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2003 DIGILAW 181 (PAT)

Lagan Yadav v. State Of Bihar

2003-02-14

B.K.JHA, MANOHAR LAL VISA

body2003
Judgment MANOHAR LAL VISA, J. 1. Both the appeals filed by appellants and criminal revision filed by informant have been heard together and are being disposed of by this common judgment. 2. Both the appeals filed by appellants and criminal revision filed by informant are directed against the judgment and order dated 30.11.1987 passed by IVth Additional Sessions Judge, Ara in Sessions Trial No. 66 of 1983 convicting and sentencing the appellants Ranjeet Singh @ Ranjeet Yadav, the sole appellants of criminal appeal No. 644 of 1987 to undergo rigorous imprisonment for life under Section 302, Indian Penal Code and rigorous imprisonment for two years under Section 148, Indian Penal Code and rigorous imprisonment for two years under Section 27, Arms Act. So far appellants of criminal appeal No. 633 of 1987 are concerned, appellant Saheb Yadav has been sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 149, Indian Penal Code and rigorous imprisonment for one year under Section 147, Indian Penal Code, appellants Rajendra Singh Yadav & Rajendra Yadav to undergo rigorous imprisonment for four years under Section 307, Indian Penal Code and two years under Section 148, Indian Penal Code and remaining appellants, namely, Jawahar Singh @ Jawahar Yadav, Raja Ram Singh Yadav, Raj Kumar Singh Yadav, Sohrai yadav, Dadan Yadav @ Dadan Singh Yadav, Jagu Yadav, Baban Yadav @ Baban Singh Yadav, Baijnath Yadav and Lagan Yadav to undergo rigorous imprisonment for one year under Section 147, Indian Penal Code. Appellants Raja Ram Singh Yadav @ Raja Ram Yadav and Jagu Yadav have been further sentenced to undergo rigorous imprisonment for six months under Section 323. Indian Penal Code. The different sentences passed in respect of each appellants have been ordered to run concurrently. 3. The case of prosecution, as disclosed in the First Information Report (Exhibit 2), in short, is that on 11.9.1982 informant Gopalji Singh (PW 4) was irrigating his agricultural land with the water of canal through a karha (a type of drain dug on earth for flow of water). 3. The case of prosecution, as disclosed in the First Information Report (Exhibit 2), in short, is that on 11.9.1982 informant Gopalji Singh (PW 4) was irrigating his agricultural land with the water of canal through a karha (a type of drain dug on earth for flow of water). At about 8 p.m., appellant Jawahar Singh @ Jawahar Singh Yadav, Raja Ram Singh Yadav, Raj Kumar Singh Yadav @ Raj Kumar Yadav, Sohrai Yadav, Dadan Yadav @ Dadan Singh Yadav, Jagu Yadav, Lagan Yadav, Baijnath Yadav, all armed with lathis, Ramjeet Singh Yadav @ Ramjeet Yadav, armed with gun, Baijnath Yadav armed with bhala and Lagan Yadav came to the place where informant alongwith Badri Narain Singh (deceased), Bachaji Yadav (PW 1), Mohan Ahir (PW 2) and others were taking the water through karha. Appellant Jawahar Singh @ Jawahar Yadav said that he would stop the flow of water through karha which was resisted by informant who asked him to allow him to irrigate his field and the appellants started raising hulla of maro maro and appellant Raja Ram Singh Yadav @ Raja Ram Yadav gave a lathi blow on the head of informant and appellant Rajendra Singh Yadav @ Rajendra Yadav gave a bhala blow on the abdomen of Bachaji Yadav (PW 1), elder brother of informant. Appellant Jagu Yadav assaulted Mohan Ahir with lathi and appellant Saheb Yadav ordered for firing from gun on which appellant Ramjeet Singh Yadav @ Ramjeet Yadav fired from his gun which he had brought from his house hitting Badri Narain Singh, the cousin of informant and Badri Narain Singh became injured and, thereafter, all the appellants ran to assault the informant and his men with lathi and bhala and the informant then fled away. When informant and other injured persons including Badri Narain Singh were being taken to Jagdishpur hospital by their family members and villagers for treatment, Badri Narain Singh succumbed to injuries in the way. The fardbeyan of informant was recorded at about 10.30 p.m. on 11.9.1982 at Jagdishpur hospital by Assistant Sub Inspector Kedar Nath Singh (PW 7). In the fardbeyan, informant stated that karha is situate towards west of the house of Saheb Yadav and water flows in this karha from west to north. The fardbeyan of informant was recorded at about 10.30 p.m. on 11.9.1982 at Jagdishpur hospital by Assistant Sub Inspector Kedar Nath Singh (PW 7). In the fardbeyan, informant stated that karha is situate towards west of the house of Saheb Yadav and water flows in this karha from west to north. On the basis of fardbeyan (Exhibit-2), formal First Information Report (Exhibit-6) under Sections 147, 148, 149, 324, 302 and 307, Indian Penal Code and Section 27, Arms Act was drawn against all the appellants except appellant Saheb Yadav. After investigation, the police submitted charge-sheet against all the appellants including Saheb Yadav. The cognizance of the case was taken and the case was transferred to the Court of Session where charge under Sections 302/34, Indian Penal Code was framed against all the appellants. Besides this, charge under Section 302, Indian Penal Code against appellant Ramjeet Singh Yadav @ Ramjeet Yadav, charge under Sections 302/149, Indian Penal Code against remaining eleven appellants were also framed and appellant Ramjeet Singh Yadav @ Ramjeet Yadav was further charged under Section 27, Arms Act and appellant Rajendra Singh @ Rajendra Yadav was further charged under Section 307, Indian Penal Code. 4. The case of appellants before the Court below was complete denial of allegation against them and their false implication in this case. One witness on behalf of the appellants was examined before the Court below. After trial, the appellants were held guilty and were convicted and sentenced as indicated above. 5. Altogether seven witnesses on behalf of prosecution have been examined in this case. Gopalji Singh (PW 4) is the informant. Dr. Jagdish Prasad (PW 6) is the doctor who held autopsy on the dead body of deceased. Kedar Nath Singh (PW 7) is the Investigating Officer. Bachaji Yadav (PW 1), Mohan Ahir (PW 2} and Balchand Yadav (PW 3) are said to be eye-witnesses to the occurrence and out of them Bachaji Yadav (PW 1), Mohan Ahir (PW 2) and Balchand Yadav (PW 3) are said to be eye-witnesses to the occurrence and out of them Bachaji Yadav (PW 1) and Mohan Ahir (PW 2) are said to have received injuries from the appellants at the time of occurrence. Raghuvir Tiwary (PW 5) is the Sergeant Major who had examined the guns aid to be used in the commission of offence and cartridges. 6. Dr. Raghuvir Tiwary (PW 5) is the Sergeant Major who had examined the guns aid to be used in the commission of offence and cartridges. 6. Dr. Jagdish Prasad (PW 6), in his evidence, has said that on 12.9.1982, he was posted at Jagdishpur hospital as Medical Officer and on that day at 9 a.m., he held post mortem examination on the dead body of Badri Narain Singh and found the following ante mortem injuries : On dissection, it was found that the left side of the back of chest was injured by multiple pellets and the underlined tissues like skin-superficial fascia and muscles were found torn and pellets were found embedded and two pellets were removed and kept as exhibits and left lung was torn by multiple pellet injuries with pellets found embedded at so many places and a few pellets were removed from lung and were kept as exhibits. He has said that he found rigor mortis present in all extremities and blood was found full in plural and lungs. In his opinion, cause of death was shock and haemorrhage due to injury caused by projectile from a firearm causing injury to lung. He has proved his post mortem examination report which is marked Exhibit-4. He has further said that on the same day, he examined informant Gopalji Singh and found one lacerated wound on head 2-1/2x1 cm x bone deep caused by hard and blunt substance which may be lathi and this wound was simple in nature. He has proved this injury report which is marked Exhibit-5. He has further said that he examined Mohan Ahir (PW 2) and found swelling on the right thigh caused by hard and blunt substance which may be lathi and age of this injury was within twelve hours. The injury report prepared by him for this injury is marked Exhibit-5/1. He has also said that on the same day, he examined Bachaji Yadav (PW 1) and found penetrating wound on the upper part of abdomen 1/2" x 2 cm. x depth up to peritoneum and this injury was caused by sharp penetrating weapon which may be bhala and age of this injury was within twelve hours. He has proved the injury report for this injury which is marked Exhibit-5/2. So far deceased is concerned, his evidence establishes that death of deceased was homicidal. x depth up to peritoneum and this injury was caused by sharp penetrating weapon which may be bhala and age of this injury was within twelve hours. He has proved the injury report for this injury which is marked Exhibit-5/2. So far deceased is concerned, his evidence establishes that death of deceased was homicidal. 7 Gopalji Singh (PW 4), the informant, in his evidence, has said that his land as well as the land of Mohan Ahir (PW 2) and deceased are situate towards north of the house of appellant Saheb Yadav and the land of appellant Saheb Yadav is situate towards south and east of his house and there is a karha adjacent west of the house of appellant Saheb Yadav which goes to west to north and through this karha, an another small karha has emerged towards northeast which goes to the land of appellant Saheb Yadav and this small karha is the personal karha of appellant Saheb Yadav and the water goes from big karha to the small karha of appellants and from the water of this small karha, land of the appellants is irrigated and appellant Saheb Yadav has got an electric boring where an electric bulb used to light everytime. About the occurrence, he has said that on the day of occurrence at about 8 p.m., Badri Singh (deceased), Bachaji Yadav (PW 1) and Mohan Ahir (PW 2) were irrigating the land from the water of big karha and they all were sitting in the sahan of Khaderan Chaudhary. Appellants Jawahar and Raja Ram came there and Raja Ram asked for blocking the water on which he and others said that they would not allow the blocking of the water because their lands were yet to be irrigated and on this account, some altercation took place and during that altercation, other appellants also came there. Appellants Jawahar and Raja Ram came there and Raja Ram asked for blocking the water on which he and others said that they would not allow the blocking of the water because their lands were yet to be irrigated and on this account, some altercation took place and during that altercation, other appellants also came there. Appellant Raja Ram was armed with a gun, appellant Rajendra Singh was armed with bhala and other appellants were armed with lathi and appellant Raja Ram, after crossing the karha, assaulted the informant and appellant Rajendra Singh gave a bhala blow on the abdomen of Bachaji Yadav and appellant Jagu Yadav assaulted Mohan Ahir (PW 2) on his thigh with lathi Appellant Saheb Yadav challenged on which appellant Ramjeet Yadav fired from his gun on deceased Badri who, after receiving injury, fell down and, thereafter, appellants went north towards their houses. He has further said that deceased was taken to Jagdishpur hospital where police recorded his fardbeyan. He has proved his fardbeyan which is marked Exhibit-2. He has further said that appellant Ramjeet Yadav lodged a false counter case against him and others in which police, after investigation, submitted final report. Bachaji Yadav (PW 1), supporting the case of prosecution, has said that on the day of occurrence at about 8 p.m., his land, alongwith the lands of informant, Badri and Mohan were being irrigated by the water of karha when appellants Jawahar and Raj Kumar came there and asked to block the water of karha and on their telling that they would not allow the blocking of water of karha because their lands were yet to be irrigated, some altercation took place on this account and during this altercation, other appellants also came there. Appellant Ramjeet was armed with a gun and appellant Rajendra was armed with bhala and other appellants were armed with lathi and during that altercation, appellant Raja Ram, after crossing the karha, gave a lathi blow on the head of informant and appellant Rajendra gave a bhala blow on his abdomen and appellant Jagu Yadav gave a lathi blow on the thigh of Mohan and at the instigation of appellant Saheb Yadav, appellant Ramjeet fired from his gun on deceased who, after receiving injury, fell down. He has further said that when deceased was being taken to Jagdishpur hospital, he died in the way and at hospital, police recorded the fardbeyan of informant. Mohan Ahir (PW 2) has also said that at the time of occurrence, he, alongwith informant, PW 1 and deceased Badri was engaged in irrigating their lands when appellants Raja Ram and Jawahar came there and asked to block the water of karha and on their refusal, some altercation took place and in the meantime, other appellants also assembled there and appellant Ramjeet was armed with a gun and appellant Rajendra was armed with a bhala and remaining appellants were armed with lathis. He has further said that appellant Raja Ram assaulted the informant with lathi and appellant Rajendra assaulted Bachaji Yadav with bhala and he himself was assaulted by appellant Jagu with lathi and on the instigation of appellant Saheb Yadav for killing with gun, appellant Ramjeet fired from his gun on deceased who, after receiving injury, fell down. Balchand Yadav (PW 3), son of deceased, has said that occurrence took place on 11.9.1982 at about 8 p.m. and at that time, he was going towards east from his house because his land was being irrigated by the water of canal and at that time informant, deceased, Bacha Singh Yadav, Mohan Singh Yadav and Narayan Singh Yadav were also irrigating their lands and when he was at some distance towards west of karha, he heard some altercation on the point of blocking the water of karha and when he proceeded further, he saw appellants Jawahar Singh and Raja Ram Singh towards east of karha engaged in altercation and in the meantime, other appellants also assembled there and appellant Rajendra Singh was carrying a bhala whereas other appellants were armed with lathis. He has further said that appellant Raja Ram, after crossing the karha, assaulted the informant with lathi, appellant Rajendra Singh assaulted Bachaji Singh with bhala and appellant Jagu Singh assaulted Mohan with lathi and at the same time, appellant Saheb Singh Yadav instigated for killing with gun on which appellant Ramjeet Yadav fired with his gun which killed his father. He has further said that appellant Raja Ram, after crossing the karha, assaulted the informant with lathi, appellant Rajendra Singh assaulted Bachaji Singh with bhala and appellant Jagu Singh assaulted Mohan with lathi and at the same time, appellant Saheb Singh Yadav instigated for killing with gun on which appellant Ramjeet Yadav fired with his gun which killed his father. According to him, after assault, all the appellants fled away and he saw all injured persons who told him how they were assaulted and his father was taken to Jagdishpur hospital but he died in the way and at hospital, fardbeyan of informant was recorded. He has proved his signature (Exhibit- 1/1) on the inquest report. 8. Kedar Nath Singh (PW 7) is the Investigating Officer of this case. He has said that on 11.9.1982, he was posted as officer-in-charge at Jagdishpur Police Station and on that date at about 10.30 p.m., he recorded the fardbeyan. (Exhibit-2) of informant at Jagdishpur hospital and sent the fardbeyan to Police Station for registering a case. He has proved the formal First Information Report (Exhibit-6) in the pen of Sub Inspector M.P. Singh of Jagdishpur Police Station. He has said that he took up the investigation of the case and prepared the inquest report (Exhibit-7) and sent the dead body of deceased for post mortem examination and proceeded to place of occurrence and arrested appellants Ramjeet Singh, Saheb Singh, Lagan Singh, Jagu Singh and Sohrai. He has also said that on the basis of fardbeyan of Ramjeet Singh, a counter case was also registered in which final report declaring the case false was submitted. About place of occurrence, he has said that it is a karha situated adjacent east to the house of Khaderan Nonia at Barharwa Tola, Jagdishpur which flows from south to north and from this karha, an other small karha emerges and water in this small karha goes from the big karlva and boring of appellants is situate towards east of the big karha. He has further said that he found the land of place of occurrence trampled. He has also said that from the house of appellant Ramjeet Singh, he seized a gun and four cartridges and prepared a seizure list (Exhibit-8). He has further said that after investigation, he submitted chargesheet. He has further said that he found the land of place of occurrence trampled. He has also said that from the house of appellant Ramjeet Singh, he seized a gun and four cartridges and prepared a seizure list (Exhibit-8). He has further said that after investigation, he submitted chargesheet. He has proved the fardbeyan (Exhibit-9) of counter case of appellant Ramjeet Singh and has proved the final report (Exhibit- 10) of that counter case. In cross-examination, he has said that he had gone to hospital on receipt of a confidential information but has added that he did not record that confidential information in station diary. He has further admitted that he had found a bleeding injury on the head of appellant Ramjeet Singh and had issued requisition for examination of his injury. In para- 23 of his cross-examination, he has said that PW 1, before him, had not stated that at the time of occurrence, appellant Ramjeet was armed with gun, appellant Rajendra was armed with bhala and other appellants were armed with lathis but admits that this witness had stated before him of assault on him by appellants and has also admitted that this witness had not stated that Mohan received injury on his thigh but then has said that this witness had stated before him that Mohan received injury by lathi and appellant Ramjeet Yadav fired from his own gun. We, therefore, find that there is practically no contradiction in the evidence and earlier statement of PW 1. About PW 2, he has said that he had not stated before him that he was sitting at the darwaza of Khaderan for irrigating the land and has said that the occurrence had not taken place at about 8 p.m. and PWs 1, 4 and Badri were with him and had not stated that on the objection raised by Gopal, altercation took place but has said that this witness had stated about all the appellants. So, we find that so far evidence of PW 2 on the point of manner of occurrence is concerned, no contradiction has been brought on record. About PW 3, he has said that this witness had not stated before him specifically that which of the appellants assaulted whom and with which weapon. So, we find that so far evidence of PW 2 on the point of manner of occurrence is concerned, no contradiction has been brought on record. About PW 3, he has said that this witness had not stated before him specifically that which of the appellants assaulted whom and with which weapon. Considering this statement of Investigating Officer, if the evidence of Balchand Singh (PW 3) is not given importance, even then we find that so far the evidence of informant and other witnesses on the point of occurrence is concerned, there is practically no contradiction in their evidence and in their earlier statements. 9. Raghuvir Tiwary (PW 5), in his evidence, has said that on 14.9.1982, he was posted as Sergeant Major at Ara and on that date, he received a requisition alongwith a firearm and cartridges in connection with police station case No. 121 of 1982 for examination and he found that the firearm was regular SBBL Gun No. 7528-76 and among the cartridges, four were live cartridges and eight were fired cartridges and all cartridges were of 12 bores and he found smell of remaining gun powder present in the barrel of gun. He has said that he submitted his report and he has proved the gun (Material Exhibit-I) and used cartridges (Material Ex- hibits-II to II/7) and live cartridges (Material Exhibits-II/8 to 11/11). Raj- Mahal Singh (DW 1) is a witness on behalf of the appellants. He is an advocates clerk. In his evidence, he has said that Jagdishpur is situated at a distance of about twelve miles from Ara and there is a highway for going to Ara from Jagdishpur and on this road, vehicles such as cars, buses, jeeps, rickshaw etc. used to run and it takes about forty five minutes to one hour for going to Ara from Jagdishpur. This evidence has been led on behalf of the appellants in order to show that although the fardbeyan of informant was recorded on 11.9.1982 but First Information Report was placed before concerned Magistrate on 14.9.1982. used to run and it takes about forty five minutes to one hour for going to Ara from Jagdishpur. This evidence has been led on behalf of the appellants in order to show that although the fardbeyan of informant was recorded on 11.9.1982 but First Information Report was placed before concerned Magistrate on 14.9.1982. The fardbeyan (Exhibit-2) clearly shows that it was recorded at Jagdishpur hospital on 11.9.1982 at 10.30 p.m. No doubt, the First Information Report was placed before concerned Magistrate on 14.9.1982 but then this fact simply suggests that there has been some delay in despatch of First Information Report and in absence of any material on record to show that there was any embellishment or fabrication by which the appellants were falsely implicated in this case, the entire case of prosecution cannot be disbelieved only on this score. There is nothing on record to show that informant had any enmity with appellants and in view of this matter, it does not come to reason that he will falsely implicate the appellants and by doing so, will allow the real culprits to go unpunished. 10. Considering the entire evidence on record, we find that prosecution has proved its case beyond all reasonable doubts and there is nothing in the evidence of informant and other eye-witnesses to disbelieve them. So far the case of appellant Saheb Yadav is concerned, allegation against him is that at his instigation, appellant Ramjeet Yadav fired from his gun on deceased causing his death. Appellant Saheb Yadav was charged alongwith other appellants under Sections 302/34, Indian Penal Code and also under Sections 302/149, Indian Penal Code. From the judgment of Court below, we find that the Court below has come to the conclusion that at the spur of moment, appellant Ramjeet Singh Yadav fired from his gun at the instigation of appellant Saheb Yadav and on the basis of this finding, found this charge under Section 302 read with Section 149, Indian Penal Code not proved against remaining appellants but inspite of it, the Court below has convicted and sentenced appellant Saheb Yadav under Section 302 read with Section 149, Indian Penal Code. When other appellants, who were charged as appellant Saheb Yadav under Section 302 read with Section 149, Indian Penal Code, have not been found guilty under this head and he has already been convicted and sentenced under Section 147, Indian Penal Code, the conviction of appellant Saheb Yadav under Section 302 read with Section 149, Indian Penal Code does not appear proper. According to the case of prosecution, at his instigation, appellant Ramjeet Yadav fired from his gun on deceased resulting in his death. In our opinion, the proper head of conviction of appellant Saheb Yadav for this offence will be under Section 302 read with Section 109, Indian Penal Code. It is true that there is no charge against appellant Saheb Yadav under Section 109, Indian Penal Code but then he was already charged under Sections 302/34, Indian Penal Code and Sections 302/149, Indian Penal Code for the murder of deceased. We, therefore, find that because of non-framing of charge under Section 109, Indian Penal Code, he has not been prejudiced at all. The conviction of appellant Saheb Yadav, so far it is concerned under Section 302 read with Section 149, Indian Penal Code, is converted into under Section 302 read with Section 109, Indian Penal Code keeping the sentence for this offence as imprisonment for life. Other conviction and sentence under Section 147, Indian Penal Code in respect of appellant Saheb Yadav and conviction and sentences of all other appellants are hereby confirmed. 11. So far criminal revision filed by informant is concerned, we find no merit in the same because grievance of informant is that death punishment has not been awarded to appellant Ramjeet Yadav and besides appellants Ramjeet Yadav and Saheb Yadav, the remaining appellants have wrongly been found not guilty under Sections 302/34, Indian Penal Code or Sections 302/149, Indian Penal Code because they all were members of unlawful assembly, the common object of which was to commit the murder of deceased. The common object of assembly was to block the water of karha and we do not find that it is a rarest of rare case in which death punishment is warranted. 12. In the result, the criminal revision and the appeals, with modification in respect of one of the sentences awarded to appellant Saheb Yadav, as discussed above, are hereby dismissed. 13. 12. In the result, the criminal revision and the appeals, with modification in respect of one of the sentences awarded to appellant Saheb Yadav, as discussed above, are hereby dismissed. 13. The bail bonds of all appellants, who are on bail, are cancelled and they are directed to surrender before the Court below forthwith. BAL KRISHNA JHA, J. 14 I agree. Writ revised with modifications.