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2004 DIGILAW 410 (PAT)

Bishambhar Yadav v. State Of Bihar

2004-04-08

AFTAB ALAM, CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. Each of the two appellants stands convicted under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act and respectively sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for three years. The sentences are to run concurrently. The prosecution case as set out in the fardbeyan of the informant (PW 11), resident of village Jabahir Diar within district Buxar, as recorded on 27.3.1996 at 10 a.m. by Sub-Inspector, U.N. Paswan at the place of occurrence situated at Farhada Badhar, in presence of Achayabat Nath Yadav (PW 8) and Satyendra Yadav (PW 10) is that in the evening of 20.3.1996 he (informant) had come from his house to the residence of one acquaintance Jhagru Yadav at village Chakk Lahna Diar. That day (20.3.1996) in the night he (informant) learnt that his younger brothers father-in-law Bhim Yadav had also come to the house of Kapildeo Yadav of that village. Next day, 27.3.1996, in the morning he (informant) went to Bhim Yadav and met him there. In course of talk Bhim Yadav stated that he wished to meet his sister at the house of Triloki Yadav in village Paranpur and requested him to accompany him saying that they will return on the same day. On the request of Bhim Yadav the informant proceeded on foot with him in that morning at 6 a.m. and when he reached at a distance of about 1 Km. in Farhada Badhar they saw that some persons armed with rifle and gun were coming on two motorcycles from the side of Lahna Chak. The motorcycle borne persons stopped near them and then he (informant) saw that Swaminath Yadav carrying a rifle and Jay Narayan Yadav carrying a double barrel gun were seated on a Rajdoot Motorcycle driven by Jagdamba Yadav and another Rajdoot Motorcycle driven by Ramjee Yadav was boarded by Bishambhar Yadav, carrying rifle and Rajendra Yadav carrying gun. The persons carrying the arms got down from the motorcycles and therafter Jagdamba Yadav and Ramjee Yadav told the informant to keep away saying that they had no enmity with him but they abused Bhim Yadav and ordered to shoot him saying that he was a rangdar and he used to roam around and do panchayati in the village. The persons carrying the arms got down from the motorcycles and therafter Jagdamba Yadav and Ramjee Yadav told the informant to keep away saying that they had no enmity with him but they abused Bhim Yadav and ordered to shoot him saying that he was a rangdar and he used to roam around and do panchayati in the village. At this Swaminath Yadav fired with his rifle on Bhim Yadav who fell down receiving the shot. The second shot was fired on Bhim Yadav by Bishambhar Yadav by means of rifle. Then Jag Narayan Yadav and Rajendra Yadav also fired their guns on the deceased. Thereafter the accused persons went away on the motorcycle. The informant further says that out of fear he had fallen down at some distance from the place of occurrence. After the departure of the criminals he (informant) got-up and going near the deceased he saw the deceased drenched with blood and dead. In the meantime, the informant further stated that Achayawat Nath Yadav (PW 8) and Satyendra Yadav (PW 10) had arrived there on bicycle from the side of Lahna Chaki and they stood at a distance of 50 yards from there. The time of occurrence is said to be at 8 a.m. on 27.3.1996. About the cause/motive for the occurrence it has been said in the fardbeyan that about one year ago Swaminath Yadav and Jagdamba Yadav were trying to forcibly occupy the land of Ramadhar Yadav regarding which there had been a panchayati and Bhim Yadav (deceased) had decided in that panchayati that the land belonged to Ramadhar Yadav hence Swaminath and Jagdamba were asked to leave the land due to which Swaminath and Jagdamba had threatened the deceased that any day they will take revenge of him (deceased). After recording of the fardbeyan it was read over to the informant (Ext. 1) and he put his signature on the same. On the basis of the fardbeyan Simri Police Station Case No. 29 of 1996 was instituted and investigation commenced. On completion of investigation charge-sheet was submitted against the two appellants and three other accused named in the F.I.R. who were shown as absconders : it is significant to note here that no charge-sheet was submitted against one of the accused, named in the R.I.R., Swaminath. On completion of investigation charge-sheet was submitted against the two appellants and three other accused named in the F.I.R. who were shown as absconders : it is significant to note here that no charge-sheet was submitted against one of the accused, named in the R.I.R., Swaminath. The two appellants were tried by the sessions Judge Buxar in Session Trial No. 51 of 1997 and vide judgment dated 11.8.2000 the appellants have been convicted and sentenced as above. 2. As many as 11 witnesses were examined by the prosecution. The PW 11 Shivjee Yadav is the informant himself, PW 8 Achaywat Yadav and PW 10 Satyendra Yadav have been examined as eye-witness to the occurrence. The witness Krishna Prasad Sharma who happens to be a formal witness has been examined twice as PW 1 and PW 2. He has proved the writings on the fardbeyan Ext. 1 and writings on the first information report marked Ext. 2. PW 2 Jagdeo Mandal and PW 9 Nandjee Yadav are hostile witnesses who do not support the case of prosecution. PW 4 Dr. Ambika Prasad Mandal is the doctor who held postmortem examination on the dead body of the deceased. PW 6 Kapildeo Yadav is a witness on the point of seizure and he deposed that police had seized blood soaked earth from the place of occurrence and a seizure list (Ext. 5) was prepared and he had put his signature (Ext. 5/A) on the same. PW 3 Udaynand Paswan is the investigating officer who had recorded the fardbeyan and conducted investigation from 27.3.1996 to 15.7.1996. PW 7 Nirmal Kumar Singh is the another investigating officer who conducted further investigation after 2.8.1996 and submitted charge-sheet. 3. For appreciating the ocular evidence it is proper to discuss first the evidence of the doctor and the investigating officer. Dr. Ambika Prasad Mandal (PW4) deposed that on 27.3.1996 he conducted the postmortem examination on the dead body of deceased Bhim Yadav and found the following antemortem injuries on the person of the deceased. (i) Eye and mouth closed, rigor mortis present in all limbs. (ii) Lacerated wound over right shoulder region, of size 3/4" margin irregular inverted (wound of entrance). (iii) Lacerated wound over right below anterior clavicle of size 2" x 1.1/2" x Muscle deep. Margin everted (wound of exit). (i) Eye and mouth closed, rigor mortis present in all limbs. (ii) Lacerated wound over right shoulder region, of size 3/4" margin irregular inverted (wound of entrance). (iii) Lacerated wound over right below anterior clavicle of size 2" x 1.1/2" x Muscle deep. Margin everted (wound of exit). (iv) Lacerated wound over left umblical region with charring of skin around wound, size of wound 1", Margin inverted irregular, into intra abdominal cavity deep (wound of entrance). (v) Lacerated wound over right lumber region, margin everted and sized 1.1/2" diameter (wound of exit). (vi) Lacerated wound over right hypocondrial region and sized 1.2" diameter, Margin irregular inverted, into intra abdominal cavity deep (wound of entrance). (vii) Lacerated wound over right medial boarder scapula sized 1" diameter, Margin inverted (wound of exit). On dissection the following were found : Scalp N.A.D., Brain and Meninges N.A.D., Chest right and left lungs ruptured, Heart empty, Liver ruptured, Intestine perforated, Stomach and Bladder empty, Right Kidney ruptured, Left Kidney N.A.D. 4. He further deposed that second and third wounds communicated with each other. IVth and Vth wounds communicated with each other. 6th and 7th wounds communicate. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of firearm injury. Time elapsed since death and P.M. done within 24 hours. The postmortem report in the writing and signature of the doctor was proved as Ext. 4. 5. In the cross-examination the doctor deposed that injury number two and three were caused by one shot. Injury number four and five were caused by another shot and injury number six and seven were caused by a third shot. Thus, the injuries found on the person of the deceased were caused by three shots. The doctor further deposed that firearm includes gun, pistol and rifle. He also deposed that injury, caused by rifle is distinguishable from that by a gun. He further deposed that all the three injuries found on the person of the deceased had been, caused by gun. Thus according to the doctor the injury caused by rifle is distinguishable from injury caused by gun and that the injuries found on the person of the deceased were caused by gun. 6. He further deposed that all the three injuries found on the person of the deceased had been, caused by gun. Thus according to the doctor the injury caused by rifle is distinguishable from injury caused by gun and that the injuries found on the person of the deceased were caused by gun. 6. The Investigating Officer Udaynand Paswan (PW 3) who conducted the earlier part of the investigation deposed that he had recorded the fardbeyan of the informant and he had also inspected the place of occurrence. At paragraph 2 of cross-examination he deposed that he had seized blood soaked soil and two empty cartridges from the place of occurrence but he had not sent the same for any forensic examination. At paragraph 3 he stated that on the basis of rumour he had recorded the S.D. Entry No. 428 dated 27.3.1996 and then he had gone to the place of occurrence. 7. PW 7, who conducted the latter part of investigation deposed that he conducted further investigation after 2.8.1996 and submitted charge-sheet. At paragraph 3 he deposed that in course of investigation he had found that the deceased Bhim Yadav was a veteran criminal and that in the case diary he had mentioned about several cases in which the deceased was involved. 8. In this case, including the informnt, there are three eye-witnesses namely PW 11 informant and PW 8 and 10. The aformant (PW 11) deposed on similar lines is he had stated in his fardbeyan. He leposed that while he was going with the leceased in Farha Badhar six persons namely Swaminath Yadav, Jagnarayan. Jagdambha, Ramjee (appellant), Bishambhar appellant) and Rajendra boarded on two motorcycles came there and appellant Bishambhar carried rifles and Jagnarayan and Rajendra carried guns. Ramjee (appellant) and Jagdambha were separately driving the two motorcycles. Bishambhar exhorted to kill, whereupon. Swaminath fired from his rifle hitting the deceased and thereafter, Bishambhar (appellant), Rajendra and Jagnarayan fired indiscriminately on the deceased. After the deceased fell down Jagdamba went near him and turning his body said that the deceased was finished and thereafter, all of the assailants fled towards village on the motorcycles. He further deposed in paragraph 3 that Daroga had recorded fardbeyan and he had signed the same. After the deceased fell down Jagdamba went near him and turning his body said that the deceased was finished and thereafter, all of the assailants fled towards village on the motorcycles. He further deposed in paragraph 3 that Daroga had recorded fardbeyan and he had signed the same. At paragraph 6 of his cross-examination the informant deposed that Swaminath had fired the first shot hitting the deceased on his panjara (side rib area of chest) Due to first shot the deceased fell down and thereafter 5-7 other shots were fired on the deceased by the assailants. At para 10 he deposed that the deceased had acted as a panch (arbitrator) in a land dispute between Ramadhar and Swaminath and the deceased had given a verdict against Swaminath in that panchayati (arbitration) hence the assailants committed the occurrence. Thus the occurrence is said to have been committed due to grudge of Swaminath against whom the deceased had given a verdict in panchayati. At paragraph 6 the informant admits that Ashok Kumar is his (informants) cousin and the deceased was the father-in-law of Ashok. Thus the deceased was related to the informant. 9. PW 8 claims to be an eye-witness to the occurrence. He deposed that he (PW 8) along with his nephew Satyendra Yadav (PW 10) was going on a bicycle and when they reached Farha Badhar, he (PW 8) saw from a distance of 50 yards that Jagnarayan Yadav. Bishambhar Yadav (appellant). Jagdamba Yadav and Ramjee Yadav (appellant) came on two motorcycles. He (PW 8) further deposed that stopping the two motorcycles the criminals started taking search of the waist of the informant and the deceased. Then this witness deposed that Jagnarayan fired at there deceased from his gun hitting on the panjara of the deceased and receiving the shot the deceased fell down. Then Rajendra Yadav, and Bishambhar Yadav (appellant) fired from their gun and rifle respectively on the deceased. Thereafter, Ramjee Yadav Jagdamba Yadav went to the deceased and turning his body expressed that the deceased was killed and thereafter all the assailants fled away on the motorcycles. At paragraph 3 of the cross-examination he deposed that he is the bahnoi (sisters husband) of the deceased. Thereafter, Ramjee Yadav Jagdamba Yadav went to the deceased and turning his body expressed that the deceased was killed and thereafter all the assailants fled away on the motorcycles. At paragraph 3 of the cross-examination he deposed that he is the bahnoi (sisters husband) of the deceased. He has further deposed that at the time of occurrence he, his nephew (PW 10) and the accused only were present at the place of occurrence and that besides these persons there was none else. Thus this witness says about the presence of himself. PW 10 and the accused persons only at the place of occurrence and he excludes the very presence of the informant at the place of occurrence during the occurrence. At paragraph 4 he deposed that Bhim Yadav (deceased) had received seven shots. The appellants counsel pointed out that the postmortem examination shows that the injuries on he deceased had been caused by only three shots. At paragraph 4 of his evidence the PW 8 further deposed that the shots had been fired on the deceased from a distance of 4 to 8 feet. Here the appellants counsel points out that the doctor has found charring of the wound on the deceaseds wound of entry and he argued that the charring cannot be caused when shot is fired from a distance of 4 to 8 feet. Th evidence of PW 8 suffers with some infirmities which will be discussed in detail later on. 10. The PW 10 Satyendra Yadav is the nephew of PW 8 and he also claims to have been the occurrence from a distance of 50 yards at the time when he was going with PW 8. He deposed that Rajdendra Yadav. Jag Narayan Yadav, Jagdamba Yadav and Ramjee Yadav (appellant), Bishambhar Yadav and one another came on two motorcycles and surrounded the deceased and thereafter they-took search of the informant and the deceased. Then this witness deposes that Jagnarayan Yadav fired from his gun on the deceased and receiving the fire shot the deceased fell down. Thereafter, Jagnarayan, Bishambhar (appellant) and Rajendra fired shots on the deceased. After that Ramjee and Jadgamba went to the deceased and turning his body expressed that the deceased had died and thereafter all of the accused persons fled away on the motorcycle. Thereafter, Jagnarayan, Bishambhar (appellant) and Rajendra fired shots on the deceased. After that Ramjee and Jadgamba went to the deceased and turning his body expressed that the deceased had died and thereafter all of the accused persons fled away on the motorcycle. Thus this witness claims to have seen the occurrence but he describes the manner of occurrence differently than the manner stated by the informant. 11. During argument the learned counsel for the appellant argued that in this case there is no consistency in the evidence of the witnesses and the evidence is contradictory and thus the manner of occurrence is doubtful. It was also argued that the allegation of causing of assault by the appellant Bishambar Yadav by means of rifle is also discredited by the medical evidence. The further submission was that the empty cartridges seized from the field were not sent for forensic examination. It was argued that the motive for the occurrence as stated by the prosecution is not sufficient for causing of alleged occurrence and lastly it was argued that the witnesses are relations and interested and they have come to depose falsely. 12. As to the manner of occurrence it is the categorical case as set out in the fardbeyan and also in the evidence of the informant that Swaminath Yadav had fired the first shot with rifle hitting the deceased and the next shot was fired by Bishambar (appellant) with rifle and thereafter the other accused had fired with gun. Thus according to the informant the first two shots hitting the deceased were fired by one Swaminath and the appellant Bishambhar. The appellant Ramjee Yadav is not said to have carried any weapon or caused any assault but he is simply said to have driven one of the motorcycles. Now PW 8 and 10 who claim to have seen the occurrence from a distance of 50 yards only say in their evidence that out of the criminals first of all Jagnarayan fired with his gun on the deceased hitting the deceased on his panjara due to which the deceased fell down and thereafter Bishambar (appellant) and other criminals fired on the deceased. It is important to note that these two witnesses PWs 8 and 10 do not say about the presence of Swaminath Yadav at the place of occurrence. It is important to note that these two witnesses PWs 8 and 10 do not say about the presence of Swaminath Yadav at the place of occurrence. According to the informant Swaminath Yadav was the first and the main assailant who fired at the deceased from his rifle, hitting the deceased on his panjara due to which the deceased fell down but PWs 8 and 10 totally exclude in their evidence the very presence of Swaminath Yadav at the place of occurrence. Under the circumstances when the informant is being contradicted by the PWs 8 and 10 regarding the manner of assault in the aforesaid manner it becomes very doubtful whether the occurrence had taken place in the mariner as propounded by the informant in the prosecution story. 13. PW 8 at paragraph 3 has deposed that at the time of occurrence only he (PW 8), his nephew (PW 10) and the accused persons were present at the place of occurrence and that besides these there was none else. Thus according to the evidence of this witness (PW 8) the very presence of the informant at the place of occurrence is negatived. In such circumstances a doubt is raised whether any occurrence was witnessed by the informant and whether any such occurrence as propounded by the informant did take place. 14. PW 8 at paragraph 3 deposed that he is deceaseds bahnoi (sisters husband). He (PW 8} also deposed in his examination- in-chief that PW 10 is his nephew. PW 10 deposed at para 3 that he is the son-in-law of the brother of the deceased. The informant (PW 11) in paragraph 6 also admitted that the deceased was the father-in-law of his cousin Ashok Kumar. This all the three witnesses who claim to be eye-witnesses to the occurrence are close relations. Since they are close relations and interested witness their evidence has to be examination with great care and caution. 15. The doctor (PW 4) has opined that injury caused by rifle is distinguishable from the injury caused by gun. He has further, opined that all the three injuries found on the person of the deceased had been caused by gun. The appellants counsel pointed out that according to the informant as well as the PW 8 the appellant Bishambar had a rifle from which he fired at the deceased. He has further, opined that all the three injuries found on the person of the deceased had been caused by gun. The appellants counsel pointed out that according to the informant as well as the PW 8 the appellant Bishambar had a rifle from which he fired at the deceased. The other appellant Ramjee Yadav is not an assailant but he is simply said to have driven the motorcycle. The appellants counsel argued that the appellant Bishambhar Yadav is said to have assaulted the deceased with rifle but according to the doctor all the injuries found on the deceased were caused by gun hence, the allegation of assault on the deceased at the hands of appellant Bishambar Yadav by means of rifle is falsified. In view of the evidence of the doctor the submissions of the appellants counsel appears to be substantial and acceptable. 16. The Investigating Officer (PW 3 paragraph 3) has deposed that he had seized two empty cartridges from the place of occurrence but the cartridges were not sent for any examination. Thus no steps have been taken by the prosecution to get the empty cartridges examined by expert in order to establish that it was the cartridges fried from rifle with which the appellant Bishambhar is said to have assaulted the deceased. 17. Further, the motive as stated in the fardbeyan is that since the deceased had given a verdict in panchayati against Swaminath Yadav regarding land dispute the appellants and others killed the deceased. Even if it is considered that the deceased had given any verdict against Swaminath Yadav there is nothing to show as to why the appellants would have any grudge to kill the deceased. Moreover the motive as said by the prosecution does not appear to be a sufficient ground for committing such heinous offence. 18. Besides this there Investigating Officer (PW 7 paragraph 3) has deposed that in course of investigation he learnt that the deceased was a veteran criminal and he had mentioned in case diary about several cases in which the deceased was involved. 19. Thus considering the facts and circumstances of the case and the evidence on record as well as the infirmities in the evidence of the witnesses it is found that there is no consistent and reliable evidence to prove the case of the prosecution beyond doubt. Therefore the charges are held not proved. 19. Thus considering the facts and circumstances of the case and the evidence on record as well as the infirmities in the evidence of the witnesses it is found that there is no consistent and reliable evidence to prove the case of the prosecution beyond doubt. Therefore the charges are held not proved. The appellants are acquitted of the charges levelled against them. 20. In the result both the appeals are allowed. The order of conviction and sentence passed by the learned trial Court is hereby set aside. The appellant Bishambhar Yadav who is in custody is ordered be set at liberty forthwith if not wanted in any other case. Aftab Alam, J. 21 I agree.