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2002 DIGILAW 896 (PAT)

Diwakar Yadav v. State of Bihar

2002-08-16

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

body2002
JUDGMENT B.N.P. SINGH, J.:- Though as many as seven persons were put on trial, while others were exonerated of the charges by the trial Judge, the appellant alone suffered conviction under section 302 of the Indian Penal Code (IPC) and section 27 of the Arms Act and was sentenced to suffer rigorous imprisonment for life on the first count and a term of five years imprisonment on the second count with a direction that both the sentences would run concurrently. 2. At the outset, we may notice some of the salient features centering round the incident in question. It was alleged that in the intervening right of 6/7th April, 1993, at the dead of night, while deceased Mahendra Yadav had slept in the courtyard of his house, along with his family members, seven persons came, pursuant to which appellant fired a shot on him. When father of the deceased raised alarm, Ino Yadav fired another shot causing injury to Mahendra Yadav who eventually succumbed to them. Those who accompanied the assailants, were suggested to be Parsuram Yadav, Shailesh Yadav, Ghoghan Yadav, Mahendra Yadav and Ramesh Yadav, who were identified in the flash light of torch by the father, mother and daughter of the deceased. One Germany Yadav too was suggested to have rushed to the place of occurrence, who witnessed killing of the deceased. Motive assigned behind the killing of Mahendra Yadav as suggested by the prosecution was that younger sister of the wife of the deceased was married to the appellant, who, having betrayed his wife, contracted another marriage for which a panchaity was convened, which offended the appellant and culminated in killing of the deceased. The prosecution was launched on behest of the father of the deceased, pursuant to which investigation commenced, during which the Police Officer recorded statement of witnessed visited the place of occurrence, sent the dead body for post mortem examination, prepared inquest report, and on conclusion of investigation, laid charge sheet before the Court, against these, who were put on trial. In the eventual trial, the State examined altogether 11 witnesses, including father, mother and daughter of the deceased and also those who stated to have witnessed the incident. The State also examined the doctor who held autopsy over the dead body of the deceased. 3. In the eventual trial, the State examined altogether 11 witnesses, including father, mother and daughter of the deceased and also those who stated to have witnessed the incident. The State also examined the doctor who held autopsy over the dead body of the deceased. 3. The defence of the appellant before the trial court and also this Court had been that of plain innocence and his explicit defence at trial was that as the deceased bore criminal antecedent, he was killed by some others at a different place and having seized opportunity, he was implicated by family members of the deceased. The trial court finding insufficiency of evidence, as has been stated earlier, while acquitted others, recorded finding of guilt against appellant alone and sentenced him in the manner stated above. 4. Though various contentions were raised at Bar on behalf of the appellant assailing findings recorded by the court below, before we appreciate them, we wish to critically analyse the evidences placed on the record on which implicit reliance was placed for recording verdict of guilt, by the court below. 5. Hisabi Yadav (P.W. 10), father of the deceased who was the maker of the earlier version, while reiterating, states at trial, about he having not awakened on the sound of foot steps of some persons who gained their access in the courtyard of his house, where he had slept along with the family members. He states to have noticed appellant having shot dead Mahendra yadav, who had slept there. As for the genesis of the evidence, the witness states that though younger sister of the wife of the deceased had been married to the appellant, he, having left his first wife, contracted another marriage for which appellant had extended threat. Though the witness stated to have rendered statement before the Police, admittedly he had backed out from certain part of his earlier version, as notwithstanding complicity of Parsuram Yadav, Shailesh Yadav, Ghoghan Yadav and Ramesh Yadav having been suggested, no accusations were attributed to these persons at trial by this witness. However, in his early version, which he rendered before the Police, even Ino Yadav had been suggested to have fired shot at the deceased, but neither his presence nor any accusations were attributed to him about having fired shots on the deceased. 6. However, in his early version, which he rendered before the Police, even Ino Yadav had been suggested to have fired shot at the deceased, but neither his presence nor any accusations were attributed to him about having fired shots on the deceased. 6. Now we may switch over to the evidence of the mother of the deceased, who happened to be P.W. 8. She had slept in the courtyard of her house where Mahendra Yadav too had slept. On the dead of night while 5-7 persons came she was awakened by the sound of their footsteps and shortly thereafter, the appellant fired shot on Mahendra Yadav which was followed by another shot by other person who could not be identified. The motive, narration of which was made in the early version of her husband, was reiterated by this witness at trial. Attention of this witness was drawn by the State and it seems that complicity of Ino Yadav, Parsuram Yadav, Ghoghan yadav, and Ramesh Yadav is conspicuously wanting in his evidence for which parallel statement had been made before the Police during investigation. 7. Other witness who merits consideration, was Usha Kumari (P.W. 3) and she too would state in similar terms about the appellant having shot dead the deceased, while she had slept in the courtyard. Attention of his witness too had been drawn by the State on narration made by him at trial which was not in conformity with her early version wherein she narrated about complicity of others too who had accompanied the appellant. Reference can be made to the testimony of other witnesses who claimed to have witnesses the incident of shooting and eventual killing of the deceased by the appellant, and one of them happened to be Lakhanlal Mandai (P.W. 1). This witness would state about killing of the deceased but he did not know the assailant, and similar was the case with Charitra Yadav (P.W. 2) and Germany Yadav (P.W. 5) who stated to have noticed appellant holding firearms, when they rushed to the place of occurrence on sound of firing emanating from the house of the deceased. These witnesses too would state about presence of seven persons in the courtyard. However, they could claim identification of only appellant. Attention of witnesses had been drawn by the State, there being no evidence about presence of others who had accompanied the appellant. These witnesses too would state about presence of seven persons in the courtyard. However, they could claim identification of only appellant. Attention of witnesses had been drawn by the State, there being no evidence about presence of others who had accompanied the appellant. Witnesses would make candid admission that though they witnesses the appellant standing in the courtyard, but he did not witness killing of the deceased. The other witness examined by the prosecution is Chamaklal Yadav (P.W. 6) who claimed identification of the assailant while he was making good his escape with the firearm, and in the courtyard he claimed to have noticed dead body of the deceased. Among other witnesses, Nirmala Devi (P.W.4) and Tila Yadav (P.W.7) were tendered by the State and there was nothing material in their evidence to merit consideration. 8. Now we may notice findings recorded by the doctor who held autopsy over the dead body of the deceased. Dr. Nawal Kishore Ojha (P.W. 9) stated to have noticed firearm injuries on the person of the deceased which were ante mortem in nature. Since the finding recorded by the doctor has been fairly spelt out in the judgment of the court below, we shall discuss them with some brevity. In the estimation of the doctor, five injuries were present on the person of the deceased and while, four injuries were caused by firearm, the other was by hard and blunt substance. About these four injuries, the doctor held the view that injury nos. 1 and 3 and injury nos. 2 and 4, were communicating injuries. 9. The foremost criticism that was pressed into service on behalf of the appellant was that since witnesses who claimed to have either witnessed the incident of shooting or killing of the deceased, had sought to suppress some part of their statements which they rendered before the Police, evidence of these witnesses deserves rejection in the entirety. Contentions were raised that even Hisabi Yadav, who was none else but the maker of the earlier version, notwithstanding complicity of seven persons having been suggested in his early version, while deliberately suppressing their complicity, confined his evidence only to the complicity of appellant, and on this score, his evidence too has to be rejected, he being unworthy of credence. Contentions were raised that even Hisabi Yadav, who was none else but the maker of the earlier version, notwithstanding complicity of seven persons having been suggested in his early version, while deliberately suppressing their complicity, confined his evidence only to the complicity of appellant, and on this score, his evidence too has to be rejected, he being unworthy of credence. Though argument looks to be quite alluring and attractive but merits rejection for the simple reason that the evidence of a witness has to be judged on its own merit and he is to be considered credible if he is otherwise reliable, and simply because complicity of others had not transpired in testimony of Hisabi Yadav, even unimpeachable evidence appearing adverse to the appellants should be rejected. Similar analogy can be applied to the evidence of other witnesses also who had confined their evidence only to the complicity of the appellant. 10. The other limb of the argument pressed into service on behalf of the appellant was that none else but Hisabi Yadav stated at trial that the Police Officer had come to him along with the appellant and if that be so, there was no good reason as to why the appellant was not arrested by the Police at that time, but as has been crystallised in catena of decisions of this Court, if there are omissions on part of the investigating agency, the prosecution cannot be a casualty. Learned counsel for the appellant strenuously urged that the prosecution was guilty of even introducing distorted version about the place of occurrence and on this score too, we have noticed family members stating that the deceased had slept in the courtyard where other family members had slept. Though it was a common courtyard, that had been partitioned among four brothers of Hisabi Yadav by some sort of fencing. Learned counsel would also draw our attention to the evidence of the mother of the deceased who states that Hisabi Yadav too reached the place of occurrence only on alarms raised by her, but if her evidence was considered in totality, without isolation, that would impress us that the father of the deceased too had slept in the courtyard. Learned counsel would also draw our attention to the evidence of the mother of the deceased who states that Hisabi Yadav too reached the place of occurrence only on alarms raised by her, but if her evidence was considered in totality, without isolation, that would impress us that the father of the deceased too had slept in the courtyard. The failure of the State to examine independent witnesses and there being only evidence of family members of the deceased claiming to be ocular witness of the incident of shooting, entirely to exclusion of those who could have been independent witnesses was also sought to be highlighted at the Bar. But this fact cannot be lost sight of that since occurrence took place at the dead of night and that too inside the house, family members would be most probable and natural witnesses and that apart, though others too were suggested to have flocked to the place of occurrence and if none of them claimed to be eye witnesses to the incident of shooting, it did not extinguish probative value of eye witnesses. Contentions were raising that the evidence placed on the record would not fail to suggest that the family of the deceased had some sort of land litigation with Ino Yadav, and on this score it is sought to be urged that possibility of false implication of the appellant cannot be ruled out. But we fail to notice any merit in this argument, too as the State had not led any positive evidence against said Ino Yadav and he was acquitted by the trial court due to insufficiency of evidence against him. 11. Referring to the testimony of the family members of the deceased, it is sought to be urged that since the deceased had criminal antecedent, defence of the appellant was not incompatible that he was killed by some others at some other place for which the appellant was falsely implicated by the family members of the deceased. But we find that simply because the deceased, even if it is assumed, bore criminal antecedent, in absence of any positive evidence about his killing in another incident, such argument was far fetched and quite imaginative, which cannot be given any consideration. But we find that simply because the deceased, even if it is assumed, bore criminal antecedent, in absence of any positive evidence about his killing in another incident, such argument was far fetched and quite imaginative, which cannot be given any consideration. Failure of the State to examine Investigating Officer, it is urged, had seriously prejudiced the appellant which was also taken to be a ground to highlight demerit of the prosecution case, but we have noticed that neither such serious contradictions were pointed out nor there was any other impending circumstance which could pursuable us to reject the entire prosecution case only for failure of the State to examine the Investigating Officer. However, one fact cannot remain unnoticed that though the witnesses were stating about the assailant firing two shots on Mahendra Yadav, for which there was corresponding finding by the doctor, who held autopsy over the dead body of the deceased, the doctor had also noticed one injury, namely, injury no. 5, to have been caused by hard and blunt substance for which no accusation had been attributed to the assailant to have dealt blows with hard and blunt substance. True it is that State had not explained presence of the said injury on the person of the deceased but since we have noticed two corresponding injuries on the dead body of the deceased, as has been the positive findings of the doctor, we are of the view that this fact cannot overshadow other evidence on record. 12. Having given our anxious and deepest consideration to the evidences placed on the record, and also the findings recorded by the court below, we are of the view that same is based on meticulous appreciation of the evidences which did not required interference. The appeal being meritless, is accordingly dismissed. P.K. SINHA, J.:-I agree.