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2004 DIGILAW 834 (PAT)

Kanhaiya Yadav v. State Of Bihar

2004-08-17

B.K.JHA

body2004
Judgment Bal Krishna Jha, J. 1. Six accused persons, namely, Jeetan Yadav, Kanhaiya Yadav, Ugan Yadav, Chandradeo Yadav, Laxman Yadav and Bithal Yadav, were tried for various charges of the IPC. The accused, Kanhaiya Yadav, Laxman Yadav and Bithal Yadav, were further tried for the charges under Section 27 of the Arms Act. In course of trial the accused, Laxman Yadav absconded and the rest five accused persons were ultimately convicted under Sections 148/448, IPC. The accused, Jeetan Yadav, was released after admonition and rest four accused were sentenced to R.I. for one year on each count. 2. This appeal has been preferred by the abovenamed three appellants against the judgment of conviction passed by the then learned Additional Sessions Judge, Buxar on 28th September, 1991 in Sessions Trial No. 85/84. 3. The case of the prosecution is that in the intervening night of 25/26th May, 1983, the informant, Rameshwar Yadav, PW 6 along with his uncle, Bansropan, PW 5, was sleeping at his darwaja. At about 12 in the night all the FIR named six accused persons armed with gun and bhala appeared there and the accused, Chandradeo Yadav, exhorted to assault them. At this, the accused, Jeetan Yadav, assaulted the informant with bhala on his head and Kanhaiya Yadav with butt portion of gun causing injury on his both arms. On the outcry of the informant, his uncle Bansropan Yadav and nephew, Fateh Bahadur, rushed to save him. The accused, Chandradeo Yadav, assaulted Bansropan Yadav with bhala and injured him. The accused, Bithal Yadav and Laxman Yadav, fired their guns at Bansropan Yadav and Fateh Bahadur, Yadav as a result of which they sustained pellet injuries. On hulla, FIR named witnesses besides many others arrived there and witnessed the occurrence and thereafter the accused persons fled away from there. The further case of the prosecution is that Jeetan. Yadav is the gotiya of the informant and because of the partition dispute they committed this offence. The informant and other injured were removed to Raghunathpur Hospital for treatment. 4 On 26.5.1983 at 9 a.m., the S.I., R.Mishra or Brahmpur Police Station recorded the fardbeyan of the informant, Rameshwar Yadav, PW 6 in Raghunathpur Hospital. On the basis of his fardbeyan a formal FIR (Ext. The informant and other injured were removed to Raghunathpur Hospital for treatment. 4 On 26.5.1983 at 9 a.m., the S.I., R.Mishra or Brahmpur Police Station recorded the fardbeyan of the informant, Rameshwar Yadav, PW 6 in Raghunathpur Hospital. On the basis of his fardbeyan a formal FIR (Ext. No. 1) was drawn up and Brahmpur Police Station Case No. 79 of 1983 dated 26.5.1983 was registered under Sections 147, 148, 323, 324 and 307/448 of the Indian Penal Code besides Section 27 of the Arms Act against the six accused persons, namely, 1. Jeetan Yadav, 2. Kanhaiya Yadav, 3. Ugan Yadav, 4. Chandradeo Yadav, 5. Laxman Yadav and 6. Bithal Yadav. After investigation police charge- sheeted all the six accused persons to stand trial under aforesaid sections. Accordingly cognizance of the offence was taken and their case was committed to the Court of Sessions where they were put on trial for different charges. In course of trial the accused, Laxman Yadav, absconded and his trial was separated from the rest five accused vide order dated 9.7.1991 and the trial of the rests ended in their conviction in the manner indicated above. 5. In defence, the appellants pleaded their innocence and false implication due to enmity. The defence has examined one witness, Indradeo Singh, DW 1, who has proved the formal FIR of Brahmpur P.S. Case No. 78 of 1983 lodged by the accused, Jeetan Yadav, against the prosecution party for the same occurrence of assault. 6. The prosecution has examined 9 witnesses in support of its case. Out of them PW 7, Ramdeyal Dubey, PW 8, Vijay Narain Rai and PW 9, Brij Kishore Sah, are the formal witnesses and they have proved the formal FIR (Ext. No. 1), case diary from pages 1 to 65 and three injury reports (Ext. Nos. 3 to 3/2) respectively. PW 1, Mahngu Yadav. PW 3, Munni Lal Yadav and PW 4, Lal Babu Singh Yadav, arrived at the place of the occurrence on hearing cries and sound of firing. The evidence of PW 1, Mahngu Yadav, is that when he went at the house of the informant, Rameshwar Yadav, he saw all the accused persons armed with bhala and gun. They assaulted Rameshwar Yadav, Bansropan Yadav and Fateh Bahadur Yadav with gun and lathi and after committing the offence the accused persons fled away in the western side. The evidence of PW 1, Mahngu Yadav, is that when he went at the house of the informant, Rameshwar Yadav, he saw all the accused persons armed with bhala and gun. They assaulted Rameshwar Yadav, Bansropan Yadav and Fateh Bahadur Yadav with gun and lathi and after committing the offence the accused persons fled away in the western side. In cross- examination at para-6 he has clearly slated that before his arrival at the place of the occurrence the accused persons had already fled away from there. PW 3, Munni Lal Yadav, and PW 4, Lal Babu Singh Yadav, have deposed in favour of the prosecution but their evidence suggests that PW 1, Mahngu Yadav, was present at the place of the occurrence from before their arrival there. When, the accused persons had already fled away from the place of the occurrence before the arrival of PW 1, Mahngu Yadav, these two witnesses had also not seen the occurrence and they falsely claimed to be the eye-witnesses in this case. The remaining three witnesses, PW 2, Fateh Bahadur Yadav, PW 5, Bansropan Yadav and PW 6, Rameshwar Yadav are the eye-witnesses to the occurrence and they are closely related to each other. In this case, the prosecution failed to examine the Investigating Officer. 7. PW 6, Rameshwar Yadav, is the informant. His evidence is that in the night of the occurrence he was sleeping in his marai and his uncle, Bansropan Yadav, was also sleeping in the house adjacent to moral At about 12 Oclock all the FIR named six accused persons came there and the accused, Chandradeo Yadav, exhorted to assault them. The accused, Bithal Yadav, Kanhaiya Yadav and Laxman Yadav, were armed with gun and rests with bhala, The accused, Kanhaiya Yadav, fired at him but he escaped unhurt. Then he assaulted him with the butt portion of gun. The accused, Jeetan Yadav, assaulted him with bhala on his head. He has further stated that when his uncle, Bansropan Yadav, appeared to save him, the accused, Chandradeo Yadav, assaulted him with bhala The accused, Bithal Yadav, fired his gun at him causing pellet injury on his abdomen and right legs. On hulla, Fateh Bahadur Yadav, also rushed there and accused, Laxman Yadav, fired at him causing pellet injury on his left shoulder, finger, neck and chest. On hulla, Fateh Bahadur Yadav, also rushed there and accused, Laxman Yadav, fired at him causing pellet injury on his left shoulder, finger, neck and chest. The has further stated that this occurrence was witnessed by the witness, Mahngu Yadav, PW 1, Munni Lal Yadav, PW 3 and Lal Babu Singh Yadav, PW 4. The accused persons were identified in the moon light and also in the light of the burning lantern. He has further stated that thereafter all the injured were removed to Raghunathpur Hospital where he gave his statement before the police. He put his signature on the statement. In cross examination he has stated that the accused, Jeetan Yadav, brought a counter case for the same occurrence in which along with him, Bansropan Yadav and Fateh Bahadur Yadav, have been arrayed as accused. He has further stated at para 15 of his cross-examination that the accused, Jeetan Yadav, was also under treatment in the same Hospital. The other two witnesses, PW 2 Fateh Bahadur Yadav and PW 5, Bansropan Yadav, have also supported the case of the prosecution and in toto corroborated the evidence of the informant. 8. The admitted facts in this case are that the accused, Jeetan Yadav, is the gotiya of the informant, Rameshwar Yadav and there was a partition disputed in between them from before the occurrence. It is also established from the ocular evidence coupled with the documentary evidence (Ext. A) that there was an occurrence of cross-assault at the relevant time of the occurrence for which there was a case and counter case in the between the parties. In such a situation, it is very different to assign the role of aggressor to either of the parties.. The counter case was disposed of on the basis of compromise in Lokadalat [vide Ext. No. C). Therefore, the appellants are entitled to get the benefit of doubt. 9. In the result, this appeal is allowed. The order of conviction and sentence passed against the appellants are hereby set aside and they are acquitted of the charges. They are on bail, so they are ordered to be discharged from the liabilities of their executed bail bonds. 10. The learned counsel, Mr. Arun Kumar Tripathi, appocled as Amicus Curia will get the fee from the Patna High Court of Legal Aid and Advice.