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2003 DIGILAW 1101 (PAT)

Kapil Yadav v. State Of Bihar

2003-10-23

AFTAB ALAM, CHANDRA MOHAN PRASAD

body2003
Judgment CHANDRA MOHAN PRASAD, J. 1. These two appeals are against the judgment dated 29th April 2000 of the 2nd Additional Sessions Judge. Aurangabad whereby the appellants have been convicted under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Each of the appellants has been sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code, but no separate sentence has been passed under Section 27 of the Arms Act. 2. The fardbeyan (Ext-1) of the informant Sheo Nath Singh (PW 3) was recorded at Haspura PS by SI Ram Lakhan Singh Yadav on 18th April 1993 at 7.45 p.m. The informant stated in his fardbeyan that that day (18.4.1993) he, along with his uncle Lakshman Singh (deceased) had gone to Pachrukhiya Bazar for purchasing clothes etc, for the Roksadi of his (informants) cousin sister and that after making purchase, he (the informant) and his uncle (the deceased) were retuning on a bicycle to their home at village Rampur. In the way, in village Angrahi, since the road was in bad condition, they got down from the bicycle. The informant was going ahead and the deceased, carrying the bicycle was coming behind the informant. When they reached south of village Angrahi at Taranbir Sthan, the three appellants who were ambushing carrying pistols, stopped them on the way. Appellant Jairam Singh shot pistol on the deceased and appellant Sarju Singh also fired his pistol on the deceased. Receiving the shots, the deceased fell down. Then it is alleged that appellants Jairam Singh and Sarju Singh took out Rs. 1,000/- (One thousand) from the deceaseds pocket and then carrying the money, clothes and the bicycle they fled away towards west. The informant raised nulla, whereupon, some villagers are said to have assembled to whom the informant disclosed about the occurrence and the deceased was brought to the Police Station. Old enmity was said to be the cause of occurrence. On the basis of fardbeyan (Ext-1), a formal First Information Report (Ext-1/1) was registered and after completion of investigation, the appellants were put on trial. It appears that the appellants were also charged under Section 379 of the Indian Penal Code but the learned trial Judge did not find this charge proved, hence, the appellants were acquitted of the charge. 3. It appears that the appellants were also charged under Section 379 of the Indian Penal Code but the learned trial Judge did not find this charge proved, hence, the appellants were acquitted of the charge. 3. As many as seven witnesses have been examined by the prosecution in this case. PW 3 Sheo Nath Singh is the informant himself who claims to be the eye witness of the occurrence. PW 1 Nandlal Singh is the brother of the deceased, PW 2 Yogendra Singh and PW 4 Suresh Singh are the witnesses who are said to have arrived at the PO on nulla. PW 5 Birjan Singh is a hostile witness and he deposed nothing about the occurrence. On attention being drawn towards his previous Police statement, he denied to have made any such statement supporting the case of prosecution before the Police. PW 6 T.N. Shukla is the Doctor who conducted the P.M. Examination on the dead body of the deceased. He has proved the P.M. Examination report marked Ext-3. PW 7 Mahadeo Singh is a formal witness who proved the writing and signature on the FIR marked Ext-1/1. He also proved the writing of the IO on the case diary marked Ext-3,4/1 and 4/2. This has to be mentioned here that the IO of this case has not been examined by the prosecution and there is no explanation for his non-examination. 4. For proper appreciation of ocular evidence, it is proper to discuss the evidence of the Doctor first. Doctor (PW 6) deposed that on 18th April 1993, he conducted autopsy on the dead body of the deceased and found the following ante mortem injuries: (i) One lacerated wound on the left arm l/2"x superficial semicircular black coloured with crust formation without any debris inside. (ii) One lacerated wound on the right leg l"x l/4"x skin deep. (iii) Left forearm bones were found fractured in three pieces in the middle part with extra-vasation of blood locally in tissue place. (iv) Left arm bones were also fractured in three pieces in the middle part with extra-vasation of blood locally. (v) Abrasion on the front of chest wall 6"x2-l/2". On dissection, the left side 3rd and 4th ribs were found fractured had pierced in the; lung tissue with extra-vasation of half litre of blood in the chest cavity. (iv) Left arm bones were also fractured in three pieces in the middle part with extra-vasation of blood locally. (v) Abrasion on the front of chest wall 6"x2-l/2". On dissection, the left side 3rd and 4th ribs were found fractured had pierced in the; lung tissue with extra-vasation of half litre of blood in the chest cavity. (vi) There was an abrasion on the left leg 2"x 1/2" x superficially with blood clot of red colour. On dissection, no debris was found. No pillet was recovered from the body. On dissection of chest and abdomen, heart was empty with all chambers, stomach contained digested food material and the urinary bladder was empty. Time elapsed between post-mortem and death, within 24 hours. In the doctors opinion, the cause of death was due to hard blunt substance, perforation of lungs causing haemorrhage, shock leading to death. The deceased was aged about 30 years. The P.M. Report was proved by the Uorcor as Ext-3. At Para-3 of his cross-examination, the Doctor deposed that he did not find any foreign particle in the injuries. Thus, according to the Doctor, the injuries found on the person of the deceased were caused by hard blunt substance. 5 The informant (PW 3) deposed that at 5.30 p.m. while he was retuning with the deceased on a bicycle after purchasing articles from Pachrukhiya Bazar for the BIDAGARI of the deceaseds daughter, in the way near village Angrahi they got down due to the condition of the road being bad and they were going on foot, the informant going ahead and the deceased following him from behind with his bicycle. The appellants stopped them on the way. At Para-2 of his evidence, the informant deposes that appellant Jairam Singh fired his pistol on the deceased due to which the deceased receiving injury on his right thigh fell down. Then appellant Sarju Singh fired his pistol hitting the deceased on his right shoulder. Thereafter, the informant further deposed that appellant Sarju Singh took out Rs. 1,000/- (one thousand) from the deceased and then Jairam and Sarju, both filed away on the deceaseds bicycle. He has stated about lodging of fardbeyan (Ext-1) at the Police Station. His signature on the fardbeyan is marked Ext-1/2. At Para-7 of his cross-examination, he deposed that the deceased had fallen in a ditch there and blood had also fallen there. 1,000/- (one thousand) from the deceased and then Jairam and Sarju, both filed away on the deceaseds bicycle. He has stated about lodging of fardbeyan (Ext-1) at the Police Station. His signature on the fardbeyan is marked Ext-1/2. At Para-7 of his cross-examination, he deposed that the deceased had fallen in a ditch there and blood had also fallen there. In his examination-in-chief, the informant deposed that the Occurrence took place due to the dispute on the question of irrigation of land but in his cross-examination at Para-9 he deposed that in the dispute with the appellants regarding irrigation of land, any case was not filed against them but it was filed against some other persons. 6. PWs 1,2 and 4 are not the eye witnesses to the occurrence of assault and they had reached the PO after fleeing of the appellants. In their evidence, these witnesses say that on hulla they reached at the PO and they found the deceased lying unconscious in injured condition. PW 1 says that the deceased had a fire-shot injury on his chest. PW 2 says the fire-shot injury was on the left side of chest of the deceased and PW 4 says that the deceased was lying besmeared with blood. As to the manner of assault, these witnesses have stated that the informant, naming all the three appellants, stated before them that the three appellants had shot the deceased. PWs 1 and 2 have deposed that the informant had stated to them that the appellants had dashed the deceased down 2-3 times on the bicycle lying there, whereas PW 4 deposed that the bicycle was dashed down 2-3 times on the deceased lying there. Thus, there is contradictory evidence on this matter which will be taken into consideration later on. 7. The informant had claimed in his evidence that appellant Sarju Singh and Jairam fled away on the deceaseds bicycle but PW 4 deposed at Para-1 of his evidence that when he had reached subsequently at the PO on hulla, the bicycle was lying there. On the question of discrepancy of evidence on the point of theft of bicycle, the learned trial Judge has already disbelieved the story of theft and the appellants were acquitted of the charge u/s 379 IPC. 8. On the question of discrepancy of evidence on the point of theft of bicycle, the learned trial Judge has already disbelieved the story of theft and the appellants were acquitted of the charge u/s 379 IPC. 8. During the argument the learned counsel for the appellants argued that there are serious infirmities in the evidence as led by the prosecution which make the prosecution story doubtful. Firstly, it was argued that admittedly the informant (PW 3) is the sole witness on the point of occurrence. If was pointed out that in his evidence, the informant says that appellant Jairam Singh and Sarju Singh had fired from pistols on the deceased, causing injuries respectively on his right thigh and right shoulder. Besides these two assaults, causing the injury, the informant does not say about any other assault caused by any of the appellants, causing any kind of other injury. The learned counsel for the appellants referred to the injuries as found by the doctor on the deceaseds P.M. Examination. The Doctor has found as many as six injuries on the person of the deceased and he has opined that all the injuries were caused by hard blunt substance. As to the situs of the six injuries as found by the doctor, it is pointed out by the learned counsel that none of the injuries are on the right thigh and right shoulder of the deceased. Thus, due to the absence of any injury on the right thigh and right shoulder of the deceased, the informant is totally discredited in his claim that the appellants had assaulted the deceased with pistols causing injuries on the deceaseds right thigh and right shoulder. In such view of the matter, the manner of assault as propounded by the prosecution through the evidence of the informant who happened to be the sole witness on the point of assault becomes unreliable and unworthy of any credence. 9. In such view of the matter, the manner of assault as propounded by the prosecution through the evidence of the informant who happened to be the sole witness on the point of assault becomes unreliable and unworthy of any credence. 9. As to the injuries, as found on the deceased on P.M. Examination, the learned APP tried to make improvement in the case of prosecution and he submitted that according to the evidence of PWs 1,2 and 3, the deceased was dashed down 2-3 times on the bicycle, hence, it was argued that this act of the appellants is sufficient to cause injuries by hard blunt substance, i.e. the bicycle and its parts and that, therefore, the doctor found all the six injuries caused by hard blunt substance which were found to be the cause of death. But on critically examining the evidence of PWs 1,2, and 3 it is found that even the story of dashing down the deceased on the bicycle has not been put through the evidence of PWs 1,2 and 3 in a consistent manner. PWs 1 and 2 say that they had learnt from the informant that the deceased had been dashed down 2-3 times by the appellants on the bicycle, but PW 4 contradicts by saying that he had learnt from the informant that the bicycle had been dashed down 2-3 times on the deceased. Moreover, PWs 1,2 and 4 are not the eye witnesses on the point of dashing down of the deceased on the bicycle or the bicycle on the deceased, but these witnesses say to have learnt this from the informant. It is curious to find that the informant is completely silent over this aspect and he has not said in his evidence that he had seen the appellants dashing the deceased down on the bicycle or the bicycle on the deceased or to have communicated any such incident to PWs 1,2 and 4. Therefore, due to the informant not saying about this, the evidence of PWs 1,2 and 4 regarding the story of dashing down the deceased on the bicycle or the bicycle on the deceased becomes such a piece of hearsay evidence which cannot be accepted under law. Therefore, due to the informant not saying about this, the evidence of PWs 1,2 and 4 regarding the story of dashing down the deceased on the bicycle or the bicycle on the deceased becomes such a piece of hearsay evidence which cannot be accepted under law. Therefore, the evidence of PWs 1,2 and 4 on the point that the appellants had dashed the deceased 2-3 times down on the bicycle or the bicycle on the deceased, being unworthy of any credence, does not make any improvement in the case of prosecution. 10. As to the manner of assault, there is further discrepancy in the evidence of witnesses. According to the informant (PW 3), appellants Jairam Singh and Sarju Singh had fired from pistols on the deceased causing injuries to him, but PWs 1,2 and 4 who subsequently arrived on hulla at the PO stated that the informant, naming all the three appellants had told them that all the three appellants had shot at the deceased. 11. Thus considering the facts and circumstances of the case and the evidence discussed above, we find that the prosecution has failed to prove beyond doubt that the deceased was killed by the appellants by assault by means of pistols in the manner as alleged. Therefore, the charges against them are held not proved. Consequently, each of the appellants is acquitted of the charge under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 12. In the result, these two appeals are allowed. The impugned judgment of conviction is set aside. Appellants Jairam Singh and Sarju Singh who are in custody are directed to by released forthwith, if not wanted to be detained in any other case. Appellant KapilYadav, who is on bail, is discharged from the liability of bail. AFTAB ALAM, J. 13 I agree.