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2002 DIGILAW 529 (PAT)

Jago Yadav v. State Of Bihar

2002-04-23

B.N.P.SINGH, P.K.SINHA

body2002
Judgment B.N.P.Singh, J. 1. Altogether eight number of accused persons including Lila Yadav, who is reported to be dead when the appeal has been taken up for hearing, and against whom the appeal has, as such abated, were put on trial and, out of them, Jago Yadav, Ruplal Yadav, Mannu Yadav, Bulu Yadav, Raj Kumar Yadav, Lila Yadav, Lattu Yadav, and Ramchandar Yadav, suffered conviction under section 302/149 of the Indian Penal Code (IPC) and they were sentenced to suffer rigorous imprisonment for life. Jago Yadav, Ruplal Yadav, Raj Kumar Yadav, Lila Yadav and Lattu Yadav suffered conviction also under section 148 IPC and were sentenced to suffer rigorous imprisonment for a term of two years each. Those who suffered conviction under section 147 IPC were Munnu Yadav, Bulu Yadav and Ram Chandra Yadav and they were sentenced to suffer rigorous imprisonment for a term of one year. Ruplal Yadav suffered conviction also under section 324 IPC and was sentenced to suffer rigorous imprisonment for a term of one year. Likewise, Mannu Yadav and Bulu Yadav suffered conviction also under section 323 IPC and were sentencd to suffer rigorous imprisonment for a term of one year with direction that all the sentences would run concurrently. 2. As usual, land dispute was said to be the genesis of the incident that took place on the fateful day of 20th July, 1981. It was alleged that in the year 1978, four decimals of land appertaining to R.S. Plot No. 441 had been transferred by virtue of execution of a deed of sale (Exhibit 3) by Jago Yadav, one of the appellants, in favour of Baleshwar Yadav and only ten days preceding the incident, the appellants forcibly secured possession of the land and planted maize crops therein. It was on 20th July, 1981 that while deceased Jay Mangal Prasad was ploughing other piece of land in the company of his son Baleshwar Yadav (P.W. 6), that the appellants came in the early hours of 8 a.m. holding khanti, lathi and spear, and on exhortation made by Jago Yadav it was Ruplal who dealt khanti blow on right arm and knee of Jay Mangal which was followed by assault by rest appellants when said Jay Mangal Yadav dropped to the ground. It was alleged that when Baleshwar Yadav came for rescue of his father, he too suffered injuries at the hands of Mannu Yadav and Bullu Yadav who dealt blows with hard and blunt substance on his right leg and right arms. Accusations were attributed to the rest appellants about assaulting Baleshwar Yadav too. It was the son of the deceased who took recourse to public authority and instituted a Police case against the appellants, pursuant to which investigation commenced in course of which the Police Officer, appointed as Investigating Officer of the case, took up investigation, recorded statement of witnesses, visited the place of occurrence, prepared inquest report, sent the dead body to mortuary for post mortem examination and on receipt of autopsy report, having concluded investigation, laid charge sheet before the Court. Charges were framed against the appellants by the trial court when terms of accusations were attributed to them and during eventual trial, the State examined altogether nine witnesses including the injured, who also happened to be the son of the deceased, the doctor, who held autposy over the dead body of Jay Mangal Yadav and also the doctor, who clinically examined the injuries noticed on the person of Baleshwar Yadav, the Police Officer and host of other witnesses who stated to be conversant with the incident. The land dispute between the parties to be the fall out for false implication of the appellants was the contention raised on behalf of the appellants before the trial court and also this Court, and the trial court while rejecting the contentions of the appellants and placing implicit reliance on the testimony of the ocular witnesses and also others who lent assurance to the prosecution case about killing of Jay Mangal Yadav and causing injury to Baleshwar Yadav, recorded finding of guilt against the appellants and sentenced them in the manner stated above. 3. 3. Lot of criticisms were made at Bar on behalf of the appellants obviously to assail the findings recorded by the court below and it is sought to be urged that though land dispute with regard to four decimals of land appertaining to R.S. Plot No. 441 was shown to be the genesis of the incident, the evidence of the prosecution witnesses suffered major inconsistencies on that count, as even though P.W. 1 was suggested to be the ocular witness who also hails from the village where the place of occurrence situates, he had in most certain terms negatived the prosecution contention about there being any land dispute between the parties with regard to R.S. Plot no. 441. Contentions are raised that if the inquest report, which is a valuable document, is to be given credence, that was prepared by the Police Officer at 7 a.m. and on this count the evidence of prosecution witnesses about preparation of inquest report at 9.30 a.m. was most inconsistent. Non-examination of independent witnesses of the village where the place of occurrence land situates or even those who were suggested to have flocked to the place of occurrence was also taken to be a ground to assail the credibility of the witnesses who were examined at trial by the State. The non-examination of the I.O. by the State was also one of the criticisms levelled against the State which has allegedly prejudiced the defence. There being explicit assertions made by the witnesses about the deceased having dropped to the ground amidst the mud, but there being no such details furnished in the inquest report, about dead body of Jaimangal Yadav stained with mud was also criticised by the learned counsel for the appellants. Inaction on part of the son of the deceased to take him to the hospital within the shortest possible time was also a plank for criticism by the appellant. Inaction on part of the son of the deceased to take him to the hospital within the shortest possible time was also a plank for criticism by the appellant. There being no explicit evidence as to which of the appellants was the author of a particular injury, noticed on the person of either the deceased or Baleshwar Yadav, was also taken to be a ground to suspect the credibility of the prosecution witnesses and also the bona fide of the prosecution case, and yet the last argument canvassed at Bar on behalf of the appellants was that though the doctor who held autopsy over the dead body of Jay Mangal Yadav noticed injuries on the parietal region of the head, which was injury no. 7, no such recital about presence of this particular injury was ever mentioned in the inquest report by the I.O. which robs all the credibility of the findings recorded by the doctor. Learned counsel for the State and also for the informant while repelling these contentions raised on behalf of the appellants would urge that none of the criticism levelled by the defence were of such mitigating nature which could militate against the credibility of the prosecution case. 4. Before we delve upon the evaluation of the probative value of testimony of the witnesses, who are either ocular or of supporting nature, with brevity, we would like to discuss the evidence of the prosecution witnesses which have also been spelt out in deails by the trial court in its judgment. Baleshwar Yadav (P.W. 6) who was not only maker of fardbeyan and son of the deceased Jay Mangal Yadav, was also a stamped witness, he having suffered injuries on his person in the same transaction when he came for rescue of his father, and narrations made by this witnesses about appellants having visited place of occurrence holding arms with them and Ruplal Yadav assaulting his father with khanti on right arm and the others dealing indiscriminate blows on him with their respective weapons when he tried to rescue his father was reiteration of his early version which he rendered before the Police. Likewise, in the same fashion, he would reiterate about Mannu Yadav and Bullu assaulting him with lathi on his right leg when he came for rescue of his father. Likewise, in the same fashion, he would reiterate about Mannu Yadav and Bullu assaulting him with lathi on his right leg when he came for rescue of his father. Now one may switch over to the testimony of Ramdeo Prasad Yadav (P.W. 1) who was the other ocular witnesses and his name very much finds place in the fardbeyan of Baleshwar Yadav. The witness would state in very positive terms that while he was ploughing his land which situates adjacent to the field of Jay Mangal Yadav in the southern boundary, he noticed the appellants coming, holding arms with them and narrations made by this witness about Ruplal assaulting Jaymangal Yadav with khanti and others assaulting him and dealing indiscriminate blows with lathi was in consonance with the evidence of Baleshwar Yadav (P.W. 6). The accusation attributed to Mannu Yadav and Bullu Yadav, assaulting Baleshwar Yadav, made by this witness was also in tune with the testimony of Baleshwar Yadav (P.W. 6). The other witnesses were Ramdeo Prasad Yadav (P.W. 2) who happened to be the son of Meghan Prasad Yadav and also Ram Saran Yadav (P.W. 3). These two witnesses though did not claim to be ocular witnesses to the incident, they stated to have noticed Jay Mangal Yadav lying injured and the appellants making good their escape with the their arms. Attention of these two witnesses had been drawn by the defence towards their early versions which they rendered before the Police and rightly the court below did not find them credible to the extent of witnessing the appellants making good their escape notwithstanding narrations made by these witnesses about witnessing Jay Mangal Yadav and Baleshwar Yadav lying injured, to be true account of the incident. Rajdeo Yadav (P.W. 4) was tendered by the State and there was nothing material in his evidence to merit consideration. Though Balaki Yadav (P.W. 5) stated to have accompanied Jay Mangal Yadav to the hospital, his credibility was sought to be impeached with admission made by this witness about he along with Baleshwar Yadav having been convicted in a criminal case and also there being some sort of proximity between the two. This witness hails from village Pahadi which situate at a distance of eight kms from village Lachhmipur from where Baleshwar Yadav hails. This witness hails from village Pahadi which situate at a distance of eight kms from village Lachhmipur from where Baleshwar Yadav hails. The other witnesses too have justified his presence in village Chamukhap where the place of occurrence situates and presence of this witness cannot be seriously questioned also for the reason that this witness was not only a witness of preparation of inquest report but also that the fardbeyan of Baleshawa Yadav bears his signature. Though this witness happened to be brother-in-law of the deceased, but for the reason of his relationship alone, there being good reasons for his presence at the place of occurrence, pursuant to the incident, his good evidence cannot be discarded. Dr Mithilesh Kumar Sinha, who carried out autopsy over the dead body of Jaymangal Yadav, noticed as many as seven injuries which were lacerated, of different dimensions on right thumb, right finger, right elbow joint, bruises over right arm, swelling on ankle joint, left forearm and right forearm. Besides these lacerated injuries, the doctor stated to have noticed also abrasion over back of chest on lower right part. All these injuries, except injury no. 7, were considered to be simple in nature and for injury no. 7 which was swelling over right temporal region of scalp-2-1/2" was considered to be grievous and dangerous to life caused by hard and blunt substance. On dissection, the doctor noticed underlying tissues found infiltrated with blood clots and also there being depressed fracture of right temporal bone and presence of subdural and metadural haematoma over right temporal lobe of brain. Brain and meninges were grossly congested. Dr. Ashok Prasad Sharma (P.W. 8) examined Baleshwar Yadav and noticed four injuries on his person which were lacerated wounds, abrasions and swelling on different parts of his person caused by hard and blunt substance. 5. Brain and meninges were grossly congested. Dr. Ashok Prasad Sharma (P.W. 8) examined Baleshwar Yadav and noticed four injuries on his person which were lacerated wounds, abrasions and swelling on different parts of his person caused by hard and blunt substance. 5. One of the planks on which the findings recorded by the doctor were sought to be assailed by the learned counsel for the appellants, was that the findings recorded by the doctor runs counter to the ocular testimony of the witnesses about Ruplal Yadav and others dealing blows with sharp edged weapon on Jay Mangal Yadav and it is sought to be urged that though three injuries were noticed by the doctor on right hand of Jaymangal Yadav, which were ante mortem in nature, but none of them were considered to have been caused by sharp edged weapon, as they were either lacerated wounds or bruises. It seems that such disparity was also noticed by the court below but the trial court having considered the ocular witness credible overruled the findings recorded by the doctor about the injuries being possible only by hard and blunt substance on premises that when such disharmony occurred between the ocular testimony and that of the doctor, it was the former which should prevail over the latter. At this juncture, without delving upon much on the comment made by the court below, we wish to mention that even the witnesses before the trial court had been narrating in most explicit terms that the assailants were dealing blows on the person of the deceased in the manner blows are dealt with lathi. Some witnesses were explicit in their assertions before the trial court that only with the side of the weapon, Jaymangal Yadav was assaulted by the assailant and once assertions made by the witnesses are accepted to be true account of the incident about the manner of assault, positive finding recorded by the doctor would not run counter to the evidence. So far as the injuries noticed by Baleshwar Yadav was concerned, there was positive finding of the doctor which was in tune with the assertions made by the ocular witnesses. 6. So far as the injuries noticed by Baleshwar Yadav was concerned, there was positive finding of the doctor which was in tune with the assertions made by the ocular witnesses. 6. True it is that though P.W. 1 would state that there was mud stains on the cloth of deceased Jaymangal Yadav as a result of having fallen in the watery field but in the inquest report there was no mention of mud stains on the cloth of the deceased. However, this fact cannot be lost sight of which was also stated by P.W. 1, that there was 4" deep water in the land which was being ploughed for transplanting paddy crops and hence there was no possibility of blood marks or trampling marks at the place of occurrence. That apart, this fact too has to be borne in mind that the I.O. prepared the inquest report after lapse of more than 24 hours and the deceased having being carried from the village to Referal Hospital , Gaya on cot and train, so in all probability absence of mud stains on the body of the deceased cannot be a remote possibility. As the Investigating Officer was not examined at the trial, the trial court has already given discount to the State in respect of credibility of P.Ws. 2 and 3 whose attention had been drawn by the defence and hence non examination of the I.O. would not prejudice the appellants. As for credibility of the witnesses, since Baleshwar Yadav (P.W. 6) was stamped witness his testimony carries all the probative value of his being good witness. As has been stated, he was also author of the fardbeyan. Presence of this witness as such cannot be questioned. So far as the case of Ramdeo Yadav (P.W. 1) was concerned, his name very much finds (sic place ?) in the fardbeyan of Baleshwar Yadav and to crown all, he hails from the village Chamokhap where the place of occurrence land is situated. He was ploughing his land which was adjacent to the place of occurrence land in southern boundry and in this backdrop, presence of this witness too was most probable and natural and the account of incident given by him also appears to be true. The credibility of other witnesses have be.en discussed in the preceding paragraphs and we do not wish to make repetition of them. 7. The credibility of other witnesses have be.en discussed in the preceding paragraphs and we do not wish to make repetition of them. 7. The disparity in time noticed by the learned counsel for the appellants in preparation of the inquest report would not carry much value for the "reason that the witnesses were not expected to state in exact and similar terms about the time of preparation of inquest report with mathematical precision and this argument as such was bereft of value. The non-examination of other witnesses, who could have been independent in the backdrop of present scenario of the society cannot be said to be infirmity in the present case as no one is expected to come for rescue of the aggrieved person carrying all the risk of litigation in future. Much stress was laid by the learned counsel for the appellants about there being disparity in the inquest report and also post mortem report, as it was urged that though injury no. 7 was considered to be fatal by the doctor who carried out autopsy over the dead body of the deceased, no such recitals were made in the inquest report. Learned counsel for the informant while repelling this contention at Bar on behalf of the appellant would rightly urge that inquest report was not the replica of the post mortem report and in all cases, one cannot expect inquest report to be in consonance with the post mortem report and even if there was such disparity, that would not discredit the prosecution case and on this score, reliance can be placed on a decision of the Apex Court of the land reported in AIR 1977 SC 2512 (State of U.P. V/s. Abdul and others) wherein following observations made by High Court were endorsed by the Apex Court: "The primary purpose of holding inquest is to ascertain the cause of death and to find out as to whether it is homicidal, suicidal or accidental. The law, therefore, requires a Police Officer to make an investigation and preparation of report describing the wound and indicating only weapon with which such wounds appear to have been caused. The inquest report though a document of limited scope and nature, cannot nevertheless be utilised under section 145 of the Indian Penal Code." 8. The law, therefore, requires a Police Officer to make an investigation and preparation of report describing the wound and indicating only weapon with which such wounds appear to have been caused. The inquest report though a document of limited scope and nature, cannot nevertheless be utilised under section 145 of the Indian Penal Code." 8. So far as genesis of the incident was concerned, recitals made in the fardbeyan of Baleshwar Yadav expressly suggest that it was due to land dispute between the parties with regard to P.S. plot no. 441 which had been purchased from none else but Jago Yadav in the year 1978 and only ten days preceding the incident, the appellants had forcibly taken possession of the land in question and had planted maize crop therein. The recitals made in the fardbeyan was also reiterated by Baleshwar Yadav (P.W. 6) in his evidence and on this score we find that the State had placed on record good evidences about motive and genesis of the incident. 9. It was urged that Ruplal was suggested to be one of the assailants, who had no concern with the land in question, yet we find that there had been good evidence about all the appellants having formed unlawful assembly, visiting the place of occurrence, holding arms with them. Since Jay Manga! Yadav was ploughing his land and there being no arms with him, there was no apprehension from him, and yet the appellants would reach the place of occurrence with arms which would manifestly suggest their object and also intention that they came there unprovoked with premeditation and with object to commit some cognizable offence and once the evidence of witnesses about Jago having exhorted them to kill Jay Mangal Yadav was taken into consideration, their object became quite explicit, as it was in pursuasion of exhortation made by Jago Yadav, that all the appellants gave indiscriminate blows not only on Jay Mangal Yadav but also on Baleshwar Yadav when he came for rescue of him. Hence, accusations attributed to the appellants squarely fall within the mischief of Section 149 IPC to make them vicariously liable for the act committed by any one of them. We find that the findings recorded by the trial court did not run counter to the weight of mass of evidence placed on the record. 10. Hence, accusations attributed to the appellants squarely fall within the mischief of Section 149 IPC to make them vicariously liable for the act committed by any one of them. We find that the findings recorded by the trial court did not run counter to the weight of mass of evidence placed on the record. 10. Having given our considerations to the evidences placed on the record, the facts and circumstances of the case and also the submissions canvassed at Bar, we find that the findings recorded by the trial court recording verdict of guilt against the appellants and sentencing them in the manner stated above, did not merit interference and the appeal, being meritless, is accordingly dismissed. Since the appellants are on bail, their bonds are cancelled and the trial court shall take all effective steps for their apprehension and to consign them to custody,to serve out the sentence. Since Lila Yadav, one of the appellants, is dead, this appeal had abated, as against him. P.K.Sinha, J. 11 I agree.