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2001 DIGILAW 388 (PAT)

Satya Narayan Yadav v. State Of Bihar

2001-04-26

D.P.S.CHOUDHARY, R.N.PRASAD

body2001
Judgment D.P.S.Choudhary, J. 1. Both the appeals have been heard together and are being disposed of by the common judgment. The appellant Satya Narain Yadav (Cr. Appeal No. 366 of 1994) has been convicted under Sections 302/149 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to undergo rigorous imprisonment for life by the 3rd. Additional Sessions Judge, Saharsa by his judgment passed in Sessions Trial No. 18 of 1992. By the same judgment appellant Kuldip Thakur (Cr. Appeal No. 401 of 1994) has been convicted for the offence under Section 302. IPC and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case in brief is that the informant Bouku Sada (PW 3) in his fardbeyan recorded at Sour Bazar PS on 18.6.1990 at about 6.00 a.m. alleged that in the night Of 17/18.6.1990 at about 2.00 a.m. the informant was sleeping at the door of western room of the house. His son Malhu Sada (deceased) along with his wife and son were sleeping at the eastern varandrxh of the house. He awoke on the barking sound, which was coming near the house of the appellant Kuldip Thakur. He became suspicious. He saw some persons entering inside his Angan who were flashing torchlight. He identified appellants Kuldip Thakur and Satya Narain Yadav, both residents of the same village. He also noticed that appellant Satya Narain Yadav was flashing torch-light and appellant Kuldip Thakur was armed with 303 pistol. Appellant Satya Narain Yadav flashed torch and thereafter appellant Kuldip Thakur fired pistol hitting in the back of his son while he was sleeping on the bed Thereafter both the accused fled away. He also saw three other persons along with the above named two accused appellants but he could not identify them. On his cry and sound of firing all the family members assembled and they started weeping. The neighbours also assembled. Injured Malhu Sada was being removed to Sour Bazar Hospital on a cot but in the way he died. The motive alleged in the FIR is that there are two parties in his village who have dispute over the land of Thangaha Jungle. The informants son Malhu sada was in the party of one Chandrashekhar Jha and used to plough his field. The appellants always threatened him not to plough the land of Chandrashekhar Jha and also threatened of dire consequences. The informants son Malhu sada was in the party of one Chandrashekhar Jha and used to plough his field. The appellants always threatened him not to plough the land of Chandrashekhar Jha and also threatened of dire consequences. The informant suspected that this was the motive of the murder of his son. The fardbeyan was marked Ext. 3. On the basis of which formal FIR (Ext. 4) was drawn up. The case was investigated by the SI of Police. Jai Dayal Singh (PW 7) and Khela Nand Mishra. Officer-in-Charge (PW 8) and charge-sheet was submitted against both the appellants. 3. The accused-appellants pleaded not guilty to the charges and claimed to be innocent and falsely implicated due to enmity and illage politics. 4. The prosecution has examined eight witnesses, out of them PW 1 (Paria Devi) and PW 2 (Bharti Devi) are mother and wife of the deceased respectively, PW 3 (Bouku Sada) is father and informant and PW 4 (Sonelal Sada) is uncle of the deceased. All these four have deposed as eye-witness. PW 5 (Bindeshwari Gupta) is a local shop-keeper and is a witness on the inquest report. PW 6 (Dr. A.K. Choudhary) held the post-mortem on the dead-body of deceased Malhu Sada. PWs 7 and 8 are the two Investigating Officers in the case. The defence has examined Chandeshwar Yadav as DW 1 and brought on record Ext. A, the certified copy of FIR of Sour Bazar PS Case No. 18/87 Ext. B, the certified copy of the final form submitted in the above case, Ext. A/1, the certified copy of FIR of GR Case No. 663/86. On the basis of the above evidence the contention of the defence is that accused-appellants are supporters of original Musahars, who have reclaimed the land of Thangaha Jungle which has been purchased by some landlord. There is tussle between the landlord and the original tenants, which was the motive of false implication of the appellants at the hands of landlords of the locality. On behalf of the defence the murder of Mahlu Sada has not been disputed but their contention is that the occurrence has not taken place in the alleged manner and the accused-appellants have been falsely implicated. 5. PW 6 (Dr. A.K. Choudhary) held the autopsy on the dead-body of deceased Malhu Sada and has proved the post-mortem report (Ext. 2). On behalf of the defence the murder of Mahlu Sada has not been disputed but their contention is that the occurrence has not taken place in the alleged manner and the accused-appellants have been falsely implicated. 5. PW 6 (Dr. A.K. Choudhary) held the autopsy on the dead-body of deceased Malhu Sada and has proved the post-mortem report (Ext. 2). According to him, on 18.6.1990 at about 12.00 noon he performed the postmortem over the dead-body of deceased Malhu Sada and found the following anti-mortem injuries : (i) Wound of entry of 1 c.m. diameter on the back right side below the 12th rib admitting two finger tips. Skin charred and having inverted margin; (ii) Wound of exit 2" diameter on the left side of the chest below 2nd and 3rd rib. On dissection, a track was found between the injury Nos. (i) and (ii) in between the wound of entry and the wound of exit. In the course the heart and left lung were found ruptured and the upper part of the stomach was injured. The time elapsed since death was 10 to 16 hours. In the opinion of the Doctor the cause of death was due to haemorrhage and shock caused by fire-arm injury. He opined that firing was made from a close range as the injury of entry was charred. The injuries on the person of deceased were sufficient to cause death in ordinary course of nature. From the evidence of the Doctor it is crystal clear that deceased has wound of entry on the back right side below the 12th rib and wound of exist was on the left side chest below the 2nd and 3rd ribs. Thus the deceased was fired only once and nature of injuries was such which was sufficient to cause death in ordinary course of nature. The time elapsed since death was 10 to 16 hours. The Doctor has not been cross-examined by the defence in length. Thus, the evidence of the Doctor supports the prosecution case that he was fired from the close range by a fire-arm which hit in his back and the wound of exist of the bullet was on the left side of the chest. The Doctor has not been cross-examined by the defence in length. Thus, the evidence of the Doctor supports the prosecution case that he was fired from the close range by a fire-arm which hit in his back and the wound of exist of the bullet was on the left side of the chest. 6 The learned appellants lawyer submitted that the Doctor (PW 6) has stated in cross-examination that if firing is made from the western side to the victim who was sleeping with his head towards western side, no such injury could be caused and such injury was not possible under the aforesaid position while in sleeping condition. In reply, the learned APP submitted that from the evidence of PWs 1 to 4 it is crystal clear that the occurrence took place in the night. The witnesses awoke on the sound of barking as well as firing. They have noticed the deceased lying on the bed. It is not expected that they will give the exact or actual position of the deceased at the time of sustaining fire-arm injury. It is possible that on the sound of barking and flashing of the torch-light by the accused-persons the deceased awoke and was trying to get up from bed during which he was shot at. The Doctor has categorically stated that he was fired at from a close range. There- fore, the evidence of PWs are to be read as a whole and in the circumstances they have seen the occurrence. In substratum four PWs have supported the fardbeyan that deceased was fired at by accused Kuldip Thakur and appellant Satya Narain Vaclav has flashed the torch- light at the time of firing. The inquest report was prepared by the Investigating Officer on 18.6.1990 at about 6.30 a.m. at the Health Centre, Sour Bazar. The inquest report (Ext. 1) mentions that the dead-body was lying on a cot and there were two holes; one on the back and another on the chest of the deceased, which appeared to be caused by fire-arm and were injuries of entry and exit of the bullet. 7. The Investigating Officer (PW 8) has inspected the place of occurrence at about 10.00 a.m. on 18.6.1990. The place of occurrence is the house of the informant facing west and it was Harijan Colony constructed by the Government Agency. 7. The Investigating Officer (PW 8) has inspected the place of occurrence at about 10.00 a.m. on 18.6.1990. The place of occurrence is the house of the informant facing west and it was Harijan Colony constructed by the Government Agency. He found plenty of blood fallen on the ground as well as on the bed which was in disturbed condition. The Investigating Officer seized the blood stained earth. These findings of the Investigating Officer corroborate the prosecution version and the place of occurrence, where the deceased was fired at. These objective findings and the evidence of the Doctor have to be considered along with the occular evidence of the PWs. 8. PW 3 (the informant) father of the deceased Malhu Sada, stated that on the night of 17/18.6.1990 at about 2.00 a.m. while he was sleeping near the door of western room of his house, he awoke on the sound of barking. His wife (PW 1) was also sleeping beside him. His son was sleeping on the eastern varandah of the house along with his wife and child. He saw in the torchlight flashed by the accused-persons some persons entering in his courtyard. He identified accused-appellant Kuldip Thakur armed with a pistol and Satya Narayan Yadav with a torch in his hands. He couldnt identify other three persons. Accused Satya Narain Yadav flashed torch-light and there after accused Kuldip Thakur fired at his son, who died thereafter. He along with the family members raised alarm. They had seen the accused-persons fleeing away from the place of occurrence. The neighbours also assembled there whom he narrated about the occurrence and named the two accused- appellants. His son died in the way to the hospital. He supported the motive of the occurrence, as alleged in the fardbeyan and stated that in spite of warning given by the accused-persons his son did not stop ploughing of the field of Chandrashekhar Jha due to which he was killed at the hands of the accused-persons. I have scrutinized the evidence of PW 3, which is consistent with the fardbeyan and no material contradiction was. found in his evidence. He denied the suggestions of the defence that there is dispute between the Musharas, who are members of CPI and the land-lord purchasers and at the instance of the CPI members accused-persons have been implicated. I have scrutinized the evidence of PW 3, which is consistent with the fardbeyan and no material contradiction was. found in his evidence. He denied the suggestions of the defence that there is dispute between the Musharas, who are members of CPI and the land-lord purchasers and at the instance of the CPI members accused-persons have been implicated. In his cross-examination the defence has tried to make out a case that Jai Prakash Yadav and Nageshwar Yadav who have also purchased the reclaimed land of the forest have lodged dacoity and other cases against the accused-persons prior to the occurrence, as per Exts. A. B and A/1 but there is nothing in his cross-examination to show that there was any enmity in between the family members of the deceased and the accused-persons. 9. PWs No. 1, 2 and 4 haye deposed as eye-witnesses of the occurrence. PW 1 (mother of the deceased) stated that she was sleeping in the western varandah of her courtyard at the gate/door of the room along with her husband (PW 3). Her son deceased Malhu Sada along with his wife and son aged about two years were sleeping on the eastern varandah of the angan. She awoke on the barking sound. She saw both the accused-appellants and three unknown persons fleeing towards east out of whom Kuldip Thakur was armed with 303 pistol and appellant Satya Narain Yadav and others were flashing the torch-light. She rushed near her son and found him in the pool of blood. She started weeping. The neighbours assembled to whom they narrated the incident and told the names of two accused-appellants. She identified both of them in the court during her evidence. 10. The contention of the defence lawyer with respect to the evidence of PW 1 is that she is not an eye-witness of the actual occurrence. From her evidence it is crystal clear that she has not seen who has fired at her son. She awoke on the sound of firing and had seen the appellants along with three unknown persons fleeing iron the place of occurrence. Therefore, she has not corroborated the evidence of the informant (PW 3) that appellant Kuldip Thakur has fired on the deceased and Satya Narain Yadav has flashed the torch-light. 11. She awoke on the sound of firing and had seen the appellants along with three unknown persons fleeing iron the place of occurrence. Therefore, she has not corroborated the evidence of the informant (PW 3) that appellant Kuldip Thakur has fired on the deceased and Satya Narain Yadav has flashed the torch-light. 11. PW 2 (Bharti Devi) is wife of the deceased and stated that she was sleeping with her husband at the time of occurrence. She has named both the appellants and stated that she saw them in her Angan along with three other unknown persons. Kuldip Thakur had fired on her husband while accused Satya Narain Yadav flashed the torchlight. The learned defence lawyer submitted that in the cross- examination she stated that she had seen the accused-persons fleeing away from the place of occurrence. Therefore, she is not an eye-witness on the point of alleged firing by accused Kuldip Thakur on the deceased. The learned APP submitted that both PWs 1 and 2 are natural and competent witnesses to describe the actual state of affairs. They were sleeping along with their husband at the time of occurrence. The house consists of only two rooms with small Angan situated in a Harijan Colony. The courtyard demarcating the two rooms one on the eastern side and another on western side, is small as pointed out by the Investigating Officer (PW-8). PW 2 has stated that she awoke on the sound of barking, and in the torch-light, flashed by the accused persons, she identified the two appellants. She found the body of her husband lying in the pool of blood and there were some bloodstain on her clothes. She had seen both the accused-appellants and three unknown persons fleeing away from the Angan after killing her husband. Her mother-in-law and father-in-law (PWs 1 and 3) arrived near her son home she told the names of two accused-persons and they also stated that they had identified the two appellants among five accused-persons. She stated that accused Kuldip Thakur had fired on her husband while accused Satya Narain Yadav was flashing the torch-light. She corroborated the motive of the occurrence as stated by PW 3. She identified the appellants in the dock. The learned appellants lawyer submitted that PW 2 in cross-examination stated that she saw her husband on the bed besmeared with blood. She corroborated the motive of the occurrence as stated by PW 3. She identified the appellants in the dock. The learned appellants lawyer submitted that PW 2 in cross-examination stated that she saw her husband on the bed besmeared with blood. Therefore, she had not seen who had fired on her husband. A careful scrutiny of her evidence shows that she has deposed as a competent witness because she was sleeping along with her husband. Even if, she has awaken on the sound of firing and identified accused Kuldip thakur armed with 303 pistol in the torch-light and no other accused was armed with fire-arm, the conclusion would be that accused Kuldip Thakur has fired on her husband. Therefore, she has corroborated the evidence of PWs 1 and 3 who is competent witness to depose on the point of occurrence. I have found her evidence consistent with the prosecution case and there is no material contradiction in her cross-examination. The Investigating Officer (PW 8) in para 4 stated that PW 2 had stated before him that she identified both the appellants in the Angan and had seen Kuldip Thakur armed with a pistol. 12. PW 4 (Sonelal Sada) is brother of the informant and uncle of the deceased. He stated that at the time of occurrence he was sleeping in his courtyard just by the side of the informants courtyard. He awoke on the barking sound and heard the sound of firing from the house of his brother, the informant. He rushed there and in the torch-light he saw accused Kuldip Thakur armed with a pistol and Safya Narain Yadav with a torch fleeing away along with three unknown persons. He went inside the Angan and saw Malhu Sada lying in the pool of blood on a bed. He further stated that Malhu Sada had told him that accused Kuldip Thakur and Satya Narain Yadav had assaulted and fired at him. PWs 1, 2 and 3 also told him the names of two appellants and stated that Kuldip Thakur has fired on the deceased. He corroborated the alleged motive of the occurrence as mentioned in the fardbeyan as well as stated by PWs 1, 2 and 3. His evidence is consistent with other prosecution witnesses. PWs 1, 2 and 3 also told him the names of two appellants and stated that Kuldip Thakur has fired on the deceased. He corroborated the alleged motive of the occurrence as mentioned in the fardbeyan as well as stated by PWs 1, 2 and 3. His evidence is consistent with other prosecution witnesses. He stated that before the police also he stated that he saw Kuldip Thakur fleeing from the place of occurrence with a pistol in his hand. I do not find any substance in this contention of the learned appellants lawyer that PW 4 has not seen the accused-persons fleeing from the place of occurrence. As stated above, the evidence of PWs 1, 2, 3 and 4 are corroborated from the evidence of the two Investigating Officers (PWs 7 and 8) and of the Doctor (PW 6). 13. The learned appellants lawyer submitted that from the evidence of PWs 8 (the IO) it is crystal clear that his investigation was perfunctory. He had sent the blood-stained clothes of the deceased to the police station but he did not prepare any paper of the same nor he seized the blood-stained bed. He stated that he prepared the seizure-list of blood-stained soil but it is not available in the diary nor it was brought on record nor the said article was sent for examination to the Forensic Science Laboratory. It was contended on behalf of the appellants that in absence of such evidence no reliance can be placed on the prosecution version. There is serious lacuna in the investigation of the case and its benefit should be given to the appellants. The learned APP admitted that these are omissions on the part of the Investigating Officer. He should have seized the blood-stained clothes and the bed and the seizure-list should have been produced in the court. Similarly blood-stained earth should have been sent to Forensic Science Laboratory. However, in a catena of decisions, the Apex Court has held that due to omission on the part of the IO the prosecution case is not to be disbelieved, if the remaining evidence adduced on behalf of the prosecution are reliable and trustworthy. Similarly blood-stained earth should have been sent to Forensic Science Laboratory. However, in a catena of decisions, the Apex Court has held that due to omission on the part of the IO the prosecution case is not to be disbelieved, if the remaining evidence adduced on behalf of the prosecution are reliable and trustworthy. If the witnesses have supported the prosecution case on material points as set out in the FIR and further corroborated by the evidence of the Doctor, the prosecution case should not be disbelieved nor a benefit be given to the accused- persons for such omissions. These laches on the part of the prosecution do not cut the root of the prosecution case nor it creates any doubt. The emphasis is on the evidence of the prosecution witnesses and if they have been found trustworthy and the ocular evidence is corroborated by the medical evidence and the objective finding of the I.O., in that case due to such minor lapses, the entire prosecution case is not be disbelieved. 14. The learned appellants lawyer submitted that prosecution has alleged motive in the FIR but failed to prove the same by adducing cogent and reliable evidence, as regards motive of the alleged occurrence assigned in the fardbeyan it has been supported by the PWs, including the informant (PW 3). As per their evidence, they stated that deceased was working in the field of one Chandrashekhar Jha since several years and accused- persons used to forbid the deceased from working there and threatened him of dire consequences. From the evidence on record adduced on behalf of both sides it is proved beyond doubt that some lands were settled with the family of the deceased and other Musahars on the lands of Thangaha Jungle. The contention of the defence is that Chandrashekhar Jha and others have purchased those lands from Kumar Daulat Singh but the informant and other Musahars were claiming the said land as settled to them. Therefore, there was enmity in between the parties and as per the prosecution case this was the genesis of the occurrence. However, it is settled law that in such cases motive or the genesis of the alleged occurrence is not of much importance, if the occurrence is sup ported and corroborated by reliable and positive evidence. After scrutinizing the evidence as discussed above. However, it is settled law that in such cases motive or the genesis of the alleged occurrence is not of much importance, if the occurrence is sup ported and corroborated by reliable and positive evidence. After scrutinizing the evidence as discussed above. I have found that the eye-witnesses have been able to prove the occurrence beyond all reasonable doubt. 15. It was argued on behalf of the appellants that PWs 1 to 4 are family members of the deceased, as such they are highly interested witnesses and because of admitted land dispute, their evidence should not be relied upon. It is an admitted fact that PWs 1 to 4 are family members of the deceased. The alleged occurrence took place in the mid-night inside the house of the informant. Therefore, only the family members are expected to be the probable witness of the occurrence. Any villager who arrived on Hulla or on the sound of firing reached at the place of occurrence after the accused-persons had fled away. Therefore, they cannot be eye-witness of the occurrence, In such circumstances if witnesses examined on behalf of the prosecution are family members, on this ground alone, they cannot be called interested witness nor their evidence should be discarded. The law requires that such evidence should be scrutinized with care and caution and if after scrutiny they are found reliable and trustworthy they must be relied upon as the natural and competent witness of the occurrence. I have found the evidence of PWs 1 to 4 consistent to the facts stated in the FIR and no significant infirmity or improbability has been found in their evidence. Therefore, their evidence cannot be rejected merely on the ground that they are close relative of the deceased. It is also settled law that the family members, including the father, mother and wife who have deposed as eye-witness, are not expected to spare the real culprits. It is possible that they may implicate others along with real culprits. In the instant case the prosecution has come with clean hand and stated that besides the two accused-appellants, informant and the family members could not identify other three accused-persons, who had accompanied them. If the informant or his family members had tendency to implicate others they could have named them in the FIR. In the instant case the prosecution has come with clean hand and stated that besides the two accused-appellants, informant and the family members could not identify other three accused-persons, who had accompanied them. If the informant or his family members had tendency to implicate others they could have named them in the FIR. I have not found any vital discrepancies in the cross-examination of PWs 1 to 4, and it is consistent on the material points to prove the prosecution case beyond all reasonable doubt. 16. It was also argued on behalf of the appellants that PWs 2 and 4 have stated that deceased before his death, had told them the name of the appellant, who has fired on him. This part of the evidence is not reliable from the facts and circumstances of the case as well as, the medical evidence does not support it. The nature of the injuries found on the deceased by the Doctor (PW 6) suggest that after receiving gun-shot injury it was not possible for the deceased to speak and to disclose the names of the assailants before his family members. The wound of entry was of 1 c.m. diameter on the back right side below the 12th rib admitting two finger tips. The wound of exist was of 2" diameter on the left side of the chest between 2nd and 3rd ribs. On dissection a track was found between injury Nos. (i) and (ii). The Doctor also found heart and left lung ruptured and the stomach was injured (upper part). The Doctor opined that the cause of death was haemorrhage and shock caused by fire-arm injury. The learned appellants lawyer submitted that in view of this evidence of the Doctor the deceased must have died on the spot or if he survived for sometime, it was not possible for him to speak and name the appellants. I have carefully scrutinized the evidence of PWs 2 and 4 along with the evidence of the Doctor (PW 6). There is sub- stance is the above contention made on behalf of the appellants. However, I find that this part of the evidence of PWs 2 and 4 is exaggeration and it does not find support from the evidence of the informant (PW 3). There is sub- stance is the above contention made on behalf of the appellants. However, I find that this part of the evidence of PWs 2 and 4 is exaggeration and it does not find support from the evidence of the informant (PW 3). However, on this ground the entire evidence of PWs 2 and 4 should not be disbelieved when otherwise it has been found that they are natural and competent witness. Their availability at the place of occurrence was natural. It is possible that in anxiety they have deposed that deceased before death has disclosed the names of the appellants to them. However, their remaining part of the evidence are trustworthy and they support the prosecution case beyond all reasonable doubt and it is consistent with the evidence of PWs 1 and 3. From the discussions made above, I am of the view that prosecution has been able to substantiate the charge against both the appellants beyond all reasonable doubt and there is nothing on record to suggest that they have been implicated in this case as argued on behalf of the appellants. 17. Considering the facts, circumstances and the evidence on record, the prosecution has been able to prove that both the appellants along with three other unknown accused entered inside the house of the informant in the night and accused Satya Narain Yadav flashed torch-light on the deceased and appellant Kuldip Thakur fired fatal shot Which hit the deceased, resulting into his death. The trial Court has rightly convicted the appellant Kuldip Thakur for the offence under Section 302, IPC and appellant Satya Narain Yadav for the offence under Section 302/149, IPC and we do not find any reason or material on record to interfere with this finding of the court below. 18. In the result, I do not find any merit in these two appeals, which are accordingly dismissed and the judgment and order of the court below is hereby confirmed. The appellant Kuldip Thakur is in custody but appellant Satya Narain Yadav is on bail. Therefore, he is directed to surrender in the court below and to serve out the remaining period of sentence. The court below shall take all steps for the surrender of appellant Satya Narain Yadav.