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2004 DIGILAW 719 (PAT)

Mukund Yadav v. State Of Bihar

2004-07-21

AFTAB ALAM, B.K.JHA

body2004
Judgment BAL KRISHNA JHA, J. 1. Both the appeals arise out of the common judgment and order passed on 26th February/2nd March, 2001 in Sessions Case No. 118/98 by the then learned Additional Sessions Judge-Ill, Munger, so they were heard together and are being disposed of by this judgment. 2. All the three appellants have been indicted for the offence under Sections 302 /34 of the Indian Penal Code. and imposed with punishment of life imprisonment. The appellant, Mukund Yadav, has further been indicted for the offence under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and imposed with punishment of 7 years R.I. and three years respectively. The substantive sentences imposed upon the appellant, Mukund Yadav, however, have been ordered to run concurrently. All the three appellants are the sons of the accused, Sridhar Yadav (since dead). 3. The incident happened on 2,5.1997 at 5.45 a.m. near the field of Hulash Yadav in Village Adalpur, P.S.Dharhara, District Munger. At the alleged time the informant, Sahdeo Yadav, PW 6, was proceeding to his house from Basa. When he reached near the field of Hulash Yadav, situated before the bargad tree, the accused, Mukund Yadav, with pistol, Pramod Yadav and Ramdhari Yadav with khantas fitted lathies hiding themselves behind the three came out and encircled him. In no time the co-accused, Sridhar Yadav also appeared there and exhorted them in the words "dekhte kya ho, sala dushman hai, maro". At this, the accused, Mukund Yadav, opened fire from his pistol and the informant and he sustained injury on his right leg. The informant cried out and fell down injured on the ground. On his alarm, his brother, Ram Chandra Yadav, rushed there where upon the accused persons left the informant and brutally assaulted Ram Chandra Yadav with khanta fitted lathies. Ram Chandra Yadav also raised alarm and fell down injured on the ground. On the outcry of both and the sound of firing the witnesses, Arjun Yadav, PW 7, Suresh Yadav, PW 1, Naresh Yadav, PW 5, Ram Krishna Yadav, PW 4 and many others arrived and witnessed the occurrence. Thereafter the accused persons made good escape from there. On the arrival of the witnesses, Ram Chandra Yadav, narrated to them about the occurrence and he became unconscious. Thereafter the accused persons made good escape from there. On the arrival of the witnesses, Ram Chandra Yadav, narrated to them about the occurrence and he became unconscious. Then both the injured, the informant and Ram Chandra Yadav, were taken to Railway Hospital, Jamalpur, for treatment where Ram Chandra Yadav, was declared dead by the Doctor. The motive behind the occurrence as alleged by the informant is that 3/4 days prior to the occurrence, the accused, Mukund Yadav, along with his friends in drunken state came at his darwaza and started abusing him and his family members in filthy languages. The informant protested but of no effect. Then he with the help of others chased them to apprehend but they escaped after giving life threat to them. 4. On the same day, i.e. 2.5.1997, at 9.15 hours, the A.S.I., P.N. Singh of East Colony Police Station recorded the fardbeyan (Ext. No. 3) of the informant, Sahdeo Yadav, at Bed No. 14 in the Surgical Ward of Railway Hospital Jamalpur. The fardbeyan of the informant was forwarded to the O.C., Dharhara Police Station for the institution of a case as the P.O. was lying within the jurisdiction of that police station. On the basis of his fardbeyan a formal FIR (Ext. No. 4) was drawn up and Dharhara P.S. Case No. 38 of 1997 dated 2.5.1997 was registered under Sections 302/307/34 of the Indian Penal Code and Section 27 of the Arms Act against the four accused persons, namely, Mukund Yadav, Pramod Yadav, Ramdhari Yadav and Sridhar yadav. On the completion of the investigation police chargesheeted all the three accused-appellants to stand trial under Sections 302/307/34 of the Indian Penal Code and Section 27 of the Arms Act after keeping investigation pending against the co-accused, Sridhar Yadav, Sridhar Yadav could not be apprehended and during investigation he died and accordingly supplementary case diary was submitted against him. After cognizance of the offence and commitment of the case all the three accused were put on trial which ended in their conviction in the aforesaid manner. 5. The defence of the appellants is a plea of innocence and false implication due to enmity. After cognizance of the offence and commitment of the case all the three accused were put on trial which ended in their conviction in the aforesaid manner. 5. The defence of the appellants is a plea of innocence and false implication due to enmity. The specific case of the defence is that on the alleged date at the relevant hour of occurrence the deceased, Ram Chandra Yadav and the injured-informant, Sahdeo Yadav, PW 6, had been at the bathan of the accused persons for committing theft. Both of them were chased, apprehended and assaulted by the villagers as a result of which Ram Chandra Yadav, lost his life and the informant sustained injuries. One witness has been examined on behalf of the defence in support of its case. 6. On the other hand, the prosecution examined altogether eight witnesses to bring home the guilt against the accused persons. Out of them PW 7, Arjun Yadav, turned hostile and nothing material could be elicited in his cross-examination either by the prosecution or the defence. PW 3, is Dr. Subhash Chandra, who conducted autopsy on the dead body of the deceased, Ram Chandra Yadav. PW 8, Anil Kumar Chaudhary.is the Investigating Officer of this case. The remaining five witnesses, PW 1, Suresh Yadav, PW 2, Upendra Yadav, PW 4, Ram Krishna Yadav, PW 5 Naresh Yadav and PW 6, Sahdeo Yadav, the informant are the eye-witnesses to the occurrence. 7. PW 3 is Dr. Subhash Chandra. He has stated that on 2.5.1997 he was posted as Medical Officer, Sadar Hospital, Munger. On the same day at 3.30 p.m. he held postmortem examination on the dead body of the deceased, Ram Chandra Yadav and found the following ante-mortem injuries on his person : 1. Incised wound of size 2" x 1/2" y cranial cavity-deep on the left tempro parietal region. 2. Lacerated wound of size l" x 1/4" x scalp deep on right tempro parietal region. 3. Bruise of size 7" x 1/2" on front of chest extending from just below the right nipple to 1" below to left nipple. On dissection echymosis present, left parietal bone and left temporal bone. Brain matter found lacerated. Blood and blood clots present in cranial cavity. Chest cavity filled with blood and blood clots. Both lungs were found lacerated. 3. Bruise of size 7" x 1/2" on front of chest extending from just below the right nipple to 1" below to left nipple. On dissection echymosis present, left parietal bone and left temporal bone. Brain matter found lacerated. Blood and blood clots present in cranial cavity. Chest cavity filled with blood and blood clots. Both lungs were found lacerated. Fracture of rib on right side of chest from 5th to 6th ribs and on left side from 6th to 7th ribs with fracture of sternum. In his opinion the death was due to shock and haemorrhage as a result of the above injuries caused by hard and blunt substance except the injury No. 1 which was caused by sharp cutting weapon. According to him, the time elapsed between the death and post-mortem examination held was within 12 hours. He proved the post-mortem report (Ext. No. 2). In cross- examination his evidence is that incised injury may be caused by a sharp edged weapon. If any heavy substance like lathi is applied on projected part of the body, it cannot produce any incised wound. In no way incised wound may be caused by hard and blunt substance. Thus, the post-mortem examination was held on 2.5.1997 at 3.30 p.m. and the alleged occurrence took place on the same day, i.e. 2.5.1997 at 5.45 a.m. In this way according to the prosecution version death occurred within 10 hours and as per the lieal evidence it was within 12 hours. The medical evidence, therefore, is fully consistent with the prosecution case that the death of Ram Chandra Yadav, occurred at the relevant hour of occurrence due to assault with lathi and khanti. 8. The fact that Ram Chandra Yadav, was murdered at the alleged time has not been disputed. The appellants have disputed only their participation in the alleged offence. 9. The prosecution has examined PW 1, Suresh Yadav, PW 2 Upendra Yadav, PW 4, Ram Krishna Yauav, PW 5, Naresh Yadav and PW 6, Sahdeo Yadav, the informant as the eye-witnesses to the occurrence to state about the participation of all three accused- appellants in the commission of the occurrence. Out of them PW 1. Suresh Yadav, is the son of the informant. PW 2, Upendra Yadav, is the nephew of the informant. PW 4, Ram Krishna Yadav is the son of the deceased, Ram Chandra Yadav. Out of them PW 1. Suresh Yadav, is the son of the informant. PW 2, Upendra Yadav, is the nephew of the informant. PW 4, Ram Krishna Yadav is the son of the deceased, Ram Chandra Yadav. Thus, they are closely related to the deceased, Ram Chandra Yadav, PW 5, Naresh Yadav is an independent witness. The evidence of PW 6, Sahdeo Yadav, the informant is that on 2.5.1997 at 5.45 a.m. he was proceeding to his house from Basa. When he reached near the bargad tree, the accused, Mukund Yadav with pistol, Pramod Yadav and Ramdhari Yadav with khantee fitted lathies hiding themselves behind the tree suddenly came out and surrounded him. In no time their father, the co-accused, Sridhar (since dead) also appeared there with lathi and instigated them in the words "maro sola dushman hat. On his exhortion the accused, Mukund Yadav, fired from his pistol at him causing injury on his right leg. He cried out and fell down injured on the ground. His out-cry attracted his brother, Ram Chandra Yadav and on the arrival of him the accused left the informant and brutally assaulted Ran,. Chandra Yadav with khanti fitted lathies. He also fell down injured on the ground. On the arrival of the witnesses and others the accused persons took to their heels. He has further stated that his brother, Ram Chandra Yadav, narrated about the incidence to all the assemblage there and then he became unconscious. Thereafter, he along with his brother, Ram Chandra Yadav, was taken to Railway Hospital for treatment where his brother was declared by the Doctor dead. His further evidence is that 3/4 days prior to the occurrence, the accused, Mukund Yadav along with his friends in drunken state had come at his basa and started abusing him and his family members in filthy languages. There was a protest but of no effect. Then he along with others chased them to apprehend but they escaped after giving life thereafter to them. He has further stated that in the hospital darogqji came, and recorded his fardbeyan. Fardbeyan was read over to him and after finding the contents true he put his L.T.I, thereon. There was a protest but of no effect. Then he along with others chased them to apprehend but they escaped after giving life thereafter to them. He has further stated that in the hospital darogqji came, and recorded his fardbeyan. Fardbeyan was read over to him and after finding the contents true he put his L.T.I, thereon. In cross-examination he has stated that there was a bathan of the accused persons there and the occurrence had taken place at a distance of 10 feets in north from their bathan and at the alleged time about 100 villagers had assembled there. He has further stated that the blood had fallen on the ground as well as on his wearing cloths and that of his brother, Ram Chandra Yadav. The evidence of PW 5, Naresh Yadav, is that at the alleged time he had gone to ease himself in the field. He noticed that the informant, Sahdeo Yadav, was going to his house from Basa. When he reached near the bargad tree, the accused, Mukund Yadav, with pistol, Pramod Yadav and Ramdhari Yadav with khanti fitted lathies hiding themselves behind the tree from before came out and surrounded him. The co-accused, Sridhar Yadav (since dead) with lathi also appeared there and exhorted them in the words "dekhte kya ho, dashman ko maro". Then the accused, Mukund Yadav, opened fire at Sahdeo Yadav, the informant, causing injury on his right leg. He fell down injured on the ground. Sahdeo Yadav raised alarm whereupon his brother, Ram Chandra Yadav, rushed to save him. All the four accused then left Sahdeo Yadav and brutally assaulted Ram Chandra Yadav with khanti fitted lathies. Thereafter, Ram Chandra Yadav and Sahdeo Yadav, were removed to Jamalpur Hospital for treatment where the Doctor declared Ram Chandra Yadav as dead. In cross-examination his evidence is that the alleged bargad tree was standing at a distance of 50/60 feets in the west of the bathan of the accused persons. He has admitted to have stated before the police at para 5 of his cross-examination that the accused Mukund had snatched lathi from his father and he assaulted the deceased Ram Chandra Yadav. PW 1, Suresh Yadav, PW 2, Upendra Yadav and PW 4, Ram Krishna Yadav, have corroborated the evidence of the aforesaid two witnesses on all points. He has admitted to have stated before the police at para 5 of his cross-examination that the accused Mukund had snatched lathi from his father and he assaulted the deceased Ram Chandra Yadav. PW 1, Suresh Yadav, PW 2, Upendra Yadav and PW 4, Ram Krishna Yadav, have corroborated the evidence of the aforesaid two witnesses on all points. PW 1, Suresh Yadav in cross-examination at para 6 has stated that godam and bathan of the accused persons were situated at a distance of 10 steps from the place of the occurrence, PW 2 Upendra Yadav, has further stated that the inquest report of the dead body of the deceased was prepared in his presence in the Railway Hospital, Jamalpur and he put his signature on the inquest report. The witness Pankaj Kumar also put his signature on the inquest report. He has proved his own signature (Ext. No. 1) and that of Pankaj Kumar (Ext. No. 1/1). He has further stated at para 7 of his cross-examination that the alleged bargad tree was situated at a distance of 10/12 steps in the south of the place of the occurrence. He has also given the boundary of the P.O. land. He has further stated that the blood had fallen at the place of the occurrence, 10. PW 8, Anil Kumar Chaudhary, is the Investigating Officer of this case. He has stated that on 2.5.1997 while he was posted at Dharhara Police Station, he obtained the fardbeyan from the east colony. He proved the fardbeyan which is in the pen and signature of the A.S.I., P.N. Singh (Ext. No. 3). He has proved the formal FIR which is also in his pen and signature (Ext, No. 4). His further evidence is that he went to the Railway Hospital and recorded the further statement of the informant, Sahdeo Yadav, PW 6 as well as the statement of the witnesses, Police Yadav, Naresh Yadav, Ram Krishna Yadav and Arjun Yadav. He has also proved the inquest report which is in the pen of A.S.I., P.N. Singh (Ext. No. 1). He also obtained the injury reports of Ram Chandra Yadav and Sahdeo Yadav. He inspected the place of the occurrence. According to him the place of the occurrence was situated in Village Adalpur adjacent west to the field of Hulash Yadav, Sohan Yadav and Sunder Yadav. No. 1). He also obtained the injury reports of Ram Chandra Yadav and Sahdeo Yadav. He inspected the place of the occurrence. According to him the place of the occurrence was situated in Village Adalpur adjacent west to the field of Hulash Yadav, Sohan Yadav and Sunder Yadav. He has further stated that the godam of the accused was also situated at a short distance from the place of the occurrence. He had also given the boundary of the place of the occurrence. He has further stated that the alleged bargad tree was situated at a distance of 100 yards from the place of the occurrence. While the investigation of this case was going on he was transferred and handed over the charge of this case to Revati Raman Sinha, S.L In cross-examination he has stated that he had neither found blood nor cartridges at the place of the occurrence. He has also not spotted any tampering mark at the place of the occurrence. 11. On the other hand, the defence has also examined one witness, Jay Prakash Yadav. He has come forward to state that on 2.5.1997 at 5/5.30 a.m. while he was returning after attending the call of nature, he heard hulla "chor-chor" coming from the side of the bathan of the accused, Sridhar Yadav. He proceeded ahead and noticed that villagers chased two fleeing persons, apprehended and assaulted them. He has further stated that he had not gone to the bathan of the accused persons. In cross-examination his evidence is that he witnessed the entire occurrence from the distance of about 50 yards and he could not identify the assailants as well as both the fleeing persons. Later on he learnt that Ram Chandra Yadav was murdered and Sahdeo Yadav was injured. It is evident from his evidence that a number of villagers chased both the fleeing persons and apprehended them but he has failed to name any of the villagers. His evidence is quite vague and does not inspire confidence to rely upon his testimony. The Court below was justified in rejecting his evidence. 12. The learned counsel for the appellants contended that the writer of the fardbeyan, the A.S.I., P.N. Singh, has not been examined by the prosecution, so it was not legally proved and Court. below committed an error of law by relying upon inadmissible document. The Court below was justified in rejecting his evidence. 12. The learned counsel for the appellants contended that the writer of the fardbeyan, the A.S.I., P.N. Singh, has not been examined by the prosecution, so it was not legally proved and Court. below committed an error of law by relying upon inadmissible document. In this case, the fardbeyan of the informant, Sahdeo Yadav, has been proved by the I.O., Anil Kumar Chaudhary, PW 8. He has clearly stated that the fardbeyan of the informant was written and signed by the A.S.I., P.N. Singh. It shows that the I.O. was well acquainted with the writing of the A.S.I., P.N. Singh and it is covered by the provisions of Section 47 of the Indian Evidence Act. This section lays down that "When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact." In the present case, the I.O. was no where cross-examined on the point that he was not acquainted with the writing of the A.S.I., P.N. Singh. Further, the fardbeyan of the informant (Ext. No. 3) was exhibited without objection by the offence, so I find no substance in the submission of the learned counsel for the appellants. 13. Learned counsel again contended that all the four accused persons are alleged to have assaulted the deceased. Ram Chandra Yadav with khanlee fitted lathies and so none of them can be said to have given a fatal blow on the deceased. In such a situation, their conviction under Section 302 with the aid of Section 34 of the IPC is fit to be set aside. Section 34 of the Indian Penal Code signifies a pre-arranged plan which is to be proved either from the conduct or from circumstances or from any incriminating fact. According to this section when a Criminal Act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone. According to this section when a Criminal Act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone. The consistent evidence of all the eyewitnesses is that all the three accused- appellants along with Sridhar Yadav (since dead) intentionally assaulted Ram Chandra Yadav brutally with both the portions of khanti fitted lathies. The Doctor found injury Nos. 2 and 3 responsible for his death which were caused by hard and blunt sub- stance. Therefore, they have been convicted under Section 302 with the aid of Section 34 of the IPC. 14 It was again contended that the Doctor who examined Sahdeo Yadav, the informant, PW 6 and Ram Chandra Yadav, has not been examined and only their injury reports (Ext. Nos. 3 and 3/1) were brought on record and exhibited with objection by the defence, so the Court below wrongly accepted the report and convicted the appellant, Pramod Yadav, under Section 307 of the Indian Penal Code. it appears from the judgment of the Court below vide para 57 that all the possible steps were taken for securing the attendance of the Doctor for his evidence but he could not be located and produced for evidence. Consequently, both the injury reports were exhibited under Section 294 of the Cr PC. Further, all the witnesses have supported the allegation of firing by the accused, Pramod Yadav at Sahdeo Yadav. For the attraction of the offence under Section 307, IPC intention is paramount and not injury. It is apparent from the ocular evidence coupled with the FIR that the co-accused, Sridhar Yadav, exhorted the other accused in the words "dekhte kya ho shala dushaman hai, maro." This suggests that there was an intention to commit the murder of the informant, Sahdeo Yadav. Then the appellant, Pramod Yadav, made an intentional attempt on his life with fire arms causing injury on his right leg. Thus, it satisfies the ingredients of the offence of Section 307, IPC. I find no merit in this submission raised on behalf of the appellants. 15. It was further submitted that the prosecution has failed to prove the place of occurrence. The Investigating Officer, PW 8, did not find any blood mark, tampering mark or cartridges on the place of occurrence. I find no merit in this submission raised on behalf of the appellants. 15. It was further submitted that the prosecution has failed to prove the place of occurrence. The Investigating Officer, PW 8, did not find any blood mark, tampering mark or cartridges on the place of occurrence. As per the FIR, the occurrence had taken place near the field of Hulash Yadav situated before the bargad tree. The description of the boundary of the P.O. given by the I.O. at para 8 tallies with the description coming in evidence. Admittedly, the I.O. did not find any blood mark or cartridge at the place of the occurrence but thr.t would not belie the prosecution version. The admitted legal position is that the irregular or perfunctory investigation will not in any manner affect the core of the prosecution case. 16. It was lastly contended that the prosecution has examined only related and interested witnesses who have implicated the accused-appellants falsely in this case, so their evidence is fit to be discarded. I find no merit in this submission. A perusal of the above discussion reveals that the evidence of the informant, Sahdeo Yadav, is fully corroborated by the evidence of PW 1, Suresh Yadav, PW 2, Upendra Yadav, PW 4, Ram Krishna Yadav and PW 5, Naresh Yadav, all are closely related to each other and the deceased except PW 5, Naresh Yadav. The relationship of the above- named four witnesses with the deceased, Ram Chandra Yadav, in my opinion, will not be sufficient ground for discarding their testimony. The close relatives of a murdered person are most reluctant to spare the culprits are involve falsely the innocent person. Apart from the evidence of the aforesaid four witnesses there is evidence of an independent witness, PW 5, Naresh Yadav. He is fully interested witness and fully corroborated their evidence. 17. On careful scrutiny of the evidence of the witnesses, I find that their evidence is consistent on all material points with respect of the place of the occurrence, use of weapons In the occurrence, time of occurrence and manner of occurrence They have been cross-examined at length. Their evidence suffers from minor inconsistencies. The minor discrepancies are bound to occur in each and every case. The discrepancies appearing in their testimony are not in any way sufficient or major to affect the case of the prosecution. 18. Their evidence suffers from minor inconsistencies. The minor discrepancies are bound to occur in each and every case. The discrepancies appearing in their testimony are not in any way sufficient or major to affect the case of the prosecution. 18. Thus, on careful analysis of above discussions, I come to the conclusion that the prosecution has established the charges against the appellants beyond all reasonable doubts. 1 find no wrong in the order of conviction recorded by the Court below against them. 19. In the result, there is no merit in both the appeals and they are dismissed. The order of conviction and sentence passed by the Court below against the appellants are hereby confirmed. The appellant, Pramod Yadav (in Criminal Appeal No. 184 of 2001) is in custody. The appellant, Mukund Yadav (in Criminal Appeal No. 184 of 2001) and the appellant, Ramdhari Yadav (in Criminal Appeal No. 213 of 2001) are on bail. Their bail bonds are cancelled with a direction to surrender in the Court below within one month failing which the Court below will take all possible steps to secure their arrest to serve out the sentences imposed upon them. Aftab Alam, J. 20 I agree.