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2008 DIGILAW 240 (PAT)

Sudhir Yadav v. State Of Bihar

2008-02-05

CHANDRA MOHAN PRASAD, DHARNIDHAR JHA

body2008
Judgment 1. This appeal is against the judgment dated 13th January, 2003 of the 3rd Additional Sessions Judge, Saharsa passed under Sessions Trial No. 98 of 1998 whereby the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to R.I. for life. 2. The prosecution commenced with the fardbeyan of informant Fekan Yadav (PW 7) as recorded by S.I. Ashok Kumar on 24th May, 1997 at 11.30 a.m. at Bagdihra Badhar. The informant alleged that carrying food grains he had gone out of his dera situated in that Bahiar and when he returned on 24th May, 1997 at 11.30 a.m. he learnt from his son Dhingra Yadav @ Raj Kishor Yadav (PW 8) that in the preceding night at about 11:30 p.m. while he (PW 8) along with his cousin brother was sitting near his grand-father Biso Yadav (deceased), the two appellants boarded on horses came there and they shot the deceased dead. The informant stated that his son Dhingra (PW 8) had stated before him that he woke up on hearing the sound of firing and then he had seen the occurrence of assault on the deceased at the hands of the appellants. About the cause of occurrence, the informant stated that about one year ago, he (informant) had quarrel and scuffle with the appellants and that due to that grudge, the appellants committed the occurrence. After recording of the fardbeyan, FIR was registered at the concerned Police Station and investigation commenced. On completion of investigation, charge-sheet was submitted and the appellants were put on trial. On completion of trial, the appellants have been convicted and sentenced, as above. 3. As many as nine witnesses were examined by the prosecution and the defence also examined three defence witnesses. Out of the prosecution witnesses, PW 2 Ganesh Sada, PW 3 Ganauri Sada and PW 4 Ganpati Yadav are the witnesses who did not support the case of the prosecution and they were declared hostile by the prosecution. PW 1 Bindeshwari Yadav and PW 6 Ram Balak Sada are the neighbours to the P.O. and they deposed on the point that in the early morning ensuing the night of the occurrence, Dhingra Yadav (PW 8) had come to them for informing about the killing of the deceased but he had not disclosed before them the name of the assailants. PW 5 Dr. PW 5 Dr. Captain M.A. Siddiqui is the doctor who held P.M. Examination on the dead body of the deceased. PW 7 Fekan Yadav is the informant himself, PW 8 Dhingra Yadav @ Raj Kishor Yadav is the informants son who is the sole eye-witness to the occurrence and PW 9 Ashok Kumar is the I.O. of the case. 4. DW 1 Chhathu Choudhary, choukidar, DW 2 Ram Prakash Sada and DW 3 Ramashish Sada are the three defence witnesses who deposed that on learning about the occurrence and on being informed by the PW 8 that this grand-father had been killed, they came to the P.O. and saw the dead body but PW 8 had not disclosed to them the names of the assailants. 5. Out of the prosecution witnesses, PW 1 Bindeshwari Yadav deposed that his dera situates near the dera of the informant i.e. the P.O. place and that in the night of occurrence, he had heard the sound of firing and further that in the ensuing morning, PW 8, grand-son of the deceased had come to him and had informed him that his grand-father had been killed. But this witness does not say about the names of the appellants having been disclosed before him by PW 8. This witness also says that he had gone to the P.O. where inquest report of the dead body and the seizure list with regard to the seizure of blood from the PO was prepared and he had put his signature as Exts-1, 1/1 and 1/2 on it. At para-6 of his evidence, this witness categorically states that when he had gone to the PO, Bharat, Ramdeo, Dinesh, Upendra, Paglu and others were present there and they had asked PW 8 about having identified any of the assailants but PW 8 had not disclosed the name of any assailant there. 6. PW 6 similarly deposed that in the morning, at about sun rise the PW 8 had come to him and he had stated that his grand-father had been shot dead but on being asked he did not disclose about the assailants who had killed the deceased. 7. PW 7 Fekan Yadav, the informant deposed that when the returned to his dera, he was informed by his son (PW 8) that Sudhir Yadav and Manoj Yadav had shot his (PW 7s) father (deceased) dead. 7. PW 7 Fekan Yadav, the informant deposed that when the returned to his dera, he was informed by his son (PW 8) that Sudhir Yadav and Manoj Yadav had shot his (PW 7s) father (deceased) dead. He further deposed that one year prior to the incident, he had quarrel with the appellants and that due to that grudge, the appellants killed his father. He stated that on his statement, the fardbeyan was recorded and he identified his signature (Ext/1/5) on the fardbeyan. At Para 10 of his evidence, he stated that the appellants have purchased two bighas of land belonging to his uncle and that the land appertains to the same plot in which his land situates. About the quarrel taking place, one year ago he stated that any case was not filed with respect to that quarrel and that it had been resolved by panchayati. He further deposed that his son (PW 8) and nephew were sleeping at a distance of two laggi from the decreased. He also deposed at Para-19 that he had reached at his Kamat at 10.30 and darogajee had already reached there by that time and had taken statement from the witnesses and had also seized blood from the P.O. 8. PW 8 Raj Kishor Yadav who was a boy aged 8 years on the date of examination on 19th July, 1999 and thus he was a boy of only 6 years on the date of occurrence on 24th May, 1997. He deposed that he along with his younger brother was sleeping near their grand-father (deceased) and that in the night of occurrence, he woke up on hearing sound caused by horses hoof then he saw that appellant Manoj Yadav and Sudhir Yadav came there on two horses, and they got down from the horses and shot his grand-father (deceased) dead and thereafter they fled away on horses. He states that in the morning, he disclosed about the occurrence to others. At Page-7 of his evidence, he says that darogajee had taken his statement first of all. He further deposed at Para- 14 that he was sleeping at a distance of 1-1/2 lagga from the deceased and that one lagga equals six cubits. At para-15 of his evidence, he stated that he had not seen blood coming out of the deceased due to darkness. He further deposed at Para- 14 that he was sleeping at a distance of 1-1/2 lagga from the deceased and that one lagga equals six cubits. At para-15 of his evidence, he stated that he had not seen blood coming out of the deceased due to darkness. He also deposed at Para-16 that he saw that two shots had hit on the temporal region of the deceased. He further deposed at Para-16 that the choukidar had come to the P.O. but he had not disclosed anything about the occurrence before the choukidar. It has to be remembered here that the choukidar Chhathu Choudhary has been examined by the defence as DW 1 who deposed that PW 8 had not disclosed before him the name of the appellants. This witness further deposed at Para-19 that Ram Balak Sada (PW 6) had gone to the police station for informing about the occurrence. Thus PW 6 had gone to the PO for informing about the occurrence and he had also deposed in his evidence that PW 8 had not disclosed before him the name of the assailant. At Para-20 this witness (PW 8) categorically deposed that the I.O. had taken his statement first of all. 9. PW 9 Ashok Kumar, the I.O. deposed that on 24th May. 1997 he had recorded the fardbeyan of the informant and commenced investigation. He prepared the inquest report and had sent the dead body for P.M. Examination and he had also recorded the statement of witnesses. At Para-23 he had stated that Dhingra Yadav (PW 8) had not stated before him that he woke up on hearing the sound of horses hoof. 10. PW 5 Dr. Captain M.A. Siddiqui deposed that he held the P.M. Examination on the dead body of the deceased and he found two lacerated wound, one on the left side of frontal region which was the wound of entry and other one was lacerated wound on the left temporal region which was the wound of exit. According to the wounds as found by the doctor, out of the two wounds, one was of entry and the other one was of exit caused by a single shot. 11. According to the wounds as found by the doctor, out of the two wounds, one was of entry and the other one was of exit caused by a single shot. 11. On appraisal of evidence as brought by the prosecution, we find that PW 1 and PW 6 who are the independent witnesses say that in the early morning after the night of occurrence, PW 8 who was the sole eye-witness to the occurrence had come to them and he had simply informed that his grand-father (deceased) had been shot dead but even on being questioned, he (PW 8) had not disclosed the name of any of the appellants rather stated that he had not identified any of the assailants. This goes against the claim of the PW 8 about having identified the appellants as the assailant during the occurrence and thus this witness (PW 8) who happens to be the sole wetness in this case is discredited on the point of identification. PW 8 himself admits at Para-18 of his evidence that the choukidar had come to the P.O. in the evening but he had not disclosed before him anything about the occurrence. The choukidar who was examined by the defence as DW 1 also stated that PW 8 had not disclosed before him about having identified any of the criminals. Thus non-disclosure by the PW 8 about the identification of the assailants before the choukidar in the morning also goes to discredit him as an eye-witness. 12. During the argument, learned counsel for the appellants refers to the statement of PW 8, Para-20 that darogajee had taken his statement first of all. Referring this portion of the evidence of the sole eye-witness (PW 8) it was argued that first of all the IO had taken the statement of this witness and he was the only eye-witness then his statement must have been taken as the fardbeyan of the case but it has not been done so. The prosecution is unable to offer any explanation why the statement of the sole eye-witness which was recorded by the Investigating Officer first of all was not treated as fardbeyan nor the same was brought on record and the I.O. waited for arrival of the father who came there after some hours and who himself was the hearsay witness was allowed to become the informant of the case. Argument has been advanced with the assertion that the informant (PW 7) who is the father of the sole eye-witness (PW 8) was allowed to become the informant only with a purpose to introduce the claim of the PW 8 as an eye witness implicating the appellants in the occurrence, whereas no such claim was made by the PW 8 in his early statement as admittedly given before the Investigating Officer. In view of the admitted earlier statements of the sole eye-witness (PW 8) having not been brought on the record, we find substantial reason in the argument of the learned defence counsel that the earlier statement has been purposely withheld because it would not have supported the case of prosecution. 13. As to the manner of identification, PW 8 claimed in his evidence that he woke up on hearing the sound of horses hoof but according to the fardbeyan wherein the father of PW 8 has stated that his son (PW 8) had stated before him that he (PW 8) had awakened on hearing the sound of firing and then he had seen the act of assault on the deceased at the hands of the appellants. Thus, PW 8 had stated before his. father in the ensuing morning that he woke up on hearing the sound of firing but in his evidence he has made development by stating that he woke up on hearing the sound of horses hoof, perhaps, with a view that he may be able to substantiate the claim of identification due to the reason that in case he admits to have awakened after hearing the sound of firing, he would not be admitted as a competent eye-witness on the point of the actual assault on the deceased. Since this witness (PW 8) stands contradicted regarding the sound which broke his sleep, a doubt is created on the claim of this witness that he had an opportunity to see the actual assault. 14. There are other circumstances also to create a doubt over the claim of PW 8 with regard to the identification of accused during the act of assault. He (PW 8) stated at Para-16 that two shots were fired on the left temple and he had seen both the shots hitting the deceased. At Para-21 he further deposed that the two shots were fired one after another. He (PW 8) stated at Para-16 that two shots were fired on the left temple and he had seen both the shots hitting the deceased. At Para-21 he further deposed that the two shots were fired one after another. Thus according to this witness who happens to be the sole witness, two shots were fired one after another and both had hit the deceased on his left temple. But according to the medical evidence, only two wounds, one of entry and other of exit both caused by the same shot was found. Thus, considering the medical evidence, the manner of assault as stated by PW 8 appears improbable, hence, the same is not fit to be believed and it discredits this witness as an eye-witness to the occurrence. 15. At Para-15 PW 8 deposed that he was unable to see blood coming out of the deceased due to darkness. This shows that at the time of occurrence, there was no sufficient means facilitating proper vision for the identification of the assailants. In such view of the matters, the claim of PW 8 who was sleeping at a distance from the deceased is not believable and it appears highly doubtful that he could have identified the assailants. 16. About the motive of occurrence, as stated by the informant (PW 7), we fail to find any substance in it. The quarrel had taken place about one year ago and that too, was resolved by panchayati without filing of any case for that, hence, it is difficult to believe that for such a remote reason anybody could cause the death of the father of the informant. 17. Thus considering the facts and circumstances, as discussed above, we fail to put any reliance upon the evidence of PW 8 who claims to be an eye-witness to the occurrence. Therefore, we hold that the prosecution has failed to prove the charge beyond shadow of doubt. Both the appellants are acquitted of the charges. The judgment of conviction and sentence as passed by the trial Court is hereby set-aside. The appellants who are in custody are ordered to be released forthwith, if not wanted to be detained in any other case.