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Patna High Court · body

2000 DIGILAW 919 (PAT)

Ganesh Yadav v. State Of Bihar

2000-07-25

M.L.VISA, NARAYAN ROY

body2000
Judgment M.L.Visa, J. 1. All these four appeals have been heard together and are being disposed of by this common judgment because all these appeals are directed against the judgment and order dated 17.7.1993 passed in Sessions Trial No. 309 of 1990, 40 of 1992 convicting all the appellants under Section 302/34 of the Indian Penal Code (in short, IPC) and Section 27 of Arms Act and sentencing each of them to undergo imprisonment for life. From the operative portion of the judgment and order of Court below it appears that sentence has been passed for the offence under Section 302/34 and no separate sentence has been passed under Section 27 of Arms Act though not specifically mentioned so. 2. The case of prosecution in short is that on 5.10.1988 informant Dinesh Sah (PW 5) at about 6.00 a.m. came out of his house and proceeded towards bank of Ganga river to attend the call of nature. In the way at a nala on the bank of Ganga river he saw all the five appellants along with co- accused Ramjee Yadav and Bithal Yadav sitting there. Appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav were armed with pistols. After attending the call of nature when the informant came upside from the bank of Ganga river he found all the aforesaid persons had surrounded his brother Ganesh Sah. When informant went to rescue his brother, appellants Kapildeo Yadav and Anandi Yadav chased him to assault. The informant out of fear started running away and when he turned back he saw that appellant Ram Krishna Yadav @ Ledha Yadav and co- accused Bithal Yadav had caught hold of his brother Ganesh Sah and appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav were firing shots from their pistols on his brother Ganesh Sah. About 3-4 shots were fired. The informant raised nulla. On hearing his bulla as well as the sound of firing villagers, namely, Kanhai Pandit (PW 1), Lallan Sah (PW 3), Bhumi Sah (not examined) and others came there. On seeing the witnesses running to the place of occurrence co-accused Ramjee Yadav and Bithal Yadav fled away towards eastern side and remaining appellants fleeing away towards western side. Ganesh Sah after receiving injuries fell down and died at the spot. On seeing the witnesses running to the place of occurrence co-accused Ramjee Yadav and Bithal Yadav fled away towards eastern side and remaining appellants fleeing away towards western side. Ganesh Sah after receiving injuries fell down and died at the spot. The informant thereafter with the help of villagers took the dead body of his deceased brother Ganesh Sah to police station where his fardbeyan (Ext. 5) was recorded by SI of Police, Ram Narayan Singh (PW 7). About the genesis of occurrence the informant in his fardbeyan has stated that his deceased brother was a licensee clerk of Akbar-nagar Bus Stand and appellant Pandit Yadav was also trying for this post and proceedings under Sections 107 and 144 of the Code of Criminal Procedure had been initiated and an incident of assault had also taken place between them for which a criminal case was registered by the police. On the basis of fardbeyan a formal FIR (Ext. 6) was drawn under Section 302/34, IPC and Section 27 of the Arms Act against all the five appellants and co-accused Ramjee Yadav and Bithal Yadav. After investigation the police submitted charge-sheet against all the five appellants. In the same charge-sheet Ramjee Yadav and Bithal Yadav, who are" named in the fardbeyan, were shown absconder along with one more co-accused Shyamdeo Jha. After cognizance the case was committed to the Court of Sessions where charges under Section 302/34, IPC and Section 27 of Arms Act were framed against the appellants. The (appellants denied the charges. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses and from the evidence of two witnesses examined on its behalf is that no occurrence, as alleged, ever took place and a number of criminal cases were pending against the deceased at the time when the occurrence is said to have taken place and they have been falsely implicated in this case. 3. In order to prove its case eight witnesses have been examined on behalf of prosecution. Md. Shakoor (PW 8) is a formal witness, who has proved the fardbeyan (Ext. 5) and formal FIR (Ext. 6). Lallan Sah (PW 3) and Bhuneshwar Sah (PW 4) have not supported the case of prosecution and they both have been declared hostile. Dinesh Sah (PW 5), the informant and Kanhai Pandit (PW 1), both are said to be eye-witnesses to the occurrence. Dr. 5) and formal FIR (Ext. 6). Lallan Sah (PW 3) and Bhuneshwar Sah (PW 4) have not supported the case of prosecution and they both have been declared hostile. Dinesh Sah (PW 5), the informant and Kanhai Pandit (PW 1), both are said to be eye-witnesses to the occurrence. Dr. N.N. Bhagat (PW 6) had held autopsy on the dead body of Ganesh Sah. Ram Narayan Singh (PW 7) is the I.O. 4. Dr. N.N. Bhagat (PW 6) in his evidence has stated that on 5.10.1988 at 12.30 p.m. he conducted postmortem examination on the dead body of Ganesh Sah and found the following injuries : (i) Fire arm wound of entry 1" in diameter, margin inverted on left side of neck with blackening around the wound and the wound was directed downwards oblique. (ii) Wound of exit 3.4", margin inverted on scapular region on right side. According to him injury Nos. (i) and (ii) were found communicating projectile to each other. (iii) Fire arm wound of entry on left ear, margin inverted, split in many places, blackening and abrasion around the wound. (iv) Wound of exit on right side behind right ear 1/2", marging inverted. Both the injury Nos. (iii) and (iv) were found communicating projectile to each other and passed through wound of entry fracturing temporal bone, pieces of which entered into the brain matter lacerating it and came out through the wound of exit. Plastic fibres were present on the neck of entry which were collected, sealed and forwarded for the needful. (v) Wound of entry on left side of abdomen, 1/2" in diameter, margin inverted with blackening around it, 3" below left nipple on mid auxiliary line. (vi) Wound of exit 1/2" in diameter, margin inverted on right side 5" below nipple on mid auxiliary line. Both the injuries Nos. (v) and (vi) were found communicating, projectile traversed through left lung lacerating it, spleen, liver, stomach are came out through the wound of exit. According to him all the aforesaid injuries were antemortem in nature, caused by fire arm which may be a pistol and the cause of death was haemorrhage and shock and time elapsed since death was within 6 to 12 hours. He has proved post mortem examination report (Ext. 2). According to him all the aforesaid injuries were antemortem in nature, caused by fire arm which may be a pistol and the cause of death was haemorrhage and shock and time elapsed since death was within 6 to 12 hours. He has proved post mortem examination report (Ext. 2). From his evidence it is established that deceased died of injuries caused by fire arm which may be a pistol and time of death as pointed by this witness corresponds to the time of occurrence as alleged by prosecution. Now it has to be seen what evidence has been led by pro-secution against the appellants making them responsible for the injuries found on the deceased which resulted in his death. 5. Dinesh Sah (PW 5), the informant, in his evidence has stated that on 5.10.1988 at about 6.00 a.m. he was going to bank of Ganga river to attend the call of nature and he saw all the appellants along with co-accused Ramjee Yadav, Bithal Yadav and Shyamdeo Jha sitting near a nala. Appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Shyamdeo Jha and Ramjee Yadav were armed with pistols. After attending the call of nature when he returned he found that all the aforesaid persons had surrounded his brother Ganesh Sah. He rushed towards there. Appellant Kapildeo Yadav and Anandi Yadav ran to assault him and he then started running. He was chased by appellants Kapildeo Yadav and Anandi Yadav and when he turned back he found that appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Shyamdeo Jha and Ramjee Yadav were firing from pistols at his brother and co-accused Bithal Yadav had caught hold of his brother and appellant Ram Krishna Yadav @ Ledha Yadav was standing by the side. He raised hulla on which Kanhai Pandit (PW 1), Lallan Sah (PW 3) and Bhumi Sah came running there. Co-accused Ramjee Yadav and Bithal Yadav fled away towards north and other persons fled away towards west. He thereafter went near his brother and found that his brother had died. His nephew Ranjit Prasad Sah (PW 2) came there who brought a cot and the body of deceased was put on cot and was taken to police station where his fardbeyan was recorded by police on which he put his signature (Ext. 6). He thereafter went near his brother and found that his brother had died. His nephew Ranjit Prasad Sah (PW 2) came there who brought a cot and the body of deceased was put on cot and was taken to police station where his fardbeyan was recorded by police on which he put his signature (Ext. 6). He has further stated that deceased had enmity with appellant Pandit Yadav @ Rajendra Yadav on account of post of clerk of Bus Stand. 6. Kanhai Pandit (PW 1), in his evidence, has stated that on the date of occurrence in the morning when he was going to attend call of nature he saw the appellants and co-accused Ramjee Yadav, Shyamdeo Jha and Bithal Yadav sitting on a nala and the appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav and Shyamdeo Jha were armed with pistols and remaining four persons were empty handed. When he was returning after attending the call of nature he found that informant was being chased by appellants Kapildeo Yadav and Anandi Yadav but they on seeing him. Lallan Sah (PW 3) and Bhumi Sah returned. Thereafter when he came on the upper part of the bank of river he found that appellant Ram Krishna Yadav and co-accused Bithal Yadav had caught hold of Ganesh Sah and appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav and Shyamdeo Jha were firing from their pistols on Ganesh Sah from a close range. He, informant, Lallan Sah and Bhumi Sah raised alarm on which other villagers also ran there and appellants and their companions fled away. When he went near Ganesh Sah he found him dead and blood was oozing out from the injuries which he had sustained. The deceased thereafter on a cot was brought to the police station where the case was lodged. 7. Ranjit Prasad Sah (PW 2) is the son of deceased and he has said that at the time of occurrence he was in his house and on hearing the sound of firing he went towards the bank of Ganga river where he found co-accused Ramjee Yadav armed with a pistol running towards east and co-accused Bithal Yadav and all the five appellants were running towards western side. There was crowd and he found that his father was lying dead and bleeding injuries and he was then asked by informant and other to bring a cot otherwise the appellants may carry away the dead body and he then brought a cot from his house on which the dead body of deceased was taken to police station. About the genesis of occurrence he has said that his father was a clerk of a Bus Stand and appellant Pandit Yadav @ Rajendra Yadav forcibly wanted to book the vehicles and appellants prior to occurrence had assaulted his uncle also. 8. Ram Narain Singh (PW 7). the I.O. in his evidence, has stated that he had recorded the fardbeyan (Ext. 5) of informant, prepared inquest report (Ext. 4) and visited the place of occurrence which is a field situate towards south of the bank of river Ganga and he found copious blood there and he also found trampling marks at the place of occurrence. 9. From the evidence of prosecution witnesses 1 find that the informant (PW 5) and Kanhai Pandit (PW 1) have fully supported the case of prosecution on the point of firing by appellants Pandit Yadav @ Rajendra Yadav and Ganesh Yadav along with co-accused- persons, namely, Ramjee Yadav and Shyamdeo Jha by their respective pistols at the deceased. Their evidence is supported by the medical evidence of Dr. N.N. Bhagat (PW 6) who had found injuries on the dead body of the deceased which could be caused by the weapons found in the hands of the aforesaid appellants and co-accused- persons at the time of occurrence. I further find that in the fardbeyan (Ext. 5) the informant has stated that at the time of firing at the deceased appellant Ram Krishna Yadav @ Ledha Yadav and co-accused Bithal Yadav had caught hold of deceased but in evidence the informant has stated that at that time only co-accused Bithal Yadav had caught hold of deceased and appellant Ram Krishan Yadav @ Ledha Yadav was standing by the side. In this view of the matter the case of prosecution that at the time when the deceased was being fired at with pistols by appellant Pandit Yadav @ Rajendra Yadav and Ganesh Yadav and co- accused Ramjee Yadav and Shyamdeo Jha the accused Ram Krishna Yadav @ Ledha Yadav had caught hold of deceased becomes quite doubtful. 10. In this view of the matter the case of prosecution that at the time when the deceased was being fired at with pistols by appellant Pandit Yadav @ Rajendra Yadav and Ganesh Yadav and co- accused Ramjee Yadav and Shyamdeo Jha the accused Ram Krishna Yadav @ Ledha Yadav had caught hold of deceased becomes quite doubtful. 10. Learned counsel appearing on behalf of appellants have argued that in fardbeyan the informant has not stated the name of co-accused Shyamdeo Jha but in his evidence he has added his name also as assailant. It is true that in the fardbeyan the name of co-accused Shyamdeo Jha has not been mentioned by informant whereas in evidence the informant (PW 5) as well as PW 1 have named him also along with the appellants and other two co-accused-persons but then I find that so far the appellants are concerned, their names are mentioned in the fardbeyan and the informant and PW 1, who are eye-witnesses to the occurrence, in their evidence have named them. So the absence of the name of co-accused Shyamdeo Jha in fardbeyan will make the presence of co-accused Shyamdeo Jha only at the place of occurrence doubtful and it is not going to affect the case of appellants and other co-accused-persons. 11. The next point argued by the learned counsel appearing on behalf of appellants is that admittedly the dead body of deceased was not found at the place of occurrence which makes the case of prosecution quite doubtful that the deceased died at the place alleged by the prosecution. About the dead body of the deceased it is the case of prosecution that after the occurrence the dead body was taken to the police station and the informant infardbeyan which was recorded at the police station stated that he had brought the dead body of his brother there. Ranjit Prasad Sah (PW 2). who is the son of deceased, in his evidence, has given the reason of taking the dead body to the police station by stating, that when he reached the place of occurrence and found the dead body of his father lying there the persons present there asked him to bring a cot otherwise the appellants may carry away the dead body. The evidence of I.O. (PW 7) that he found copious blood in a field situate near the bank of Ganga river and the evidence of informant and PW 1 who are eye-witnesses further supported by the evidence of own witness of defence Rashbehari Mahto (DW 2) that the deceased died in a field near the bank of Ganga river leaves no room for any doubt about the place of occurrence. 12. Learned counsel appearing on behalf of appellants have further argued that the evidence of Ranjit Prasad Sah (PW 2) that after hearing the sound of firing he went to the place of occurrence cannot be believed in view of his admission that the place of occurrence is at a distance of 1 Km. from his house and it is not possible that a man sitting in his house will hear the sound of firing made at a place situate at a distance of 1 Km. It is true that PW 2 in para 2 of his evidence has stated that the place of occurrence is situate at a distance of 1 Km. from his house and he has also stated that at the time of occurrence he was in his house and after hearing the sound of firing he had gone to the place of occurrence but in para 4 of his cross-examination he has categorically stated that the place of occurrence is situated at a distance of 200 yards from his locality and his house is situate in the centre of locality and he had ran for a distance of about 5 yards in his locality. This evidence makes it clear that he ran up to a distance of 5 yards in his locality and thereafter the distance between place of occurrence and his locality was only 200 yards. He is not an eye-witness to the occurrence and his evidence is on the point that when he reached the place of occurrence he saw the appellants running away from the place of occurrence and his father was lying dead there. If for the sake of argument his evidence is discarded even then I find that there remains the evidence of informant and PW 1 who have specifically stated the names of those appellants who fired at the deceased. Nothing has been brought on record by the appellants to disbelieve their evidence. If for the sake of argument his evidence is discarded even then I find that there remains the evidence of informant and PW 1 who have specifically stated the names of those appellants who fired at the deceased. Nothing has been brought on record by the appellants to disbelieve their evidence. Kesho Yadav (DW 1) and Rash Behari Mahto (DW 2), who have been examined on behalf of appellants, have also stated that the deceased was murdered and after committing his murder the assailants fled away but appellant Ganesh Yadav was not among those assailants. Their evidence also proves that deceased was killed by a number of persons and they were the eye-witnesses to the occurrence but curiously enough they have not named the assailants and have simply stated that appellant Ganesh Yadav was not among the assailants. Their evidence on the point of absence of appellant Ganesh Yadav among the assailants cannot be believed in view of specific evidence of informant and PW 1 who are eye-witnesses to the occurrence. 13. The case of prosecution is that all the appellants along with three other co-accused-persons who were put on trial first surrounded the deceased and thereafter appellants Pandit Yadav @ Rajendra Yadav and Ganesh Yadav along with co-accused-person Ramjee Yadav, Shyamdeo Jha fired from their pistols at deceased. Although PW 1 has said that at that time appellants Ram Krishna Yadav @ Ledha Yadav and co-accused Bithal Yadav had caught hold of deceased but as discussed above this evidence in respect of appellant Ram Krishna Yadav @ Ledha Yadav has been found doubtful in view of the evidence of informant that at that time only co-accused Bithal Yadav had caught hold of deceased and Ram Krishna Yadav was standing by the side. The Apex Court in the case of Manoj @ Bhau V/s. State of Maharashtra, (1999) 4 SCC 268 : 1999 (2) East Cr C 157 (SC), has held that if no specific overtact is ascribed to an accused except general version that he along with other accused-persons had surrounded and assaulted the deceased he cannot be held guilty in view of there being absence of necessary ingredient to attract Section 149, IPC. The relevant portion of this judgment is quoted below : "But so far as the two other accused, namely, Accused 2 and 3 are concerned, we are of the considered opinion on going through the evidence of the aforesaid two eye-witnesses PWs 1 and 8, that the prosecution case as against the said two appellants cannot be said to have been proved beyond, reasonable doubt. Excepting a bald, vague and general statement that all the accused surrounded and assaulted, while ascribing a positive role to different accused- persons as to how and with what weapon they had assaulted the deceased and how many blows had been given, but so far as Accused 2 and 3 are concerned, there has been no whisper by either PW 1 or PW 8 and even PW 8 in her earliest statement to the police has not stated that Accused 2 and 3 were having a stick and a motorcycle chain in their hands. In this state of affairs it would be unsafe to convict Appellants 2 and 3 by taking recourse to Section 149, IPC as the necessary ingredients to attract the said section as against Accused 2 and 3 are totally absent." 14. In the present case I find that the evidence against the appellants Kapildeo Yadav, Anandi Yadav and Ram Krishan Yadav @ Ledha Yadav is simply that they along with others had surrounded the deceased and thereafter appellants Kapildeo Yadav and Anandi Yadav chased the informant and after that the deceased was fired at by appellants Pandit Yadav @ Rajendra Yadav and Ganesh Yadav along with co-accused Shyamdeo Jha and Ramjee Yadav. Against appellants Kapildeo Yadav and Anandi Yadav there is no evidence that at the time of firing at deceased by others they were present at that very spot. About appellant Ram Krishna Yadav @ Ledha Yadav, as stated above, it is the evidence of informant that he was simply standing there. So, admittedly, against appellants Anandi Yadav, Kapildeo Yadav and Ram Krishan Yadav @ Ledha Yadav there is no evidence that they were armed with any weapon or they even touched the body of deceased and it is the positive evidence of PW 1 that they were empty handed and the informant has also stated that only appellants Pandit Yadav @ Rajendra Yadav and Ganesh Yadav along with co-accused Shyamdeo Jha and Ramjee Yadav were armed with pistols. The conviction of these appellants, therefore, cannot be sustained in view of the ratio laid down in the aforesaid decision of the Apex Court. But so far appellants Pandit Yadav @ Rajendra Yadav and Ganesh Yadav are concerned, the prosecution has proved its case by the evidence of PW 1 and informant which is supported by medical evidence that they along with co-accused Shyamdeo Jha and Ramjee Yadav fired at deceased from pistols which resulted in to the death of deceased and at that time co-accused Bithal Yadav had caught hold of the deceased. I, therefore, find that these two appellants have been rightly held guilty and the order of the Court below convicting and sentencing them does not require any interference. 15. In the result, Cr. Appeal No. 399/93 preferred by appellant Kapildeo Yadav and Cr. Appeal No. 404/93 preferred by appellants Ram Krishan Yadav @ Ledha Yadav and Anandi Yadav are allowed and appellants, namely, Kapildeo Yadav, Ram Krishan Yadav @ Ledha Yadav and Anandi Yadav are acquitted and the order of Court below so far it relates to the conviction and sentence of these three appellants is hereby set aside. As these three appellants are on bail they are discharged from the liability of their bail bonds. Cr. Appeal No. 396/93 preferred by appellant Ganesh Yadav and Cri. Appeal No. 398/93 preferred by Pandit Yadav @ Rajendra Yadav are hereby dismissed and the judgment and order of Court below convicting these appellants is hereby confirmed. Appellant Pandit Yadav @ Rajendra Yadav is in jail custody whereas appellant Ganesh Yadav is on bail. The bail bond of appellant Ganesh Yadav is cancelled and he is directed to surrender before the Court below to serve out of sentence. Narayan Roy, J. 16 I agree. Appeal Nos. 399/93 and 404/93 allowed. Appeal Nos. 396/93 and 398/93 dismissed.