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2006 DIGILAW 1387 (JHR)

Binod Yadav v. State Of Bihar

2006-12-04

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT D.P. Singh, J. 1. Both the appeals, arising out of same judgment, were heard together and are being disposed of by this common judgment. 2. Both the appeals are directed against the judgment of conviction and order of sentence dated 23.9.2000 and 25.9.2000 passed by the learned 2 nd Additional District and Sessions Judge, Koderma in Sessions Trial No. 328/99, whereby and whereunder the learned Sessions Judge held all the appellants guilty under Section 302 IPC and sentenced appellants Chhoti Yadav, Binod Yadav, Baijnath Yadav @ Gulli, Mahadeo Yadav and Mosst. Tukani Devi to undergo RI for life. Appellant Mahadeo Yadav further stands sentenced to undergo RI for two years under Section 324 IPC and RI for six months for the offence under Section 323 IPC. Appellant Chhoti Yadav is also sentenced to undergo RI for six months for the offence under Section 323 IPC. However, sentences were directed to run concurrently. 3. The factual matrix leading to these appeals are that in the afternoon of First July, 99 the Informant Manoj Kumar was going towards Dangra hill situated In the vicinity of Koderma town along with deceased Bhahamdeo Yadav on a motorcycle to participate in the picnic being held by other witnesses. Further stated that when they reached near the house of Buban Mahto situated in Mauja Parenda, all of a sudden the appellants along with three others named in the FIR, surrounded them and started assaulting the deceased. According to the Informant, the deceased and the informant fell down from the motorcycle, after which appellants Mahadeo, Binod , Baijnath, Chhoti and Mst. Tukanl started assaulting Brahamdeo with the arms in their hands. He specifically named Mahadeo yadav to initiate first blow with a sword on the deceased and thereafter others indiscriminately assaulting the deceased. As further stated when the informant tried to intervene, he was also assaulted with sword by Mahadeo, resulting in injuries on his right knee, left eye, after which he ran towards the hill raising alarm. According to him, in the meantime witnesses, returning from the picnic, arrived there and saw the appellants assaulting the deceased. It is further asserted that witnesses were also chased and assaulted by the appellants causing various injuries on them. However when villagers assembled there, the appellants fled away. 4. According to him, in the meantime witnesses, returning from the picnic, arrived there and saw the appellants assaulting the deceased. It is further asserted that witnesses were also chased and assaulted by the appellants causing various injuries on them. However when villagers assembled there, the appellants fled away. 4. As per prosecution case witnesses brought injured Brahmdeo to Holi Family Hospital, Koderma, and then to Daruka Nursing Home where first medical aid was provided. However, the doctor advised to carry the injured for better treatment to Patna and they started for Patna in a Maruti van. During their journey, injured Brahmdeo Yadav breathed his last near Nawadah, after which they came back and reported the mater to Koderma police at 10 PM. According to the informant, this occurrence was result of previous enmity as the deceased was the eye witness of the occurrence of the murder of his father by the appellants. Koderma police recorded the fard beyan at the police station and registered Koderma P.S. Case No. 2/99 under various sections including Section 302 IPC against eight named persons. The police further prepared inquest report, got the post mortem conducted on the dead body and injured witnesses examined by the doctor. The police after investigation finally submitted chagesheet against five appellants only discharging three named females. The case of the appellants was committed for trial by the court of sessions, where the charges were framed against them under Sections 302/34 and 326 IPC. The appellants pleaded not guilty and claimed false prosecution due to previous enmity by examining two defiance witnesses. However, the learned trial court, after examining witnesses, found and held the appellants guilty and sentenced them as aforesaid. 5. The present appeals have been preferred on the ground that the learned trial court has misconceived the facts on record. It is further submitted that the court below has not considered the improbability of the prosecution case. It is asserted that there was in ordinate delay in lodging the first information report which could not be explained. It is further submitted that there are material contradictions in the circumstance under which the deceased was found dead. Mr. Bajaj, the learned senior counsel for the appellants pointed out that the prosecution version is liable to be disbelieved due to contradictory versions of the prosecution witnesses. It is further submitted that there are material contradictions in the circumstance under which the deceased was found dead. Mr. Bajaj, the learned senior counsel for the appellants pointed out that the prosecution version is liable to be disbelieved due to contradictory versions of the prosecution witnesses. The learned senior counsel further asserted that the informant, who was closely associated and related with the deceased, has cooked up the story Involving the appellants just to satisfy revenge in connivance with other witnesses, who were accused in the murder case of the husband of the appellant Tukani Devi. We would discuss these points raised by the learned senior counsel in due course while discussing the evidence on record. 6. The prosecution has examined altogether thirteen witnesses, out of which PWs 1,2,3,4,5,6, and 11 are eye witnesses of the occurrence. PW 7 is the 10 and PW 8 is the doctor, who conducted the post mortem report. PWs 9 and 10 are hearsay witnesses of the occurrence, whereas PW 12 is a seizure list witness. PW 13 formally proved the signature on certified copy of earlier case lodged by the deceased against the appellants. The defence has also examined two witnesses to formally prove that certain criminal cases were pending between the deceased and the appellants. On perusal of these documents it appears that two murder cases were pending between the deceased and the appellants. In one case husband of appellant Tukani Devi was killed, for which the informant side along with deceased was facing trial and in another case father of the deceased was killed and appellants were facing trial. As such it is apparent that both sides were at draggers drawn and blood thirsty of each other. In this situation deceased Brahamdeo Yadav is said to have been assaulted by all the appellants forming unlawful assembly in the afternoon of first January, 99 with sharp cutting weapons. PW 8, doctor J.B. Rai, who conducted post mortem examination on the dead body of Brahamdeo Yadav at 8.30 AM on 2 nd January,99, has found six incised injuries of various sizes measuring 2 to 7 in length on the head with cutting of skull bones and brain materials. The injuries in ordinary course of nature, as mentioned above, were sufficient to cause death. The injuries in ordinary course of nature, as mentioned above, were sufficient to cause death. It further mentions fracture of frontal, parietal, temporal and occipital bones as result of heavy blows with sharp cutting weapons. According to this witness, the time elapsed since death before post mortem was about 12 hours. He has further examined the injured witnesses PWs 1,5,6 and one Tukani Devi, wife of Kameshwar Yadav and found certain simple injuries on their person. The post mortem report, therefore, Is sufficient to establish that deceased Brahamdeo Yadav was subjected to assault with heavy sharp cutting weapons resulting in his death on first January,99. PW 12 is a witness on seizure list. According to this witness, in the night of 1.1.99 PW 7, 10 Sujit Kumar has seized an old motorcycle, blood stained soil from the PO at 11.30 PM. PW 13 formally proved the certified copy of Kodarma P.S.236/91. PW 9 and PW 10 are hearsay witnesses only. 7. The learned counsel for the appellants pointed out that the seizure list witness PW 12 contradicted his own version that the motorcycle along with blood stained clothes were seized in his presence at 11.30 PM same night after registration of the case by admitting in cross examination that seizure list mentions the time at 4.30 PM. We do not find any force In this contention, as Ext. 1 further proved by PW 12 as Ext.9 does not mention that seizure was made at 11.30 PM rather in the first column it mentions time and date of the occurrence is 4.30 PM. 8. The informant, PW 11 Manoj Kumar Yadav has supported his fard beyan in details, signed by PW 1, PW 2, and PW 5, in whose presence the fard beyan was recorded by the police. According to Manoj, on the fateful day he along with deceased was going to participate in the picnic at Dangra hill and as soon as they reached in front of the house of Buban Mahto, all the appellants surrounded them and appellant Mahadeo made first assault with his sword on the deceased. He further asserted that the deceased fell down from the motor cycle and he was given farsa blow by appellants Binod and Baijnath as well as Bhala blow by Chhoti Yadav. He further asserted that the deceased fell down from the motor cycle and he was given farsa blow by appellants Binod and Baijnath as well as Bhala blow by Chhoti Yadav. When he tried to intervene, he was also assaulted by Chhoti Yadav after which he fled away raising alarm, upon which other witnesses Ganauri, Nanka, Jagamath and Arun reached there and were able to see the deceased being assaulted by the appellants. He further asserted that when PW 5 Ganauari tried to intervene, he was given sword blow on his head. According to this witness Nanka was also assaulted by Chhoti Yadav and therafter the appellants left the place. According to this witness when they found the deceased was still breathing, they took him to Holi Family Hospital and further to Daruka Nursing Home, where the deceased could get first aid. This witness has asserted that returning from Nawadah, they brought the dead body to Koderma P.S. where his fard beyan was recorded, Vide Ext.4. He further asserted In para 7 that after registration of the FIR PW 7 visited the PO and seized the blood stained soils as well motorcycle In their presence. 9. This witness has been cross examined at length in which he asserted that witnesses arrived at the PO on halla within two minutes, situated on the road going to Dangra hill. He further admitted vide para 18 that persons residing near the PO and the Mukhia of the village were not called upon by the police to enquire into. He has been cross examined on the point of distance from the PO to Koderma P.S., holy family hospital and Daruka nursing home but none of the injured got them treated, vide para 20 of is evidence. He further admitted that before leaving to Patna they did not inform the police. He was further cross examined at length regarding the manner in which assault was made on the deceased by different appellants. 10. This eye witness of the actual assault has been supported by PW 1, PW 2, PW 3, PW 5, injured Ganauri Yadav, PW 6, injured Nanku Yadav. PW 4 has further stated that when they were participating in the picnic appellant Chhoti Yadav had some trifle dispute with Nanku Yadav, PW 6 after which he left the place threatening. PW 6 on this point supported. PW 4 has further stated that when they were participating in the picnic appellant Chhoti Yadav had some trifle dispute with Nanku Yadav, PW 6 after which he left the place threatening. PW 6 on this point supported. PW 4 by saying that when he was urinating, Chhoti Yadav abused him and left the place threatening them. Therefore, one point has been added that before this occurrence appellant Chhoti Yadav visited the picnic spot where he has got some dispute with PW 6 in presence of other witnesses. 11. PW 1, PW 2, PW 5, and PW 6, have asserted that they were eye witnesses of the occurrence and gave the details of the actual assault committed upon the deceased by the appellants. All of them stated that they were returning after the picnic at about 4.30 PM when they heard the alarm raised by PW 11 and rushed at the PO to see the actual assault taking place on the deceased. PW 5 and PW 6 are own brother and cousin brother of the deceased. They are also involved in previous litigation and criminal cases with the appellants. PW 1 is distantly related with the deceased. 12. PW 2 is also a witness on seizure list. All the three witnesses PWs 1,2 and 5 are further witnesses on the fard beyan. It shows that they were present right from the time when assault took place till the FIR was lodged and police visited the PO. These witnesses have been cross examined at length on minute details regarding the assault as well as enmity with the appellants. However, they have remained consistent and united on the point of assault upon the deceased by the appellants. Their presence at the PO was disputed by the learned counsel for the appellants. According to Mr. Bajaj, the learned senior counsel for the appellants, as per prosecution case, all these witnesses were enjoying picnic at Dangra hill situated at a distance of one kilometer from the PO. Therefore, their presence at the PO when actual assault took place is doubtful. All the witnesses have asserted that after picnic they were returning and heard alarm raised by PW 11, on which they rushed at the PO to find the assault taking place. PWs 5 and 6 were Injured during scuffle along with Manoj. Therefore, their presence at the PO when actual assault took place is doubtful. All the witnesses have asserted that after picnic they were returning and heard alarm raised by PW 11, on which they rushed at the PO to find the assault taking place. PWs 5 and 6 were Injured during scuffle along with Manoj. Their Injuries, though simple In nature, have been supported by PW 8, Dr. J.B. Rai. PWs 5 and 11 were examined by PW 8 at 11.30 PM on 1.1.99 whereas PW 6 was examined by him in the morning of 2.1.99. The learned counsel for the appellants criticized their injuries on the ground that they were simple in nature and may be self inflicted. Doubt raised by learned counsel for the appellants does not make much difference on the point whether deceased was assaulted by the appellants in the evening of 1.1.99 or not. In such cases, where criminal litigation was going on between the parties, witnesses may be related but their testimony cannot be thrown away just because of litigating terms with the appellants. These witnesses were returning from the picnic could not be ruled out, as on first January normally picnic takes place. The whole prosecution story revolves around the picnic and witnesses returning from the picnic at about 4.30 PM. 13. The learned trial court has considered all these circumstances in details vide para 12 to 15 of the impugned judgment The learned trial court has found and held that these witnesses were probable as Independent witnesses normally do not come forward to support any litigating party. In the present fact, where killings have taken place between the parties, witnesses independent would not like to come, forward. In the facts stated above it would not be proper to discard the testimony of these witnesses only because they were related or interested with the informant side. PW 5 has asserted that when he tried to intervene he was assaulted by appellant Mahadeo resulting in bleeding cut injury on his head. PW 8 found such injury at about 3" above left ear on him at 11.25 PM on 1.1.99. Similarly PW 6 has received some injury on his person which was examined by PW 8 at 9 AM on 2.1.99. PW 8 found such injury at about 3" above left ear on him at 11.25 PM on 1.1.99. Similarly PW 6 has received some injury on his person which was examined by PW 8 at 9 AM on 2.1.99. PW 11 has also been examined by PW 8 at 11.30 PM on 1.1.99 who found incised wounds in right knee joint and above left cheek. During cross examination PWs 5 and 6 have given the details of the PO and also supported the story of prosecution in details. 14. Senior counsel Mr. Bajaj strenuously argued that the occurrence was not seen by these witnesses and they are trying to support a cooked up story of assault upon the deceased involving the appellants. In this context our attention was down towards the delay in lodging of FIR and submitted that when the fard beyan was being recorded at the police station normally the fard beyan should have started on the form of FIR available at the police station. Mr. Bajaj further stressed that the word fard beyan recorded at separate sheets in Police station by PW 7 has been penned through, whereas in the facts of the case the statement of the informant should have been recorded on the bottom of page 2 of form of FIR. PW 7 admitted that he penned through this and recorded the statement in his own writings at about 10 PM on 1.1.99. Learned counsel further pointed out that IO in the present case did not examine the dead body available at the police station in the marutivan after registration of the FIR and he proceeded for PO at a distance of 2 kilometers along with witnesses immediately. According to the learned counsel, it also creates reasonable doubt on the conduct of the IO as he has admitted that after coming from the PO he examined the dead body and prepared the inquest report, which is dated 2.1.99. As such, in the present fact the IO has committed serious mistakes by not preparing the inquest report before starting the investigation and going to the place of occurrence, that too in the dead of night on 1.1.99, when lights were not available. As such, in the present fact the IO has committed serious mistakes by not preparing the inquest report before starting the investigation and going to the place of occurrence, that too in the dead of night on 1.1.99, when lights were not available. It is further submitted that when the alleged occurrence took place at about 4.30 PM the first information report was lodged after 10 PM and during this period the informant party was present at Koderma town without explaining why the incident could not be reported to the police. 15. In this context, our attention has been drawn towards the fact on record that Koderma PS. Is situated within half kilometer from Daruka Nursing Home and further on the way of to Patna. As such the lodging of FIR after 5 hours creates serious doubts against the prosecution. It is also submitted that none examination of any person from Daruka Nursing Home, where the deceased is said to have received first aid further creates reasonable doubt on the prosecution version. Learned counsel further pointed out that PW 2 vide para 12 has admitted that police has reached immediately after the incident between 4.30 to 5 PM and started Investigation, but this fact has been denied by PWs 7, 11 and other witnesses in this case. It is further stated that the present delayed FIR was sent to the court of ACJM after a gap of 48 hours to be received in the court on 4 th January,99. Therefore, the lodging of FIR, sending it to the court concerned as well as different versions regarding arrival of police on the PO should be considered and prosecution version be disbelieved. 16. Learned counsel for the appellants further pointed out that the occurrence is alleged to have taken place between 4 to 4.30 PM and according to the witnesses, deceased Brahamdeo Yadav received various injuries but he was alive. According to Mr. Bajaj, in that circumstances, firstly the prosecution witnesses having brought the deceased for his treatment at Holy Family Hospital and Daruka Nursing Home, given first medical aid but no person from Daruka Nursing Home has come to support the story. It was further pointed that when the treating doctor advised for shifting of Brahamdeo Yadav to Patna for better treatment, there must be some one who should have been produced before the trial court. 17. Accordingly Mr. It was further pointed that when the treating doctor advised for shifting of Brahamdeo Yadav to Patna for better treatment, there must be some one who should have been produced before the trial court. 17. Accordingly Mr. Bajaj, learned senior counsel stressed that in absence of these materials on record, the prosecution story should not have been believed. The learned counsel suggested that Brahamdeo Yadav must be dead at that time and there was no question to carry the dead body for treatment to Patna and coming back with the dead body at Koderma P.S. at late hours. Mr. Bajaj submitted that since the prosecution witnesses were not eye witnesses of the occurrence, on finding the dead body of deceased, they took much time to fabricate cooked up story in connivance of the police and got this false case lodged. In this context it is submitted that the deceased has got criminal antecedent and someone might have killed him but the prosecution side taking advantage of the litigation, tutored the witnesses and brought this case, which is apparent from materials on record. It has been stressed that the lodging of FIR at 10 PM and recording of fard beyan on a separate sheet Itself shows that police was also in connivance because ordinarily when the statement of an informant is recorded in P.S., it should start from last portion of age 2 of FIR form, which may be evident from the overwriting and cutting two times. Our attention was drawn towards admission of PW 2 vide para 12 by which he admitted that just after occurrence within 10 minutes police has arrived at the PO supported by subsequent admission that he cannot say how police arrived at the PO, vide para 13 and 14. It was also pointed out that one Tukani Devi, wife of Kameshwar Yadav was examined by the doctor, PW 8 at 7.20 PM on 1.1.99 even prior to registration of FIR vide para 6 of this witness. Therefore, this FIR was lodged after consultation with the police and legal minds just to implicate falsely the appellants in such cases. In the same breath Mr. Therefore, this FIR was lodged after consultation with the police and legal minds just to implicate falsely the appellants in such cases. In the same breath Mr. Bajaj pointed out that other witnesses alleged to be injured during the occurrence, PW 5, PW 6 and PW 11 at about 4.30 PM who went to doctor for their treatment in late night after 11.30 PM as they were busy in consultation and creating false evidence. 18. The other points raised by the learned counsel is that the IO of he case has admitted during his examination before the trial court that he took up investigation immediately after recording statement of informant but preferred not to prepare the inquest report of the dead body available in the maruti van at the P.S. rather he visited the PO in the dead of night along with witnesses and seized the motorcycle as well as blood stained soil in presence of witnesses, which is unnatural. The learned counsel submitted that the inquest report is admittedly prepared in the morning of 2.1.99 whereas injured witnesses were sent for their examination by the doctor at about 11.30 PM in the night itself. The learned counsel pointed out that the IO is not truthful because he mentioned in para 14 that after recording the statement he examined the dead body, though the inquest report mentions the time of examination of the dead body next day morning. He further admitted that he has not sent the blood stained soil for forensic examination. The learned counsel further pointed out that even the injury reports of PWs 5,6 and 11 were not obtained by the IO till chargesheet was submitted. In this context it is stressed that the original post mortem report is not available on records rather certified copy of the said post mortem report has been marked as Ext.4 with objection Therefore, in absence of original post mortem report adverse inference was required to be drawn. Learned counsel further pointed out that vital contradictions have been admitted by PW 7, the IO, in the statement of PWs 1,4,5,and 6 regarding the manner in which assault took place. 19. We have considered the points raised by learned counsel for the appellants. Learned counsel further pointed out that vital contradictions have been admitted by PW 7, the IO, in the statement of PWs 1,4,5,and 6 regarding the manner in which assault took place. 19. We have considered the points raised by learned counsel for the appellants. The statement of PW 2, vide para 12 and 13 of his statements, that police arrived at the PO just within half an hour is not supported by any other circumstances. The defence has not suggested it to any other witness including the IO, PW 7 and informant PW 11. Further more the delay in lodging FIR is explained by the prosecution when It asserts that the deceased was being carried to Patna, which appears probable. The delay in receiving the FIR at the court has been discussed by learned trial court vide par 12 of the impugned judgment, who find that the delay of one day, 3 rd January,99 stated to be Sunday, was not fatal. Having considered the facts and circumstances of this case, we find that the point stressed by learned counsel for the appellants has got no force and merit. 20. Having gone through the evidence on record, we find that the prosecution version discloses that when Brahamdeo Yadav was going with Manoj Kumar on his motorcycle in the evening of 1.1.99 towards Dangra hill to participate in the picnic, he was assaulted with heavy sharp cutting weapon. There is no dispute that Brahamdeo Yadav has got six injuries on his scalp in which the weapon used cut through the scalp bones and brain materials. These assertions have been attributed to appellant Mahadeo, Binod, Baijnath and Chhoti. Witnesses have consistently and categorically stated that Mahadeo initiated the assault with the sword, where Chhoti gave Bhala blow and other two appellants gave farsa blows on the deceased. These witnesses have further stated that with the first assault, deceased fell down, after which he was assaulted by these appellants with the weapons in their hands. The above stated injuries and the nature of injuries described by PW 8, Dr. J.B. Rai support the fact that the deceased has received these injuries with heavy sharp cutting weapon resulting in his death. 21. In the circumstances discussed above, we find that the prosecution case stands supported by seven eye witnesses on record. The above stated injuries and the nature of injuries described by PW 8, Dr. J.B. Rai support the fact that the deceased has received these injuries with heavy sharp cutting weapon resulting in his death. 21. In the circumstances discussed above, we find that the prosecution case stands supported by seven eye witnesses on record. The genesis of this occurrence is old enmity between the parties, which got exploded on the date of occurrence because of alleged scuffle taking place at Dangra hill in the afternoon between appellant Chhoti Yadav and PW 6 Nanku Yadav. The background of this bloody assault as available on record was killings of the father of the appellants and deceased for which sessions trials were pending. We do not find any cogent reason to disbelieve and discard the version of the eye witnesses as their presence at the picnic spot and thereafter at the PO lying within half kilometers from Dangra hill cannot be ruled out. In this context the suggested absence of these witnesses further stand contradicted by the injuries found on them by PW 8 just after registration of FIR in the night of 1.11.99. PWs 5,6 and 11 were found with some injuries by PW 8, which they might have received during the alleged occurrence, in which they tried to intervene. Accordingly, we find that the suggested improbability of their presence at the PO by the counsel for the appellants is not acceptable. We further find and hold that the witnesses examined by the prosecution are probable and reliable. Accordingly, it is found and held that the deceased Brahamdeo Yadav received the fatal injuries caused by these four appellants named above. Accordingly the conviction and sentences of these appellants are hereby confirmed. 22. So far the allegation against appellant Tukani Devi is concerned, the witnesses have named her to be present at the PO. It is asserted that she was carrying a tangi in her hand but none of the witnesses specifically attributed any assault by this appellant on the deceased. We have already considered the injuries found on the dead body of Brahamdeo Yadav cutting through skull resulting in his death. These injuries have been attributed on four appellants Mahadeo with sword, Binod and Baijnath with Farsa and. Chhoti with Bhala. We have already considered the injuries found on the dead body of Brahamdeo Yadav cutting through skull resulting in his death. These injuries have been attributed on four appellants Mahadeo with sword, Binod and Baijnath with Farsa and. Chhoti with Bhala. In such circumstances any injury likely to have been caused by tangi held by appellant Tukani Devi could not be proved. She has already remained in custody for nearly eight years. In such circumstances, we are of the view that the prosecution has not been able to bring home the charges against her. Accordingly appellant Mst. Tukani Devi is acquitted of the charges levelled against her and released from the liability of her bail bonds. 23. In the above facts and circumstances, we find no merit in the appeals filed by appellants Binod Yadav, Baijnath Yadav, Mahadeo Yadav, Chhoti Yadav, except appellant Mst. Tukani Devi. Since appellants Binod Yadav, Baijnath Yadav and Chhoti Yadav are on bail, their bail bonds are cancelled and they are directed to surrender before the court below forthwith to serve the sentences, failing which the court below shall take all possible steps for their arrest. 24. In the result, Cr. Appeal No. 422/2000(R) stands dismissed and Cr. Appeal No. 386/2000(R) stands partly allowed. Amareshwar Sahay, J. 25. I agree.