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Patna High Court · body

2000 DIGILAW 1148 (PAT)

Chandi Yadav v. State Of Bihar

2000-09-20

M.L.VISA, NARAYAN ROY

body2000
Judgment Narayan Roy, J. 1. Heard learned counsel for the parties. 2. All these appellants have been found guilty under Section 302/34 of the Indian Penal Code for committing murder of Umesh Yadav oh 24.10.1988 and, accordingly, they have been sentenced to undergo rigorous imprisonment for life. 3. The prosecution case briefly stated, is that on 24.10.1998 PW 8 Badri Prasad Yadav went to the Police Station and at about 11.00 a.m. his fardbeyan was recorded stating therein that on 24.10.1988 at 7.30 a.m. while he was returning after easing himself, he heard alarm from the canal side. On hearing alarm, he rushed towards the canal and there he saw accused Chandi Yadav and Balkrishna Yadav standing with lathi whereas accused Chhutaharu Yadav was standing armed with gun and accused Jai Naraian Yadav was armed with farsa. There accused Chandi Yadav asked his three sons to kill Umesh Yadav and on the order of Chandi Yadav, Jai Narain Yadav caught leg of Umesh Yadav and pulled him down. Jai Narayan Yadav. assaulted him on the neck with farsa whereas Bal Krishna Yadav and Chandi Yadav assaulted him with lathi The informant having seen the assault raised alarm on which several villagers collected there and saw the entire occurrence. He tried to save his brother but he could not do so as Chhutaharu Yadav pointed gun to him and due to fear he went towards western side. After committing assault upon Umesh Yadav, the accused-persons dragged him from the canal to their paddy field where he was found dead. 4. The motive of the occurrence, as disclosed in the fardbeyan. is that Chandi Yadav took rupees ten thousand from Umesh Yadav to sell his land, and when the matter was being delayed, Umesh Yadav insisted for execution of kewala. which led to the occurrence. 5. On the basis of the fardbeyan Ext. 6. a formal first information report was drawn up and a case under Section 302 read with other sections of the Indian Penal Code was instituted against the accused-persons and the police after due investigation submitted charge- sheet against the appellants and the appellants, accordingly, were sent up for trial where they have been found guilty, as indicated above. 6. The defence of the accused- persons is that they have falsely been implicated in this case. 6. The defence of the accused- persons is that they have falsely been implicated in this case. A further plea has been taken that the deceased was of bad character and in that connection he was killed. 7. The prosecution in all examined nine witnesses in support of its case. Out of them. PW 1 Ganga Yadav, PW 3 Jan Mohammed, PW 6 Jagdish Prasad Yadav and PW 8 Badrai Prasad Yadav, informant, are eye-witnesses of the occurrence, PW 7 Dr. Rajeshwar Prasad Yadav had held autopsy over the dead-body, whereas PW 9 Ram Jhulan Bhagat is the Investigating Officer of the case, PW Navin Kumar is a witness to the inquest and PW 4 Sikandar Yadav has proved the first information report Ext. 2 whereas PW 5 Shiv Narayan Yadav is another formal witness. 8. The defence has also examined four defence witnesses in support of its case. DWs. 1,2, 3 and 4 are Sharda Devi, Dropadi Devi, Sapha Devi and Jai Narain Yadav, respectively. 9. PW8 Badri Prasad Yadav, the informant, in his evidence has supported the prosecution version of the case as disclosed in the fardbeyan. In his evidence he has stated that on the fateful day at about 7.30 a.m. he was returning after easing himself and all of a sudden he heard alarm and accordingly, he went towards the canal side where he found the appellant armed with various weapons and his brother Umesh Yadav was also there and accused-appellant Chandi Yadav was asking his three sons to kill Umesh Yadav and thereupon Jai Narain Yadav pulled Umesh Yadav down and assaulted the deceased with farsa on his neck whereas Bal Krishna Yadav and Chandi Yadav assaulted him with lathi and Chhutaharu Yadav, who was holding a gun was guarding the place and when he tried to save his brother, gun was pointed at him by Chhutaharu Yadav and out of fear, he started coming back raising alarm and on hearing alarm, sasural villagers collected there and saw the occurrence. He was further stated in his evidence that after the assault they dragged the body of the deceased to their paddy fields where he was found dead. This witness has specifically named the appellants and has specified the weapons held by them. He was further stated in his evidence that after the assault they dragged the body of the deceased to their paddy fields where he was found dead. This witness has specifically named the appellants and has specified the weapons held by them. He has clearly stated in his evidence that it was Jai Narain Yadav who gave farsa blows on the neck of the deceased whereas Bal Krishna Yadav and Chandi Yadav assaulted him with lathi It is also manifest from his evidence that after assault the dead-body was dragged to the fields of the appellants. This witness has been cross-examined at length but he has stood the test of cross-examination and has remained firm in his evidence. A suggestion was put to this witness to show that the occurrence had taken place in the field of the appellants as the deceased tried to prevent members of the accused from harvesting the paddy. This suggestion, however, was denied by this witness is categorical term. 10. PW 1, Ganga Yadav. PW 3 Jan Mahamad and PW 6 Jagdish Prasad Yadav, who are eye-witnesses of the occurrence, in their evidence have stated that on the fateful day at 7.30 a.m. while they were passing through the canal after easing, they heard bulla (alarm) or Badri Prasad Yadav PW 8 and on hulla, they reached at the place of occurrence and there they saw the appellants assaulted the deceased. They have categorically stated that Jain Narain Yadav firstly assaulted the deceased with farsa on his neck and thereafter Bal Krishna Yadav and Chandi Yadav assaulted him with lathi whereas Chataharu Yadav was holding a gun and was keeping guard over the place of occurrence. They have also stated in their evidence that when Badri Prasad Yadav, PW 8 tried to save his brother, gun was pointed at him by Chhutaharu Yadav and the deceased thereafter was dragged by the appellants to their paddy field. These witnesses have been cross-examined at length but their testimony has not been shaken. On reading the evidence of PWs 1,3, 6 and 8 as a whole, it appears that they are very consistent on the point of occurrence and they had seen the occurrence from a close range. At the same time, they appear to be trustwor- my witness. PWs 1, 3 and 6 appear to be independent witnesses. 11. PW 7, Dr. On reading the evidence of PWs 1,3, 6 and 8 as a whole, it appears that they are very consistent on the point of occurrence and they had seen the occurrence from a close range. At the same time, they appear to be trustwor- my witness. PWs 1, 3 and 6 appear to be independent witnesses. 11. PW 7, Dr. Rajeshwar Prasad Yadav, who held autopsy over the dead- body of the deceased, in his evidence has stated that on 25.10.1988 he was posted as eye and ENT Specialist at Madhepur Sadar Hospital and there he held post-mortem on that day on the dead-body of Umesh Yadav at 11.30 a.m. and he found ante mortem injuries on the person of the deceased. (1) Incised wounds on the back of the neck (a) 2 1/2 x 2" x muscle deep cutting the skin, fascia muscle and vessels. (b} 3" x 2 1/2 x bone deep cutting the skin, fascia, muscles, vessels and 2nd cervical vertebrae. (c) 3 1/2 x 1/2 x bone deep cutting the skin, fascia, muscles, vessels and 3rd cervical vertebrae. (d) 3 1/2" x 1 1/2 x vessels deep cutting the skin, fascia, muscles and vessels. (e) 3 1/2 x 2" x muscles and vessels deep cutting the skin fascia muscles and vessels. All the above wounds were transversely placed. (2) Incised wound on the back of the right shoulder thrice in number - all about 2-1/2" x 1/4" x Skin deep. All the injuries were caused by sharp cutting weapon such as farsa. (3) Extensive bruise on the back of the chest 10" x 6". (4) (a) Bruise on the back of the trunk 8" x 5". (b) Bruise 3" x 3" on the left side of the trunk. (c) Bruise 3 1 /2" x 2 1 /2 on the right side of the trunk. (5) Abrasion 1-1/2" x 1" on the back of the right elbow. (6) Abrasion 2" x 1-1/2 on the back of the left fore- arm. (7) Bruise on the outer side of left hip and thigh 4" x 3". (8) Abrasion on the front of the left leg in the middle 1" x 1/2". (9) Lacerated wound in the front of the left leg in the middle below injury No. 8 size 1 1/2" x 1/2" x skin deep." 12. (7) Bruise on the outer side of left hip and thigh 4" x 3". (8) Abrasion on the front of the left leg in the middle 1" x 1/2". (9) Lacerated wound in the front of the left leg in the middle below injury No. 8 size 1 1/2" x 1/2" x skin deep." 12. In the opinion of the doctor, death occurred due to shock and heamorrhage due to injury No. 1 in ordinary course of nature. He has further opined that injury Nos. 1 and 2 were caused by sharp cutting instrument whereas injuries 3 to 9 were caused by hard and blunt substance such as lathi 13. The evidence of the doctor fully corroborates the factum of assault on the deceased as disclosed by PWs 1, 3, 6 and 8. Injuries caused by sharp cutting weapon were found on the neck of the deceased and at the same time, injuries caused by lathi and also by dragging the deceased have been found. All the injuries found on the person of the deceased are said to be ante mortem injuries. Thus, the evidence of the doctor PW 7 fully corroborates the factum of assault. 14. PW 9 the Investigating Officer of the case, in his evidence has stated that on 24.10.1988 while he was posted as pfficer Incharge of Murliganj Police Station, accused Jai Narayan Yadav and Chandi Yadav of village Gangapur came there at about 10 a.m. and lodged the fardbeyan stating therein about the counter-version of the case and on the basis of the fardbeyan of Jai Narain Yadav, he drew a first information report marked Ext. 5 being Murliganj P.S. Case No. 188/88 and went to the place of occurrence for investigation and there PW 8 Badri Prasad Yadav came before him and lodged his fardbeyan disclosing the factum of assault on his brother Umesh Yadav and on the basis of the fardbeyan of PW 8, he drew up another first information report and took up the investigation. He saw the dead- body of the deceased and prepared the inquest report and thereafter inspected the place of occurrence. He saw the dead- body of the deceased and prepared the inquest report and thereafter inspected the place of occurrence. In his evidence he has further stated that in course of investigation he visited the canal side and there he found blood stains in the bed of the canal and he also found mark of dragging the deceased from the canal to the field of the accused- persons and he also found trail mark of blood in between the canal and the field of the appellants. He has further stated in his evidence that in the field where the dead-body was lying, copious blood was found and he had seized bloods stained earth for chemical examination. This witness has also stated in his evidence that he had found trampling mark in the paddy field. 15. From the evidence of the Investigating Officer, it appears that he had found blood stained in the bed of the canal and had also found blood in the paddy field of the accused-persons and at the same time, he found the sign of dragging with trail of blood in between the canal and the paddy field of the accused-persons. From the evidence of the Investigating Officer, the factum of assault on the canal and also in the field of the accused-persons stands corroborated. From the evidence of the Investigating Officer, it further appears that he had firstly instituted a case being Murliganj P.S. Case No. 188/88 on the basis of the fardbeyan of Jai Narain Yadav one of the appellants and Murliganj P.S. Case No. 189/88 on the basis of the fardbeyan lodged by PW 8. From his evidence it is also manifest that in Murliganj P.S. Case No. 188/88 a broken double barrel gun with some cartridges as produced in the police station by the informant, 16. From the materials on record it appears that both first information reports, namely, Murliganj P.S. Case No. 188/88 and Murliganj P.S. Case No. 189/88 have been brought on record and marked Exts. 5 and 6, From Ext. 5, it appears that Jai Narain. From the materials on record it appears that both first information reports, namely, Murliganj P.S. Case No. 188/88 and Murliganj P.S. Case No. 189/88 have been brought on record and marked Exts. 5 and 6, From Ext. 5, it appears that Jai Narain. Yadav one of the appellants instituted a case on 24.10.1988 at 10 a.m. stating therein that his brother Bal Krishna Yadav, Chhataharu Yadav and his sister-in-law, Dropadi Devi and his sister Safa Devi were in the field for harvesting paddy crops and at about 7.30 a.m. he heard some alarm and he rushed towards the field and in the way he learnt from someone, that Umesh Yadav deceased was assaulting his family members and when he reached the paddy field he saw Umesh Yadav armed with a double barrel gun and 6-7 persons armed with bows and arrows and no sooner he reached the paddy field, those 6-7 persons who were accompanying Umesh Yadav, started assaulting him with lathi and he in order to save himself from those accused-persons started assaulting the accused-persons with wooden portion of the farsa and in course of that, Umesh Yadav, who was armed with double barrel gun, pointed it towards him and on that he hit gun of Umesh Yadav with his farsa and the same fell down in two pieces and thereafter he assaulted Umesh Yadav with farsa on his neck and thereafter his father and brother assaulted Umesh Yadav- repeatedly with lathi The motive for the occurrence was alleged that Umesh Yadav wanted to dominate himself which became intolerable for him and, therefore, assault took place. 17. Learned counsel for the appellant submitted that in view of Ext. 5, the case lodged by the accused-persons, it would appear that the appellants assaulted the deceased in the right of their private defence and they had no motive to commit murder of Umesh Yadav. Learned counsel further submitted that since modesty of Safa Devi, sister of Jai Narain Yadav, was being outraged by the deceased, a protest was made from he defence side and when the deceased proceeded to drag the sister of Jai Narain Yadav for some ulterior motive, the appellants just to protect Safa Devi exercised their right of private defence and. therefore, the impugned judgment and order of conviction and sentence passed against the appellants are liable to be set aside and the appellants are entitled for acquittal. therefore, the impugned judgment and order of conviction and sentence passed against the appellants are liable to be set aside and the appellants are entitled for acquittal. 18. The story set forth by the accused-persons in Ext. 5 does not appear to be consistent with the evidence of the defence witnesses, as referred to above. DW 1 Sharda Devi, mother of Jai Narain Yadav, DW 2 Dorpadi Devi {Bhabhi} sister-in-law of Jai Narain Yadav and DW 3 Safa Devi sister of Jai Narain Yadav in their evidence have stated that on the fateful day at about 7.30 a.m. they had gone to harvest the paddy from their field where Umesh Yadav the deceased came with gun and started teasing Safa Devi and wanted to take her from the field for some ulterior motive which was resisted and when he pointed his gun, Jai Narain Yadav assaulted him with farsa as a result of which gun of the deceased was broken. DW 1 who is mother of Jai Narain Yadav, in paragraph 5 of the evidence has further stated that when Umesh Yadav with his man came at the paddy field her daughter Safa and Patohu (daughter-in-law) fled away towards the village out of fear. She has further stated that Umesh Yadav asked Chhatharu Yadav and Balkrishna Yadav as to why they were harvesting the paddy crop and on it, quarrel took place which result into assault and counter assault. At the same time, DW 4 Jai Narain Yadav in his evidence has stated that on the fateful day while his mother, bhabhi (sister-in-law) and sister had gone to harvest their paddy crops, Umesh Yadav with his men came their and tried to outrage the modesty of Safa Devi which was protested and the same resulted into assault and counter assault and as a result of assault Umesh Yadav fell in the field. 19. From the evidence of the defence witnesses it appears that they have disclosed altogether a different version than that disclosed in the fardbeyan of Jai Narain Yadav in Murliganj P.S. Case No. 188/88. The version as disclosed by the defence witnesses about outraging the modesty of Safa Devi has not been mentioned in the fardbeyan lodged in Murliganj P.S. Case No. 188/ 88 and in that view of the matter, much reliance cannot be placed upon the evidence of the defence witnesses. 20. The version as disclosed by the defence witnesses about outraging the modesty of Safa Devi has not been mentioned in the fardbeyan lodged in Murliganj P.S. Case No. 188/ 88 and in that view of the matter, much reliance cannot be placed upon the evidence of the defence witnesses. 20. From the evidence led by the prosecution, as discussed above, it appears that the prosecution has proved the charge against the appellants beyond all reasonable doubts. All the eye-witnesses, namely, PWs 1.3,6 and 8 have divulged consistent story of assault on Umesh Yadav at the side of the canal and also about dragging of the dead-body from canal side to the paddy field of the accused persons. Their evidence is corroborated by the medical evidence and also by the evidence of the Investigating Officer. At the face of the prosecution evidence and in view of the contradictory stand taken by the defence, the story set forth by the accused-persons becomes incredible. From the statements of the accused-persons under Section 313 of the Code of Criminal Procedure, it appears that thy have not taken the plea of defence as disclosed by them in Murliganj P.S. Case No. 188/88 or as disclosed in the evidence by the defence witnesses. I have already discussed above that the accused- persons have taken two contradictory defence in the entire case of Murliganj PS. Case No. 188/88 and in their defence evidence and these stands of the accused-persons do not appear to be consistent with the statements of the accused-persons under Section 313, Cr PC. The pleas of defence taken by the accused-persons, therefore, does not inspire confidence at all. 21. It appears that as against appellants, namely, Chandi Yadav, Bal Krishna Yadav and Chhutaharu Yadav, charge under Section 323 of the Indian Penal Code framed and they were also charged under Section 302/34 of the Indian Penal Code for committing murder of Umesh Yadav with common-intention. At the same time, it appears that appellant Jai Narain Yadav has separately been charged under Section 302 of the Indian Penal Code. 22. From the prosecution evidence, it is very specific that appellant Jai Narain Yadav firstly assaulted the deceased with farsa on his neck and when the deceased fell down appellant Chandi Yadav, Bal Krishna Yadav assaulted him with lathi and thereafter the dead-body was dragged by them to their paddy field. 22. From the prosecution evidence, it is very specific that appellant Jai Narain Yadav firstly assaulted the deceased with farsa on his neck and when the deceased fell down appellant Chandi Yadav, Bal Krishna Yadav assaulted him with lathi and thereafter the dead-body was dragged by them to their paddy field. It further appears that Chhutaharu Yadav was also there armed with gun. It is the specific case of the prosecution that Jai Narain Yadav firstly assaulted the deceased with farsa on his neck. From the evidence of the doctor, the incised injury caused on the neck of the deceased was fatal. 23. Considering the evidence and the facts and circumstances of the case, it is held that the prosecution has proved charges against the appellant Jai Narain Yadav for committing the murder of Umesh Yadav beyond all reasonable doubts. Though rest of the appellants, namely, Chandi Yadav, Bai Krishna Yadav and Chhutaharu Yadav, as it appears from the prosecution evidence, were members of the unlawful assembly and they had also assaulted the deceased with lathi, I do not find sufficient evidence to held that they had meeting of minds and had conjointly intended to commit murder of the deceased and, therefore, conviction of these appellants under Section 302/34 of the Indian Penal Code, in my opinion, is not sustainable. However, I find sufficient evidence against appellants namely, Chandi Yadav, Bal Krishna Yadav, Chhutaharu Yadav to hold them guilty under Section 323 of the Indian Penal Code. The appellant Jai Narain Yadav, in view of the evidence on record, is convicted under Section 302 of the Indian Penal Code simpliciter and sentenced to undergo rigorous imprisonment for life whereas the order of conviction and sentence passed against the appellants, Chandi Yadav, Bal Krishna Yadav and Chhutahru Yadav under Section 302/34 of the Indian Penal Code is set aside and they are convicted under Section 323 of the Indian Penal Code. It is stated by the learned counsel for the appellants that the appellants namely, Chandi Yadav, Bal Krishna Yadav and Chhutahari Yadav have remained in custody for some time. These appellants, therefore, are sentenced to the period already undergone by them. 24. With the aforesaid modification in the order of conviction and sentence, this appeal is dismissed. M.L.Visa, J. 25 I agree.