 PM after giving food to her husband and her son she herseif took the meal and went to sleep and thereafter appellant Mohit Yadav took her son Pravin Kumar Yadav with him for singing bhajan and because at that time she was sleeping so she came to know this fact from her husband. She further said that on next day she saw the dead body of her son at the darwaja of Motilal Yadav (PW1) and her husband told her that appellant Mohit Yadav after killing Pravin had put the dead body on a chauki. She has been declared hostile and her attention by prosecution has been drawn that in her earlier statement she had stated that her son Pravin Kumar Yadav had gone to read at the house of one Satto Yadav and appellant Mohit Yadav took away him (Pravin) from there for singing bhajan and at that time. She was taking meal at her verandah. 9. She was taking meal at her verandah. 9. It is true that there is no eye witness on the point of committing the murder of son of informant but then the evidence of informant that appellant Mohit Yadav took away the deceased with him one day in the night on the pretext of singing bhajan is supported by the evidence of Motilal Yadav (PW 1) also. The further evidence of informant is that on the next day early in the morning he saw appellant Mohit Yadav putting the dead body of his son on a chauki finds further support from the evidence of Motilal Yadav, who also saw five persons at his darwaja on a day early in the morning and one of them keeping the dead body of deceased on a chauki. The prosecution has also brought on record that appellant Mohit Yadav had dispute with informant in respect of some money matter. This supplies the motive for committing the offence. The evidence brought on record by prosecution establishes that it was appellant Mohit Yadav who took away the deceased with him on a Saturday at about 8-8.30 PM on the pretext of singing bhajan and on the next day early in the morning at about 4.00 Oclock along with other appellants he was found keeping the dead body of deceased on chauki. This circumstance appearing against appellant Mohit Yadav and in absence of any explanation by him that what happened after he took the deceased with him and how he came in possession of the dead body of the deceased left the court below with no option but to draw an inference that the deceased had been killed by appellant Mohit Yadav and other appellants assisted him in keeping the dead body at the darwaja of Motilal Yadav (PW 1) and l find that the court below was right in drawing this inference. 10. 10. Lala Kailash Bihari Prasad who has been appointed as amicus curiae to conduct the case on behalf of appellants has argued that in this case all the appellants were charged under section 302/34 l.P.C. for committing the murder of son of informant but except appellant Mohit Yadav the remaining appellants have not been found guilty for the charge under section 302/34 I.P.C. and they have been found guilty only under section 201 I.P.C. and therefore the conviction and sentence of appellant Mohit Yadav alone under section 302/34 is bad in law. According to him when a number of persons are charged and tried for an offence by applying section 34 I.P.C. the conviction of only one of them for that offence is not permissible. I am unable to accept this submission because this argument would have been available only when in view of same evidence against all the appellants only one of them would have been convicted and others would have been acquitted. In the present case the evidence which has appeared against appellant Mohit Yadav is quite different from the evidence appearing against other appellants. The evidence on record has established that it was appellant Mohit Yadav who had taken away the deceased with him on a night from his house and on the next day early in the morning he was seen keeping the dead body of the deceased on a chauki at the darwaja of Motilal Yadav (PW 1) where he had gone with remaining appellants. It is true that appellant Mohit Yadav and other appellants were charged under section 302/34 I.P.C. but the evidence on record shows that appellant Mohit alone is liable for the murder of deceased and in this view of the matter he can very well be convicted under section 302 I.P.C. notwithstanding the fact that he and other appellants were charged under section 302/34 I.P.C. The Apex Court in its decision in the case Hem Raj V/s. The State (Delhi Admn.) ( AIR 1990 SC 2252 ) has held as follows : "Coming to the other contention, we may say that there is no illegality in convicting the appellant under section 302 (simpliciter) though there was a constructive charge against all the accused inclusive of appellant under section 302 read with section 34 IPC, since the evidence has disclosed that it was only the appellant who inflicted the injury which proved fatal." 11. I, therefore, find that the evidence brought on record by prosecution proves an offence under section 302 I.P.C. against appellant Mohit Yadav who has been convicted under section 302/34 I.P.C. His conviction is therefore altered from section 302/34 to section 302 I.P.C. keeping the sentence of life imprisonment intact. The conviction and sentence of other appellants under section 201 I.P.C. by court below is also appear to be justified and it requires no interference by this Court. 12. With the aforesaid modification in Cr.Appeal No.546/93 on the point of conviction and sentence of appellant Mohit Yadav both the appeals are dismissed. Appellant Mohit Yadav is already in jail custody whereas remaining appellants are on bail. The bail bonds of appellants Karpuri @ Kapuri Yadav, Surendra Yadav, Chulhai Yadav and Satto Yadav are cancelled and they are directed to surrender before the court below to serve out the sentences passed against them. Narayan Roy, J. 13 I agree.