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2001 DIGILAW 864 (PAT)

Mahabir Tadav v. State Of Bihar

2001-09-13

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

body2001
Judgment B.N.P.Singh, J. 1. Appellants suffered conviction under Section 302 of the Indian Penal Code (IPC) on being tried by the Sessions Judge, Munger in Sessions Case No. 135 of 1990 and were sentenced to suffer rigorous imprisonment for life. 2. Shorn of details, the prosecution case for which the State went for trial was that in the night of 23rd July, 1989 while Moti Yadav (deceased) was sleeping with his son Basudeo Yadav (PW 4) on a wooden cot at the door of his house, Devli Devi (PW 5) the wife of the deceased noticed the appellants coming out from their houses, and suspecting their nefarious design, she followed them. It was alleged that Ishwar Yadav, the appellant, pierced bhala blows on the abdomen of Moti Yadav when intestine came out of the abdomen and thereafter she raised alarm. The assault made by Ishwar Yadav was followed by assault by appellant Mahabir Yadav who dealt successive blows with bhala on the person of Moti Yadav. After trampling for some distance, the deceased fell down and succumbed to the injuries. Further allegations, attributed to the appellants, by Devli Devi in her fardbeyan which she rendered before the Police, were that when Sugia Devi, mother of the deceased, came for rescue of her son, she too was assaulted with wooden substance of the bhala and thereafter, a box containing cash and ornaments was also removed from the house by the appellants and with these narrations, fardbeyan of Devli Devi was recorded which formed basis of the first information report and investigation commenced. 3. During investigation, Police recorded statement of the witnesses under Section 161 of the Code of Criminal Procedure, prepared inquest report over the dead body of Moti Yadav, visited place of occurrence, sent the dead body to mortuary for postmortem examination and on its receipt, having concluded investigation, laid charge-sheet before the Court and the appellants, on being committed to the Court of Sessions, were put on trial. In the eventual trial, prosecution examined altogether seven witnesses including wife and son of the deceased and also those who claimed to be ocular witnesses of the incident. Prosecution also examined one Dinesh Jha (PW 6), and Jagdish Pathak (PW 7) and since their evidence were formal in nature, there was nothing material in their evidence to merit consideration. In the eventual trial, prosecution examined altogether seven witnesses including wife and son of the deceased and also those who claimed to be ocular witnesses of the incident. Prosecution also examined one Dinesh Jha (PW 6), and Jagdish Pathak (PW 7) and since their evidence were formal in nature, there was nothing material in their evidence to merit consideration. The defence too examined two witnesses, namely, Mahabir Ram (DW 1) and Tulsi Das (DW 2). Defence of the appellant at trial and also before this Court had been of total denial of their participation in the assault and death of the deceased was attributed to criminals hired by Nunulal Yadav (PW 1), who had questionable relation with the wife of the deceased. The death of the deceased was also attributed to be a fall out of the land dispute and also for allocation of shares in the property among the family members of the deceased, and the trial Court on appreciation of evidences placed on record, while negativing contentions raised on behalf of the appellants, rendered verdict of guilt against them and sentenced them in the manner stated above. 4. Now adverting to the evidence placed on the record on behalf of prosecution, one would find Devli Devi (PW 5), the wife of the deceased, who was also the person who set the Police in motion, reiterating her early version which she rendered before the Police with some variations which has also been questioned by the learned counsel for the appellant. She would narrate before the Court that after her husband had slept on the wooden cot at the door of his house along with his son Basudeo Yadav (PW 4), appellant Ishwar Yadav came and pierced bhala blow in his abdomen which got through and causing injuries in the ankle of her son and after her husband proceeded to some distance trampling, on sustaining bhala injuries on his person, dropped to the ground, pursuant to which both Ishwar and Mahabir assaulted him with wooden part of bhala. When mother of the deceased came for rescue of her son, she too suffered injuries on her person at the hands of Mahabir Yadav and Ishwar Yadav, who broke her limbs. The witness would state that preceding the incident, there had been panchayati regarding allocation of share amongst the family members, as Mahabir Yadav was issueless. When mother of the deceased came for rescue of her son, she too suffered injuries on her person at the hands of Mahabir Yadav and Ishwar Yadav, who broke her limbs. The witness would state that preceding the incident, there had been panchayati regarding allocation of share amongst the family members, as Mahabir Yadav was issueless. The witness, has also attributed allegations against the appellants about removal of the boxes which allegedly contained some valuable documents and cash. Nunulal Yadav (PW 1), who claimed to be ocular witness of the incident, stated to have rushed to the place of occurrence, on getting awakened on alarm raised by wife of the deceased. He claimed to have noticed appellant Ishwar Yadav piercing bhala blow in the abdomen of the deceased when intestine came out of the abdomen and shortly thereafter, the deceased, on receipt of injuries proceeded to some distance, when Mahabir Yadav too dealt blows on him which was followed by assault on Sugia Devi, mother of the deceased, by both the appellants. The witness would also state about removal of boxes from the house of the appellants. The narration made by Mohan Yadav (PW 2) was more or less in similar terms about he having rushed to the place of occurrence on alarm raised by the wife of the deceased when he noticed Ish-war Yadav piercing bhala blow in the abdomen of the deceased, as a consequence of which his intestine came out of the abdomen and the deceased, having sustained successive injuries after proceeding to some distance, at the hands of appellant Mahabir Yadav, succumbed to them. Similar narration about removal of box from the house was made by the witness. Baleshwar Yadav (PW 3) too would narrate the incident in similar terms as that of PWs 1 and 2 about appellant Ishwar Yadav piercing bhala in the abdomen of the deceased. He claimed to have noticed the incident on reaching place of occurrence on alarm raised by the wife of the deceased. He too would narrate that the deceased suffered successive injuries on his person after he had proceeded to some distance on receipt of injuries by appellant Ishwar Yadav. Similar narrations were made by the witnesses about Sugia Devi, mother of the deceased sustaining injuries on her person at the hands of the appellants when she came for rescue of her son. 5. Similar narrations were made by the witnesses about Sugia Devi, mother of the deceased sustaining injuries on her person at the hands of the appellants when she came for rescue of her son. 5. Basudeo Yadav, aged about ten years who happens to be PW 4 of the case, would state that on the fateful night, while he was sleeping with his father at the door of his house, Ishwar Yadav came and pierced bhala blow in the abdomen of his father and hardly his father had proceeded to a distance of about ten steps, appellants Ishwar Yadav and Mahabir Yadav dealt blows with the wooden part of bhala on him when intestine came out from the abdomen. The witness would make similar narration about his grandmother too sustaining injury on her person, when she came for rescue of Moti Yadav. As has been stated, some documents had been brought on the record with the aid of the evidence of Dinesh Jha (PW 6), who happens to be Advocate clerk, and the post-mortem report of which Dr. C.S. Sharma, was said to be the author, was brought on the record with the aid of the evidence of Jagdish Pathak (PW 7) who was dresser in Jamui Hospital. 6. As has been stated above, the appellant too examined two witnesses. Mahavir Ram (DW 1) acknowledging the death of Moti Yadav, would state that a panchayati had been convened due to land dispute persisting between the brothers, and as Devli Devi, wife of the deceased had questionable relation with Nunulal Yadav, the appellant and the deceased had been reprimanding Devli Devi for carrying questionable trade with Nunulal Yadav. He, however, expressed his innocence about the assailant executing killing of Moti Yadav, and similar had been evidence of Tulsi Das (DW 2) about there being land dispute between the brothers and Devli Devi carrying on questionable relationship with Nunulal Yadav, which was objected to by all the three brothers including the deceased. This is all the evidence that has been adduced on behalf of the State as well as the appellants. 7. This is all the evidence that has been adduced on behalf of the State as well as the appellants. 7. Findings recorded by the trial Court holding the appellants guilty under Section 302, IPC and sentencing them to a term of life imprisonment had been seriously assailed by the learned counsel for the appellant on premises that though finding of guilt had been recorded by the trial Court placing reliance on the post-mortem report which was brought on the record, with the aid of dresser of the hospital, since the doctor, who was the author of the post-mortem report has not been examined at trial, no finding about the deceased having died of the injuries shown to have been sustained at the hands of the appellants can possibly be drawn. Learned counsel would urge that even the I.O. was not examined at the trial and hence material contradiction elicited from the witnesses could not be brought on the record and that apart in absence of the evidence of the I.O. even the objective findings collected during investigation, could not be placed on record. Contentions were raised that though preceding the incident, panchayati was shown to have been convened amongst all the three brothers ostensibly to resolve the dispute with regard to land which was persisting between them, neither punches were examined nor any document, if at all scribed; has been placed on record. Learned counsel would urge that though the occurrence took place in the night of 23rd July, 1989 and fardbeyan has been shown to have been recorded at 6 a.m. on 24th July, 1989, it would appear from the endorsement made on the First Information Report, by the Chief Judicial Magistrate that the First Information Report alongwith fardbeyan did not reached the Court before 26.7.1989. To buttress the logic, the learned counsel would urge that even though the First Information Report was recorded on 24.7.1989 there was belated transmission of the same to the Court, after one day of the drawal of the First Information Report, and in the backdrop of delayed transmission of the First Information Report, learned counsel with all stress, would urge that in view of the infirmity that has crept in the evidence of the prosecution witnesses, the only irresistible conclusion that can be drawn was that the First Information Report was tainted one. 8. 8. Adding to these infirmities, learned counsel would urge that as there has been variations in the statements of the witnesses rendered before the Court as also before the Police Officer, to which their attentions had been drawn, but since the I.O. was not examined at trial, these contradictions and also the embellishments, which were sought to be introduced in their evidence at trial could not be brought on record. 9. Learned counsel for the State in his anxiety to justify the findings recorded by the trial Court would urge that the post- mortem report placed on the record can be looked into with the aid of Section 294 of the Code of Criminal Procedure. This submission made on behalf of the State, however, deserves rejection as this fact cannot be lost sight that Section 294 of the Code of Criminal Procedure was provided to obviate the difficulty of formal proof of the document and the provision was not made to substitute direct evidence of a witness like the doctor. Sub-section (3) of this section, inter alia says that when the genuineness of the document is not disputed, that can be read in evidence in any inquiry or trial. This fact also cannot be lost sight, that it is the evidence of the doctor in regard to the injuries which would be substantive evidence and the injury report can be used only for corroborating and contradicting the doctor and it cannot be a substitute for the evidence of the doctor. 10. Now adverting to the submissions canvassed on behalf of the appellants, we find considerable force which makes the testimony of the witnesses suspect. If her early version which Devli Devi rendered before the Police, while setting it in motion, is accepted to be true on its face value, successive bhala blows were dealt by appellants Ishwar and Mahabir, when Moti Yadav was on cot. However, in the evidence the wife of the deceased in her anxiety to make some improvement to make her case believable, would state that shortly after receipt of the injuries by her husband, he proceeded to some distance when both Ishwar and Mahabir dealt blows with the wooden substance of the bhala. However, in the evidence the wife of the deceased in her anxiety to make some improvement to make her case believable, would state that shortly after receipt of the injuries by her husband, he proceeded to some distance when both Ishwar and Mahabir dealt blows with the wooden substance of the bhala. While making such narration, the wife of the deceased had departed from her early statement which she rendered before the Police and if evidence of other witnesses including Nunulal Yadav (PW 1), Mohan Yadav (PW 2) and Baleshwar Yadav (PW 3) was taken into consideration, they too had made similar statement before the Court which were in tune with the evidence of the wife of the deceased which she rendered before the Court. Taking evidence of the son of the deceased, he would make somewhat a different statement, that even one of the appellants namely, Mahabir Yadav had slept on the cot beside the deceased which was admittedly not the case of the prosecution. 11. Though all the witnesses, including Mohan Yadav, Nunulal Yadav and Baleshwar Yadav had been claiming to be ocular witnesses to the incident, if their evidences were judged on their individual merit, that would exclude the possibility of presence of other witnesses when the incident took place, as Nunulal Yadav was narrating before the Court that he was the first person to reach the place of occurrence and it was only after his arrival that Mohan Yadav and Baleshwar Yadav along with others came to the site of the occurrence. The witness would state to have disclosed complicity of the assailants and such assertions made by the witnesses would unerringly lead to the conclusion that had other witnesses including Mohan and Baleshwar been ocular witnesses of the incident, there was no occasion for Nunulal Yadav to disclose identity of the appellant and also overt act attributed to them. Similarly Mohan Yadav (PW 2) would state before the Court that he was the first person to reach the place of occurrence and it was only after his arrival, that Nunulal Yadav and others came there. Similarly Mohan Yadav (PW 2) would state before the Court that he was the first person to reach the place of occurrence and it was only after his arrival, that Nunulal Yadav and others came there. Similar was the evidence of Baleshwar Yadav (PW 3) who claimed to have reached the site of occurrence before others, and if assertions made by the witnesses were taken to be true on face value, that would totally exclude the possibility of arrival of other witnesses at the time of the incident, as the witness would state in most uncertain terms that on his arrival at the place of occurrence, he along with others raised alarm, pursuant to which Mohan Yadav, Nunulal Yadav and others came. The witness had been stating in positive terms that wife of the deceased before their arrival, had been raising alarm about the assailants having executed killing of Moti Yadav and in this view of the matter, possibility of Nunulal Yadav (PW 1), Mohan Yadav (PW 2) and Baleshwar Yadav (PW 3), being ocular witness to the occurrence, appears to be extremely remote. The infirmity, that crept in the evidence of Basudeo Yadav (PW 4) has been discussed in the preceding paragraphs which too gives an impression that the witness had not witnessed the entire incident. Adding to this, infirmity in the testimony of other witnesses also cannot remain unnoticed, as attention of all the witnesses, who claim to be ocular, had been drawn by the defence towards early version rendered before the Police and since these narrations are on material particulars, conclusion, which can be drawn was that before the Police, they did not claim to be ocular witnesses about the assault made on Moti Yadav, though before the Police, they claimed to be ocular witness to the assault sustained by Sugia Devi, mother of the deceased. Though a Panchayati was shown to have been convened, preceding day of the incident, as has been rightly urged at Bar, none of the punches were examined at trial. Testimony of the witnesses, who claimed to be ocular, suffers major contradiction, as has been stated, which makes then suspect and incredible. Thrust of the case of the appellants had been that land dispute had been persisting between the brothers for which a Panchayati had been convened. Testimony of the witnesses, who claimed to be ocular, suffers major contradiction, as has been stated, which makes then suspect and incredible. Thrust of the case of the appellants had been that land dispute had been persisting between the brothers for which a Panchayati had been convened. As Mahabir Yadav, one of the appellants, was issueless, the dispute was with regard to allocation of the share of his property. Suggestions were given to the witnesses that Devli Devi, wife of the deceased had questionable relation with Nunulal Yadav (PW 1) and that is also the evidence of DWs 1 and 2. Yet there are other infirmities which of course are not of much significance. It is shown that there was copious blood near the place of occurrence and the cot, on which the deceased had slept during the night, was smeared with blood but there is no finding on the record, if flood had been collected by the Investigating Officer for examination, to reach to conclusion that it was human blood. The delayed submission of the First Information Report and fardbeyan has also added another infirmity in the prosecution case and once the testimony of the witnesses are considered to be not above board, and free from blemishes, it can be reasonably held that true version of the incident was not unfolded before the Court as also in the First Information Report which was the early version of the prosecution. 12. Having given our anxious and due consideration to the evidence placed on record and also contentions raised at Bar, we are constrained to hold that the findings recorded by the trial Court regarding verdict of guilt against the appellant were not sustainable in law. The judgment of conviction and order of sentence are accordingly set aside and the appellants are acquitted of the charges levelled against them. It has been brought to our notice that appellant Ishwar Yadav continued to be in custody since July 1989 and in that view of the matter, it is directed that he (Ishwar Yadav) shall be set at liberty forthwith if not wanted in any other case. Appellant Mahabir Yadav is discharged from the liability of the bail bonds. The appeal accordingly succeeds. R.N.Prasad, J. 13 I agree.