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2005 DIGILAW 627 (PAT)

Yadu Yadav @ Yadu Gope v. State Of Bihar

2005-07-22

GHANSHYAM PRASAD, INDU PRABHA SINGH

body2005
Judgment Ghanshyam Prasad, J. 1. Both the appeals arise out of one and the same judgment dated 4.8.2004 and order dated 6.8.2004 passed by Shri Md. Nasimuddin, 1st Additional Sessions Judge, Hilsa in Sessions Trial No. 480 of 1994. All the appellants have been convicted and sentenced to undergo imprisonment for life under Secs. 302/149, Indian Penal Code, 1860 . Except appellant Yadu Gope other three appellants have also been convicted and sentenced to undergo rigorous imprisonment for one year u/s. 27 of the Arms Act. However, both the sentences are directed to run concurrently. 2. Prosecution case, in brief, is that the prosecution party and the defence party are close relatives amongst themselves. Accused Bhagwan Das is own uncle of the informant and the deceased. They had land dispute since long. On 6.4.1993, the informant Sidheshwar Gope (PW 5) alongwith his father Chamru Gope (PW 2) and the younger brother the deceased Yogeshwar Gope was in his khalihan and were doing work of osauni. At about 2.30 p.m., the deceased in order to protect himself from sun his went in baithka of one Dadhimal Thakur situated by the side of khalihan of the informant and began to take rest by laying himself on straw. However, the informant and his father remained in their khalihan and continued to do work of osauni. 3. Further case of the prosecution is that in the meantime at 3.00 p.m. all the appellants alongwith some others armed with fire arms etc. came anal began to proceed towards baithka of Dadhimal Thakur: The informant became apprehensive about their motive and so ran towards baithka to awake his brother. However, in the meantime, accused persons reached near baithka and some of them also entered inside the baithka. The accused Ramashish Gope who had gun in his hand shot at the deceased. Thereafter, other accused persons including the appellants over powered the deceased and appellant Yadu Gope chopped of the neck of the deceased with pasuli and handed over the head to appellant Surendra Gope. Thereafter, they all went to Devi Asthan, offered head to deity and then fled away alongwith the head. 4. Thereafter, the informant Sidheshwar Gope alongwith his two brothers-in-law, namely, Deo Nandan Prasad (PW 11) and Ramsurat Singh (PW 7) went to Hilsa Police Station and lodged fard beyan. Thereafter, they all went to Devi Asthan, offered head to deity and then fled away alongwith the head. 4. Thereafter, the informant Sidheshwar Gope alongwith his two brothers-in-law, namely, Deo Nandan Prasad (PW 11) and Ramsurat Singh (PW 7) went to Hilsa Police Station and lodged fard beyan. The then Officer-in-charge, Hilsa recorded fard beyan, registered case and handed over its investigation to S.I. Shyam Nandan Sah (PW 9). The I.O. inspected the P.O. on the same day,prepared inquest report, seized blood stained materials and sent the headless dead body to Sadar Hospital, Biharsharif for postmortem. On 7.4.1993 at 3.25 p.m., autopsy was conducted by Dr. M.M. Rahman (PW 10), the then CAS. 5. The police after investigation submitted charge-sheet against six persons including these appellants. However, ultimately only four persons, who are appellants, faced, trial and were convicted in a manner said above. 6. In course of the trial, the prosecution has examined altogether 12 witnesses out of whom PW 5 Sidheshwar Gope is the informant who is also brother of the deceased. PW 9 Shyam Nandan Sah is the 1.0. and PW 10 Dr. M.M. Rahman is the person who conducted postmortem. PW 1 is the mother and PW 2 is the father of the deceased. PW 6 and PW 12 are sister and brother of the deceased. PWs 7 and 11 are brothers-in-law. PW 3 has been tendered. PW 4 is hostile and PW 8 is a formal witnesses. 7. Defence is the total denial of the occurrence. According to them no such occurrence ever took place. The real fact is that the deceased Yogeshwar Gope had illicit relation with one of the daughters-in-law of Dadhimal Thakur. The sons of Dadhimal Thakur, namely, Rajendra Thakur and Chandrika Thakur were members of Naxal outfit like IPF. They got the deceased murdered by members of IPF. It has been further said that the appellants have been falsely implicated in this case due to enmity. One murder case is pending against the informant and his other family members for murder of son of accused Bhagwan Das. In order to give pressure all relatives of Bhagwan Das have been implicated in this case. 8. The Court below after consideration or evidence of prosecution witnesses and other materials of record has convicted all appellants in a manner said above. In order to give pressure all relatives of Bhagwan Das have been implicated in this case. 8. The Court below after consideration or evidence of prosecution witnesses and other materials of record has convicted all appellants in a manner said above. However, in course of argument, the learned counsel for the appellants challenged the judgment in question both in law as well as on facts. The main ground to assail the judgment is improper consideration of oral evidence and non-consideration of vital contradictions occurring in the evidence of prosecution witnesses as also defence version. 9. Murder of the deceased Yogeshwar Gope by fire arm and severing his head by sharp cutting weapon is not under controversy. Apart from it, the doctor (PW 10) Dr. M.M. Rahman who held autopsy has confirmed this fact beyond pale of any doubt. PW 10 held postmortem on the headless dead body of Yogeshwar Gope on 7.4.1993 at 3.25 p.m. and found the following antemortem injuries : (i) One incised wound at the level of 6th survical vertebrae, the cut was all along the neck, (ii) Wound of entry.--One lacerated wound almost round in shape, the margins were blackened and tatooing around the wound on left side of chest size 1/4" x 1/4" x communicating with wound of exit. (iii) Wound of exit.--Lacerated wound with everted maruins of size 3/4" x 1/2" x communicating with the wound of entry. (iv) One lacerated evated wound with blackened margins tatooing around the wound on the central part of size 1/2" x 1/2" x cavity deep. (v) One lacerated wound of size 1" x 3/4" cavity deep (wound of exjt), The margins were everted on the left side of back. (vi) One lacerated wound with black margins tatooing around the wound on the left side of back 1/2" below the pectoral region. (vii) Two incised wound of size 1" x 1/2" x 1" and 3/4" x 1/2" x 1" on the left arm. According to the doctor, the death was occurred due to shock and haemorrhage caused by the above noted injuries. Injury Nos. 1 and 7 were caused by sharp cutting weapon. Injuries No. 2, 4, 5 and 6 were caused by fire arms. Time elapsed since death 24-26 hours. Ext. 3 is the postmortem report. 10 The most important witness on the point of occurrence is the informant himself who is PW 5 Sidheshwar Gope. Injury Nos. 1 and 7 were caused by sharp cutting weapon. Injuries No. 2, 4, 5 and 6 were caused by fire arms. Time elapsed since death 24-26 hours. Ext. 3 is the postmortem report. 10 The most important witness on the point of occurrence is the informant himself who is PW 5 Sidheshwar Gope. He has stated in his evidence that on the alleged date of occurrence at 2.30- 3.00 p.m. he alongwith his father (PW 2) and mother, (PW 1) was in his khalihan and was doing work of osauni. In the meantime, the appellants alongwith others variously armed were seen coming. He ran towards baithka of Dadhimal Thakur to awake his brother Yogeshwar Gope. Before he reached there the appellants and others entered in the baithka. He has further stated that accused Ramashish Gope who had gun in his hand shot at Yogeshwar Gope. The other accused including appellants over powered him and thereafter appellant Yadu Gope cut his neck and severed the head by means of pasuli. He has further stated that appellant Yadu Gope handed over the head to appellant Surendra Gope and thereafter they all went to Devi Asthan where they offered the head to deity and fled away alongwith the head. 11. PW 2 Tetri Devi is the mother and PW 2 Ghamru Das is the father of the deceased. They are also eye witnesses of the occurrence. PW 1 has fully supported the prosecution story in her examination-in-chief. She has stated that at the time of alleged occurrence she was returning to her house. She saw all the accused persons including these appellants variously armed going towards the baithka of Dadhimal Thakur, she has further stated that they all entered in baithka where her son was sleeping and thereafter accused Ramashish Gope shot at him. Appellant Yadu Gope cut his neck and handed over the head to appellant Surendra Gope. She has further stated that thereafter they went to Devi Asthan, offered the head to deity and thereafter they fled away alongwith the head. 12. Almost similar is the evidence of PW 2. He has stated that on the alleged date of the occurrence he alongwith informant and the deceased was in his khalihan and was doing osauni. He has further stated that due to intense sun heat, his son Yogeshwar Gope went in baithka of Dadhimal Thakur to take rest. 12. Almost similar is the evidence of PW 2. He has stated that on the alleged date of the occurrence he alongwith informant and the deceased was in his khalihan and was doing osauni. He has further stated that due to intense sun heat, his son Yogeshwar Gope went in baithka of Dadhimal Thakur to take rest. Thereafter, he has detailed the entire prosecution story and has stated that accused Ramashish Gope fired shot at his son and appellant Yadu Gope severed his head from pasuli and handed over the head to appellant Surendra Gope. They all went to Devi Asthan offered head to deity and thereafter they all fled away alongwith the head. He has also supported the fact that at the time of cutting neck the accused persons including there appellants had over-powered the deceased. 13. PW 6, Jageshwari Devi is the sister of the deceased. She has also supported the occurrence. She at the time of alleged occurrence was with her mother. She has supported the fact that the appellant alongwith others were seen going towards dalan of Dadhimal Thakur armed with various weapons where his brother was taking rest. She has further stated that thereafter she saw accused persons going towards Devi Asthan alongwith head of her brother where they offered the head to deity. She did not bear the ghastly murder of her brother and hence he became un-conscious and fell down in gali (street). 14. PW 12 Nageshwar Gope is other brother of the deceased. However, he is not eye witness of the occurrence. On the date of the alleged occurrence he was not in the village. He is hearsay witness. Similarly, PW 11 Dev Nandan Prasad, the brother-in-law of the informant, is also hearsay witness. The informant had informed him about the occurrence. 15. The above ocular evidence has been fully supported by the objective findings of the I.O. who is PW 9 Shyam Nandan Sah. PW 9 visited the P.O. on the date of occurrence just after the registration of the case. In course of the inspection, he inspected the baithka of Dadhimal Thakur. He found the headless dead body of the deceased laying in the baithka over thick bed sheet (sujni). He found blood over the floor, sujni and puwai. He also found trampling marks over puwai. He also inspected khalihan which was situated at a distance of about 50 steps. In course of the inspection, he inspected the baithka of Dadhimal Thakur. He found the headless dead body of the deceased laying in the baithka over thick bed sheet (sujni). He found blood over the floor, sujni and puwai. He also found trampling marks over puwai. He also inspected khalihan which was situated at a distance of about 50 steps. He also inspected Devi Asthan situated at a distance of 300 steps from the P.O. and found blood mark at several places inside the temple. He also found trail of blood marks in between the P.O. and Devi Asthan. The above evidence of the I.O. shows that the occurrence took place in the baithka of Dadhimal Thakur. 16. In course of argument, the learned lawyer for the appellants made us to travel through the depositions of all witnesses word by word in order to find out contradictions, inconsistencies or embellishment in their evidence, I am constrained to say that the learned counsel miserably failed to show any vital contradiction or inconsistency in the evidence of any of the eye witnesses which can be said as touching the root of the prosecution story. In my view, the evidence of prosecution witnesses stands the test of reliability. 17. In course of submission, learned counsel for the appellants also suggested us to throw entire prosecution case on the ground that the family of the informant had admitted enmity with the family of the appellants. In this respect, he referred to cross para 7 of the informant (PW 5). In that very paragraph, the informant has accepted that brother of the appellant Yadu Gope was murdered and in that very case he is one of the accused. PW 2, the father of the deceased, vide paragraph 10 of his evidence has also admitted this fact and has stated that he is one of the accused alongwith the informant in that very case. However, this fact alone is not sufficient to discard the evidence of prosecution witnesses which is otherwise free from any infirmity. Apart from it, it is well settled principle of law that the enmity cuts both the way and, therefore, possibility of commission of murder of son of PW 1 by the close relatives of the deceased Nasiblal, the brother of the appellant Yadu Gope; also cannot be ruled out. 18. Apart from it, it is well settled principle of law that the enmity cuts both the way and, therefore, possibility of commission of murder of son of PW 1 by the close relatives of the deceased Nasiblal, the brother of the appellant Yadu Gope; also cannot be ruled out. 18. The other submission of the learned counsel for the appellants is that all the so-called eye witnesses are close relatives of the deceased i.e. brother, mother, father and sister and, therefore, they are deemed to be partisan and interested witnesses and hence, their testimony cannot be relied upon without corroboration from independent corner. 19. On the other hand, the learned counsel for the State submitted that the evidence of prosecution witnesses cannot be doubted on the ground of their being close relatives of the deceased. The witnesses who are mother, father brother and sister of the deceased are not supposed to let the real assailant of their kith and dear to escape and substitute him by innocent persons (see Sher Singh v. State reported, in 1994 SCC (Cri) 783. 20. I find much force in the above argument. The witnesses being close relatives of the deceased are competent witnesses and they are not supposed to falsely implicate innocent persons leaving the real culprit to go unpunished. 21. The learned counsel for the appellants argued at length to show us that prosecution witnesses are not truthful and therefore no conviction can be based on testimony of such witnesses. For that he referred to cross examination para 26 and 27 of the I.O. (PW 9). PW 9 in his evidence has stated that he inspected khalihan but did not find any sign of osauni 22. PWs 2 and 5, the informant, have stated in their evidence that at the time of alleged occurrence they were doing osauni in their khalihan but, as said above, the I.O. has contradicted their claim in his cross-examination. However, this statement of the I.O. does not carry much weight in view of the fact that in examination-in-chief he has not uttered even a word to show that, he in course of investigation, inspected khalihan of the informant. However, this statement of the I.O. does not carry much weight in view of the fact that in examination-in-chief he has not uttered even a word to show that, he in course of investigation, inspected khalihan of the informant. On the other hand PW 2 Chamru Das, vide para 1 and PW 5 Sidheshwar Gope, vide para 1 of their evidence have categorically stated that at the time of the alleged occurrence they were in khalihan and were doing work of osauni. In view of above, the above statement of the I.O. is of no consequence and this fact alone is not sufficient to doubt the evidence of prosecution witnesses. 23. Thus, having considered the submissions of the learned counsels for the rival parties as well as settled principle of law for appreciation of oral evidence, I am of the opinion that none of the submissions advanced by the learned counsel for the appellants is sufficient to knock-down the testimony of prosecution witnesses. All eye witnesses are natural witnesses of the occurrence and absolutely there is no probability that they would implicate innocent person letting the real culprit to escape unpunished and they all have also satisfactorily explained their presence at the P.O. at the time of the occurrence. The evidence of witnesses has also been fully corroborated by the doctor and I.O. on all material points. 24. The other important submission of the learned counsel for the appellants is that there are sufficient material on the record to show probability that the deceased might have been killed by extremists at the behest of sons of Dadhimal Thakur as the deceased had illicit relation with one of the daughters-in-law of Dadhimal Thakur. Similar suggestion has been given to the informant. PW 5 in his cross examination paragraph 48 at page 25. In support of his contention, he referred to paragraph 26 of cross examination of PW 5. In that very paragraph, the informant has stated that after the occurrence Rajendra Thakur (son of Dadhimal Thakur) left the village for ever. 25. The informant vide paragraph 48 at page 25 has got only denied the defence story but in paragraph 25 he has also stated that there is no influence of IPF in his region and not a single person of the village is a member of IPF. The defence story also does not appear to be probable. 25. The informant vide paragraph 48 at page 25 has got only denied the defence story but in paragraph 25 he has also stated that there is no influence of IPF in his region and not a single person of the village is a member of IPF. The defence story also does not appear to be probable. Had the family of Dadhimal Thakur any hand in commission of murder, the informant and parents of the deceased would not have spared them from being prosecuted. Apart from it, mere suggestion does not show probability of the defence story. I do not find any material on the record to suggest probability of the defence story. 26. Thus, from above careful scanning of oral evidence as well as other materials, as discussed above, it is quite clear that the prosecution has been able to fully establish the charges framed against the appellants. The Court below has rightly convicted the appellants in a manner said above. I see no reason to interfere in the impugned judgment. 27. In the result both the appeals stand dismissed. The judgment and order of sentence under appeals passed by the Court below is hereby confirmed. The bail bonds of the appellants, who are on bail, also stand cancelled. They are directed to surrender before the Court below to serve out their remaining period of sentence.