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2002 DIGILAW 797 (PAT)

Anirudh Singh @ Anirudh Yadav v. State of Bihar

2002-07-24

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

body2002
JUDGMENT B.N.P. Singh, J.- Though prosecution was launched against four persons including Ajay Yadav, Sukhram yadav, Shiv Ram Yadav, Shiv Ram Yadav and Anirudh Yadav, the Police on conclusion of investigation, laid charge sheet only against the appellant, who on being put on trial, suffered conviction under section 302 of the Indian Penal Code (IPC) simpliciter and was sentenced to suffer rigorous imprisonment for life. 2. At the outset, we may refer to salient feature of the prosecution case centering round the incident in question. Factual matrix emerging from the fardbeyan of Awadh Kishore Prasad Singh (P.W. 9) and also the narrations made by the witnesses at trial was that shortly after Parshuram Prasad Singh had proceeded for Chhatarpur for asking the bataidar for cutting rie from his field, Awadh Kishore Prasad Singh was informed by virbhadra Kumar that Parsuram Prasad Singh was being assaulted by four persons in the midway of Nirpur and Chhatarpur. It was alleged that when Awadh Kishore Prasad rushed there, he noticed appellant and three others making good their escape after cutting neck of his son Parshuram, and on alarms raised by him, those who collected were Randhir Kumar, Dani Kumar and others who too noticed the incident. The motive assigned for killing of Parshuram Singh was land dispute between the deceased and sons of Ram Saran Yadav, father of Sukharam Yadav and Shivram Yadav. It appears that the father of the deceased, who set the criminal law in motion and instituted a Police case, had rendered his fardbeyan before the Police. During usual investigation, the Police visited the place of occurrence, recorded statement of witnesses, seized blood stained earth from the place of occurrence, prepared inquest report over the dead body of the deceased, sent the dead body for post mortem examination and on receipt of report, having concluded investigation, laid charge sheet before the Court only against the appellant showing investigation pending against others. In the trial that commenced, the State examined altogether 12 witnesses, who are father of the deceased, villagers, the doctor who held autopsy over the dead body of the deceased, Police Officer and also some of those who turned volte face to the State at trial. 3. The defence of the appellant was that of innocence and he ascribed his false implication for no good reasons. 3. The defence of the appellant was that of innocence and he ascribed his false implication for no good reasons. The trial court on evaluation of probative value of the testimony of the witnesses, while rejecting the plea of innocence of the appellant, recorded finding of the guilt against the appellant and sentenced him in the manner stated above. The learned counsel for the appellant, and the State, who was assisted by the counsel for the informant, were heard at length and we wish hereinafter to notice the contentions raised at Bar on behalf of the parties. Firstly, we shall analyse testimony of witnesses on whom implicit reliance was placed by the trial court to come to a conclusion about guilt of the appellant and we may notice Awadh Kishore Singh (P.W.9), reiterating his early version, which he rendered before the Police about noticing the appellant coming along with others holding a spade with him. He also reiterated about seeing the dead body of his son with injuries on scalp and cut injuries on the neck. While reiterating his previous version, the witness stated at trial that his son was killed as he had been asking Ramsaran Yadav for payment of total amount of consideration money in respect of a deed of sale earlier executed in favour of the said Ram Saran Yadav, by him. The witness stated to have rendered his fardbeyan before the Police. Now, we may switch over to the evidence of Randhir Kumar (P.W. 4) who was one of them, who claimed to be the ocular witness to the incident and narration made by this witness at trial was that while he was working in his field, he noticed the appellant and there others chasing Parshuram Singh towards village Nirpur who was loudly raising alarm for help. About the overtact attribuied to him, the witness stated that while Ajay Yadav dealt farsa blow on head, Sukhram Yadav and Shivram Yadav too dealt blows on his head with farsa, and after Parsuram Singh dropped on the ground and his body had been pressed by them, the appellant with a heavy spade had cut his neck who instantaneously died there. It was Virbhadra Singh who informed father of the deceased about the incident. It was Virbhadra Singh who informed father of the deceased about the incident. The witness stated to have put signature on the fardbeyan of Awadh Kishore Singh and also rendered his statement before Magistrate under section 164 of the Code of Criminal Procedure. The attention of this witness had been drawn towards his previous statement made before the Police where he did not claim to be the ocular witness of the incident and stated to have only heard about the incident, pursuant to which he noticed the dead body of the deceased at the place of occurrence. The witness would, however, make exclusion of Virbhadra Singh among the eye witnesses as he reached after his arrival at the place of occurrence. The other witness whose evidence deserves consideration was Dani Kumar alias Dani Prasad (P.W.5) who stated at trial to have seen Parsuram Singh being chased by the appellant and three others. About overtact attributed to them, the witness stated that while Ajay Yadav dealt farsa blow on the head of Parsuram Singh, Sukhram and Shivram Yadav too dealt blows with farsa on his head, pursuant to which Parsuram Singh dropped on the ground and on his body being pressed by them, the appellant cut his neck by spade. The attention of this witness too had been drawn by the defence to his previous statement made before the Police where he did not claim to be an ocular witness of killing or Parsuram Singh and stated to have seen only the dead body of the deceased. About those who witnessed the incident he would name only Randhir Singh, as none of village Nirpur had yet come to the place of occurrence. Virbhadra Kumar (P.W.7) stated at trial that while he was working in the field, he noticed four persons chasing Parsuram Singh and one of them was identified to be the appellant. The witness further stated that after chasing for some distance, one of them struck a blow on Parsuram Singh with farsa who dropped dead. He stated to have informed Awadh Kishore Singh about the incident. This witness would, however, make exclusion of Randhir Kumar Singh as eye witness, as he too reached the place of occurrence along with Awadh Kumar Singh after the incident was over, and the dead body was lying at the place of occurrence. He stated to have informed Awadh Kishore Singh about the incident. This witness would, however, make exclusion of Randhir Kumar Singh as eye witness, as he too reached the place of occurrence along with Awadh Kumar Singh after the incident was over, and the dead body was lying at the place of occurrence. Narration made by this witness too about chase of Parsuram Singh by four persons, of whom one was appellant, had been impeached by defence at trial, that being hot !n conformity with the early version made before the Police where he did not claim to have identified those who had chased Parsuram Singh. 4. Dr. Krishna Kishore Sinha (P.W.10) stated to have held autopsy over the dead body of Parshuram Singh and the doctor stated to have noticed following ante mortem injuries on his person: (i) Whole parts of the neck-muscles, vertebra, vessels, trachea, oesophagus and nerve were incised at the same level except only the skin flop was intact on left side of the neck and part of the left side of the front of the neck by which the head was connected with the body situated in upper part of neck. (ii) Incised wound over the parietal region of the scalp size 4" x 1/2" x scalp to the cranial cavity on the left side with blood clots. (iii) Two incised wounds of size 2" x 1/2" x scalp deep and 1-1/2" x 1/2" x scalp deep on the right parietal and temporal region of the scalp with blood clot. The death in the estimation of the doctor was caused by these injuries which produced shock and haemorrhage. The doctor would, however, rule out infliction of injury no. 1 by instrument like spade. Though injury nos. 1 and 2 were possible by sharp edged weapon such as farsa, the doctor would state that injury no. 1 noticed on the neck was possible only when the spade was used in straight manner over the body. 5. Now, we may notice some of the objective findings recorded by the Police Officer who conducted investigation of the case and he was P.W.11 who stated that during investigation, he noticed blood stains at the place of occurrence which was a through fare between village Nirpur and Chhatarpur, and adjacent to the place of occurrence, was a graveyard of muslims. Now, we may notice some of the objective findings recorded by the Police Officer who conducted investigation of the case and he was P.W.11 who stated that during investigation, he noticed blood stains at the place of occurrence which was a through fare between village Nirpur and Chhatarpur, and adjacent to the place of occurrence, was a graveyard of muslims. The dead body of Parsuram Singh with cut injuries on neck was on the thoroughfare and he stated to have prepared the inquest report of the dead body of the deceased in presence of the witnesses. He stated to have sent the dead body for post mortem examination and on receipt of the report, having concluded investigation, laid charge sheet against the appellant. 6. Now, evidence of some of the witnesses who have not lent assurance to the prosecution allegation can also be noticed with some brevity and among them are Bissu Kewat (P.W. 1), Jatan Kewat (P.W. 2), Binod Yadav (P.W. 3), Sitaram Sao (P.W. 6) and Bidesh Rajak P.W. 8), who exhibited their total ignorance about the incident. Sheo Ram Prasad Singh (P.W. 12) stated to have learnt about killing of Parsuram Singh whose dead body was on the ridge of the thouroughfare. He was also a witness to the seizure of blood stained earth by the Police Officer from the place of occurrence. This is all the evidence that has been adduced on behalf of the State. 7. We may notice some of the arguments that were canvassed at Bar on behalf of the appellant to assail the propriety of findings recorded by the Court below and the foremost criticism was that taking the narration made by the prosecution witness at trial, as it is, none of them claimed to have witnessed killing of the deceased by cutting his neck with spade Attention of witnesses drawn by defence, towards early version made before Police, was also highlighted at Bar to impress us that the witnesses had not made parallel statements before the Police claiming to be ocular witnesses of the incident, and on these premises, it is submitted that since the witnesses had modulated their statement at trial, they did not deserve credence. Contentions were raised that if the finding recorded by the doctor about probable mode of assault on the deceased was to be given any credence the doctor has emphatically ruled out infliction of injury no. 1 on the neck of the deceased by any instrument which is suggested to have used by the appellant for cutting the neck of the deceased. The admitted enmity between the parties was also taken to be a ground to assail the bona fide of the prosecution case. 8. Resisting these contentions raised on behalf of the appellants, learned counsel for the State and also the informant strenuously urged that since the Police Officer was not recording statement of the witnesses honestly, during investigation, the aggrieved informant apprehending unfairness on his part, had put in a protest petition during investigation, and in backdrop of these circumstances, it is urged that the prosecution cannot be saddled with accusation of introducing improvement over the early version, at the trial, Contentions are raised that since the aggrieved father took recourse to public authority shortly after the incident without losing time, false implication of the appellant was only a far fetched presumption. 9. As has been stated earlier, narrations made by Randhir Kumar "Pappu" (P.W. 4), Dani Kumar (P.W. 5) and Virbhadra Kumar (P.W. 7), at trial had been impeached by defence, those narrations being not in conformity with their statements which they rendered before the Police and the Police Officer examined at trial would contradict those witnesses about having made similar statements before the Police claiming themselves to be eye witness to the incident. As all these witnesses had rendered statement before the Police Officer about reaching the place of occurrence, shortly after the incident was over; if narrations made by the witnesses, who claimed to be ocular and also the evidence of the Police Officer, who contradicted them, is appreciated on proper analysis of probative value of these witnesses, we find witnesses modulating their statements at trial, simply to project themselves to be the witness of the incident, and in that view of the matter, none of them who claimed to be ocular, deserves credence. Added to these reasonings, we have noticed other flaw in the prosecution case. Added to these reasonings, we have noticed other flaw in the prosecution case. Though the prosecution had definite case about appellant dealing blow with spade on the neck of the deceased, regard being had not only to the finding of the doctor but also the normal feature of spades and its construction, which are normally in use, injury no. (i) was not expected to be the result of stroke with such weapon, and reliance on this score can be placed on a decision of the Apex Court reported in AIR 1981 SC 1578 (Mohar Singh and others vs. State of Punjab) in which almost in similar circumstances against testimony of witnesses about the appellant dealing blows with spade, the doctor had noticed such injuries been caused by Kassi (pickaxe) and the Apex Court in the view of glaring inconsistency, held that the conviction cannot be based on such inconsistencies and the appellant was given benefit of doubt. Added to these reasonings, we have noticed that though blood stained earth was shown to have been seized by the Police Officer, admittedly there had been no finding of the chemical examiner reporting the blood in question to be a human blood. Though it was strenuously urged on behalf of the informant that since the appellant was noticed fleeing shortly after the incident when the neck of the deceased was found cut, this circumstance alone would saddle the appellant with the allegation attributed at trial. We are oblivious of the principle of law which is almost settled that testimony of eye witnesses cannot be rejected on account of discrepancy in the evidence, if they are not on material particulars of the case, and that apart, the circumstances highlighted at Bar on behalf of the State did not afford unbroken link, to lead the court to conclusion about guilt of the appellant. Though the aggrieved father, it is urged, had also put in a protest petition before the Court during investigation, we do not feel persuaded to come to a definite conclusion, as what was brought on the record by the State was only signature of the father of the deceased on a petition which is shown to be protest petition. Though the aggrieved father, it is urged, had also put in a protest petition before the Court during investigation, we do not feel persuaded to come to a definite conclusion, as what was brought on the record by the State was only signature of the father of the deceased on a petition which is shown to be protest petition. No evidence was brought on the record to persuade us to believe that if any protest petition had been put on the record that was taken notice of by the concerned authority for redressal of grievance of the petitioner. 10. Regard being had to the quality of evidence of the witnesses led at trial, attending circumstances of the case, and contentions raised at Bar on behalf of the rival parties, we hold the view that the findings of the court below cannot be sustained and the same is accordingly set aside. The appellant who is in custody is exonerated of the charges and shall be released forthwith, if not wanted in any other case. This appeal accordingly succeeds. P.K. SINHA, J.- agree.