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2001 DIGILAW 268 (PAT)

Baleshwar Yadav v. State Of Bihar

2001-03-23

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad and A.K.Sinha JJ. 1. Both these appeals have been directed against the judgment and order of conviction and sentence passed by 3rd Additional Sessions Judge, Munger in Sessions Trial No. 728 of 1990, whereby and whereunder, accused Sheo Kumar Yadav was convicted under Section 302 of the Indian Penal Code and appellants Sheo Kumar Yadav, Baleshwar Yadav and Milan Kumar Yadav were convicted under Sections 302/34 of the Indian Penal Code and all of them were sentenced to undergo rigorous imprisonment for life. In course of pendency of these appeals, the appellant No. 2 Milan Kumar Yadav of Criminal Appeal No. 84 of 1993 died and by order dated 18.1.2000 his appeal stood abated. 2. The prosecution case, as per the fardbeyan of the informant, in short, is that on 12.4.1990, the informant, namely, Dharmendra Kumar along with his father Satyanarayan Prasad left the house at 5.45 a.m. and when they reached near "Gumti" of Sonarpatti at about 7.15 a.m., they noticed that accused Baleshwar Yadav, Sheo Kumar Yadav, Parsuram Yadav @ Bablu and Milan Kumar Yadav appeared near the "Gumti" and accused Baleshwar Yadav stopped the cycle of the informants father after giving order to kill. Whereupon, accused Sheo Kumar Yadav took out a country made pistol and accused Parsuram Yadav and Milan (since dead) caught hold of the handle of the bicycle of informants father and thereafter accused Sheo Kumar Yadav is alleged to have fired from his country made pistol on the forehead of the informants father who died instantaneously. The informant, however, fled away towards village Jerbehra and it is stated that the occurrence was witnessed by one Jyoti Prasad who was going to market for distributing milk. It has been alleged that accused persons committed murder of the informants father because land dispute was going on with them. 3. On the basis of the fardbeyan of the informant recorded by S.I. of Kotwali Police Station at 8.00 a.m. on the same day, a case under Section 302/34 of the Indian Penal Code was instituted against all the four accused persons named in the fardbeyan and the Police, after due investigation, submitted charge-sheet under Section 302/ 34 of the IPC and Section 27 of the Arms Act against all the four accused, on the basis of which, cognizance was taken and the case was committed to the Court of Sessions for trial. The trial of the accused Parsuram Yadav was however, separated and sent to the Chief Judicial Magistrate under the Juvenile Justice Act for trial vide order dated 3.11.1992. As such, the remaining three appellants faced the trial and were convicted in the manner, as stated above. 4. The appellants were charged under Section 302/34 of the Indian Penal Code and appellant Sheo Kumar Yadav was separately charged under Section 302 of the Indian Penal Code as also appellant Baleshwar Yadav under Section 302/109 of the Indian Penal Code. They pleaded not guilty to the respective charges framed against them and claimed to be tried the defence version is that the appellants have been falsely implicated in this case due to previous enmity and the alleged occurrence was not witnessed by any eyewitness examined in this case. 5. In order to prove the charges, the prosecution examined altogether six witnesses in this case, including the doctor and the I.O. out of whom P.W. 2 Jai Nandan Yadav is a witness of formal nature in whose presence the informant gave his fardbeyan before the S.I. of Police and he along with Shashidhar Prasad Yadav signed as witnesses on the fardbeyan, P.W. 2 has proved his signature as also the signature of Dharmendra Kumar and Shashidhar Pd. Yadav which have been marked Exts. 1 to 1/2. There is nothing worth comment in his cross-examination. 6. P.W. 1 Pradeep Kumar Sah is not an eyewitness to the alleged occurrence and he has been examined to say that on 12.4.1990 while he was going to court, he heard the sound of firing and when he reached near the place of occurrence, he found a man was lying dead with bleeding injury on his forehead. He also heard that assailants had left their cycle and fled away. In cross-examination, this witness has stated that many persons from the neighbourhood had assembled near the place of occurrence and he had seen few persons fleeing away from the P.O. but the appellants were not amongst them. He has admitted that accused Baleshwar Yadav works as "Moharrir" and his two sons were also known to him from before. In cross-examination, this witness has stated that many persons from the neighbourhood had assembled near the place of occurrence and he had seen few persons fleeing away from the P.O. but the appellants were not amongst them. He has admitted that accused Baleshwar Yadav works as "Moharrir" and his two sons were also known to him from before. It appears from the evidence of P.W. 1 that he reached after the commission of the crime and had not seen the appellants when the murder was committed nor he saw them when he himself reached at the P.O. after hearing the sound of the firing. 7. P.W. 3 Jyoti Prasad is named eyewitness, P.W. 4 Dharmendra Kumar is the informant and P.W. 5 Dr. A.P. Mandal is the doctor who held the post-mortem examination on the dead body of the deceased whereas P.W. 6 D.N. Rai is the I.O. of this case. 8. PW 5 Dr. A.P. Mandal has deposed that he conducted the postmortem examination on the dead body of Satyanarayan Prasad and found the following ante mortem injuries on his person: (i) One lacerated oval wound right side of forehead below hair margin 2" x 1 1/2" x skull cavity deep. Main substance exposed. Margin of the wound inverted. (ii) One lacerated oval wound 3" x 2 1/2" x skull cavity deep on the right occipital region. Brain matter protruding through the wound. Margin of the wound inverted. On further dissection, right frontal bone and right side occipital bone found fragmented and brain matter badly lacerated. Blood and blood clots were present. Wound Nos. (i) and (ii) communicating each other. PW 5 has deposed that death in his opinion was caused due to above injuries leading to shock and hemorrhage and injuries were caused by fire arm. The time elapsed since death was six hours. PW 5 has proved the carbon copy of the post mortem report prepared by him along with original (Ext. 2). In his cross-examination the doctor has stated that he found semi digested food stuff in the stomach which must have been consumed by the deceased one hour before the examination and he did not find any black mark on the injuries. He further stated that on the basis of presence of rigour mortis he estimated the time elapsed since death. There is nothing else worth comment in his cross-examination. 9. He further stated that on the basis of presence of rigour mortis he estimated the time elapsed since death. There is nothing else worth comment in his cross-examination. 9. There are two eyewitnesses to the alleged occurrence and they are PW 3 Jyoti Prasad Yadav and P.W. 4 Dharmendra Kumar who is the informant of this case. I will first of all discuss the evidence of PW 4 who has deposed that on 12.4.1990 at about 6.00 to 7.00 a.m. he along with his father Satyanarayan Yadav were going on two bicycles and when they reached near the crossing of Sonarpatti all the appellants who were also on two bicycles came from the front and appellant Baleshwar Yadav stopped his father and gave order to kill whereupon appellant Milan (since dead) and Parsuram caught hold of the handle of the bicycle on which his father was riding and appellant Sheo Kumar Yadav fired upon his father by a country made pistol on his head and his father fell down. He has further stated that he fled away towards village Naya Gaon and returned jback after one hour and found his father dead. This witness has clearly stated that P.W. 3 Jyoti Yadav was present when the incident of firing took place. He has stated that S.I. of Police came at the P.O. and he gave his fardbeyan to him at the P.O. itself and he put his signature (Ext. 1) on the fardbeyan. This witness has stated about the litigation going on between his father and the appellant Baleshwar Yadav and has also identified all the appellants. 10. In cross-examination PW 4 has admitted that he was to appear at the matriculation examination which was going on and the examination was to commence at 10.00 a.m. and his father also used to accompany him on the date of examination. He also stated that a title suit was going on between his father and appellant Baleshwar Yadav. He could not give any detail regarding the Title Suit No. 77 of 1980 said to have been filed by his father against his maternal uncle and Jagdambi Yadav nor could he say that his father filed any petition in that suit in which he had expressed about the apprehension of his murder and demanded Police help. He could not give any detail regarding the Title Suit No. 77 of 1980 said to have been filed by his father against his maternal uncle and Jagdambi Yadav nor could he say that his father filed any petition in that suit in which he had expressed about the apprehension of his murder and demanded Police help. He also could not say that his father had taken money from criminals and PW 3 Jyoti Pd. Yadav used to look after his, cultivation. He has stated that when he first saw the pistol in the hand of accused, he was at a distance of about 12 to 13 yards from them and he candidly stated that two accused caught hold of the bicycle of his father and one of them fired from a distance of 3 to 4 cubits the appellant Baleshwar Yadav was at a distance of 3 to 4 cubits towards west and the entire occurrence was over within three minutes time. He has further stated that he did not go to the Police Station nor he asked for any help from anybody near the P.O. This witness was cross-examined at length but the defence could not elicit anything which may render his statement unworthy of placing credence to P.W. 4 has emphatically denied the suggestion that he has falsely implicated the appellants due to enmity. 11. The statement of the informant has been fully corroberated by PW 3 Jyoti Pd. Yadav who is another eyewitness to the occurrence. PW 3 has also stated that deceased along with his son was going on bicycle and he was also going to distribute milk on his bicycle and was at a distance of few yards from them and when the deceased reached near the crossing of Mugal Bazar Sonarpatti, the appellants appeared there and on the order of Baleshwar Yadav to kill the deceased, the appellant Milan (since dead) and Parsuram caught hold of the bicycle of the deceased and appellant Sheo Kumar Yadav took out a pistol from his waist and fired on the head of the deceased who fell down. Thereafter, he went away to distribute milk and the assailants fled away towards Mugal Bazar. Thereafter, he went away to distribute milk and the assailants fled away towards Mugal Bazar. After two to three hours, he again returned back to the place of occurrence where his statement was recorded by I.O. This witness has stated that paddle of the cycle belonging to one of the assailants had broken, so they fled away on foot. 12. In cross-examination PW 3 has admitted that the deceased was "Moharrir" in the Court and was related to him but has denied that he used to do "Pairvi" on his behalf in the murder case but admitted that he had given evidence in his defence in that case. He also admitted that some Pairvi petition written in the pen of the deceased was filed in that case. He has clearly stated that the informant was 10 yards behind the deceased and he was 2 to 4 yards behind Dharmendra Kumar. This witness has admitted that the place of occurrence is the main road and the house of one Nawal Thakur is situated near the place of occurrence. Nawal Thakur has not been examined in this case. PW 3 has stated that two of the assailants fled away on foot because the paddle of the bicycle had been broken and two of them fled away on bicycle. He has stated that he met the I.O. at the place of occurrence at 12.00 noon and his statement was recorded at that very time and then he accompanied the dead body up to the hospital and returned back home at about 3.00 to 4.00 p.m. He has denied the suggestion that he is not an eye-witness to the alleged occurrence and has deposed falsely because he is a relation of the deceased. 13. The evidence of P.Ws. 3 and 4 as discussed above, would go to show that both of them have made consistent statement regarding the place of occurrence, the manner of occurrence and the events which took place subsequent to the occurrence. They have remained quite unshaken in their cross-examination on the material points and their evidence cannot be disbelieved merely on the ground that they happened to be closely related to the deceased. The evidence of P.Ws. They have remained quite unshaken in their cross-examination on the material points and their evidence cannot be disbelieved merely on the ground that they happened to be closely related to the deceased. The evidence of P.Ws. 3 to 4 has been corroborated by the medical evidence of the doctor who conducted the autopsy on the dead body of the deceased and found the fire arm injury on the same location as stated by the P.Ws. 3 and 4. 14. PW 6 Rabindra Nath Rai is the I.O. of this case who has proved the fardbeyan (Ext. 3) which was recorded by him at the P.O. soon after the alleged occurrence, inasmuch, as the alleged occurrence took place at 7.00 a.m. and he got information at 7.20 a.m. that somebody has shot a man near the crossing of Mugal Bazar Sonarpatti. So, he rushed to the place of occurrence where he met the informant who gave his statement at about 8.00 a.m. i.e. one hour after the alleged occurrence and he recorded the fardbeyan of the informant, on the basis of which the FIR (Ext. 4) was lodged. The fact that the fardbeyan was recorded by PW 6 after an hour of the alleged occurrence goes to show that the prosecution story does not suffer from any embellishment, doubt or suspicion and it contains the true state of affairs, inasmuch, as it is not expected that the informant who is a boy aged 19 years would concoct a case in order to implicate the appellants. PW 6 inspected the place of occurrence and he has given the details thereof and also prepared the inquest report (Ext. 5) in presence of the witnesses and sent the dead body to hospital for postmortem examination along with dead body challan. He also seized blood stained earth and an old bicycle left over by the assailants in presence of the witnesses and prepared the seizure list (Ext. 6). The I.O. has admitted that there are several houses in the nearby vicinity of the P.O. but he did not record the statement of those house owners except the seizure list witnesses. He also seized blood stained earth and an old bicycle left over by the assailants in presence of the witnesses and prepared the seizure list (Ext. 6). The I.O. has admitted that there are several houses in the nearby vicinity of the P.O. but he did not record the statement of those house owners except the seizure list witnesses. The defence has tried to take certain omissions committed by the I.O., such as that he had not mentioned in the diary as to whether he found any blood mark on the bicycle or the clothes of the deceased and he had not recorded the statements of Dayanand Sah, his wife as well as the wife of the deceased who were admittedly not eyewitnesses to the alleged occurrence but those omissions can hardly affect the investigation made by PW 6. 15. The learned counsel appearing for the appellants strongly argued that no independent witness of the locality has been examined in this case although several houses were situated near the P.O. and the appellants have been convicted on the basis of the evidence of P.Ws. 3 and 4 who are closely related to the deceased and are highly interested witnesses. Even assuming that P.Ws. 3 and 4 who are closely related to the deceased, their evidence cannot be thrown out on that score only. I have discussed the evidence of P.Ws. 3 and 4 and find that they are real eyewitnesses to the alleged occurrence since both of them were going along with the deceased on their respective bicycle and both of them had witnesses the occurrence and gave the detailed account of occurrence without being shaken in their cross-examination. As such, even if the independent witnesses of the locality were not examined in this case, that will to affect the evidence of P.Ws. 3 and 4 who stood the test of cross- examination and fully supported the prosecution. It is a matter of common experience that now a days people seldom turn up to depose as an eyewitness to the occurrence. Therefore, there is no wonder if anybody from the locality did not come forward to be the witness to the alleged occurrence. As such, no adverse inference can be drawn against the prosecution due to the non-examination of the witnesses of the locality. 16. Therefore, there is no wonder if anybody from the locality did not come forward to be the witness to the alleged occurrence. As such, no adverse inference can be drawn against the prosecution due to the non-examination of the witnesses of the locality. 16. It was next contended that PW 3 went to distribute milk after the occurrence and PW 4 again came at the place of occurrence after an hour which is not their normal conduct and their normal conduct would have been to come to the rescue of the deceased or to inform the Police. But, this argument also does not carry any force because out of fear of life both of them might not have thought it proper to stay at the place of occurrence and they appeared at the place of occurrence after the arrival of the Police. 17. The learned counsel for the appellants referred to Exts. A, B, E and G and submitted that the deceased had filed a petition in Title Suit No. 77 of 1980 stating therein that there is threat to his life at the behest of one Jagdambi Yadav and it is possible that somebody else might have committed murder of the deceased and since litigations were going on between the deceased and the appellants, they were implicated in this case. This submission also does not look convincing in view of the direct evidence of P.Ws. 3 and 4 who are eyewitnesses to the alleged occurrence and made consistent statements in support of the prosecution version, similarly, attention was invited to Exts. D and D/1 which are the attendance filed on behalf of accused Baleshwar Yadav in Court and it was submitted that he was present in Court when the alleged occurrence took place. D.W. 1 who has proved the attendance (Ext. D) filed in Misc. Case No. 18 of 1990 of the Court of 1st sub-Judge has admitted that the attendance was not written in his presence nor the concerned lawyer had put his signature before him and, in fact, he has admitted that no document which he has proved was scribed or signed in his presence. It is a matter of common experience that attendance can be filed at any time during the Court hours and anybody can file such petition in the Court. It is a matter of common experience that attendance can be filed at any time during the Court hours and anybody can file such petition in the Court. Therefore, mere filing of attendance in any case in the Court does not mean that the person on whose behalf the attendance was filed was present in the Court. Therefore, the plea of alibi taken on behalf of the appellants falls short of belief specially in view of the ocular evidence of P.Ws. 3 and 4 who have consistently deposed about the presence of the appellants at the P.O. at the relevant time. 18. On careful examination of the materials available on record, the facts and circumstances of the case, I am of the view that the prosecution had proved the charge under Section 302/34 of the Indian Penal Code against both the appellants beyond all reasonable doubts. I am also of the view that prosecution had proved the charge under Section 302 of the Indian Penal Code against Sheo Kumar Yadav @ Sheo Yadav, the appellant of Criminal Appeal No. 206 of 1993 and had also proved the charge under Section 302/34 of the Indian Penal Code against Baleshwar Yadav, the appellant in Criminal Appeal No. 84 of 1993. The conviction of appellant Sheo Kumar Yadav under Sections 302/34 of the Indian Penal Code appears to be surplusage since he has been convicted under Section 302 of the Indian Penal Code. 19. In the result, therefore, I find no merit in both these appeals which stand dismissed. The appellant Baleshwar Yadav is on bail. His bail bond is hereby cancelled and he is directed to surrender before the Court below at once for serving out the sentence. Appellant Sheo Kumar Yadav who is reported to be in jail is directed to serve out the remaining part of the sentence.