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2003 DIGILAW 1153 (PAT)

Nand Lal Yadav v. State Of Bihar

2003-11-11

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment Bal Krishna Jha, J. 1. This appeal has been preferred against the judgment and order dated 10th February, 1999 passed in Sessions Trial No. 389 of 1996 by the then learned Additional Sessions Judge-IIIrd, Banka. 2. The appellants Nand Lal Yadav and Sushil Yadav have been convicted and sentenced to life imprisonment under Section 302 of the Indian Penal Code. The appellants Dorik Yadav and Khub Lal Yadav @ Gango Yadav have been convicted and sentenced to life imprisonment under Section 302/149 of the Indian Penal Code. All the four appellants have been convicted and sentenced to R.I. for one year under Section 448 of Indian Penal Code. The appellant Dorij Yadav has again been convicted and sentenced to R.I. for six months under Section 323 of the IPC. All the sentence awarded to them, are, however, ordered to run concurrently. 3. On 15.9.1995 the informant, Brahmdeo Yadav, lodged FIR alleging, inter alia, that in the night of 14.9.1995 after taking meal he was at his darwaza and his father, Jakhu Yadav, alongwith his younger brother, Tulsi Yadav (PW 3), was sleeping there. His mother was taking meal in origan and his younger brother, Nand Kishore Yadav, PW 5, was sleeping on a cot in the western veramdah. Other female members and brothers were in their rooms. At 9 p.m. about ten miscreants armed with Bomb, Sword, Chhura, 3 nut came from the western side and on seeing them he alongwith his father fled from the darwaza. He concealed himself in the house. The informant has further alleged that all the four appellants, his co-villagers arongwith, 5/6 unknown miscreants chased his father and entered the house. The appellant, Nand Lal Yadav hurled a bomb at his father and he fell down injured on the ground. His mother, Kewli Devi, rushed and fell down on the body of his father to save him. The appellant, Sushil Yadav, threw a bomb at her and she was injured. Then the appellant, Dorik Yadav, hurled a bomb which caused injury to his father and also to his younger brother, Nand Kishore Yadav, sleeping on a cot in the western veramdah. The appellant, Gango Yadav, inflicted chhura injury on the right side of the neck of his father. At that time unidentified miscreants were standing at the darwaza and after committing the crime all of them fled away. The appellant, Gango Yadav, inflicted chhura injury on the right side of the neck of his father. At that time unidentified miscreants were standing at the darwaza and after committing the crime all of them fled away. The father and the mother of the informant died at the spot. The motive behind the occurrence has been alleged to be that the informant negotiated to purchase three big has land of one Subhan Mian which the appellants were also intending to purchase. This caused a great annoyance to them and they had threatened the informants to commit their murder. The family members and the neighbours of the informant witnessed this occurrence. 4. On 15.9.1995 at 11.30 a.m. the SI R.A. Sharma, of Belhar Police Station recorded the Jardbeyan (Ext 3) of the informant, Brahmdeo Yadav, in the P.O. Village-Sardara, P.S. Belhar, District- Banka. On the basis of the Jardbeyan a formal FIR (Ext. 8) was drawn and a case was registered against all the four accused appellants besides 5/6 unknown under Sections 147/148/149/324/448 and 302, IPC and 3/4 of Explosive Substance Act and the police switched over to the investigation police chargesheeted all the four accused appellants to stand their trial. After cognizance and commitment of the four appellants were put on trial before the then learned Additional Sessions Judge III, Banka. Their trial ultimately concluded in their conviction and sentence in the manner mentioned above. 5. The defence of the appellants is that they are quite innocent and have been falsely dragged in this case. The further defence plea is that the deceased Jakhu Yadav had led on the Hindu community in the famous communal rights of 1989 in the Bhagalpur District, so, he was murdered by unknown Muslim miscreants but the informant encashed the situation. On behalf of the defence one witness has been examined. Parmeshwar Yadav, DW 1, is a formal witness and has proved the formal FIR of Belhar P.S. Case No. 15 of 1987 under Section 307 of the IPC and Section 27 of the Arms Act lodged by Ram Yadav, the father of the three app sllants, against unknown, Ext. A. He has also proved the Jardbeyan (Ext. B) and the chargesheet (Ext. C) of that case. A. He has also proved the Jardbeyan (Ext. B) and the chargesheet (Ext. C) of that case. In addition the defence has also brought on record the formal FIR alongwith its written report of Jhajha P.S. Case No. 267/89 dated 8.10.89 lodged against unknown under various sections of the IPC in respect of communal riot of village-Dhowatia, Ext. A/1. 6. On the other hand, the prosecution examined altogether ten witnesses in support of its case. Out of them PW 1, Bipat Kora, has stated that on halla he went to the place of occurrence and found Jakhu and his wife lying dead of bomb explosion injuries. In cross-examination, his evidence is that in the communal riot Jakhu had led the Hindu community. PW 2, Parmeshwar Yadav is a witness on the inquest reports of the deceased, Jakhu Yadav (Ext. 4) and Kewali Devi (Ext. 4/1). He proved his signature on the inquest report of Jakhu Yadav, Ext. 1 and also on the inquest report of Kewali Devi, Ext. 1/2. He also proved the signature of the other witness, namely, Mahavir Pandit on the inquest reports of both the deceased, Ext. 1/1 and 1/3 respectively PW 7 R.A. Sharma, is the I.O. of this case. PW 8, Basant Kora and PW 9, Nageshwar Yadav, are the tendered witnesses and nothing material has come in their cross-examination. PW 10, Jitendra Kumar Mandal has proved the post mortem report of the deceased, Jakhu Yadav, Ext. 9. The prosecution has also examined Arun Kumar Mandal as a Court witness. He has proved the post mortem report of Kewali Devi (Ext. 9/1). Remaining four witnesses, namely, Tulsi Yadav, PW 3, Chhote Yadav @ Chhote Lal, PW 4, Nand Kishore Yadav, PW 5, and Brahmdeo Yadav, PW 6, (the informant), are the eye-witnesses to the occurrence. All the four eye-witnesses are the brothers and are the sons of the deceased, Jakhu Yadav. It may be pointed out here that the doctor has not been examined in this case. 7. The learned counsel for the appellants contended that the trial Court overlooked certain impelling circumstances attending the prosecution case and wrongly recorded the order of conviction against the appellants. He submitted that the prosecution had not examined the doctor who conducted autopsy on the dead bodies of both the deceased and his non-examination has seriously prejudiced the appellants. 7. The learned counsel for the appellants contended that the trial Court overlooked certain impelling circumstances attending the prosecution case and wrongly recorded the order of conviction against the appellants. He submitted that the prosecution had not examined the doctor who conducted autopsy on the dead bodies of both the deceased and his non-examination has seriously prejudiced the appellants. The prosecution brought on record only and post mortem reports which is inadmissible in evidence. He again submitted that in the instant case the First Information Report was lodged more than 14 hours after the incidence and this abnormal delay has not been explained by the prosecution which casts a serious doubt on the veracity of the prosecution case. A reliance has been placed on the case of Peddireddy Subbareddy and others V/s. The State of Andhra Pradesh, reported in AIR 1991 SC 1356 , wherein it has been held that: "As the First Information Report was lodged by the delay of 15 hours, the false implication of appellants in the present case cannot be completely railed out." The learned counsel for the appellants against contended that all the material witnesses examined by the prosecution are closely related and interested in the prosecution, so, the trial Court committed an error of law by acting upon their partison evidence for the conviction of the appellants. On the other hand, learned counsel for the State argued that when all the material witnesses are related or interested in the prosecution their evidence requires close and severe scrutiny, and if, they appear to be trustworthy witnesses, the conviction can be based on such evidence. In the present case all the witnesses examined by the prosecution are closely related to the deceased but they were the natural witnesses, so, the trial Court rightly convicted the appellants on their evidence. In this context he has referred the case of Kamal and others V/s. The State of Uttar Pradesh, reported in 2002 SCC (Cri) 1600, wherein it has been held that : "Testimony of an eye-witness cannot be thrown away merely on the ground that he is a close relative of victim quite more so when they were quite natural witnesses and their evidence was supported by the medical evidence as well as the objective finding of the I.O." 8. In order to appreciate the rival contentions of the parties now I advert the evidence on record. 9. In order to appreciate the rival contentions of the parties now I advert the evidence on record. 9. PW 6 Brahmdeo Prasad Yadav is the informant of this case. His evidence is that in the night of 14.9.1995 at 9 p.m. he alongwith his father, Jakhu Yadav and younger brother, Tulsi Yadav, PW 3, were at his bunglow. About ten miscreants came from the western side and on seeing them he alongwith his father went inside the house and Tulsi remained on the outer veramdah. All the four accused appellants, Nand Lal Yadav, Dorik Yadav, Sushil Yadav and Gango Yadav entered in the angan and accused appellant Nand Lal Yadav hurled a bomb at his father as a result of which he fell down in the angan. His mother, who was taking meal, rushed to save his father and fell down on his body. At this, accused appellant, Sushil Yadav, hurled a bomb at her. Thereafter the accused, appellant, Dorik Yadav, also hurled a bomb which caused splinters injury to his brother, Nand Kishore Yadav, PW 5, who was on the western veramdah of the angan. Then the accused appellant Gango Yadav @ Khublal Yadav cut the right side of the neck of his father with chhura. At the time of occurrence the other female members and bis brother, Chhote Lal Yadav, were also in the house. He has further stated that he identified the accused appellants in the light of the lantern burning in angan as well as from their voice. He has further stated that the police came, recorded his statement and he put his signature thereon (Ext. 2). In cross-examination his evidence is that in the following morning when he along with Balmiki Yadav had been to Belhar police station to call the police he had informed Darogaji about the entire incidence of murder with the names of accused appellants involved in the case. His statement was not recorded by the police. Then, he returned back to his village. He has admitted to have stated before the police that at the alleged time a lantern was burning in the anganand he had shown the same to him. After the departure of darogaji from the P.O. the dead bodies of both were taken to the police station. His further evidence is that the house of the accused appellants is situated at a short distance from his house. After the departure of darogaji from the P.O. the dead bodies of both were taken to the police station. His further evidence is that the house of the accused appellants is situated at a short distance from his house. They are neither on visiting terms nor there had been any case in between them. His further evidence at para 14 of his cross-examination is that the night of the occurrence was dark no lantern was burning at the bongla. At para 16 of his evidence is that after the retreet of the accused persons when he went inside the angan he saw the females, the wives of Chhoti Yadav, Jangali Yadav, his mother and sister Sunita aged 4/5 years there The females were washing the utensils. He has further deposed that the accused persons chased his father and when he entered the angan bomb was hurled on his back and the blood had fallen in the angan. The accused appellants Gango Yadav was also armed with sword and Dorik Yadav with 3 nut. The evidence of PW 5 Nand Kishore Yadav the injured brother of the informant is that in the night of occurrence he was sleeping on a cot on the western veramdah of the angan. His father, brother Brahmdeo Yadav, PW 6, the informant and his younger brother, Tulsi Yadav, PW 3, were in the outer bangalow. His mother was taking meal in the angan. At about 9/10 p.m. the miscreants came and on seeing them his brother Brahmdeo Yadav and his father rushed inside the angan. His brother Brahmdeo Yadav went in a room. His father rushed on the western veramdah of the angan and all the four accused appellants also chased his and came there. The accused appellant Nand Lal Yadav hurled a bomb at his father and he died at the spot. His mother fell down on his body to save him whereupon the accused appellant Sushil Yadav hurled a bomb at her. Thereafter accused-appellant, Dorik Yadav hurled a bomb at his father and mother. He also sustained splinters injuries of the bomb on different part of his body. The accused appellant, Gango Yadav inflicted chhura injury on the right side of the neck of his father. He has further stated that he identified all the accused-appellants in the light of the lantern burning inside the angan on the veramdah. He also sustained splinters injuries of the bomb on different part of his body. The accused appellant, Gango Yadav inflicted chhura injury on the right side of the neck of his father. He has further stated that he identified all the accused-appellants in the light of the lantern burning inside the angan on the veramdah. His father and the mother died of the injuries caused by the accused-appellants. He has admitted to have stated before the police that at the alleged time he has sleeping on a cot on the western veramdah and when he woke up he found his father injured. In cross examination his evidence is that the alleged lantern was shown to the darogaji but the same was not seized by him. PW 4, Chhoti Yadav @ Chhotey Lal Yadav has stated that on the alleged date the occurrence took place at 9 p.m. and there was a dark night. His father and brothers, Brahmdeo Prasad Yadav, the informant and Tulsi Yadav, PW 3 were at bangla. When the miscreants came at bangla his father and brother, Brahmdeo Yadav rushed inside the angan. In the light of the burning lantern he Identified the accused- appellants, Nand Lal Yadav, Sushil Yadav and Dorik Yadav having bombs in their hands and Gango Yadav having talwar in his hand. The accused- appellant, Nand Lal Yadav hurled a bomb at his father and he died. His mother rushed and fell down on his body to save him whereupon the accused-appellant, Sushil Yadav, hurled a bomb at her and she died. The accused-appellant, Dorik Yadav, also exploded bomb which caused, splinter injury to his brother Nand Kishore Yadav, PW 5. Then the accused-appellant, Gango Yadav @ Khublal Yadav cut the neck of his father with talwar. After the departure of the accused, hulla was raised which attracted many villagers there. He has further stated that he identified only the four accused-appellants. He has supported the reasons behind the commission of the crime as disclosed in the fardbeyan. In cross- examination he has stated that he was never examined by the police. The house of the accused-appellants is situated in the north of his house at a distance of 30/40 hands. He has further stated that he identified only the four accused-appellants. He has supported the reasons behind the commission of the crime as disclosed in the fardbeyan. In cross- examination he has stated that he was never examined by the police. The house of the accused-appellants is situated in the north of his house at a distance of 30/40 hands. He has further stated that at the alleged time he was alone in his room standing in the south of his angan and lantern was burning on the western veramdah and dibri was burning on the eastern veramdah. At para 10 of his cross-examination his evidence is that the bangla was situated in north outside the angan where at the relevant time his father and brothers, Brahmdeo Yadav and Tulsi Yadav were present. The angan was bounded by wallon all the four sides having entrance door in the north which was open at the alleged time of the occurrence. He has further stated that there was only the aforesaid entrance door for going from angan to the bangla situated at the veramdah. He has further stated that the place where his father and other brothers were present at the time of the occurrence was visible from the angan. The evidence of PW 3, Tulsi Yadav, is that the occurrence took place at about 9 p.m. and at that time he was lying on a cot on veramdah. His brother, Brahmdeo Yadav, the informant and father, Jakhu Yadav were also there. His younger brother, Brahmdeo Yadav was sleeping on the western veramdah inside the angan and his elder brother, Jangali Yadav was on the western veramdah of the angan. His mother was taking meal in the angan and there a lantern was burning. The other family members were inside their rooms. At about 10 miscreants came at bangla from the west and amongst them he identified Nand Lal Yadav, Sushil Yadav, Dorik Yadav with bombs and Khublal Yadav @ Gango Yadav with chhura. On seeing them his father and brother, Brahmdeo Yadav rushed inside the angan and he himself remained outside at bangla. All the four appellants also followed and entered in the angan. The accused-appellant, Nand Lal Yadav, hurled a bomb at his father and his father fell down in the angan. When his mother rushed to save him, the accused- appellant, Sushil Yadav, threw a bomb at her. All the four appellants also followed and entered in the angan. The accused-appellant, Nand Lal Yadav, hurled a bomb at his father and his father fell down in the angan. When his mother rushed to save him, the accused- appellant, Sushil Yadav, threw a bomb at her. On hearing the sound of bomb explosion he went inside the angan and learnt about the occurrence from his brother, Brahmdeo Yadav, the informant. He found his father and mother lying dead. He has also supported the motive behind the occurrence as outlined in the fardbeyan. In cross-examination he has stated that he was examined by the police one day after the occurrence. He has further stated that his angan was bounded with walls from all sides having entrance door in the north of the angan. His further evidence is that the night of occurrence was dark and at that time a lantern was burning in the angan and except that no other lantern was burning. The lantern was shown to darogaji but the same was not seized by him. 10. PW 7, R.A. Sharma is the Investigating Officer of this case. He has stated that on receipt of hearsay information about the occurrence of murder of two persons in the Village-Sardara, he made Station Diary Entry and proceeded for the P.O. Village. He recorded the fardbeyan of the informant, Brahmdeo Yadav (Ext. No. 3) which was signed by him and the witness, Balmiki Yadav. He prepared the inquest reports of the dead body of the deceased, Jakhu Yadav (Ext. No. 4) and Kewali Devi (Ext. No. 4/1) in presence of the witnesses, Mahavir Pandit and Parmeshwar Yadav. He seized the remains of bomb explosion and blood stained earth. He prepared a seizure list in presence of the witnesses, Balmiki Yadav and Yugal Yadav which was also signed by them (Ext. No. 5). He recorded the further statement of the informant and sent the dead bodies of both the deceased for post mortem examination. He inspected the P.O. He found the main entrance door in the north of the house having planks in the door. He learnt that the miscreants had entered inside the angan from the aforesaid door and at that time the lantern was burning in the angan. He found bomb explosion signs on the western wall and western plank near the door of the house. He learnt that the miscreants had entered inside the angan from the aforesaid door and at that time the lantern was burning in the angan. He found bomb explosion signs on the western wall and western plank near the door of the house. He also found sufficient blood fallen in the angan as well as on the veramdah. He also found remains of the bomb explosion at the place of the occurrence, i.e., in the angan and on the veramdah. He has further stated that he obtained the sanctioned report from the District Magistrate for the prosecution under Section 3/4 of the Explosive Substance Act (Ext. No. 6) and on completion of investigation he submitted chargesheet. He also proved the entire case diary (Ext. No. 7) and also a formal FIR (Ext. No. 8). In cross-examination his evidence is that no one had infcrmed him about the occurrence rather he had heard a rumour about it. On the basis of that information he made Sanha Entry on 15.9.1995 at 8.45 p.m. bearing No. 306 dated 15.9.1995. On the basis of that information he proceeded to the P.O. Village and arrived there at 11.30 p.m. He has admitted that the seizure list is not indicative of the place from where the seizure was made and the seized blood stained earth remains of the bomb explosion were not sent for chemical test. He has further stated that he had not seized any lantern. His attention was drawn to the statement of the witnesses recorded by him under Section 161 of the Cr PC. The witness Nand Kishore Yadav, PW 5 had stated before him that the lantern was burning in the angan and veramdah. 11. It is clear that the prosecution case depends on the evidence of four eyewitnesses, namely, Tulsi Yadav PW 3, Choti Yadav @ Chhote Lal, PW 4, Nand Kishore Yadav, PW 5, and Brahmdeo Prasad Yadav, PW 6. They all are own brothers and are the sons of the deceased. The incidence in question occurred on 14.9.1995 in their house around 9 p.m. and there was a dark night. The informant, Brahmdeo Yadav, his father, Jakhu Yadav and brother, Tulsi Yadav, were at the darwaza outside the house. The mother of the informant was taking meal in the angan and his younger brother, Nand Kishore Yadav, was sleeping on a cot in the western veramdah of the angan. The informant, Brahmdeo Yadav, his father, Jakhu Yadav and brother, Tulsi Yadav, were at the darwaza outside the house. The mother of the informant was taking meal in the angan and his younger brother, Nand Kishore Yadav, was sleeping on a cot in the western veramdah of the angan. Ten miscreants armed with bomb, sword, chhura and 3 nut came at the darwaza and amongst them the witnesses identified all the four accused-appellants. All the four appellants chased Jakhu Yadav, the father of the informant, and went inside the angan. The informant concealed himself in the house. The appellant, Nand Lal Yadav, hurled a bomb at Jakhu Yadav and the appellant, Sushil Yadav, hurled a bomb at Kewali Devi, the mother of the informant. Then the appellant, Dorik Yadav, also hurled a bomb which caused injury to Jakhu Yadav and also to Nand Kishore Yadav. The appellant, Gango Yadav, inflicted injury on the right side of the neck of Jakhu Yadav and both the father and the mother of the informant died at the spot. At that time the unidentified miscreants were standing at the darwaza. The informant, Brahmdeo Yadav, lodged an FIR on 15.9.1995 at 11.30 a.m. when the SI R.A. Sharma, of Belhar Police Station, arrived in the P.O. Village-Sardara, P.S. Belhar, District Banka. The evidence of PW 7, R.A. Sharma Investigating Officer of this case, indicates that no one had informed him about the occurrence rather he heard the rumour about it. On the basis of the hearsay information he made Sanha Entry on 15.9.1995 at 8.45 a.m. On that basis he went to the P.O. village at 11.30 p.m. and recorded the fardbeyan of the informant, Brahmdeo Yadav (Ext. No. 3). On inspection of the P.O., the house of the informant, he found signs of bomb explosion on the western wall and the western plank near the door of the house and also sufficient blood fallen in the angan as well as on the veramdah. He also found remains of the bomb explosion at the place of occurrence, i.e., in the angan and on the Western veramdah. He seized the remains of the bomb explosion and blood stained earth and prepared seizure list (Ext. No. 5). His evidence further indicates that he had not seized any lantern. He also found remains of the bomb explosion at the place of occurrence, i.e., in the angan and on the Western veramdah. He seized the remains of the bomb explosion and blood stained earth and prepared seizure list (Ext. No. 5). His evidence further indicates that he had not seized any lantern. The prosecution has, thus, attempted establish its case on the basis of the above direct testimony coupled with the objective finding of the I.O. that all the four appellants and none-else participated in the commission of the murder of Jakhu Yadav and Kewali Devi. 12. A careful analysis of the above evidence shows that the direct testimony of all the four eye-witnesses cannot be considered as sufficient to hold the accused- appellants guilty. The extraordinary delay of more than 14 hours in lodging the First Information Report when the police station was at a distance of only 14 kilometres from the P.O. village has not been explained by the prosecution. Admittedly, delay in lodging FIR, certainly does not always become fatal for the prosecution if it is properly explained and there is preponderance of the prosecution evidence. In the instance case all the four eye-witnesses have claimed to have identified the accused-appellants in the light of lantern burning in the angan but there was no mention of the lantern in the FIR. The informant, Brahmadeo Yadav, PW 6 and his brother, Tulsi Yadav, have claimed to have identified them when they appeared at the place of their presence at bangla, outside of the house, where there was no source of identification. They all have given dramatic account with all minute details of the incidence. In other words, the account of the witnesses is too dramatic and sound obviously invented to allow each of the witnesses to give evidence of the entire attack which gives a doubt to the credibility of their evidence. Again there is no medical evidence on the record to suggest that the deceased received injuries at the alleged time in the manner as alleged by the prosecution. The position of law is that the medical evidence is not substantive evidence of charge but is accepted only as corroborative evidence of the charge. The post-mortem report given by the doctor is inadmissible in evidence unless the doctor is examined. The position of law is that the medical evidence is not substantive evidence of charge but is accepted only as corroborative evidence of the charge. The post-mortem report given by the doctor is inadmissible in evidence unless the doctor is examined. It is the statement of the doctor in Court which is admissible in the evidence and not his report. The trial Court wrongly accepted the post-mortem report in evidence. Further, the movie for the occurrence is stated to be that the informant negotiated to purchase 3 bighas of land of Subhan Mian which the appellants were also intended to purchase but the details of the transacted land have not been furnished by the prqsecution. Moreover, the motive suggested by the prosecution does not appear to be strong enough tor all the accused-appellants jointing together to commit the murder of the deceased. 13. On active consideration of the above discussed evidence and the contentions of the parties, I come to the conclusion 3that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts. 14. In the result, I allow this appeal, set aside the conviction of the appellants and acquire them of the charges framed against them. The appellants, Dorik Yadav, Khublal Yadav @ Gango Yadav and Nand Lal Yadav, are on bail, so they are discharged from the liabilities of their executed bail bonds. The appellant, Sushil Yadav, is in custody, so he is ordered to the released forthwith in this case, if not wanted in any other case. ANIL KUMAR SINHA, J. 15 I agree.