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2001 DIGILAW 291 (PAT)

Jugeshwar Yadav v. State of Bihar

2001-03-29

A.K.SINHA, R.N.PRASAD

body2001
JUDGMENT : R.N. PRASAD, J.:- The sole appellant has preferred this appeal against the judgment and order dated 18.4.1994/22.4.1994 passed by 2nd Additional Session Judge, Banka in Sessions Trial No. 405 of 1992/278 of 1993, whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The informant, Sukhdeo Yadav, is father of the deceased. Niranjan Yadav. He gave his fardbeyan on 6.11.1991 at about 6.30 p.m. at his house that in the night he was sleeping in his house. His son, Niranjan Yadav, the deceased and his son-in-law. Jugeshwar yadav, the appellant were sleeping in the western room of the house. At about 2/2.30 a.m. his son Niranjan yadav cried. He woke up and went in the room. He flashed his torch and found that his son was on the cot. His son-in-law, the appellant, fired from his pistol on his son. He pushed him and ran away. He raised alarm on which Laxman Yadav, Md. Shahabuddin, Kamleshwari Yadav, Prasadi Yadav. Narain Yadav, Koko Yadav and others came. The appellant, Jugeshwar Yadav, ran away in the sugar-cane field. The villagers chased him and caught him. On threatening given by them Jugeshwar Yadav disclosed that the pistol had been concealed in the heap of cow dung in the sugar-cane field. The villagers brought the pistol from the heap of cow dung and the same was produced before the investigating officer. The motive of the occurrence was that his son-in-law killed his son, Niranjan Yadav only with a view to grab his property as the deceased was his only son. 3. On the aforesaid fardbeyan a formal first information report was drawn investigation was taken up on completion of investigation charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions for trial. 4. The defence of the appellant was that he was innocent and had not committed any offence. He was falsely implicated in the case out of enmity. 5. The trial Court convicted the appellant for the offence as indicated above. 6. 4. The defence of the appellant was that he was innocent and had not committed any offence. He was falsely implicated in the case out of enmity. 5. The trial Court convicted the appellant for the offence as indicated above. 6. The prosecution in support of its case examined six witnesses out of whom PWs 1 and 2 are hearsay witnesses, PW 3 is witness to the Inquest, PW 4 is a doctor, who held post-mortem over the dead body, PW 5 is informant, who claimed to have seen the occurrence and PW 6 is investigating officer. 7. PW 5, the informant, is father of the deceased and father-in-law of the appellant. The informant is only eye-witness to the occurrence. PWs 1 and 2 are not eyewitnesses to the occurrence but they have stated that soon after the occurrence they went to the place of occurrence and the informant disclosed about the occurrence and also named the appellant as assailant of the deceased. The evidence of PW 5 that he was sleeping in his house. His son Niranjan Yadav and his son-in-law, Jugeshwar Yadav, were sleeping in the western room of the house. His son, Niranjan yadav, cried. He woke up and went in the room. He flashed his torch and saw that the appellant fired on Niranjan yadav. He pushed him and ran away. He raised alarm on which villagers including PW 1 came. Jugeshwar yadav, the appellant ran away in the sugar cane field. However, he was caught by the villagers and on enquiry he disclosed that he had concealed the pistol in the heap of cow dung in the sugarcane field. Pistol was recovered from there. He had only one son, the deceased. The appellant killed him to grab the property. He asked the Chaukidar to inform the officer-in-charge. The officer-in-charge came at 6 p.m. He gave his statement which was recorded and read over. He put his thumb impression on the same. In cross-examination the witness stated that he disclosed about the occurrence to Chaukidar. The Chaukidar and Laxmi Yadav, both had gone to the police station. They returned at about 10-11 a.m. The sub-Inspector of Police came at 6 p.m. there is no outpost in Chheka Cola, only force has been posted there, which is at a distance of 1 and 1/2 kms. The Chaukidar and Laxmi Yadav, both had gone to the police station. They returned at about 10-11 a.m. The sub-Inspector of Police came at 6 p.m. there is no outpost in Chheka Cola, only force has been posted there, which is at a distance of 1 and 1/2 kms. He sent the Chaukidar and Laxmi yadav to the force at Chheka Gola. The force came at about 10-11 a.m. ASI was also with them. He disclosed about the Incident to the ASI and the force. The ASI noted down his statement and he gave thumb Impression over the same. The ASI sent the Chaukidar to the police station to call officer-in-charge as he showed in ability to conduct the case. At about 6 p.m., the Sub-Inspector of Police came along with Chaukidar. The ASI and the force were near the dead body. The Sub-Inspector of Police enquired about the incident from him. The appellant had come two days earlier. There were several houses near his house. About 40-50 persons came and they were searching the appellant. On threat the appellant disclosed about the pistol and on his disclosure pistol was recovered From the place of occurrence blood was seized. The witness admitted that he married second wife but there is no issue from her. Suggestion was given that the appellant has falsely been implicated which has been denied 8. PW 6 is investigating Officer. He deposed that he reached the place of occurrence on confidential information at about 6.30 pm. The informant gave his fardbeyan which was recorded by Hardeo Murmu, the ASI. the same was read over and the informant put his thumb impression over the same. The witness also signed the fardbeyan. He recorded the further statement of the informant. Inquest report was prepared. Revolver was produced before him and production list was prepared. He inspected the place of occurrence and found the dead body in the room on a cot. He found blood on the cot. After return formal first information report was drawn. Ext. 6. In cross-examination the witness stated that he recorded station diary entry on confidential information, however, he admitted that the same had not been entered in the case diary. The witness stated that fardbeyan, inquest report and production list were Mitten by the ASI but he did not sign over the same. He signed on the aforesaid documents. Ext. 6. In cross-examination the witness stated that he recorded station diary entry on confidential information, however, he admitted that the same had not been entered in the case diary. The witness stated that fardbeyan, inquest report and production list were Mitten by the ASI but he did not sign over the same. He signed on the aforesaid documents. He did not seize cot, blood etc. from the place of occurrence. The witness further admitted that he did not seize torch. 9. The doctor, (PW 4) held postmortem over the dead body on 8.11.1991 at about 9-10 a.m. He found penetrating wound on the chest which was described as wound of entry and also penetrating wound on the back of the chest which was described as wound of exit. He opined that injuries were caused by fire arm Death was due to shock and haemorrhage due to the injuries found on the person of the deceased. Time elapsed since death was more than 48 hours. In cross-examination the witness stated that the dead body was received in the hospital on 7.11.1991 at about 4 p.m. 10. PWs 1 and 2 are not eye-witnesses to the occurrence. However they deposed that they reached the place of occurrence soon after the occurrence. The informant (PW 5) disclosed about the occurrence and the name of the assailant. Therefore, the evidence of these the witnesses corroborates the evidence of PW 5 on the point that the appellant fired causing death which was disclosed soon after the occurrence by PW 5 to them. Pistol was recovered on the disclosure of the appellant which was handed over to PW 6 at the spot. The appellant was also caught hold from the sugarcane field immediately after the occurrence. 11. Learned counsel for the appellant Mr. Lala Kailash Bihari, who was appointed as amicus curiae to assist the Court, contended that it has been stated by PW 6 that station diary entry was made but the station diary entry has not been brought on the record. Moreover, PW 5 stated that he gave fardbeyan to the ASI. who had reached the place of occurrence at 10-11 a.m. but the said document has also been concealed and as such the evidence of PW 5 cannot be held to be wholly trustworthy. In this regard it would be pertinent to mention herein that the appellant is son-in-law of the informant. who had reached the place of occurrence at 10-11 a.m. but the said document has also been concealed and as such the evidence of PW 5 cannot be held to be wholly trustworthy. In this regard it would be pertinent to mention herein that the appellant is son-in-law of the informant. He was at the house of the informant. He was sleeping in the house with the deceased on cot in the western room. Nothing has been brought on the record to show why the informant would implicate his son-in-law falsely in the case. It has come in evidence that the relationship between the appellant and the informant was cordial. The appellant used to come and stay at the house of the informant, which appears to be natural. In such a situation, if anything is brought on the record with respect to false implication it is difficult to accept that the appellant has falsely been implicated. 12. It is true that PW 5 had stated in his evidence that the sent the Chaukidar to the police station. However, the said fact has been explained in the cross-examination itself. The witness stated that the police force was posted at Chheka Gola but there was no outpost. He sent the Chaukidar to inform the police force and on information police force including ASI came. The ASI recorded his fardbeyan and he put his thumb impression over the same. However, the ASI showed his inability in proceeding further and as such he sent the Chaukidar to the police station, namely, Belhar Police Station to call the officer-in-charge. The officer-in-charge came at about 6 p.m. PW 6 stated in his evidence that he came on confidential information. The fardbeyan of the informant was recorded by ASI, Hardeo Murmu but he did not put his signature rather he put signature on the same. The witnesses also put their signature on the same. Therefore, the fact that the fardbeyan was recorded by the ASI is also established by PW 6. PW 6 took further statement of the informant after recording the fardbeyan. In such a situation, the question raised by the learned counsel for the appellant, in our view is fully explained from •he evidence on the record. 13. Learned counsel for the appellant further contended that serious irregularity has been committed by the investigating officer. PW 6 took further statement of the informant after recording the fardbeyan. In such a situation, the question raised by the learned counsel for the appellant, in our view is fully explained from •he evidence on the record. 13. Learned counsel for the appellant further contended that serious irregularity has been committed by the investigating officer. He pointed out that the failed to bring Sahna Entry on the record. He found blood on the cot but he failed to seize the cot and the blood from the place of occurrence. The revolver was produced but the same was not brought before the Court. Therefore, there are serious lapses on the part of the investigating officer. It is well established that on account of lapses on the part of the investigating officer, the prosecution case cannot be thrown out. In the case of State of Rajasthan v. Kishore, AIR 1996 SC 3035 : 1996 (1) East Cr C 643. the Apex Court has held that irregularity/illegality committed by the investigating officer during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence car be cast aside to record acquittal on that account. Therefore, even if sub-mission of the learned counsel for the appellant is accepted, the evidence of PW 5 on material point of assault place of occurrence and time of occurrence cannot be brushed aside. 14. Thus, on consideration, as discussed above, we find that the evidence of PW 5 coupled with the fact that he recovery of pistol was made on the disclosure made by the appellant, who was caught immediately after the occurrence is trustworthy and the same is corroborated by the evidence of PWs 1 and 2. who deposed that soon after the occurrence. PW 5 disclosed about the incident and the name of the appellant as assailant of his son. The post-mortem report also supports the prosection case. 15. Thus, we find no merit in the appeal. Accordingly, the appeal is dismissed.