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2001 DIGILAW 612 (PAT)

Baun Yadav v. State Of Bihar

2001-07-20

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

body2001
Judgment R.N.Prasad and B.P.N.Singh JJ. 1. These three appeals arise out of the judgment and order dated 25.7.1987 passed by 5th Additional Sessions Judge, Gaya in Sessions Trial No. 44 of 1984/90 of 1984. They have been heard together and are being disposed of by this judgment. 2. The appellants in all these appeals have been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellants in Cr. Appeal No. 408 and 441 of 1987 have further been convicted for the offence under Section 3 of the Explosive substance Act and sentenced to undergo rigorous imprisonment for seven years. The appellant in Cr. Appeal No. 354 of 1987 has also been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. However, sentences were ordered to run concurrently. 3. The occurrence is alleged to have taken place on 5.7.1983 at 12 noon. The fardbeyan of the informant Binod Singh, was recorded on the same day at about 1.15. p.m. at his house that while his elder brother, Ashok Singh, was sleeping in the verandah of Jhulan Ram about 12 noon, Mathura Yadav, Baidyanath Yadav, Vijay @ Natu Rawani with bomb and Baun Yadav with pistol in their hand came. Mathure Yadav. Vijya and Baidyanath Yadav hurled bomb on his brother, Ashok Singh, causing injury on his person. Baun Yadav also fired from Pistol at his brother, Ashok Singh. He raised alarm on which Nawal Prasad, PW 1, Dinesh Lal, PW 3, and Gopal Raut, PW 4, came at the place of occurrence and saw the occurrence. They chased the culprits. The motive of the occurrence was that there was enmity between his brother, Ashok Singh, the deceased, and the appellants. 4. On the aforesaid fardbeyan, Ext. 4, a formal first information report, Ext. 5, was drawn. Investigation was taken up and on completion of investigation, charge sheet was submitted against the appellants. The Court on receipt of the charge sheet took cognizance and committed the case 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 were innocent and had falsely been implicated in this case. No occurrence took place in the manner as alleged by the prosecution. The trial Court convicted the appellants as indicated above. 5. The defence of the appellants was that they were innocent and had falsely been implicated in this case. No occurrence took place in the manner as alleged by the prosecution. In support of the defence, fardbeyan of appellant, Mathura yadav, Ext. C, has been brought of the record. It appears from Ext. C that Mathura Yadav gave his fardbeyan on 5.7.1983 at 9.30 p.m. in the hospital that the deceased had gone to his house for compromise in the case. He along with Ashok Singh proceeded to meet his brother in remand home. When they reached near the house of Jhulan Ram; Fuchu Yadav, Tunu, Binu Sinha, Dani Sinha and Uday Srivastava came abusing and surrounded them. Fuchu Yadav instigated to kill and he himself hurled bomb which hit Ashok Singh due to which he fell down on the ground. He tried to run away but Tunu fired from his pistol which hit on his chest causing bleeding injury. While he was trying to run away Uday Srivastava uttered that Ashok Singh is alive on which Dani Sinha, Binu Sinha and Uday hurled bomb on Ashok. He however, succeeded in running away. He was taken to the hospital for treatment. 6. The prosecution in support of its case examined ten witnesses out of whom PW 1, PW3 and PW 4 claimed to be eye witnesses to the occurrence. PW 7 is informant and he also claimed to be an eye-witnesses to the occurrence. PW 2 and PW 8 have been tendered. PW 5 is a doctor, who held postmortem over the dead body, PW 6 proved sanction letter, PW 9 proved station diary entry and PW 10 is investigating officer. 7. The defence also examined four witnesses out of whom DW 1 claimed to be an eye witness to the occurrence and supported the defence version, Ext. C. DW 2 is a doctor, who examined Mathura Yadav. DW 3 is Mathura yadav himself on whose fardbeyan, Ext. C. first information report, Ext. D was lodged. DW 4 has proved outdoor patient register, Ext, E. 8. The salient feature of the case is that the occurrence is alleged to have taken place at 12 noon. The fardbeyan of PW 7 was recorded at 1.15 p.m. i.e. after one hour fifteen minutes of the occurrence. C. first information report, Ext. D was lodged. DW 4 has proved outdoor patient register, Ext, E. 8. The salient feature of the case is that the occurrence is alleged to have taken place at 12 noon. The fardbeyan of PW 7 was recorded at 1.15 p.m. i.e. after one hour fifteen minutes of the occurrence. According to the prosecution case the appellants, Mathura Yadav, Baidyanath Yadav and Vijay hurled bomb and Baun Yadav fired causing death of Ashok Singh. Appellant, Mathura Yadav, also gave his fardbeyan, Ext. C 5.7.1983 at about 9.30 p.m. in which the name of the assailant has been mentioned as Fuchu Yadav, Tunu, Binu Sinha, Dani Sinha and Yadav Srivastava. It appears from Ext. C that there is no dispute with regard to place of occurrence, time of occurrence, death of Ashok Singh at the place of occurrence and throwing of bomb on the person of Ashok Singh at the place of occurrence. The dispute is with regard to participation of the appellants in the said crime. According to the defence version the appellant Mathura Yadav had sustained fire arm injury in the occurrence, which has not been explained by the prosecution. PW 1, PW 3, PW 4 and PW 7 have stated in their evidence that they did not notice any injury on the person of the appellant, Mathura Yadav. The injured Mathura Yadav was examined by DW 2. The injury report is Ext. A. The injury report is dated 12.7.1983. The doctor examined Mathura Yadav when he was referred by the police. The injury report does not mention the time of examination. However, DW 2 has stated in his evidence that he examined Mathura yadav at about 11 to 12 Clock on 5.7.1983. The defence has brought on record out-door patient register to substantiate his case that the he was examined at the relevant time but the out-door register, Ext. E does not mention time of examination or time of entry. Therefore, there is no basis for saying the time of examination by DW 2. DW 2 has opined that age of injury was within six hours. However, it appears from injury report, Ext A, that there is over writing. E does not mention time of examination or time of entry. Therefore, there is no basis for saying the time of examination by DW 2. DW 2 has opined that age of injury was within six hours. However, it appears from injury report, Ext A, that there is over writing. Admittedly, the appellant, Mathura Yadav, was referred to the hospital and his fardbeyan was recorded on 5.7.1983 at about 9.30 p.m. Thus, it appears that the doctor, DW 2, has sated time of examination on his memory. Such evidence, in our view, cannot be accepted because it is expected that the doctor will not remember the time of occurrence specially when the same has not been mentioned either in the register or in\the injury report. Therefore, his evidence becomes suspicious. Fardbeyan was recorded at 9.30 p.m. Obviously, after recording the fardbeyan the patient must have been referred to the doctor, in that circumstance he must have been examined at about 9.30 p.m. by DW 2 then the time of occurrence comes to about 3.30 p.m. as the doctor has opined that age of the injury was within six hours. Therefore, even if injury found on the person of the appellant is accepted, it becomes obvious that the appellant, Mathura Yadav, did not receive injury in the occurrence which took place at 12 noon on the day of occurrence. It is well established rule of law that if an accused person sustains injury in the same transaction and injury is found grievous in nature, them same is to be explained by the prosecution party but in the instant case, as it has been stated above, from the version of the defence itself it does not appear that Mathura yadav received injury in the same transaction. Moreover, it is not necessary in all the cases that the prosecution is obliged to explain the injury on the person of the accused. If evidence brought on the record appears, to be trustworthy, non-explanation of the injury on the accused person will not be fatal to the prosecution case. Moreover, it is not necessary in all the cases that the prosecution is obliged to explain the injury on the person of the accused. If evidence brought on the record appears, to be trustworthy, non-explanation of the injury on the accused person will not be fatal to the prosecution case. In the case of Rajendra Singh and others V/s. State of Bihar, 2000 (2) PLJR 205 (SC) the Apex Court has held that in case prosecution witnesses are trustworthy, non-explanation of injury on the accused would not affect the prosecution as prosecution is not obliged to explain each injury on the accused even though the injuries might have been caused in the course of same transaction. In the case of Takhaji Hiraji V/s. Thakore Kubersing Chamansing and others, 2000 3 PLJR 52 (SC) law laid down in the case of Rajendra Singh (supra) has been reiterated. Thus, it becomes unambiguous that the prosecution is not obliged to explain injury on the accused if the evidence of the witnesses brought on the record is found to be trustworthy. 9. It is well established rule of law that the prosecution has to stand on its own leg and it cannot take advantage of the laches of defence as the defence is not required to prove any case. In that view of the matter we proceed to examine the evidence of the witnesses brought on the record. PW 7 is informant. His evidence is that the deceased was his brother. On the day of occurrence he was near Brahamasthan which is adjacent to the house of Jhualn Ram. His brother was sleeping in the Verandah of Jhuan Ram at the relevant time. The appellants came variously armed. The appellant, Mathura Yadav hurled bomb causing injury near his ear. Baidyanath Yadav and Vijay also hurled bomb on the deceased. Baun Yadav also fire from pistol. PW 1, PW 3. PW 4 and PW 8 were there at the time of occurrence. They chased them but the appellants succeeded in running away. His brother was lying dead in the Verandah of Jhualn Ram. One Government Amin was killed about one and half months ago at Samir Takya mohallah. His brother, Ashok Singh, also sustained injury in the said occurrence and he lodged an FIR against the appellants. Due to the aforesaid reasons the appellants has committed the offence. His brother was lying dead in the Verandah of Jhualn Ram. One Government Amin was killed about one and half months ago at Samir Takya mohallah. His brother, Ashok Singh, also sustained injury in the said occurrence and he lodged an FIR against the appellants. Due to the aforesaid reasons the appellants has committed the offence. Arun Kumar Singh and Ramdeo had gone somewhere else. They might have gone in collusion with the appellants. In cross examination the witness stated that one Bhagwan Singh was residing in house of Jhual Ram with his wife. He was a rickshaw pullar and at the relevant time neither he nor his wife was present. The witness also gave details of the place of occurrence. He also gave location of Brahamasthan where he was standing. First Mathura Yadav hurled bomb and thereafter Baidyanth Yadav and Vijay hurled bomb. Baun Yadav at the same time fired from pistol. He did not stated before the police that appellant Baun fired which hit his brother, the deceased. Blood had oozed out from the injury. In spite of cross examination at length, the defence could not be able to take out anything to doubt the evidence of the witness. 10. PW 1 and PW 3 are resident of the same mohallah where the occurrence took place. PW 1 was going to the house of Nathun Yadav at the relevant time. PW 3 was at his house at the relevant time. PW 4 was talking to the mother of the deceased at the relevant time. The claimed to have seen the occurrence and had given a vivid picture of the entire occurrence. They stated that the appellants came and appellants Mathura, Baidyanath and Vijay hurled bomb causing injury to Ashok, who was sleeping in the Verandah of Jhualn Ram. They also stated that Baun fired from country made pistol. The witnesses also stated that blood had fallen on the ground from the injury of the person of the deceased. The witnesses also gave details of the place of occurrence. They were cross examined at length but the defence could not succeed in taking out anything to doubt their evidence. 11. The witnesses also stated that blood had fallen on the ground from the injury of the person of the deceased. The witnesses also gave details of the place of occurrence. They were cross examined at length but the defence could not succeed in taking out anything to doubt their evidence. 11. Oral evidence of the prosecution witnesses is also supported by the evidence of the doctor PW 5, PW 5 held postmortem over the dead body on the same day i.e. 5.7.1983 at about 4 p.m. He found injury blackened, scorched and slupt lacerated wound over left temporal region extending below to left cheek, lower part of left external ear. The size of the injury was 8-1/2" x 4" bone deep. He also found blackened, scorched, sloughed lacerated wound over back of left chest on upper part. The size of the injury was 5" x4" x chest cavity deep with fracture of left third to fifth ribs. The also found blackened scorched lacerated wound over lateral aspect of left hip extending to upper lateral part of the left thigh. The size of the injury was 8" x 3" x bone deep. The doctor has opined that the injuries were caused by explosive substance. The death was due to shock and haemorrhage due to the injuries found on the person of the deceased. Time elapsed since death was 3 to 6 hours. 12. PW 10 is investigation officer. He in his evidence stated that at about 12.30 p.m. he received telephonic message with respect to murder. He on receipt of the message made station diary entry and proceeded to place of occurrence. He recorded fardbeyan of the informant, inspected the place of occurrence. The witness had given a vivid pictures of the place of occurrence and stated that the dead body was found on a cot in the Verandah of Jhualn Ram. He found sign of bomb explosion on the wall parallel to the cot on which the deceased was lying. He also found blood beneath the cot. He prepared seizure lit in presence of the witnesses. He did not find empty cartridge at the place of occurrence. He did not examine PW 3 and PW 4 on the same day rather he recorded their statement on the next day. He also recorded the statement of Arun Kumar Singh. He did not record the statement of Mathura Yadav in the hospital. He did not find empty cartridge at the place of occurrence. He did not examine PW 3 and PW 4 on the same day rather he recorded their statement on the next day. He also recorded the statement of Arun Kumar Singh. He did not record the statement of Mathura Yadav in the hospital. Therefore, it appears from the discussion made above that ocular evidence is corroborated by the medical evidence and also the findings at the place of occurrence by FW 10. The time ot occurrence is also supported by the evidence of PW 5 as he opined that death was within 3 to 6 hours which fits in the prosecution case. 13. Learned counsel for the appellants, however, contended that PW 3 and PW 4 were examined next day of the occurrence. PW 3 was witness to the inquest report, Ext. I and he put his signature as witness on the fardbeyan, Ext. 4 but there is nothing on the record as to why the statement was not recorded on the same day. Therefore, it can be said that the case has been concocted. In support of his submission he relied upon a decision in the case of Ganesh Bhavan Patel and another V/s. State of Maharashtra, AIR 1979 SC 135 wherein it has been held that on consideration in the light of surrounding circumstances this inordinate delay in registration of the FIR and further delay in recording the statement of the material witnesses, cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. In the instant case, fardbeyan was recorded after one hour fifteen minutes of the occurrence. Statement of PW 1 was recorded on the same day of the occurrence. The witness supported the prosecution case on all material points and his evidence is consistent to the evidence of PW 7 the informant. A question has been raised by learned counsel for the appellants with regard to non-examination of PW 3 on the day of occurrence when he was available. In fact, nothing has been brought on the record as to why his statement was not recorded by the police on the day of occurrence when he was witness to the inquest report and had also put his signature as witness on the fardbeyan. In fact, nothing has been brought on the record as to why his statement was not recorded by the police on the day of occurrence when he was witness to the inquest report and had also put his signature as witness on the fardbeyan. However, there is nothing on the record to show that PW 4 met the police officer on the day of occurrence. Even if the evidence of PW 3 is viewed as suspicious then also there are other eye witness i.e. PW 1 and PW 7 and their evidence is trustworthy. Therefore, in our view, late examination of PW 3 and PW 4 could not affect the prosecution case. Moreover, if there is laches on the part of investigating agency and on account of such irregularity/laches the prosecution case cannot be thrown out. In the case of State of Rajasthan V/s. Kishore, AIR 1996 SC 3035 : 1996 (1) East Cr C 643 (SC), the Apex Court has held that because of the irregularity/ lapses of the investigating officer, prosecution case cannot be thrown out, thus, on consideration we find no merit in the submission of the learned counsel for the appellants. 14. Learned counsel for the appellants next contended that fardbeyan concocted and ante dated as fardbeyan was recorded on the day of occurrence and on the basis of fardbeyan formal FIR was drawn and it was sent to the Court through special messenger on the same day but it was received in the Court on 7.7. 1983 i.e. after two days. In support of his submission learned counsel relied upon a decision in the case of Arjun Marik & others, V/s. State of Bihar, 1994 BBCJ 116 (SC) : 1994 (1) East Cr C 281 (SC) wherein detailed consideration has been made with respect to late receipt of the FIR in the Court and it has been held that late receipt of fardbeyan raises suspicion with respect to concoction and ante dating the case but in the above mentioned case there was other circumstances to indicate that FIR was not recorded at the alleged time. In the instant case obviously fardbeyan was recorded after one hour fifteen minutes of the occurrence and it was sent through special messenger to the Court and it was received in the Court on 7.7.1983. There is nothing on the record as to why such delay has occurred. In the instant case obviously fardbeyan was recorded after one hour fifteen minutes of the occurrence and it was sent through special messenger to the Court and it was received in the Court on 7.7.1983. There is nothing on the record as to why such delay has occurred. However, the delay in receipt of FIR in the Court alone is not sufficient to draw a conclusion that FIR was not lodged at the time mentioned in the FIR. The Apex Court in this regard in the case of Madru Singh and others V/s. State of Madhya Pradesh, AIR 1997 SC 3527 has held that merely because copy of FIR was received by concerned Magistrate three days after the incident no conclusion can be drawn on such ground that FIR was not lodged on the same day after the incident or it was ante dated when evidence on record is trustworthy. It has already been held that evidence of prosecution witnesses is consistent on all material points and trustworthy. They were cross examined at length but nothing cogent could be elicited to doubt their evidence. Learned counsel for the appellants, however, could not be able to point out any such infirmity as to doubt the evidence of the prosecution witnesses. Learned counsel also could not be able to point out any other circumstances to create doubt with respect to lodging of the FIR. Thus, in absence of any other circumstances we are of the view that delay in receipt of FIR alone could not affect the case of the prosecution as it has been held by the Apex Court. 15. Learned counsel for the appellants next contended that the appellant Baun Yadav is said to have fired from pistol but no injury was found on the person of the deceased caused by firearm. No empty cartridges etc. were found at the place of occurrence to suggest that the appellant had fired in the alleged occurrence and thus the appellant deserves acquittal. In this regard it would not be out of place to mention herein that all the appellants including Baun Yadav have been convicted for the offence under Section 302/34 of the Indian Penal Code. All the eye witnesses have stated that Baun Yadav had also fired but PW 7 has categorically stated that he could not seen whether firing made by appellant Baun Yadav had hit the deceased. All the eye witnesses have stated that Baun Yadav had also fired but PW 7 has categorically stated that he could not seen whether firing made by appellant Baun Yadav had hit the deceased. Similar is the evidence of other witnesses also. Moreover, it is not necessary for attracting Section 34 of the Indian Penal Code that firing made must hit. If a person participated in action or by uttering a word, the person concerned comes within the scope of Section 34 of the Indian Penal Code. Since evidence of the witnesses is consistent that Baun Yadav had also fired, we find that there is no scope to let off Banu Yadav on the ground that it did not hit the deceased or any body. 16. Learned counsel for the appellants also pointed out that the prosecution has failed to establish the motive of the occurrence. In the fardbeyan it has been stated that motive of the occurrence was dispute between the appellants and the deceased. The said dispute has been explained by PW 7 in his evidence who has stated that one Government Amin was killed in which his brother also sustained injury. The deceased had also lodged a case in which the appellants were accused. Thus, the prosecution has succeeded in proving the motive also. Moreover, where direct evidence is available and the same is worthy of reliance motive becomes academic. 17. Thus, on consideration as discussed above. We find no merit in any of the appeals. Accordingly they are dismissed. The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial Court to serve out the remaining period of sentence.