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2001 DIGILAW 537 (PAT)

Mahanand Yadav v. State Of Bihar

2001-07-06

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. Both the appeals arise out of judgment and order dated 7.12.1994/8.12.1994 passed by 2nd Addl. Sessions Judge, Purnea in S.T. No. 138/22 of 1990/91 and as such both the appeals have been heard together and are being disposed of by this judgment. 2. The appellants have been convicted for the offence under Section 302/34, IPC and sentenced to undergo imprisonment for life. Udai Chand Yadav, appellant in Cr.A No. 23/95 has further been convicted for the offence under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for three years. The sentenced have been ordered to run concurrently. 3. Informant Suresh Yadav gave his fardbeyan on 24.9.1989 at about 4 a.m. at his house that he, his younger brother Naresh Yadav, elder brother Mahesh Yadav and brother of his brother-in-law Sukhdeo Yadav were at his house. He and Sukhdeo Yadav were lying on a wooden cot. His elder brother Mahesh Yadav was sitting on a mat and was reading the Ramayan. His younger brother Naresh Yadav was living on a mat there. At about 11 p.m. Udai Chand Yadav and Mahanand Yadav, the appellants came. His brother Mahesh Yadav enquired as to why they had come in the night on which Udai Chand Yadav fired from his country made pistol causing bleeding injury on the right side of his chest. He and Naresh Yadav raised alarm on which several persons came. Udai Chand Yadav and Mahanand Yadav, however, succeeded in running away. His brother Mahesh Yadav uttered that Udai Chand Yadav fired at him and died. His brother Mahesh Yadav, the deceased, Udai Chand Yadav and Mahanand Yadav, the appellants, and Naresh Yadav had gone to Punjab for their livelihood. They had returned few months ago. Udai Chand Yadav had given Rs. 2000/- to Naresh Yadav. Naresh Yadav was not returning the money and as such there was panchaity. Naresh Yadav was saying that he had not taken money. Mahanand Yadav and Udai Chand Yadav, appellants, were pressing the deceased to stand as witness to say that Naresh Yadav had taken money, which he refused. Due to the said reason Udai Chand Yadav and Mahanand Yadav came in the night and committed the offence. The occurrence was witnessed by Dinesh Yadav, Sukhdeo Yadav and Pancham Yadav etc. 4. Mahanand Yadav and Udai Chand Yadav, appellants, were pressing the deceased to stand as witness to say that Naresh Yadav had taken money, which he refused. Due to the said reason Udai Chand Yadav and Mahanand Yadav came in the night and committed the offence. The occurrence was witnessed by Dinesh Yadav, Sukhdeo Yadav and Pancham Yadav etc. 4. On the aforesaid fardbeyan, formal First Information Report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted against the appellants. On receipt of charge-sheet in the Court the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above. 5. The defence of the appellants was that they had been falsely implicated in the case. They were innocent. Specific defence of Udai Chand Yadav was that he was not present at the relevant time of occurrence rather he was arrested within the territory of Nepal while he was taking cow. 6. The prosecution in support of its case examined 16 witnesses out of whom PWs 1, 2, 7 and 13 are hear-say witnesses. PWs 3, 5 and 12 have been tendered. PW 6 has been declared hostile. PW 4 is witness to the seizure of shoe. PWs 1 and 2 are also witnesses to the seizure of blood stained earth and projectile of the cartridge. PW 15 is Doctor who held postmortem over the dead body. PW 16 is Advocate clerk who has proved First Information Report and this case diary. PWs 8, 9, 10 and 11 claimed to be eye-witnesses to the occurrence and PW 14 is the informant and he also claimed to be eye-witness to the occurrence. 7. The occurrence is alleged to have taken place at about 11 p.m. in the night. The deceased was sitting on the mat and was reading the Ramayan in the light of lantern. PWs 8, 9, 10, 11 and 14 claimed to be near the deceased at the relevant time of occurrence. PWs 8 and 14 deposed that they were lying on a wooden cot. The rest of the witnesses claimed that they were sitting there and hearing the Ramayan which the deceased was reading. PWs 8, 9, 10, 11 and 14 claimed to be near the deceased at the relevant time of occurrence. PWs 8 and 14 deposed that they were lying on a wooden cot. The rest of the witnesses claimed that they were sitting there and hearing the Ramayan which the deceased was reading. The attention of witnesses PWs 9, 10 and 11 had been drawn to the statement made before the police to show that they did not claim before the police that they had seen the occurrence rather they had reached the place of occurrence after hearing the firing. Learned counsel for the appellants, however, gave stress that since the Investigating Officer has not been examined, the case of defence has prejudiced. The trial Court considering arguments of the learned counsel for the appellants did not rely on the evidence of PWs 9, 10 and 11. However, PWs 8 and 14 claimed that they were at the place of occurrence and had seen the occurrence. The evidence of these two witnesses, therefore, requires to be considered for the purpose of coming to the conclusion. 8. PW 14 is the informant and brother of the deceased. His evidence is that at the relevant time Mahesh Yadav, the deceased, was reading the Ramayan. He was also there. Naresh Yadav, PW 8 was also there. At the relevant time seven persons came out of whom the appellants came near the deceased, Mahesh Yadav. Mahesh Yadav enquired as to why they had come at night at odd hours on which appellant Mabanand Yadav uttered that they have identified and as such ordered to fire on which Udai Chand Yadav fired causing bleeding injury on the right side of the chest and the culprits ran away. The witness also stated with respect to the motive as has been mentioned in the fardbeyan. In cross- examination the witness has given details of the place of occurrence and also manner of occurrence. However, the witness stated that his statement was recorded at 7 a.m. He had gone to Police Station at about 12 Oclock in the night. The attention of the witness was drawn to the statement made before the police and the witness stated that he had stated before the Police that Udai Chand Yadav fired at Mahesh Yadav. On the material point it appears that there is no contradiction. The attention of the witness was drawn to the statement made before the police and the witness stated that he had stated before the Police that Udai Chand Yadav fired at Mahesh Yadav. On the material point it appears that there is no contradiction. However, learned counsel for the appellants pointed out that fardbeyan was recorded at 4 a.m. whereas the witness stated that his fardbeyan was recorded at 7 a.m. Therefore, his evidence is not worthy of reliance. In this regard it would not be out of place to mention that witness is rustic villager and his evidence was recorded after about four years of the occurrence. In such a situation, such type of discrepancy is possible. Moreover, such discrepancy would not affect the prosecution case in view of documentary evidence on the record i.e. First Information Report where-from it appears that fardbeyan was recorded at about 4 a.m. Thus on consideration we find that the evidence of the witness is trustworthy. 9. PW 8 is also eye witness and is brother of the deceased and the informant. He claimed that he and the informant, PW 14, were lying on wooden cot at the relevant time. His brother Mahesh Yadav was reading the Ramayan in the light of lantern. Seven persons came, out of whom the appellants came near Mahesh Yadav. Mahesh Yadav enquired as to why they had come in the night on which Udai Chand Yadav fired from his country made pistol causing bleeding injury on the right side of chest. His brother Mahesh Yadav uttered that Udai Chand Yadav fired and he died. The witness further stated that his father PW 13 was also there and he saw the appellants running away. The witness also stated about the motive of occurrence. In cross-examination the witness stood the test and repeated the same which he had stated in the examination-in-chief. The witness stated that lantern and the Ramayan were shown to the Investigating Officer. Udai Chand Yadav fired from close range causing injury to his brother, the deceased. From cross-examination it appears that nothing cogent could be elicited to doubt the evidence of PW 8. 10. PW 13 is father of the deceased. He was lying at a distance of 2 laggi from the place where Mahesh Yadav, the deceased was reading the Ramayan. Udai Chand Yadav fired from close range causing injury to his brother, the deceased. From cross-examination it appears that nothing cogent could be elicited to doubt the evidence of PW 8. 10. PW 13 is father of the deceased. He was lying at a distance of 2 laggi from the place where Mahesh Yadav, the deceased was reading the Ramayan. His evidence is that hearing sound of firing he came near the deceased and saw the appellants running away. The witness categorically stated that he did not see the appellants committing crime. Learned counsel for the appellants, however, pointed out that night was dark and as such it was not possible to identify the appellants while running away. It is admitted case that parries are residents of the same village and were known to each other from before. Consistent evidence is that the deceased was reading the Ramayan in the light of lantern and as such identification in such a situation in our opinion is possible. The evidence of witness is unambiguous that hearing sound of firing he went near the deceased and saw the appellants running away towards west. Therefore, in such a situation we find no reason to disbelieve the evidence of witness. It is true that witness is not eye- witness but his evidence corroborates the evidence of eye-witness i.e. PWs 8 and 14. 11. PW 15 is Doctor who held postmortem over the dead body. He found gun shot injury on the person of the deceased on right side of the chest below apex of axilla. One was wound of entry and other was wound of exit. On dissection he found left chamber of heart and diaphragm were ruptured. Blood clots were present in the chest cavity. The death was due to shock and haemorrhage due to the injuries mentioned above. The evidence of the Doctor thus also corroborates the evidence of eye-witnesses. 12. Learned counsel for the appellants stressed that since Investigating Officer has not been examined, the defence case has prejudiced. It has already been indicated that in view of the submission, the trial Court did not place reliance on the evidence of eye-witnesses i.e. PWs 9, 10 and 11. So far evidence of PWs 8 and 14 are concerned, no such attention has been drawn to the witness in affect the prosecution case. It has already been indicated that in view of the submission, the trial Court did not place reliance on the evidence of eye-witnesses i.e. PWs 9, 10 and 11. So far evidence of PWs 8 and 14 are concerned, no such attention has been drawn to the witness in affect the prosecution case. It is well known that for proving a fact, the number of witnesses is not required. The fact can be proved by single witness if his evidence is found trustworthy. In the instant case evidence of PWs 8 and 14 is consistent and the same has been corroborated by the evidence of PW 13 who had seen the appellant running away from the place of occurrence. The oral evidence is also corroborated by the evidence of Doctor and as such on consideration as discussed above, we find no infirmity in the judgment and order passed by the trial Court. 13. Learned counsel for the appellants, however, further pointed out that appellant Udai Chand Yadav was arrested on the relevant date in Nepal while he was taking in support of alibi two witnesses, DWs 1 and 2 have been examined. They have stated that Udai Chand Yadav was arrested in Nepal. Some documents i.e. Exts. A, B, C and D have been brought on the record to show that appellant Udai Chand Yadav was arrested in Nepal on the relevant date. However, nothing has been brought on record that in fact this very appellant was arrested. In a case of alibi the person who takes such plea has to prove his case beyond all reasonable doubts. The appellants should have established beyond all reasonable doubts that this very appellant was arrested on that date. In fact the defence has failed to establish that this very appellant was arrested. To make it clear a person claiming to be of the name of the appellant may be arrested but in such a situation if plea of alibi is taken, it cannot be accepted, unless it is established that the men taken into custody was the accused. 14. Thus, on consideration we find no merit in this appeal. Accordingly, both the appeals are dismissed. Appellant Mahanand Yadav is on bail and as such his bail bond is cancelled and he is directed to surrender before the Court below to serve the remaining period of sentence.