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2002 DIGILAW 1195 (PAT)

Chandeshwaryadav v. State Of Bihar

2002-11-10

ASHOK KUMAR VERMA, S.N.JHA

body2002
Judgment Ashok Kumar Verma, J. 1. Both these Criminal Appeals arise out of the same judgment and order of conviction and sentence passed by the Additional Sessions Judge I, Barh in Sessions Trial No. 331 of 1994. Therefore, both these Criminal Appeals are disposed of by this common judgment. 2. Appellant Chandeshwar Yadav has been convicted for the offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life. Appellant Lakhan Yadav has been convicted for the offences under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo R.I. for life under Sections 302/34 of the Indian Penal Code and to undergo R.I. for three years under Section 27 of the Arms Act. Both the sentences are to run concurrently. 3. In short the case of the prosecution is that on 7.10.1992 at 5.15 P.M. deceased Ramashray Yadav after feeding the cattle was sweeping his Bathan and at that time the informant, Jaminder Gope brother of the deceased, Soni Devi wife of the deceased, Haran Yadav, Parmeshwar Yadav, and Manoj Yadav were also sitting in that Bathan which is close to the Bathan of accused Chandeshwar Yadav and Chandeshwar Yadav called his maternal uncle Lakhan Yadav who came with pistol and then Chandeshwar Yadav asked him to fire at deceased Ramashray Yadav on which Lakhan Yadav fired from his country made pistol in his chest and Ramashary Yadav ran from there and fell down near the house of Bishuni Yadav. Thereafter both the accused fled away. The informant JamindarYadav and the persons, who were then present in the Bathan and some others went to the place where Ramashray had fallen and they took him to the Barh Hospital but in the way he died. The doctor of the Barh Hospital declared him dead. The reason of occurrence is said to be that accused Lakhan Yadav is a criminal and after committing crimes he used to take shelter in the house of Chandeshwar Yadav and he was also putting pressure on the deceased to keep his illegal arms to which the deceased had objected. 4. The fardbeyan of the informant Jamindar Gope was recorded on the same day at 8.15 P.M. at Barh Hospital by A.S.I. Alakhdeo Singh of Barh Police Station and on the basis of the fardbeyan the formal F.I.R. was drawn. 4. The fardbeyan of the informant Jamindar Gope was recorded on the same day at 8.15 P.M. at Barh Hospital by A.S.I. Alakhdeo Singh of Barh Police Station and on the basis of the fardbeyan the formal F.I.R. was drawn. After investigation police submitted charge sheet in the case. 5. The defence of the accused persons, according to the trend of the cross-examination of prosecution witnesses is that they have been falsely implicated in this case. 6. Six witnesses have been examined on behalf of the prosecution, out of whom P.W s. 1, 2, 3 and 4 are eye witnesses and all of them are named in the F.I.R. and they were present at the place of occurrence. P.W. 5 is Dr. S.K. Sinha, who had conducted post-mortem examination on the dead body of the deceased and RW. 6 is Birendra Kumar, the I.O. of the case. Only one witness D.W. 1 Janam Yadav has been examined on behalf of the defence. 7. RW. 4 Jamindar Yadav, informant of this case and brother of the deceased has stated that he was at his Bathan at the time of occurrence and besides him Ramashray Yadav (deceased) and his wife, Haran Yadav, Manoj Yadav and Parmeshwar Yadav were also there and Ramashray was sweeping the Bathan. The Bathan and house of accused Chandeshwar Yadav is close to his Bathan and Chandeshwar Yadav called his maternal uncle Lakhan Yadav on which he came with pistol and on the order of Chandeshwar accused Lakhan Yadav fired at Ramashray from close range and the bullet hit him in the chest and he fled towards his village but he fell down near the house of Bishuni Yadav. According to this witness, he alongwith the persons who were present in the Bathan went near his brother and put him on a cot and proceeded to Barh Hospital on a Tempo where the doctor declared him dead. The police had recorded his statement in the hospital. He has said in his cross-examination that he cannot say plot number, Khesra number of his Bathan but it is relevant to mention here that while recording the evidence of this witness the learned Additional Sessions Judge has noted in the deposition that the witness appears to be completely illiterate. He has stated in his cross examination that blood had not fallen at the place where the deceased was hit by bullet. He has stated in his cross examination that blood had not fallen at the place where the deceased was hit by bullet. The case of the prosecution is that soon after the deceased was hit by the bullet, he had run away from that place. So there does not appear any probability of the blood falling at that particular place. The occurrence of this case had taken place at about 5.15 P.M. and thereafter the deceased was taken to Barh Hospital where he was declared dead and the fardbeyan of informant was recorded by the Police Officer at 8.15 P.M. So there was no delay in recording of the fardbeyan of the informant. 8. P.W. 3 is Soni Devi, wife of the deceased. She was present at the place of occurrence at that time. She has supported the prosecution case as stated in the F.I.R. According to her also accused Chandeshwar Yadav had called his maternal uncle Lakhan Yadav and he came with pistol and fired in the chest of her husband and her husband ran to some distance and fell down near the house of Bishuni Yadav. She has also stated that her husband was taken to hospital and he died in the way. P.W. 1 Haran Yadav and P.W. 2 Parmeshwar Yadav have also supported the prosecution case. According to these witnesses (P.Ws. 1 and 2) at the time of occurrence they were sitting in the Bathan of Ramashray Yadav. P.W. 1 Haran Yadav has also made similar statement and stated that Chandeshwar had called his maternal uncle Lakhan Yadav, who came and fired in the chest of Ramashray as a result of which Ramashray sustained injury and ran towards his house and then both the accused fled away. Ramashray Yadav had fallen on the road near the house of Bishuni Yadav and he was taken to hospital where he died. He (P.W. 1) has said in his cross-examination that blood had fallen in drops from place of occurrence to the house of Bishuni Yadav. It was argued by the learned lawyer for the appellants that the I.O. had not found blood between the P.O. and house of Bishuni Yadav. P.W. 6 Birendra Kumar is the I.O. of this case. He has stated that he had reached Majhala Bigha at 2 O clock in the night and inspected the place of occurrence in the torch light. P.W. 6 Birendra Kumar is the I.O. of this case. He has stated that he had reached Majhala Bigha at 2 O clock in the night and inspected the place of occurrence in the torch light. He had found sufficient blood on the road in front of the house of Bishuni Yadav which he had seized before the witnesses and prepared the seizure list. According to prosecution when Ramashray Yadav was hit by the bullet he had run towards his house but fallen on the ground near the house of Bishuni Yadav. When the deceased had fallen near the house of Bishuni Yadav, it was natural for the I.O. to have found sufficient blood there. Ext. 7 is the seizure list of the blood soaked earth. Ext. 3 is Fardbeyan, Ext. 4 is Carbon copy of inquest report, Ext. 5 is formal F.I.R. The I.O. (P.W. 6) has stated that he had inspected the place of occurrence as pointed out by Soni Devi wife of the deceased and the place of occurrence is Bathan of the informant and the deceased. Admittedly the place where the deceased had fallen is on the road and the occurrence is of evening. On the public road normally there is regular movement of people. So naturally people must have passed through the road. Besides that when such occurrence takes place people rush to see it. P.W. 1 Haran Yadav has said in his cross-examination that blood had fallen in drops in between the place of occurrence and the house of Bishuni Yadav. When blood falls on public way in drops and there is movement of people on the public way, it is not expected to find such blood after some time. In the facts and circumstances, the above argument of the learned lawyer for the appellants that I.O. had not found blood between the place of occurrence and house of Bishuni Yadav is of little help to the appellants. The fact that the I.O. had found sufficient blood at the place where the deceased had fallen, not only supports the prosecution case but also proves the place and manner of occurrence. The fact that the I.O. had found sufficient blood at the place where the deceased had fallen, not only supports the prosecution case but also proves the place and manner of occurrence. P.W. 2 Parmeshwar Yadav has stated that his Bathan is close west to the Bathan of the deceased Ramashray Yadav and Bathan of accused Chandeshwar Yadav is close south to the Bathan of the deceased and accused Chandeshwar Yadav had called his maternal uncle Lakhan Yadav who came with country made pistol and Chandeshwar Yadav asked him to kill the deceased on which accused Lakhan Yadav fired his pistol in the chest of Ramashray from a close range and thereafter the accused persons fled away. According to this witness also after being hit by the bullet the deceased ran towards his house and they (P.W. 2 and others) went to the deceased who had fallen on the road near the house of Bishuni Yadav. He has said that blood was oozing out from the injury. This fact is supported by the evidence of the i.O. (RW. 6) who had found sufficient blood on the road in front of house of Bishuni Yadav. Further according to him (RW. 2) they brought Ramashray Yadav on a cot near Tiraha and from there they took him on a Tempo to Barh hospital where the doctor declared him dead. All these witnesses (P.Ws. 1, 2, 3 and 4) have been cross examined at length on behalf of the defence but nothing has been elicited in their cross examination to disbelieve their evidence. Admittedly there was no delay in recording of the fardbeyan of the informant. 9. RW. 5 is Dr. S.K. Sinha, who had conducted post-mortem examination on the dead body of the deceased Ramashray Yadav. He has stated that he had found following ante mortem injuries on his person : Rigour mortis present. (i) One lacerated wound 1/2" in diameter with 1.5" charred around the margin with inverted margin on right lower medial border of chest margin just at the junction of lower right border of chest medially and right hypocondric region 2" of intestinal protuberance from wound. This was wound of entry. (ii) One lacerated wound 1" diameter with everted margin on the right side of right 1" lateral to right eleventh thoracic vertebra. This was wound of exit. On dissection, injury no. This was wound of entry. (ii) One lacerated wound 1" diameter with everted margin on the right side of right 1" lateral to right eleventh thoracic vertebra. This was wound of exit. On dissection, injury no. (i) and (ii) confirmed fracture of eleventh rib of right back. According to P.W. 5 the cause of death was haemorrhage and shock due to above injuries caused by fire arms such as pistol. Prosecution case and evidence of P.Ws. 1, 2, 3, 4 is supported by the evidence of P.W. 5 Dr. S.K. Sinha. It was argued by the learned lawyer for the appellants that the doctor (P.W. 5) has said in his cross examination that in view of the nature of injury the injured cannot go a step ahead and because of fracture of eleventh rib of right back also the deceased could not have moved even a step ahead and therefore prosecution version that after being hit by the bullet the deceased had run to some distance and fallen near the house of Bishuni Yadav cannot be accepted. The contention of the learned Additional Public Prosecutor was that all the eye witnesses have consistently stated that after being hit by the bullet the deceased had run to some distance and fallen on the road near the house of Bishuni Yadav and the I.O. had also found sufficient blood on the road in front of the house of Bishuni Yadav where the deceased had fallen. The medical evidence has to be considered alongwith other evidence. According to the prosecution, the accused Lakhan Yadav had fired at the deceased from close range. The evidence of doctor (P.W. 5) shows that he had found charring around the margin of lacerated wound. In the facts and circumstances of the case and in view of the consistent evidence of the eye witnesses and the fact that sufficient blood was found by the I.O. at the place where the deceased had fallen after running to some distance when he was hit by the bullet, the prosecution case cannot be disbelieved on the ground that the doctor (P.W. 5) has said in his cross- examination that in view of nature of injury the injured cannot go a step ahead and because of fracture of eleventh rib of right back also the deceased could not have moved even a step ahead. The movement of injured person can not be taken to be same in case of every, person. It may vary according to physical condition and health of an injured. 10. D.W. 1 is Ram Janam Yadav. He has stated that he has seen the house and Bathan of Chandeshwar, which is by the side of his Bathan. According to him accused Lakhan is not the maternal uncle of Chandeshwar. He has said in his cross-examination that he cannot say about all the places of relationship of Chandeshwar Yadav and that he does not know about the house of Lakhan Yadav. When he does not know about the places of relationship of Chandeshwar Yadav and about the house of Lakhan Yadav, it cannot be inferred from his evidence that accused Lakhan is not maternal uncle of Chandeshwar. He has also said in his cross-examination that he has no land in the boundary of the house of Chandeshwar whereas in his examination-in-chief he has stated that he has seen the house and Bathan of Chandeshwar, which is by the side of his Bathan. When he has no land in the boundary of the house of Chandeshwar how he can have Bathan by the side of the house and Bathan of Chandeshwar. In the circumstances it appears that he has come to depose on behalf of the defence only to help the accused. The evidence of D.W. 1 is not worthy of reliance. 11. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that the Bathan of the deceased and that of accused Chandeshwar Yadav are close to one another and when the deceased was sweeping his Bathan accused Chandeshwar Yadav called his maternal uncle Lakhan Yadav and on his call accused Lakhan Yadav came with a pistol and accused Chandeshwar Yadav asked Lakhan Yadav to kill the deceased on which Lakhan Yadav fired his pistol and the bullet hit in the chest of the deceased which resulted in his death. The fact that Lakhan Yadav had come armed with pistol on call of accused Chandeshwar Yadav clearly shows that both the accused had pre-arranged plan to commit the murder of the deceased. Section 34 of the Indian Penal Code creates joint and constructive liability for crimes which have been committed in furtherance of common intention. The fact that Lakhan Yadav had come armed with pistol on call of accused Chandeshwar Yadav clearly shows that both the accused had pre-arranged plan to commit the murder of the deceased. Section 34 of the Indian Penal Code creates joint and constructive liability for crimes which have been committed in furtherance of common intention. The conduct of both the accused persons and the circumstances prove the common intention of the accused persons to commit the murder of the deceased. The prosecution has proved its case beyond all reasonable doubts. 12. There is no merit in these two Criminal Appeals. Therefore, both these Criminal Appeals are dismissed. 13. Accused Chandeshwar Yadav is on bail. His bail is cancelled and he is directed to surrender forthwith in the court below to serve out his sentence. The learned Additional Sessions Judge is also directed to take all necessary steps in this regard. S.N.Jha, J. 14 I agree.