Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 388 (PAT)

Suresh Yadav v. State of Bihar

2008-02-22

CHANDRA MOHAN PRASAD, DHARNIDHAR JHA

body2008
JUDGMENT : C.M. Prasad & Dharnidhar Jha, JJ. - The sole appellant Suresh Yadav was tried by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-II, Aurangabad, in Sessions Trial No. 105 of 1999/15 of 2005, for a composite charge under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and by the JUDGMENT : dated 17.6.2006 was found guilty of committing the abovenoted offences. While hearing sentence and passing ORDER :in that behalf on 20.6.2006, the learned Judge directed the appellant to suffer rigorous imprisonment for life as also to pay an amount of Rs. 5,000/- as fine for his conviction under Section 302 of the Indian Penal Code. As regards the conviction of the appellant under Section 27 of the Arms Act, the learned Judge inflicted a sentence of rigorous imprisonment for three years as also a fine of Rs. 1,000/- only upon him. The learned Judge directed that in case of the appellant defaulting in paying the fine as directed to be paid on the two counts, the appellant shall have to suffer additional periods of imprisonments for two years and one year respectively for his conviction under the above noted Sections of the Penal Code and the Arms Act. The above JUDGMENT : and ORDER :of conviction are being challenged by the appellant in the present appeal. 2. Before we revert to the rival contentions of the partiers so as to scrutinizing the correctness of the findings and the appropriateness of the sentences passed upon the appellant, we could notice the basic prosecution case which is as under. The appellant had some dispute with the deceased Saryu Yadav for some land which the appellant, allegedly, attempted to take possession of. The attempt was resisted by the deceased Saryu Yadav. The appellant had assaulted the deceased who filed a criminal case against the appellant and that was pending in some court. It is alleged that the appellant was soliciting the withdrawal of that case on compromise and was threatening the deceased that his son would be killed if the deceased did not agree for the compromise as proposed by the appellant. It is alleged that the appellant was soliciting the withdrawal of that case on compromise and was threatening the deceased that his son would be killed if the deceased did not agree for the compromise as proposed by the appellant. It is alleged that on the date of occurrence, i.e., 13.11.1998 at about 6 A.M. when the deceased and P.W. 6 Jitendra Yadav, who was the brother of the son-in-law of the deceased were coming back after attending to the call of nature and when they reached at a particular place on way to their house, the appellant reached there, fired a shot into the chest of the deceased who fell down but stood up to run away and ultimately fell down on the straw in front of his house where his dead body was found. While the deceased was running after having received the shot, he was shouting that he would not survive as the present appellant had shot and injured him. 3. On the basis of the Fardbeyan of P.W. 8, Dhanmati Devi, wife of the deceased, the case was instituted and on investigation P.W. 12, the Sub-Inspector of Police, sent up the appellant for his trial during which course as many as 12 witnesses were examined by the prosecution in support of the charges. P.Ws. 1 to 5, namely, Ram Bachan Yadav, Jai Prakash Yadav, Sheo Narayan Sah, Lal Mohan Yadav and Faguni Yadav did not support the prosecution case and gave one line of evidence that they did not know anything about the occurrence. Some of them, like P.W. 3 Sheo Narayan Sah and P.W. 4 Lal Mohan Yadav, who had witnessed some part of the investigation like seizure and preparation of the inquest report or recording of the Fardbeyan, went to such an extent of being hostile as not to supporting the preparation of the documents, like, the inquest report or Fardbeyan. P.W. 11, Kapildeo Yadav, is a witness of formal nature who proved the writing of the document; which, in our opinion, has wrongly been treated as Ext. 1/A. The Rules of Criminal Practice framed by this Court known as Criminal Court Rules, did not approve of such marking of the document of the prosecution. It is only on the numerical side. 1/A. The Rules of Criminal Practice framed by this Court known as Criminal Court Rules, did not approve of such marking of the document of the prosecution. It is only on the numerical side. Because the document has been proved and it could be read in evidence, we do not see any defect in the prosecution case. P.W. 10, Dr. Ajay Kumar had held post mortem examination on the dead body of Saryu Yadav and had prepared report in that behalf which has been marked Ext. 3 in the case. The witnesses who supported the prosecution charges are P.W. 6. Jitendra Yadav, who happened to be the younger brother of the son-in-law of the deceased, P.W. Panpati Devi, daughter of the informant and the informant P.W. 8 Dhanmati Devi, the wife of the deceased. 4. The defence which the appellant set up in the court below, which appears from the suggestions given to the witnesses as also from his statement recorded under Section 313 of the Code of Criminal Procedure, was that he had falsely been implicated on account of some agnatic dispute prevailing between the deceased and himself. It appears from the suggestion given to P.W. 7, the daughter of the deceased, that the appellant set up an alternative plea of defence by stating that in fact, Saryu Yadav had been killed by some terrorist and' the appellant had falsely been implicated. So far P.Ws. 6 and 8 are concerned they were suggested that there had not been any occurrence in the manner as suggested by the prosecution and that the witnesses had not seen any occurrence and were deposing falsely. 5. The learned trial Judge, placed reliance upon the evidence of P.Ws. 6, 7 and 8 and found that the charges were proved on account of oral evidence being supported by the medical opinion and recorded the conviction and passed sentences as stated in the very first paragraph of the present JUDGMENT :. 6. Shri Md. Gyasuddin, learned counsel appearing for the appellant took us through the evidence of the witnesses especially that of P.Ws. 6, 7, 8, 10 and 12 and submitted that the cartridge was not recovered nor any straw which was blood stained or any other exhibits appears seized by the police, as such it remains in doubt as to whether the deceased was indeed shot and killed. 6, 7, 8, 10 and 12 and submitted that the cartridge was not recovered nor any straw which was blood stained or any other exhibits appears seized by the police, as such it remains in doubt as to whether the deceased was indeed shot and killed. It was next contended that no independent witness specially those who were within the vicinity of the occurrence appears supporting the prosecution and only interested persons who were the family members of the deceased came forward in support of the charges. It was contended next that the motive being of land dispute and the story of the prosecution further being of pendency of a case, the prosecution did not choose to bring on record any document in support of the case and, as such, it creates a vacuum in the prosecution case as a result of which the benefit of doubt must accrue to the appellant. 7. As against the above, learned Additional Public Prosecution, Shri Lala Kailash Bihari Prasad, submitted that the three witnesses, i.e., P.Ws. 6, 7 and 8 appear the natural persons who could not be said to be chance witnesses as their presence was natural and they appear corroborating each other at the most vital aspect of the prosecution case while proving the charges. It was further contended by Shri Prasad that elimination of chance of false implication was inherently present in the present case inasmuch as there was a prompt lodging of the F.I.R. and the immediate registration of the case followed by a quick investigation. Shri Prasad referred to us the evidence to submit that place of occurrence was duly established, but while making his contention Shri Prasad was very much fair that the learned Judge ought to have been very fair and specific in putting the questions to the appellant while examining him under Section 313 of the Code of Criminal Procedure especially on the motive aspect of the prosecution story. Shri Prasad further contended that the evidence of the Doctor while corroborating the prosecution case leaves a bit to be desired as he could have stated in his opinion whether indeed the deceased was in a position to run to a particular distance after being hit by the bullet fired by the appellant. Shri Prasad further contended that the evidence of the Doctor while corroborating the prosecution case leaves a bit to be desired as he could have stated in his opinion whether indeed the deceased was in a position to run to a particular distance after being hit by the bullet fired by the appellant. We record our sincere appreciation of the fairness of Shri Prasad in bringing out the defects which might, in his view, be appearing in the trial of the case. 8. We first take up the contention of Shri Prasad on the cryptic questioning of the appellant under Section 313 of the Code of Criminal Procedure which provides for questioning of an accused of the case by the court or a Judge generally, on some of the aspects of the prosecution case relating to certain circumstances which appear created by the prosecution evidence. The purpose of such questioning is very much indicated in the provision itself and that is to elicit an explanation from the accused on the circumstances appearing against him from evidence. The motive as alleged by the prosecution was the attempt by the appellant to take possession of a particular land and on being resisted by the deceased of assaulting him for which the criminal case was pending. The purpose of examining the accused is to bring into his knowledge the circumstances which appear against him to seek his explanation so that he is not prejudiced in his trial and offers reasonable explanation so as to explaining the circumstances. If the accused is knowing from before as to what could be the circumstances appearing against him as appears the case in the case in hand, then, even if there was no question put, it is not going to vitiate the prosecution case. We could refer to the answer by the appellant to one of the most innocuous questions put to him by the court during his examination under Section 313 of the Code of Criminal Procedure. The appellant was asked whether he had to state anything in his defence to which he answered that he had been falsely implicated in the case for some agnatic disputes. The appellant was asked whether he had to state anything in his defence to which he answered that he had been falsely implicated in the case for some agnatic disputes. The appellant had some dispute with the deceased appears quite existing in his mind and, as such, in spite of not being enquired about that circumstance the appellant appears knowing as to why and for what reasons he could be there in the dock as an accused. This, in our opinion, sufficiently answers the point raised by Shri Prasad and we do not find it a case causing prejudice to the appellant of not being properly given an opportunity of explaining the circumstances against him appearing from the evidence adduced by the prosecution. 9. Besides, it is by now a well known principle of law that in a case where the Court has direct evidence available to it in support of the charges, motive looses its importance. But it is also well known that if motive is alleged as a factor which could have impelled the appellant to commit the offence, then it must be proved like any other fact. The motive which has been alleged by the informant in her fardbeyan was the desire of the appellant and the refusal of the deceased to withdraw or compromise• the criminal case which had been initiated by the deceased against the appellant for an incident in which the appellant had assaulted the deceased. 10. It is true that the documents in that behalf could clinch the issue finally, but after going through the evidence of P.Ws. 7 and 8 who are none else than the daughter and wife of the deceased and who could be said to be in full know of the circumstances of the family.; what we could find was that they have stated that the incident occurred only because the deceased was not withdrawing/compromising the criminal case which was lodged by the deceased for being assaulted by the appellant. While going through the evidence of the two witnesses. P.Ws. 7 and 8 we could not come across a single line of cross-examination which could discredit their credibility on the point. In addition to that we could not even locate the specific suggestion given to the two witnesses that the motive part of the prosecution story was false. While going through the evidence of the two witnesses. P.Ws. 7 and 8 we could not come across a single line of cross-examination which could discredit their credibility on the point. In addition to that we could not even locate the specific suggestion given to the two witnesses that the motive part of the prosecution story was false. They appear to us competent persons having full knowledge of the fact and the background which ultimately culminated into shooting the deceased and his killing. Their evidence clearly corroborates the prosecution story and proves the motive which impelled the appellant to commit the offence. 11. Jitendra Yadav, P.W. 6 was present in the village, appears fully established by the evidence of P.Ws. 7 and 8 in paragraphs 8 and 5 of their respective evidence. P.W. 7 has stated that Jitendra Yadav the younger brother of her husband had arrived at the village in the previous evening of the occurrence. She has further stated that Jitendra Yadav had come to her house on two and three earlier occasions as well. Likewise, P.W. 8 has stated in paragraph 5 that Jitendra Yadav P.W. 6 had come in the previous evening of the occurrence. P.W. 7 had claimed that Jitendra Yadav had come in the previous evening of the occurrence and was accompanying the deceased to go out to attend to the call of nature. After going through the evidence of P.Ws. 6, 7 and 8 we do not have any doubt about the presence of P.W. 6 at the place of occurrence as also in the claim of the prosecution that at the time of occurrence P.W. 6 was accompanying the deceased. 12. The prosecution story as regards the main part of the occurrence is that when the deceased had reached near the well on way to his house while coming back after attending to the call of nature the appellant shot and injured him. P.W. 6 was accompanying the deceased. He has testified to the effect that and we find on consideration of the above evidence that he does not appear telling a lie or making any statement which takes away the effect of P.W. 7 being a truthful witness. P. Ws. 7 and 8 who respectively are the daughter and wife of the deceased, have given the reasons for their presence at their Darbaja. P. Ws. 7 and 8 who respectively are the daughter and wife of the deceased, have given the reasons for their presence at their Darbaja. P.W. 7 has stated that she and her mother were at the Darbaja and her mother was giving fodder to the animals in the cattle shed. P.W. 7 stated in paragraph 9 that the cattle shed was open from all sides. P.W. 8 has stated that she was giving the fodder to the oxen. Both P.Ws. 7 and 8 claimed having seen the occurrence of a shot being fired by the appellant and the deceased being injured. P.W. 7 has stated in paragraph 9 that she and her mother heard the sound of firing of the shot and also saw the occurrence. P.W. 8, as stated earlier, has also testified as the witness of the occurrence. P.S. 8 stated in paragraph 7 that the field towards which her husband had gone to attend to the call of nature, was visible from her house. The totality of the evidence of P.Ws. 6, 7 and 8 gives us a clear picture that they were the witnesses to the occurrence and that they had seen the occurrence and they were narrating the truth while deposing in Court. They did not appear being motivated by any other factor so as to deposing falsely. The suggestion to P.W. 7 that the terrorist had killed her father does not appeal to us because the witnesses did not have any compelling reason to substitute the real offenders or to implicate the appellant except the pendency of a criminal case. As indicated earlier, their presence was natural. They did not appear to us persons who were bent upon telling lies in Court. Their evidence inspire confidence and we find nothing in the evidence of the three witnesses which could be unsafe to act upon. 13. Coming to the arguments of learned counsel for the appellant about the non-seizure of the bullet from the place of occurrence. We find from the evidence of P. W. 10, Dr. Ajay Kumar that the bullet which had hit the deceased had caused two injuries on his body, one of entry and the other of exit. The injuries found by the Doctor were:- (i) A puckered out burnt out inverted oval shape lacerated wound with heamatosed margin on right epigestric region ½" in diameter. Ajay Kumar that the bullet which had hit the deceased had caused two injuries on his body, one of entry and the other of exit. The injuries found by the Doctor were:- (i) A puckered out burnt out inverted oval shape lacerated wound with heamatosed margin on right epigestric region ½" in diameter. (ii) An inverted lacerated wound of 1" diameter on the back of right side. It is true that the Doctor has not defined the two wounds as those of entry or exit, but he has stated in paragraph 4 that except the single shot injury there was no other injury. Besides, the dimension of the injury no. (ii) (thats', 1") and injury no. (i) measuring ½" and leads to one conclusion that injury no. (i) was the wound of entry and injury no. (ii) was that of exit. Thus, we have no difficulty in holding that the projectile had entered into the body of the deceased and it exited out of it and the process had occurred at the very place where he was shot at and injured. The evidence of the witnesses as also that of P.W. 12, the Investigating Officer, indicates that after being hit the deceased fell down and then he ran for some distance, but finally fell down on the stack of straw and succumbed to his injuries. There was no question under the above circumstances of the I.O. locating or finding the projectile. 14. As regards the contention that blood was not seized either from the place of occurrence or from the straw, the I.O. P.W. 12 has stated in his evidence in paragraph 31 that he did not find any trail of blood in between the place where the deceased was shot and where the dead body was found finally by him. The reason appears obvious. It was 13th of November, 1998. The witness, specially P.W.7 in paragraph 4 has stated that it was cold. The deceased had gone out to ease. He could not have gone without having properly clothed himself and also after having taken the appropriate precaution to protect him from cold. If sufficient clothes were on the person of the deceased and in that situation he was hit by bullet then the blood which had oozed out of the injured must have been soaked into the clothes. He could not have gone without having properly clothed himself and also after having taken the appropriate precaution to protect him from cold. If sufficient clothes were on the person of the deceased and in that situation he was hit by bullet then the blood which had oozed out of the injured must have been soaked into the clothes. Under the above circumstances, there could not be any explanation about the trail of blood not being found at or around the place of occurrence. The above reason answers the argument as to why the I.O. did not find blood on straw. Besides, the I.O. has given reason of not finding seizing the blood on the straw. In paragraph 9 of his evidence he has stated that on account of the straw being trampled by the family members of the deceased who were weeping and wailing it was not such as to be seized. The above reason has been assigned by the I.O. P.W. 12 in paragraph 9 of his evidence for riot seizing the straw and we do not find any defect in the prosecution case on that account. 15. The next contention of the learned counsel for the appellant is that the independent persons did not come forward to support the prosecution charges. To us, the argument appears loosing sight of a very disturbing trend which has recently developed in our society of persons not coming forward to courts of law for supporting an incident or the charge for fear of many reasons. The first and foremost being the fear looming large in the minds of civilized persons of being humiliated in courts of law by being put such uncomfortable questions which is not expected by them. Besides, the impending fear of being humiliated also looms large in the minds of civilized persons and that also keeps them away from the witness box. These are the trends of the recent times and we have to learn to live with this trend and to consider the evidence of the witnesses. The three witnesses who came forward to support, we have already indicated, appear to us trustworthy and truthful witnesses and they sufficiently lend corroboration to the charges. 16. Having said what we have presently, we find that the JUDGMENT : of conviction and sentence passed upon the appellant were rendered appropriately. The three witnesses who came forward to support, we have already indicated, appear to us trustworthy and truthful witnesses and they sufficiently lend corroboration to the charges. 16. Having said what we have presently, we find that the JUDGMENT : of conviction and sentence passed upon the appellant were rendered appropriately. We find no reason to interfere with the same and accordingly confirm the same. 17. This appeal is dismissed.