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2004 DIGILAW 365 (PAT)

Gohal Yadav v. State Of Bihar

2004-04-01

INDU PRABHA SINGH, P.N.YADAV

body2004
Judgment I.P.Singh and P.N.Yadav JJ. 1. Criminal Appeal No. 341 of 2000 and Cr. Appeal No. 362 of 2000 arise of same judgment have been heard together and are being disposed of by this common judgment. 2. The appellants Shankar Yadav and Rijhan Yadav have been convicted u/s. 302 of the Indian Penal Code and were sentenced to undergo for life imprisonment. They are further convicted u/s. 201 of the the Indian Penal Code and were sentenced to undergo R.I. for two years. They are further convicted u/s. 34 of the Indian Penal Code and were sentenced to undergo R.I. for one month. They are also sentenced to undergo R.I. for two years u/s. 27 of the Arms Act. The appellants Kaleshwar Yadav and Gohal Yadav were sentenced to undergo R.I. for life imprisonment u/s. 302/34 of the Indian Penal Code and also R.I. for two years u/s. 201 of the Indian Penal Code and R.I. for one month u/s. 341 of the Indian Penal Code. They are further convicted u/s. 25 of the Arms Act and were sentenced to undergo R.I. for two years. However, all the sentences of the four appellants were ordered to run concurrently. 3. The fardbeyan (Ext.4) of the informant Ram Chandra Yadav (P.W. 7) was recorded by Pradeep Singh, Officer Incharge of Piparia Police Station on 24.5.1996 at 15 hours. It has been alleged that on 23.5.1996 at about 6.00 P.M. while he alongwith his son Haribansh Yadav (deceased) after crossing the river Ganges were going to their Dera and when they reached at Chunni Pari Bahiar, all of a sudden, the accused person namely Shankar Yadav, Rijhan Yadav, Kaleshwar Yadav and Gohal Yadav, all of village Diara Piparia having armed with rifles, guns came from the jungle and surrounded them. It has been alleged that the appellants Rijhan Yadav and Shankar Yadav fired their rifles on Haribansh Yadav(deceased) as a result of which he received fire arm injuries and fell down and died immediately on the spot. It has beeen stated that the accused Rijhan Yadav and Shankar Yadav took away the dead body of Haribansh Yadav towards south in the jungle. It has beeen stated that the accused Rijhan Yadav and Shankar Yadav took away the dead body of Haribansh Yadav towards south in the jungle. It is also alleged that at the time the accused Kaleshwar Yadav and Gohal Yadav pointed their arms to the informant and threatened him not to raise alarm otherwise he would be killed like his son and would be thrown in the river Gangas. Out of fear, the informant, at that time, did not raise any halla and on the sound of firings witnesses Parsuram Yadav (P.W. 4), Kirani Yadav (P.W. 2) and Shiv Khelawan Yadav(RW. 6) also came there and saw the alleged occurrence. It has further been alleged that the accused persons confined the informant till late night and due to late night the informant and the other witnesses could not go anywhere in the night and in the next morning, they started searching of the dead body of Haribansh Yadav with the help of other persons. But the dead body could not be recovered. Thereafter, the informant reported the matter to the concerned police. 4. The motive of the occurrence according to prosecution was that one month prior to the alleged occurrence the deceased Haribansh Yadav assaulted with one and two sticks to the accused Rijhan Yadav for damaging his crops by his cattle as such due to that occurrence the accused persons are said to have committed the murder of the son of the in formant Ram Chandra Yadav. On the basis of the fardbeyan of the informant Barahiya RS. case No. 55 of 1996 was registered against the accused persons under Ss. 341, 302/34 and 201 of the Indian Penal Code and also u/s. 27 of the Arms Act. Thereafter, a formal F.I.R. (Ext. 5) was also drawn up. After completion of investigation, charge-sheet was submitted against the accused persons showing accused Shankar Yadav was declared absconder. On the basis of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the court of Sessions ultimately the trial concluded with the result as indicated above. 5) was also drawn up. After completion of investigation, charge-sheet was submitted against the accused persons showing accused Shankar Yadav was declared absconder. On the basis of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the court of Sessions ultimately the trial concluded with the result as indicated above. The defence of the accused persons appears from the trend of the cross-examination of ail the prosecution witnesses and the statements of the accused persons recorded u/s. 313 of the Code of Criminal Procedure that there is total denial of the murder of the son of the informant as alleged and the defence of the accused persons is also that the appellants are innocent and have been falsely implicated in this case due to previous enmity. The defence of the accused persons is also that the son of the informant Ram Chandra Yadav was traceless about 26 days before the alleged occurrence and was murdered by other culprits somewhere else. The prosecution in support of its case has also examined altogether eight witnesses. 5. P.W. 1, Ganesh Yadav, son of the informant, P.W. 2, Kailash Yadav, cousin of the deceased, P.W. 3 is Kirani Yadav, P.W. 4 is Parsuram Yadav and P.W. 5 is Doctor Sudhir Kumar. He has conducted postmortem examination on the person of the deceased Haribansh Yadav, P.W. 6 Shiv Khelawan Yadav, brother of the informant, P.W. 7 is Ram Chandra Yadav, the informant. P.W. 8 is Pradeep Kumar. He is the Investigating Officer in this case. D.W.1 is Ram Naresh Yadav. D.W.2 is Indradeo Yadav. D.W. 3 is Indu Yadav. P.W. 7 is the informant Ram Chandra Yadav has fully supported the case of prosecution as stated in his fardbeyan. According to him on the alleged date of occurrence he alongwith his son Haribansh Yadav were going from their village Piparia to their Dera on the other side of the river Ganges and when they reached at Chunni Pari Bahiar, all of a sudden, appellants armed with gun and rifles came there from Jhaua jungle and surrounded them. He has stated that the appellants Shankar Yadav and Rijhan Yadav fired their armed each at his son as a result of which his son fell down and died there. He has stated that the appellants Shankar Yadav and Rijhan Yadav fired their armed each at his son as a result of which his son fell down and died there. He has also stated that at that very time the appellants Gohal Yadav and Kaleshwar Yadav pointed their arms to the informant and threatened him not to raise alarm. According to him, thereafter, the appellants Shankar Yadav and Rijhan Yadav dragged tho dead body of his son towards jungle. He has also stated that when his son was shot the witnesses Kirani Yadav (P.W. 3), Shiv Khelawan Yadav (P.W. 6), and Parsuram Yadav (P.W. 4) also came there. They are also going to their houses at Piparia village. According to him, the appellants Kaleshwar Yadav and Gohal Yadav kept him confined at the point of their arms till late night and thereafter, they also entered in the said jungle. He has stated that due to darkness and he and other witnesses could not search the dead body in the jungle and they all remained in the jungle for the whole night out of fear. According to him, in the next morning, they started searching the dead body of the deceased Haribansh Yadav till 12 Noon but the same was not traced out. Thereafter, they went to village Piparia after crossing the river Ganges on the boat and he informed the police. He has gave his fardbeyan (Ext. 4). According to him on 25.5.1996, the dead body of the deceased was found on the bank of the Ganges in the field of one Baijnath in the east of Chunni Pari Bahiar. The head of the deceased was found severed and his thigh was also found imputed and abdomen was ruptured. According to him the motive of the alleged occurrence was that about one month ago the cattle of Rijhan Yadav caused damage of crops of the informant and deceased had beaten him. According to him, he filed a petition in the court throwing suspicion on Anand Yadav, Shiv Khelawan Yadav and Narayan Yadav of village Piparia Dih in the alleged murder. He has also stated that his Dera is situated at a distance of 10 Rassi from Chunni Pari Bahiar. According to him, about 100-200 persons had also their Dera in the Diyara area and that Jhaua Jungle is located near Chunni Pari Bahiar. 6. He has also stated that his Dera is situated at a distance of 10 Rassi from Chunni Pari Bahiar. According to him, about 100-200 persons had also their Dera in the Diyara area and that Jhaua Jungle is located near Chunni Pari Bahiar. 6. P.W. 3, Kirani Yadav, he claims to be the eye witness of the occurrence has also supported the case of the prosecution. According to him, on the date of occurrence, he alongwith other witnesses Shiv Khelawan (P.W. 5) and Parsuram were going to their house from Diyara and when they reached near Chunni Pari Bahiar they saw the informant and his son Haribansh Yadav going to Diyara from their village. He has further stated that at the time when they were 5-6 Lagga away, they saw the appellant Kaleshwar Yadav coming from the jungle with guns. Thereafter, they also saw appellants Rijhan Yadav and Shankar Yadav coming from the jungle with guns. According to him, the appellant Rijhan Yadav and Shankar Yadav fired their guns at the deceased Haribansh Yadav, who sustained firearm injury and died instantaneously. He has further stated that they were threatened to remain silent. Thereafter, appellants Shankar and Rijhan took away the dead body of the deceased Haribansh Yadav towards the jungle. He has also stated that they made search of the dead body of the deceased in the jungle and its vicinity thereafter they came to the village in the morning and the information about occurrence was given to the police. He has also stated that he saw the appellant at the distance of 5 Laggas. According to him, on the 3rd day, the dead body of the deceased was recovered near the bank of Ganges. He has stated that the dead body was naked and the head of the dead body was cut. According to him, his fardbeyan was also recorded by the police. 7. P.W. 4, Parsuram Yadav, he also claimed to the eye witness of the case had supported the case of the prosecution. According to him on the date of occurrence that is 23.5.1996 at about 6.00 P.M. he alongwith Kirani Yadav (P.W. 3) and Shiv Khelawan Yadav (P.W. 6) coming to Diyara to his village and when they reached near Chunni Pari Bahiar at Jhaua jungle, they saw the informant alongwith his son Haribansh Yadav coming to their Dera in the Diyara. According to him on the date of occurrence that is 23.5.1996 at about 6.00 P.M. he alongwith Kirani Yadav (P.W. 3) and Shiv Khelawan Yadav (P.W. 6) coming to Diyara to his village and when they reached near Chunni Pari Bahiar at Jhaua jungle, they saw the informant alongwith his son Haribansh Yadav coming to their Dera in the Diyara. He has further stated that when he was at some distance he saw all of a sudden the appellants Shankar Yadav and Rijhan Yadav having guns and rifles in their hands came from the jungle and fired their arms at Haribansh Yadav as a result of which he fell down. According to him, the appellants Kaleshwar Yadav and Gohal Yadav also pointed out their guns towards him and others and threatened him to stay there and not to raise alarm. He has also stated that he and other witnesses even the informant remained in the jungle in the whole night and in the morning all of them searched the dead body of the deceased Haribansh Yadav till 12 Noon to 1.00 P.M. but they could not find the same. In his cross examination, he has stated that his Dera is situated in the Diyara at a distance of 20-25 Rassi. 8. P.W. 6 is Shiv Khelawan Yadav. According to him, he is the eye witness of the alleged occurrence has stated that he was also coming to his house alongwith Kirani Yadav(P.W. 3) and Parsuram Yadav (P.W. 4.) and when they reached near Chunni Pari Bahiar he saw the informant and the deceased son Haribansh Yadav coming to their Dera in the Diyara. He has stated that appellants Shankar Yadav and Rijhan Yadav, Gohal Yadav and Kaleshwar Yadav having armed with rifles and guns came from the jungle and appellants Shankar Yadav and Rijhan Yadav fired their arms at Haribansh Yadav as a result of which Haribansh Yadav received firearm injuries and fell down. He has stated that the appellants Gohal Yadav and Kaleshwar Yadav threatened the informant not to raise alarm. According to him, thereafter the appellants Rijhan Yadav and Shankar Yadav took away the dead body towards the jungle. According to him, they including the informant remained hidden in the jungle for the whole night. Out of fear and in the morning, they all searched the dead body of Haribansh Yadav but it was not found. According to him, thereafter the appellants Rijhan Yadav and Shankar Yadav took away the dead body towards the jungle. According to him, they including the informant remained hidden in the jungle for the whole night. Out of fear and in the morning, they all searched the dead body of Haribansh Yadav but it was not found. Thereafter, after two days the dead body of the deceased was found in the bank of river Ganges near village Dih Piparia. According to him, the head of the dead body of Haribansh Yadav was cut and thigh was also cut. 9. P.W. 1, Ganesh Yadav and P.W. 2, Kailash Yadav are the witnesses of inquest report. They have proved their signatures on the inquest report as Ext.1 and 1/1. 10. P.W. 5, Dr. Sudhir Kumar, the medical expert who held postmortem examination of the dead body of the deceased Haribansh Yadav, has stated that on 26.5.1996 he conducted the postmortem examination of the dead body of the deceased Haribansh Yadav and found the following ante-mortem injury on the dead body of the person of the deceased Haribansh Yadav. i. One lacerated circular wound ½" dia x abdominal cavity deep, plackening around the wound. ii. The left thigh was absent from lower 3rd margin sharp and bone cut sharply. iii. Inciced wound found on the right abdomen 4"x 2" x abdominal cavity deep with perforated viscera intestine cut and omentum. iv. Injury No.4 : Head separated at the level of survical bone, margin of both under sharp. On dissection above injuries were confirmed. On the further dissection dark blood present on the left chest, lacerated of left lung,fracture of T 12 verbetta, rupture of abdomen. One bullet found lodged on the left side of the body sternum which was sealed and signed and handed over to the police station. In the opinion of the doctor, death was as a result of above injuries. According to him, injury no.1 was caused by firearm and rest by sharp cutting weapon. Time elapsed since death was within 48-72 hours. 11 P.W. 8, Pradip Singh, is the I.O. of this case has stated that on 24.5.1996 he was posted as Officer Incharge of Piparia PS. and he recorded the fardbeyan of the informant Ram Chandra Yadav on that date at about 15.00 hours. Time elapsed since death was within 48-72 hours. 11 P.W. 8, Pradip Singh, is the I.O. of this case has stated that on 24.5.1996 he was posted as Officer Incharge of Piparia PS. and he recorded the fardbeyan of the informant Ram Chandra Yadav on that date at about 15.00 hours. According to him, the informant as well as the witnesses Kailash Yadav and Rajendra Yadav put their signatures on the fardbeyan. Thereafter, a formal F.I.R. was drawn up (Ext.5). According to him, a case was registered and he took the charge of investigation of the case. He also recorded the statement of other witnesses. According to him, he visited the place of occurrence, which was Chunni Pari Bahiar situated at the bank of Ganges in the lonely place of jungle. He also found Jungle Jhar there. He also saw the Pagdandi and he found sand on that Pagdandi. According to him, on 25.5.1996, the witnesses searched the dead body of the deceased Haribansh Yadav and he was also informed about recovery of the dead body by the informant Ram Chandra Yadav. He stated that the dead body was taken out from the river Ganges on its bank. The head was severed and one leg was also found missing. He prepared inquest report of the dead body in presence of witness Kailash and Ganesh. He send the dead body for postmortem examination to Sadar Hospital, Munger. He received the postmortem report and the special report of the S.R, Lakhisarai. According to him, the Dy. S.R, Lakhisarai also supervised the case. Thereafter, ultimately he submitted chargesheet. 12. D.Ws.1, 2 and 3 have supported the version of the defence that the deceased Haribansh was killed somewhere else. 13. Learned counsel for the appellants have submitted that the place of occurrence is very doubtful and the medical evidence is totally inconsistent to the prosecution case and that the prosecution witnesses apart from being the relations did not seem to be present at the alleged place of occurrence. It has further been stated that the I.O. Pradip Singh (P.W. 8) did not find any blood stain or mark of dragging at the alleged place of occurrence. It does not seem probable that the culprits would have taken the dead body in the jungle to hide and later taking it for throwing in the river Ganges. It has further been stated that the I.O. Pradip Singh (P.W. 8) did not find any blood stain or mark of dragging at the alleged place of occurrence. It does not seem probable that the culprits would have taken the dead body in the jungle to hide and later taking it for throwing in the river Ganges. The postmortem report and the deposition of doctor Sudhir Kumar (P.W. 5) shows that the dead body was not cut or assaulted by the appellants. P.W. 5 has stated that all the injuries were ante mortem. The statement of doctor and post-mortem report show that some persons got fell the deceased down on the ground and thereafter one of them sat on his chest and pressed the same causing internal injuries in the lungs and blood oozed out of this injury inside the body and there was also fractured of chest bones. The doctor found only one firearm injury on the dead body of the deceased. These ante-mortem injuries as reported by tho doctor gives the impression that the deceased was assaulted and murdered in a different manner and not as alleged in the prosecution story. 14. The dead body was found by the I.O. Pradip Singh in the field of Jay Shankar. However, the prosecution witnesses P.Ws.6, 4 and 3 have stated that dead body was found in the river Ganges. P.W. 6, Shiv Khelawan Yadav had specifically stated that dead body was swollen. P.W. 7, the informant Ram Chandra Yadav stated that he found the dead body in the field of Baijnath, which was situated by the side of the river Ganges. He also stated that the dead body was somewhat swollen. The doctor (P. W. 5.) did not find any swollen part of the dead body of the deceased while he examined him. This finding in medical examination falsify the fact that the dead body was thrown into the river Ganges. The investigation in this case also appears not up to the mark of satisfaction. The learned counsel has pointed out that no dates were taken down under the signature of the witnesses in the first information report and even in inquest report and it appears that they were ante dated in time and the F.I.R. was prepared when the dead body was recovered. The learned counsel has pointed out that no dates were taken down under the signature of the witnesses in the first information report and even in inquest report and it appears that they were ante dated in time and the F.I.R. was prepared when the dead body was recovered. The I.O. (P.W. 8) had tried to make out second firearm shot making a note that firearm pillet injuries were there on the shoulder and the near of the eye. The doctor(RW. 5) Sudhir Kumar did not find any such pillet injury on the upper part of the body of the deceased Haribansh Yadav. The informant (P.W. 7) Ram Chandra Yadav has stated in paragraph-11 that the I.O. did not send any police party to search and to search the dead body of the deceased. This shows that the investigation had not been carried out properly to find out the culprits as well. 15. All the prosecution witnesses are relations and statement of P.W. 6 shows that the informant Ram Chandra and Haribansh were going to their Dera situated in Diyara nearby alleged occurrence. The informant Ram Chandra would have rushed to take shelter in the Dera but he did not do so. The motive for the murder also does not seem to be convincing. It has been alleged that the deceased Haribansh assaulted the appellant Rijhan Yadav with sticks as his cattle had damaged his crops. It appears that this occurrence took place at about a month ago and this small incident could not be the motive for the appellants to commit the murder of Haribansh Yadav (deceased) by all of a sudden by firing of two shots on him. 16. It also appears that no injuries was found by doctor(P.W. 5) having been caused after the death and according to prosecution two firing was made on the deceased. The recovery of dead body whether from river or from the field of Baijnath could not be proved that apart all the witnesses are relatives and motive of the crime was not so strong enough.As such the prosecution has failed to prove its case beyond all reasonable doubts. There is no denying that there could be the possibility that the deceased might have been killed somewhere else and after recovery of dead body the appellants were falsely implicated in this case. There is no denying that there could be the possibility that the deceased might have been killed somewhere else and after recovery of dead body the appellants were falsely implicated in this case. In that view of the matter and in the facts and circumstances, the appellants deserve acquittal on benefit of doubts. Accordingly, the conviction and sentence passed by the court below against these appellants are hereby set aside and the appellants Kaleshwar Yadav and Gohal Yadav are discharged from the labilities of their bail bond. It has been stated that the appellants Rijhan Yadav and Shankar Yadav are in custody, they are directed to be released forthwith, if not wanted in another case. 17. In the result, these two appeals are allowed.