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2002 DIGILAW 711 (PAT)

Pappu Yadav v. State Of Bihar

2002-07-05

B.K.JHA, M.L.VISA

body2002
Judgment Manoharlal Visa, J. 1. Pappu Yadav the sole appellant in this appeal being aggrieved by the judgment and order dated 17.6.1987 convicting and sentencing him to undergo rigorous imprisonment for life under Sec. 302, Indian Penal Code and rigorous imprisonment for three years under Sec. 27. Arms Act and ordering both the sentences to run concurrently passed by Xth Additional Sessions Judge. Munger in Sessions Case No. 302 of 1986/74 of 1986, has preferred this appeal. 2. The case of prosecution in short is that on 6.9.1985 at about 9.30 a.m., the deceased informant Sukhdeo Yadav was taking tea at the tea stall of Bindeshwari Prasad Yadav (PW 5) in his mohalla in village Basdevpur Khemka, Police Station Kotwali District Munger. Appellant Pappu Yadav along-with co-accused, Shailendra Yadav and Raju Yadav came there and co- accused Shailendra Yadav and Raju Yadav caught hold of the deceased informant and appellant uttering that informant gives too much evidence, therefore, he would be shot fired from his firearm from backside inflicting firearm injury on the back of deceased informant. Deceased informant fell down and the appellant along-with his companions fled away. The occurrence was witnessed by Bindeshwari Yadav (PW 5) Baleshwar Prasad Yadav (PW 4) Rabindra Yadav (not examined) and many others. The fardbayan of deceased informant was recorded on 6.9.1985 at about 11 a.m. by Shamse Alam (PW 9) at Sadar Hospital. Munger. About the genesis of occurrence deceased informant, in his fardbayan, stated that 5-7 months prior to occurrence he had deposed in a case against appellant and co-accused Raju Yadav and the appellant and his companions had given him threatening that he would be shot dead. On the basis of fardbayan of deceased informant a case under Secs. 307/ 34, Indian Penal Code and Sec. 27, Arms Act was registered against the appellant and co-accused Raju Yadav and Shailendra Yadav. Subsequently the deceased informant died on 30.11.1985. The police, after investigation submitted charge-sheet against the appellant and the aforesaid two co-accused persons under Secs. 307/302/34, Indian Penal Code and Sec. 27. Arms Act. 307/ 34, Indian Penal Code and Sec. 27, Arms Act was registered against the appellant and co-accused Raju Yadav and Shailendra Yadav. Subsequently the deceased informant died on 30.11.1985. The police, after investigation submitted charge-sheet against the appellant and the aforesaid two co-accused persons under Secs. 307/302/34, Indian Penal Code and Sec. 27. Arms Act. During trial co-accused Raju Yadav died and the trial proceeded against the appellant and co-accused Dinesh Yadav@ Shailendra Yadav who both after trial were held guilty and appellant was convicted and sentenced to undergo rigorous imprisonment for life under Sec. 302; Indian Penal Code and rigorous imprisonment for three years under Sec. 27, Arms Act and co-accused Dinesh Yadav@ Shailendra Yadav was convicted and sentenced to undergo rigorous imprisonment for life under Secs. 302/109, Indian Penal Code who also challenged the judgment and order of his conviction and sentence by preferring separate appeal which was numbered as Criminal Appeal No. 361 of 1987 and that appeal was ordered to be heard along-with this appeal but during the pendency of his appeal he died. 3. The case of appellant, as it appears from the trend of cross-examination of prosecution witnesses, is of complete denial of the charges and false implication in this case. 4. In order to prove its case, prosecution has examined nine witnesses. Dharmendra Kumar Sinha (PW 7) is the doctor who had held autopsy on the dead body of deceased informant. Shamse Alam (PW 9) was posted as Assistant Sub-Inspector at Kotwali Police Station, Munger and he had recorded the fardbayan of deceased informant at Sadar Hospital. Munger and he had recorded the fardbayan of deceased in formant at Sadar Hospital. Munger and had also prepared injury certificate for informant and after coming to police station from hospital, handed over the fardbayan of in form an t to Shri Manindra Kumar Sinha (PW 8), the then Officer-in-charge of Kotwali Police Station who first took up the investigation of the case and recorded the further statement of deceased informant but thereafter due to his urgent requirement in law and order duty, handed over the investigation to him. PWs 1 to 6 are other witnesses. 5. PWs 1 to 6 are other witnesses. 5. Doman Yadav (PW 1) has said that at the time of occurrence, he was in his tea shop when some drivers told him that a tyre had burst and he then went towards north of his shop where he found deceased informant fallen on the ground and blood was oozing out from his body and on his enquiry, the deceased informant had told him that enemy had inflicted injuries to him but he did not name anybody. He has been declared hostile by the prosecution. Umesh Singh (PW 2) a truck Khalasi. has said that at the time of occurrence, cigarettes were being loaded in his truck in a cigarette factory when he heard the sound of tyre bursting and when he came on the road he then saw that a man was being carried by a rickshaw but he did not see the assailant. He has also been declared hostile by the prosecution. Ramchandra Yadav (PW 3) is the son of deceased informant and he has said that at the time of occurrence, he was in his house and his brothers Shambhu Yadav and Krishna Yadav were also in the house and he heard the sound of firing from the side of tea stall of Bindeshwari Prasad Yadav and when he went there running he saw the appellant along-with co-accused Dinesh Yadav and Raju Yadav fleeing away and appellant was carrying a pistol in his hand. He has further said that he saw his father lying injured by the side of tea stall of Bindeshwari Prasad Yadav and on enquiry his father told him that co-accused Raju Yadav and Dinesh Yadav caught hold of his hands and appellant fired shot on him. At that time, Bindeshwari Prasad Yadav was also in his shop and he then took his father to Sadar Hospital, Munger where police recorded the statement of his father in which his father named the appellant and his companions. He has said that his father died of that assault. He has proved the fardbeyan of his father which, according to him, was recorded by Shamse Alam (PW 9) in his presence. This fardbayan is marked Exhibit-I. He has also proved signatures of Vidyanand Yadav and Laxmi Yadav (Exhibits-2/1 and 2/2) on fardbayan. He has said that his father died of that assault. He has proved the fardbeyan of his father which, according to him, was recorded by Shamse Alam (PW 9) in his presence. This fardbayan is marked Exhibit-I. He has also proved signatures of Vidyanand Yadav and Laxmi Yadav (Exhibits-2/1 and 2/2) on fardbayan. In cross-examination, he has admitted that co-accused Raju Yadav was killed and he is an accused in the case lodged for the murder of co-accused Raju Yadav. He has further, said that within a month from the date of occurrence of this case, co-accused Raju Yadav was murdered. In para-5 of his cross-examination, he has stated that his statement was not recorded by police. He has made this statement more clear by adding that before recording of his evidence in Court, he had not given any statement anywhere. In view of his admission that before recording his evidence in Court as a witness, he was never examined by police, his evidence does not appear trustworthy. Baleshwar Prasad Yadav (PW 4), in his evidence, has said that at the time of occurrence, he was in his house when he heard that somebody had fired at deceased informant at the tea stall of Bindeshwari Prasad Yadav and when he went to the tea stall of Bindeshwari Prasad Yadav which is situate at about 100-150 yards from his house, he saw that Ramchandra Yadav (PW 3) was carrying his father on a rickshaw. He has clearly stated that till the date of his examination in Court as a witness, he had not come to know who had fired at the deceased. He failed to identify co-accused Dinesh Yadav@ Sbailendra Yadav in dock. 6. Bindeshwari Prasad Yadav (PW 5), in his evidence, has said that at the time of occurrence when deceased informant had come to his tea stall for taking tea, somebody fired at him as a result of which the deceased informant could not take tea. He, by pointing out co-accused Dinesh Yadav in Court, stated that he had fired at deceased informant and, thereafter, he fled away. He, by pointing out co-accused Dinesh Yadav in Court, stated that he had fired at deceased informant and, thereafter, he fled away. His attention by prosecution has been drawn towards his earlier statement in which according to prosecution, he had stated that co-accused Raju Yadav and Dinesh Yadav had caught hold of the hands of deceased informant and appellant fired on his back but he has denied that he had made any such statement before police earlier. In para 4 of his cross-examination, he has clearly stated that Shambhu Yadav (not examined), Krishna Yadav (PW 6) and Ramchandra Yadav (PW 3) are sons of deceased informant and 15 to 20 minutes after firing, they came from their house weeping. He has further said that he does not remember whether they enquired from him who had fired on their (other. Krishna Kumar Yadav (PW 6), another son of informant, in his evidence, has stated that at the time of occurrence, he and his brothers were in their house and after hearing sound of firing coming from western side, he and his other two brothers, went there -and when they were going towards tea stall of Bindeshwari Prasad Yadav, they saw appellant along-with co-accused Raju Yadav and Dinesh Yadav fleeing away and appellant was carrying a pistol. He has further said that at the tea stall, he found his father lying and on enquiry his father told him that appellant fired at him and co-accused Dinesh and Raju had caught hold of him. He has said that his father was taken to hospital and his father subsequently died. 7. After going through the evidence of witnesses examined on behalf of prosecution, we find that only two witnesses, namely, Ramchandra Yadav (PW 3) and Krishna Kumar Yadav (PW 6) both sons of deceased have stated that they had seen the appellant running away from the place of occurrence carrying a pistol along-with other two co-accused persons and on enquiry their father told them that appellant had fired at him. They have not claimed themselves to be eyewitnesses to the occurrence. As stated earlier. Ramchandra Yadav (PW 3) has admitted that his statement was not recorded by police earlier. They have not claimed themselves to be eyewitnesses to the occurrence. As stated earlier. Ramchandra Yadav (PW 3) has admitted that his statement was not recorded by police earlier. Although Krishna Kumar Yadav (PW6) has stated that his statement was recorded by police during the course of investigation where he had stated that his father had told him that appellant had fired at him but then Shamse Alam (PW 9), the Investigating Officer of this case in para-3 of his evidence, has said that he recorded the statements of sons of informant along-with others at the place of occurrence. In para-7 of his cross-examination, the Investigating Officer has clearly stated that he recorded the statements of PWs 3. 6 and their other brother Shambhu Yadav jointly and not separately and they had not stated before him that they had seen appellant and other two co-accused persons fleeing away with pistol and they had also not stated that on enquiry, their father had told them that appellant had fired at him and other two co-accused persons had caught hold of him. On the contrary, he has said that before him the aforesaid three sons of deceased informant had simply stated that when after hearing the sound of firing. they came to the place of occurrence, they found their father in injured condition. In view of this evidence of Investigating Officer and the evidence of Bindeshwari Prasad Yadav (PW 5), the owner of tea shop where the deceased informant is said to have gone for taking tea and where the occurrence is said to have taken place, that 15 to 20 minutes after firing, sons of deceased informant came there weeping and he does not remember whether they enquired from him who had fired at their father coupled with the fact that there was enmity between family of deceased informant at one side and appellant and his companions on other side which is admitted in the fardbayan as well as in the evidence of PWs 3 and 6 it does not inspire any confidence to accept the evidence of PW 3 and PW 6 that their father had named appellant and his companions. 8. Now there remains the fardbayan of deceased informant on which much reliance has been placed by the Court below and the evidence of Dharmendra Kumar Singh (PW 7). 8. Now there remains the fardbayan of deceased informant on which much reliance has been placed by the Court below and the evidence of Dharmendra Kumar Singh (PW 7). the doctor who held autopsy on the dead body of deceased informant. The learned Additional Public Prosecutor has submitted that the evidence of PW 7 that the cause of death of deceased informant was firearm injury and the fardbayan (Exhibit-I) of deceased informant, duly proved by PW 9 which is now dying declaration, completely proves the case of prosecution. Adverting to this submission, we find that Dharmendra Kumar Singh (PW 7), in his evidence, has stated that on 01.12.1985 at about 2.30 p.m. he held the post-mortem examination on the dead body of informant and found one bandaged wound on the back at the level of 11th thoracic vertebra and on removal of the bandage, there was almost healed wound of about 1-1/2" diameter over the 11th and 12th thoracic vertebra in the middle of the back. On dissection of the area, there was a metallic object in the vertebral canal. The object was transversely placed in the vertebral canal. The pointed portion of the object was towards posterior part of the body, According to him, the above injury was caused by some firearm and in his opinion, the death was caused due to shock especially due to injury to spinal cord which led to prolonged illness. He has further stated that time elapsed since death was within 18 hours. He has proved his postmortem examination report said to be in his pen and signature which is marked Exhibit 3. In cross-examination, he has said that from the bed head ticket in the pen of Dr. Shashi Bhushan Prasad Singh (Exhibit- A), it appears that deceased informant was admitted in Sadar Hospital in. injured condition on 6.9.1985 at about 10.30 a.m. and it further appears that he was given injections of Novalgin and Sequil. In para-5 of his cross-examiantion; he has admitted that the apparent cause of death was not shock but illness. He has admitted that in his post mortem examination report (Exhibit-3), he has not given the details of illness. injured condition on 6.9.1985 at about 10.30 a.m. and it further appears that he was given injections of Novalgin and Sequil. In para-5 of his cross-examiantion; he has admitted that the apparent cause of death was not shock but illness. He has admitted that in his post mortem examination report (Exhibit-3), he has not given the details of illness. He has further admitted that he cannot definitely say that the illness which brought death to deceased informant had direct bearing with the firearm injury and he cannot say about the complications which developed after infliction of firearm injury and whether proper treatment was given to deceased informant or not. In his post-mortem examination report (Exhibit-3J. we find that he has mentioned that in his opinion, the death was due to shock especially due to injury to spinal cord which led to prolonged illness. His evidence is quite confusing because at one place he says that death was caused due to shock especially due to injury to spinal cord which led to prolonged illness but again he contradicts this statement by deposing that cause of death was not shock but prolonged illness and he cannot say whether the illness which resulted into death of deceased had any direct bearing with the firearm injury. The learned counsel for the appellant has argued that except the fardbayan and evidence of PWs 3 and 6, who are, admittedly, the sons of deceased informant there is absolutely nothing on the record which states anything about the occurrence. He has further argued that PWs 3 and 6, who are admittedly sons of informant, have simply stated that their father Mad told them that appellant had inflicted firearm injury on him. According to them, they are also hearsay witnesses and their evidence is based on the information given to them as alleged by deceased. According to them, PW 3 has admitted that he was not examined by police and although PW 6 has said that his statement was re-corded by police but then Investigating Officer, in his evidence, has said that they had not stated before him that deceased had told them that the appellant had fired at him. According to them, PW 3 has admitted that he was not examined by police and although PW 6 has said that his statement was re-corded by police but then Investigating Officer, in his evidence, has said that they had not stated before him that deceased had told them that the appellant had fired at him. Argument had been advanced on behalf of the appellant that inspite of the aforesaid fact, if the evidence of PWs 3 and 6 who are the only two witnesses among all prosecution witnesses who have said about the occurrence is taken into consideration even then it will simply amount that they were told by deceased the name of appellant as assailant and their evidence is also based on the theory of dying declaration. It has been argued by the learned counsel for the appellant that neither the fardbayan nor evidence of PWs 3 and 6, sons of informant will amount dying declaration of deceased because of absence of any material on record to prove that cause of death of deceased was the firearm injury which is said to have been received by deceased on 06.09.1985. He has submitted that, admittedly deceased died on 30.11.1985, as per the evidence of his son PW 6 who has further said that after treatment his father had returned from Patna hospital to his house and 1-1/2 months thereafter he died. It is also argued that this witness has further stated that after returning from Patna, the deceased received treatment at Delhi also and after treatment at Delhi, the deceased returned to his village on 27.10.1985 meaning thereby one month three days before his death. It is also argued that this witness has further stated that after returning from Patna, the deceased received treatment at Delhi also and after treatment at Delhi, the deceased returned to his village on 27.10.1985 meaning thereby one month three days before his death. The argument of learned counsel for the appellant is that in view of this fact and the admission of PW 7, the doctor in para-5 of his cross-examination that he is not definite whether the witness which was the cause of death of deceased, had direct bearing of the firearm injury found on him, one cannot come to conclusion that cause of death of deceased was firearm injury and once the firearm injury is not taken as cause of death, the fardbayan and evidence of PWs 3 and 6 that deceased told them the name of appellant cannot be treated as dying declaration under the provisions of Sec. 32 of Indian Evidence Act because it is not in respect of cause of death or any of the circumstances of transaction which resulted in the death of deceased. 9. The occurrence of inflicting firearm injury by appellant to deceased, as per the case of prosecution, took place on 06.09.1985. The deceased died on 30.11.1985 meaning thereby two months, twenty four days after the date of occurrence. We are aware of the principle laid down by the Apex. Court in the case of Shared Birdhichand Sarda V/s. State of Maharashtra on the question of test of proximity in order to decide whether a particular circumstance is the circumstance of transaction which resulted in death. In the aforesaid case, the Supreme Court has observed as follows (1984 East Cr.C. at page 630): "The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straight jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from heath. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Sec. 32." 10. In the present case, the prosecution has not brought any medical report of deceased informant when he was-first examined for firearm injury said to have been received by him on 6.9.1985. Bed head ticket (Exhibit A) is said to be in the pen and signature of Dr. Shashi Bhushan Prasad Sinha, as stated by PW 7, but Dr. Shashi Bhushan Prasad Sinha has not been examined. PW 7 has said that from Exhibit-A, it appears that deceased informant was admitted in injured condition in Sadar Hospital, Munger on 6.9.1985. Krishna Kumar Yadav, (PW6) the son of informant has said that his father received treatment at Patna and at Delhi but there is nothing on the record that what type of treatment, the deceased informant received at Patna and Delhi and what type of complications developed when he was receiving treatment at Sadar Hospital. Munger, Patna and Delhi. On the contrary the evidence of PW 6 is that after treatment the deceased informant came back to his house on 27.10.1985 about one month three days before his death. In between this period what was his physical condition is not known. PW 7 says that the wound, which according to him was caused by some firearm weapon was found almost healed at the time of post-mortem examination. He says that he extracted a metallic object from the body of deceased. In between this period what was his physical condition is not known. PW 7 says that the wound, which according to him was caused by some firearm weapon was found almost healed at the time of post-mortem examination. He says that he extracted a metallic object from the body of deceased. It is very surprising that when deceased informant was receiving treatment at Patna and Delhi, this metallic object was not taken out and it was allowed to remain in the body which was taken out after the death of deceased. There is no evidence on record that after receiving firearm injury on 6.9.1985 when the deceased informant was confined to bed, some other complications developed which ultimately led to his death. In absence of any such evidence and in presence of own admission of PW 7 that he cannot definitely say that the illness which, was the cause of death of deceased, had any direct bearing with the firearm injury, neither the fardbayan nor the evidence of PWs 3 and 6, which are the only material on which the Court below had found the appellant guilty, can be treated as dying declaration because it is not as to cause of death or as to any of the circumstances of transactions which resulted in death. We, therefore, find it difficult to uphold the conviction of appellant which is based on the fardbeyan of deceased informant and evidence of PWs 3 and 6. 11. In the result, this appeal is allowed and the appellant is acquitted of the charges. The order of Court below convicting and sentencing the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of his bail bonds.