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2006 DIGILAW 273 (JHR)

Manjai Yadav v. State Of Bihar (Now Jharkhand)

2006-03-28

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. The appellants are A1, A2, A3, A4, A5, A6, A7, A8, A9, All, A12, A13, A14, A15 and A16. Toti Yadav, who was arrayed as AID, was acquitted by the Trial Judge. In this judgment, the appellants and Toti Yadav will be referred as A1 to A16 in the same order as they were arrayed before the Trial Judge for the sake of convenience. 2. All the appellants accused and Toti Yadav were charged under Section 302 read with Section 149 I.P.C and A1 Manjai Yadav was not only charged under Section 302 read with Section 149 I.P.C but also charged under Section 302 I.P.C. The Trial Judge, while finding A1 Manjai Yadav as well as other accused except A10 Toti Yadav guilty under Section 302 read with Section 149 I.P.C, found A1 Manjai Yadav guilty under Section 302 I.P.C, which we find it to be strange as no man can be convicted twice for the same offence. On being convicted, each of them was sentenced to imprisonment for life. 3. The facts necessary to dispose of this appeal are as follows:- The deceased Surji Devi is the wife of Shankar Yadav, P.W.3 and mother of Raj Kumar Yadav, P.W.2. P.W.I, Shiv Prasad Yadav is the nephew of the deceased. P.W.4 Oil Mohan Yadav and P.W.6 .Jagdish Jha were also residing in the village along with the witnesses and the deceased. A3 Singheshwar Yadav, A12 Katki Yadav, A14 Sukra Yadav and A16 Sacho Yadav are brothers. A4 Darshi Yadav and A7 Arjun Yadav are also brothers. Baresh Yadav, Dinesh Yadav and Raban Yadav (A5, All and A13) are brothers. They were also residents of the same village where the deceased Surji Devi was residing with her husband and her relatives. There was a long standing dispute between the prosecution party and the accused party as regards enjoyment of a piece of land and this is said to be the motive for the occurrence which took place at 1.00 p.m. on 1.11.1982. 4. At 1.00 p.m. on 1.11.1982, P.W.I, Shiv Prasad Yadav, the deceased Surji Devi and Shankar Yadav P.W.3 were harvesting paddy in the disputed land. The accused party went there armed with lathi and they were also in possession of bombs. They asked P.W.I as to why they are harvesting paddy, but the prosecution party continued to harvest. 4. At 1.00 p.m. on 1.11.1982, P.W.I, Shiv Prasad Yadav, the deceased Surji Devi and Shankar Yadav P.W.3 were harvesting paddy in the disputed land. The accused party went there armed with lathi and they were also in possession of bombs. They asked P.W.I as to why they are harvesting paddy, but the prosecution party continued to harvest. A1 Manjai Yadav threw a bomb which fell on the deceased Surji Devi, then she died. Bengali Yadav A9 threw another bomb at Shankar Yadav, P.W.3, causing injury to him. The occurrence was witnessed by P.W.I Shiv Prasad Yadav, P.W.2 Raj Kumar Yadav, P.W.3 Shankar Yadav, P.W.4 Oil Mohan Yadav and P.W.6 Jagdish Jha. Thereafter, Ext.2, the fardbeyan, was given at the police station at 1.00 a.m. on 2.11.1982. A crime was registered and investigation was taken up by P.W.9, Jagdish Chandra Yadav, who conducted inquest and sent the injured to the hospital for treatment and the dead body for post mortem. 5. P.W.12, Dr. Satish Kumar Sinha, examined P.W.3 Shankar Yadav and found on his person the following injuries:- (i) Multiple burn injury over the left shoulder and upper arm mideally and superficialy in an area of 12"x4". (ii) Multiple superficial burn over the left forearm in an area of 2" x 2". (iii) Multiple superficial burn injury behind the left ear in an area of 4" x2". The Doctor issued injury report, Ext.6, with his opinion that the injuries could have been on account of explosive substance. 6. On receipt of the requisition for conducting autopsy on the dead body of Surji Devi, P.W.8 Dr. Vijay Kumar Bhagat conducted autopsy and found the following injuries:- (i) Lacerated wound 6" x 6" x upto soft tissue and bone deep obliquely on the left side of skull and face extending from left temporal and perital region to half of face and lower upwards from supraclavicler fossae to frontal part of skull above left eyebrow with the loss of some parts of soft tissue and parts of bone from the wound area (blown up) with fracture of remaining bone part and charring and blackening of the remaining surroundings of skin. (ii) Multiple lacerated wound in the size of Va" x V2" x Va" in an area of 1" diameter on the lateral aspect of left arm upper part with charring and blackening of the remaining surroundings of skin. (ii) Multiple lacerated wound in the size of Va" x V2" x Va" in an area of 1" diameter on the lateral aspect of left arm upper part with charring and blackening of the remaining surroundings of skin. The Doctor issued Ext.3, the post mortem certificate, opining that death could be on account of shock and hemorrhage as a result of the injuries and that injury No. l was sufficient to cause death in ordinary course of nature. 7. After completion of the investigation, the final report was filed against the appellants accused as well as A10 who was acquitted. When they were questioned under Section 313 Cr.P.C, they denied all the incriminating circumstances. 8. Learned counsel appearing for the appellants submits that the prosecution witnesses suppressed the genesis and origin of the case as they failed to explain the injury found on A1 Manjai Yadav. According to him, Manjai Yadav was examined by P.W.8 and the injury report, Ext.A, was issued by the Doctor. Learned counsel further submits that though the Doctor has stated that the injury found on A1 could have been on account of bomb exploding in his hand, the witnesses not only did not give any such evidence in court, nor is it found mentioned in the earliest document, Ext.2, given by P.W.I at the police station. Learned counsel submits that the answer given by the Doctor, P.W.8, can only be considered as an after-thought since the prosecution was faced with a problem of explaining the injury found on A1 and the belated explanation given by the Doctor, P.W.8, in court is not mentioned by any of the eye-witnesses either in their evidence or in their statement recorded under Section 161 Cr.P.C. Learned counsel further submits that the prosecution suppressed not only the injury report, Ext.A, but also suppressed Ext.D, the fardbeyan, given by A1 to the police, wherein he has mentioned that he was attacked and injured by Sitabi Yadav P.W.10 and Shankar Yadav P.W.3. He submits that the conduct of P.W.3 in not going to the hospital for treatment on the date of incident also shows that there must have been free fight between the two parties, during which both must have thrown bombs at each other and must have suffered injuries and that P.W.3 was even afraid to go to the hospital to take treatment. On the above submission, he has submitted that the appellants are entitled to acquittal. On the above submission, we have heard Mr. A.K. Jha, learned counsel appearing for the State. 9. Though there can no doubt as regards the cause of death of Surji Devi, there is a doubt as to who caused death of the deceased Surji Devi. The prosecution before the trial court examined five witnesses as P.Ws. 1 to 4 and 6. Three of them are closely related to the deceased and the other two also belonged to the party of the deceased. Admittedly, there was a dispute between the accused party and the deceased party as regards enjoyment of a piece of land and according to the prosecution, on the date of incident, when the deceased, P.W.I and P.W.3 were harvesting paddy in the disputed land, the appellants went there and protested. According to the witnesses, when the witnesses and the deceased continued to harvest the paddy, A1 and A9 threw bombs, as a result of which the deceased Surji Devi and P.W.3 Shankar Yadav suffered injuries. According to the prosecution, fardbeyan, Ext.2, was given by P.W.I at the police station at 1.00 a.m. on the night of 1.11/2.11.1982. In the said complaint, there is no whisper about the injuries suffered by A1. The witnesses, when cross-examined in the court, also stated that they did not find any injury on the person of A1. P.W.I and P.W.3 denied that A1 suffered injury during the course of same transaction in which Surji Devi and Shankar Yadav suffered injuries. It is not in dispute that A1 suffered injury on account of the explosion of a bomb and the said fact stands proved through the injury report, Ext.A, issued by the Doctor, who examined him. It is also not in dispute that Ext.D is the fardbeyan given by A1 wherein he stated that P.W.3, P.W.10 and others threw country bombs at him and others leading to their suffering injuries. 10. In the above background, it could be seen that the prosecution not only suppressed the injury found on A1 by not stating that he suffered injury at the time of occurrence but also by not marking injury report, Ext.A, issued by the Doctor and also not marking Ext.D given by A1. 10. In the above background, it could be seen that the prosecution not only suppressed the injury found on A1 by not stating that he suffered injury at the time of occurrence but also by not marking injury report, Ext.A, issued by the Doctor and also not marking Ext.D given by A1. In view of the long standing dispute between the two groups as regards the enjoyment of a piece of land and in view of non-explanation of the injury found on A1 by the prosecution, we are of the view that the prosecution witnesses did not speak the entire truth when they gave evidence in the Court as they have suppressed the material aspects, namely, injury on A1. The answer given by the Doctor that A1 could have suffered injury on account of an accidental explosion of bomb is not supported by any material placed on record. It is also not the case of the prosecution that the said information to the Doctor was furnished by the accused and we are not appraised as to how the Doctor came to the conclusion that A1 suffered an injury on account of an accidental explosion of bomb. The Investigating Officer, P.W.9, also did not say that he informed the Doctor that A1 suffered injury due to an accidental explosion of bomb, while he was engaged in throwing bombs at the prosecution party. In the absence of any material, we cannot come to the conclusion that A1 suffered injuries found by the Doctor on account of an accidental explosion of a bomb. It is worthwhile to remember that though the occurrence had taken place, according to the prosecution, at 1.00 am., during which P.W.3 and the deceased suffered injuries no attempt was made by any of the witnesses to take P.W.3 to the hospital as oral and documentary evidence show that P.W.3 was examined by the Doctor only on 2.11.1982. There is also no explanation as to why the complaint was not immediately laid at the police station. P.W.I attempted to explain the delay by saying that he went to the police station, but no police officer was present. There is also no explanation as to why the complaint was not immediately laid at the police station. P.W.I attempted to explain the delay by saying that he went to the police station, but no police officer was present. This answer of P.W. 1 is unacceptable to us since no police station will remain vacant and there should have been at least a para-constable who would have certainly informed the Officer concerned, if P.W.I had gone to the police station immediately after the incident to lay a complaint. The delay of 13 hours in laying the complaint, though under normal circumstances, will not be against the prosecution, on the facts and circumstances of this case, and in view of the non-explanation of the injuries found on A1 and in view of the conduct of P.W.3 in not going to the hospital to take treatment, we are of the view that the said delay is fatal to the prosecution and that the prosecution witnesses have suppressed the truth when they gave evidence. We, therefore, allow this appeal by setting aside the order of conviction and sentence imposed upon the appellants. It is reported that the appellants are on bail. They are discharged from their bail bonds.