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2001 DIGILAW 479 (PAT)

Kailash Yadav v. State Of Bihar

2001-06-26

ASHOK KUMAR VERMA, INDU PRABHA SINGH

body2001
Judgment Ashok Kumar Verma, J. 1. These two criminal Appeals arise out of the same Judgment and order of conviction and sentence passed in Sessions Trial No. 296 of 1992 by the Sessions Judge, Bhagalpur and. therefore both these criminal Appeal are disposed of this common Judgment. 2. In Cr. Appeal No. 493 of 1994 the sole appellant is Kailash Yadav, who has been convicted under Sections 302 and 452 of the Indian Penal Code and under Section 27 of the Arms Act and has been sentenced to undergo RI for life for the offence under Section 302 of the Indian Penal Code and RI for two years under Section 452 of the Indian Penal Code. He has also been sentenced to undergo RI for two years under Section 27 of the Arms Act. The sentences are to run concurrently. In Cr. Appeal No. 592 of 1994 there are three appellants, namely, Kesho Yadav, Bishundeo Yadav and Shibu Yadav, who have been convicted under Section 27 of the Arms Act only and sentenced to undergo RI for two years each. 3. In short the case of the prosecution is that the informant, Dinesh Yadav deals in the business of selling milk and for that he had advanced Rs. 500/00 to the accused Shibu Yadav for supply of milk. Since 4-5 days before the occurrence accused Shibu Yadav stopped supply of the milk to the informant though the amount paid by the informant was still due with the accused and inspite of the request of the informant he refused to supply milk to him. Thereafter, there was altercation between the informant and the accused persons and accused persons threatened him. On the day of occurrence at about 8.45 p.m. accused Kailash Yadav, Bishundeo Yadav, Shibu Yadav and Kesho Yadav all armed with country made pistol, went to the house of the informant and abused him and started searching for the informant Dinesh Yadav, but he could not be found as he had concealed himself under a Chowki in a Gohal, Accused Kailash Yadav entered into the house in course of searching the informant and when he could not find the informant, he fired on the chest of the deceased Ashok Yadav, who is brother of the informant. Thereafter all the accused persons fled away. Thereafter all the accused persons fled away. The informant had identified the accused persons in the light of lantern and the father and mother of the in formant had also identified them. When Ashok Yadav was being taken to the hospital he died in the way. The fardbeyan of the informant was recorded on the same day at about 9.30 p.m. at the Police Station. On the basis of the fardbeyan of the informant, a formal First Information Report was drawn in this case. After investigation police submitted charge-sheet against the accused persons and the learned Chief Judicial Magistrate took cognizance of the case. The learned Judicial Magistrate committed it to the Court of Sessions for trial. 4. The defence of the accused persons, according to the trend of the cross-examination of the prosecution witnesses is that they have been falsely implicated in this case. 5. In this case 12 witnesses have been examined on behalf of the prosecution. PW 10. Parsadi Modi has been tendered by the prosecution/ PW 6, Rajendra Yadav and PW 11 Bhupal Prasad Singh have been declared hostile by the prosecution. 6. PW 8 Anil Kumar Yadav. and PW 9 Naresh Prasad Yadav are witnesses of the seizure list. PW 8 has stated that he had seen that Ashok Yadav had been hit by bullet and he had gone to the house of Bhubneshwar Yadav on bearing bulla and on way to Police Station he (Ashok Yadav) had died. According to him the police had seized the cloths of Ashok Yadav, which included one blood stained Ganji with a hole near the chest, one under-wear, one Gamchha and a blood stained cot before him. Ext. 3 is his signature on the seizure list. He has said that Daroga and also seized blood stained earth from the house of Bhubneshwar Yadav and prepared the seizure list and he had put his signature on it. Ext. 3/1 is his signature. According to PW 9 Naresh Prasad Yadav he had gone to the house of Bhubneshwar Yadav on hearing the sound of firing and had seen that Ashok had been hit by bullet in his chest and he died on way to the Police Station. Ext. 3/1 is his signature. According to PW 9 Naresh Prasad Yadav he had gone to the house of Bhubneshwar Yadav on hearing the sound of firing and had seen that Ashok had been hit by bullet in his chest and he died on way to the Police Station. He has stated that Daroga had sized a Ganji of the deceased, which had a hole near the chest, a Lungi, a under-wear and as Gamchha and blood stained cot and prepared its seizure list. Ext. 3/2 is his signature on the seizure list. Ext. 3/3 is his signature on the seizure list of blood stained earth, which had been seized at the house of Bhubneshwar Yadav. Further according to him Bhubneshwar, Dinesh and mother of Ashok had told him that Kailash and Bishundeo had come there and Kailash had fired bullet and fled away. It is relevant to mention that the place of qccurrence is house of Bhubneshwar Yadav and the accused had fired on the chest of Ashok Yadav as a result of which he had died on way Police Station. The seizure of the blood stained earth at the house of Bhubneshwar Yadav which is the place of occurrence and the seizure of the blood stained Ganji of the deceased with a hole near the chest supports the case of the prosecution. Nothing has been elicited in the cross examination of these two witnesses (PWs 8 and 9) to disbelieve their testimony. 7. PW 1 Bhubneshwar Yadav is the father of the informant and deceased and PW 3 is ChunkiDevi, mother of the deceased. Their evidence that accused Kailash Yadav had fired on the deceased resulting into his death and that all the accused persons were armed with pistol is consistent with the prosecution case. PW 1 Bhubneshwar Yadav has stated that Kailash Yadav, Bishundeo Yadav, Shibu Yadav and Kesho Yadav all armed with pistol had come to his house and they were searching Dinesh who could not be found. According to him, Dinesh had concealed himself under a cot in the Godown. He has stated that Kailash and Bishundeo went inside the house in search of Dinesh but he could not be found and they caught his another son, Ashok who was sleeping on the cot in the Verandah and Kailash Yadav fired on Ashok in his chest and thereafter all the four accused fled away. He has stated that Kailash and Bishundeo went inside the house in search of Dinesh but he could not be found and they caught his another son, Ashok who was sleeping on the cot in the Verandah and Kailash Yadav fired on Ashok in his chest and thereafter all the four accused fled away. Further according to him he had identified the accused persons in the light of lantern. PW 3 Chunki Devi, the mother of the deceased has stated that Kailash Yadav and Bishundeo Yadav had gone into his Angan and searched for Dinesh and Bishundeo told him that Dinesh could not be traced and so ordered to fire on Ashok, who was sleeping in Verandah and Kailash fired on Ashok in his chest and at that time Kesho Yadav and Shibu Yadav were at the door. After the assault all the accused persons fled away. According to her on way to Police Station Ashok died. PW 2 is Dinesh Prasad Yadav. the informant of this case. He has stated that at about 8-9 p.m. he was in his Goal and Kailash Yadav Bishundeo Yadav, Shibu Yadav and Kesho Yadav went into his house and all were armed with pistol and they were searching for him and he (PW 2) concealed himself in the Gohal under a Chauki. He has further stated that Kailash and Bishundeo went inside his house and his brother Ashok was sleeping in the Verandah and they fired on Ashok in the chest and thereafter the accused persons fled away. It was argued by the learned lawyer for the appellants that this witness who is informant of this case has stated that Kailash and Bishundeo had entered inside his house but he has not specifically named the person who had fired on deceased Ashok, so this throw doubt as to which of the two accused had fired on him. There is specific statement of PW 1, Bhubneshwar Yadav, the father of the deceased and PW 3 Chunki Devi, the mother of the deceased that it was accused Kailash Yadav who had fired on the deceased causing injury in his chest as a result of which he had d iad on way to Police Station. There is specific statement of PW 1, Bhubneshwar Yadav, the father of the deceased and PW 3 Chunki Devi, the mother of the deceased that it was accused Kailash Yadav who had fired on the deceased causing injury in his chest as a result of which he had d iad on way to Police Station. PW 9, who is seizure list witness, has also made statement to the effect that all the three persons Dinesh Yadav (PW 2), Bhubneshwar Yadav (PW 1) and Chinki Devi (PW 3) had told him that it was accused Kailash Yadav who had fired on the deceased as a result of which he had died on way to Police Station. So non-mention of specific name by the informant PW 2 in his evidence as to who had fired among the two accused Bishundeo and Kailash is of little help to the appellant. The fact that the deceased had sustained bullet injury in his chest resulting into his death supported by the Doctor who had conducted postmortem examination and who has been examined in the trial Court as PW 7 PW 7 is Dr. N.N. Bhagat, who had conducted the post-mortem examination on the dead body of Ashok Yadav. son of Bhubneshwar Yadav. According to him he had found fire arm wound of entry of 1 CM in diameter, margin inverted on front of chest, 1" left of mid line on nipple level, tatooing in an area of 2" around the wound and wound of exit. 1.5.CM in diameter, margin inverted on left side back 1" left of mid spinal line. He has stated that blood was present in the chest cavity and the above injury was sufficient to cause death in ordinary course of nature and the injuries were ante mortem and they were caused by fire arm. Ext. 2 is the post mortem report. 8. PW 4 is Sunita Kumari, sister of the deceased. She has also supported the prosecution case and stated that Kailash and Bishundeo both armed with pistol came in the Verandah of her court-yard (Angan) and Kailash fired on Ashok, which hit in his chest and at the door other accused persons were also there, who wre Shibu and Kesho and after the assault the accused persons fled away. PW 5 is Sahdeo Modi. PW 5 is Sahdeo Modi. According to him he had gone on the roof of his own house on hearing the sound of firing. 9. PW 12 Vijay Kumar Choud-hary is the l0 of this case. According to him he had recorded the fardbeyan of Dinesh Yadav, which is Ext. 4 in this case and on the basis of the fardbeyan formal First Information Report was drawn, which is Ext. 5 in this case. He has stated that he took up investigation of this case and prepared the inquest report of the dead body of Ashok Yadav. Ext. 6 is the carbon copy of the inquest report. Further according to him he had seized Ganji from dead body of the deceased, which had a hole hear the chest and it was blood stained and he had also seized a Lungi, one under-wear and a Gamchha and a cot and prepared the seizure list, which is Ext. 7. He has stated that he inspected the place of occurrence and found blood on the Verandah and he had seized the blood stained earth before two witnesses. Ext. 7/1 is the seizure list. 10. There is nothing in the cross- examination of PW 1, Bhubneshwar Yadav, PW 2, Dinesh Prasad Yadav, PW 3, Chunki Devi, PW 4 Sunita Kumari, PW 7 Dr. N.N. Bhagat and PW 12 Vijay Kumar Choudhary to disbelieve their evidence. 11. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Kailash Yadav has committed the offence punishable under Sections 302 and 452 of the Indian Penal Code and Section 27 of the Arms Act and that accused Shibu Yadav, Bishundeo Yadav and Kesho Yadav have committed the offence punishable under Section 27 of the Arms Act. There does not appear any reason to interfere with the judgment and order of conviction and sentence passed by the learned Sessions Judge. There is no merit in these two Criminal Appeals. Both these Criminal Appeals are accordingly dismissed. 12. The accused appellants Kesho Yadav, Bishundeo Yadav and Shibu Yadav are on bail. Their bail bonds are cancelled and they are directed to surrender in the Court of learned Sessions Judge, Bhagalpur forthwith to serve out their sentences. The learned Sessions Judge. Bhagalpur is also directed to take all necessary steps in this regard.