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2012 DIGILAW 1107 (PAT)

Jitan Yadav, Dudhnath Yadav v. State of Bihar

2012-08-09

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT : Mihir Kumar Jha, J. Both these appeals arise out of the common judgment dated 22nd of September, 1990 passed by the 4th Additional Sessions, Judge, Arrah in Sessions Trial No. 150 of 1988, whereby and whereunder, all the appellants have been convicted for the offence punishable under Sections-302/34 IPC and have been sentenced to undergo rigorous imprisonment for life. All the appellants except Sribhagwan Yadav have further been convicted under Section-27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for two years. The said sentences, however, are to run concurrently . 2. The prosecution case as has been set out by the informant, PW-4, Jagarnath Panday in his fard beyan, Exhibit-3, to the police officer (not examined) recorded on 13.11.1986 at 11:30 pm is that the informant on the same date i.e. 13.11.1986 at about 12 noon in company of his son Lalan Panday (deceased) as also his brother Bihari Panday (PW-1) and nephew Swaminath Pandey (PW-3) had gone to Ragunathpur bazar for certain shopping and it is said that after PW-1 (Bihari Panday) and PW-3 (Swaminath Panday) had made certain purchase in Ragunathpur bazar, all the four persons in course of return journey to their village Pokhara, while they had reached near village Rajpur at about 6 pm they had suddenly seen emergence of a mob of 7 to 8 persons, who according to informant were earlier sitting in a bush by the side of the road. The informant had also claimed that while he, PW-4 (Jagrnath Panday), PW-1(Bihari Panday) and PW-3(Swaminath Panday) were a bit ahead of Lalan Panday (deceased) walking with a bicycle, the aforesaid mob consisting of the appellant had encircled the deceased and on an order given by appellant, Ramasis Yadav, the other two persons namely appellants Bhalu Yadav @ Jitendra Yadav armed with rifle and Rudranath Yadav also armed with rifle had given two fire arm injuries on the person of the deceased Lalan Panday on account of which he had succumbed to his aforesaid injuries at the spot. 3. The further case of the prosecution is that when the informant and others on account of aforesaid assault had started crying and shouting the members of the mob including the appellants had started dragging the dead body of the deceased, Lalan Panday towards West. 3. The further case of the prosecution is that when the informant and others on account of aforesaid assault had started crying and shouting the members of the mob including the appellants had started dragging the dead body of the deceased, Lalan Panday towards West. The informant had stated that while Swaminath Pandey (PW-3) ran towards the village, the informant Jagarnath Panday(PW-4) and Bihari Panday (PW-1) had followed the appellants and others. The informant, claimed that in the meantime villagers armed with rifle while resorting to open firing from their fire arms had reached at the place of occurrence and the accused persons including the appellants on hearing the sound of firing made by the villagers had fled away whereafter the informant could search his son and had recovered his dead body. In the fard beyan itself the informant had further alleged that the said occurrence was committed by the accused persons including the appellants on account of an earlier murder in the family of the accused which had taken place some three years back in which the deceased was also made an accused. 4. On the basis of the aforementioned fard beyan, Brahampur P.S Case No. 127 of 1986 was instituted against all the appellants under Sections-302/34 IPC and also under Section-27 of the Arms Act and the police after investigation had submitted the charge sheet. The case being exclusively triable by the Court of Sessions was committed to the Court of Sessions by an order dated 05.04.1988, whereafter the trial in question was conducted and completed in the manner leading to conviction and sentence of the appellants as indicated above. 5. Mr. Kanhaiya Prasad Singh, learned senior counsel appearing on behalf of the appellants while assailing the impugned judgment has basically laid stress on the aspect that the prosecution case in its entirety is fit to be rejected, inasmuch as, the evidence of three eye-witnesses did not inspire any confidence specially when it is an admitted fact that there was a series of endless litigation pending between the parties as also the prosecution party were held to be liable for committing murder of family member of the appellants. He has also submitted that non-examination of the investigating officer has vitally prejudiced the appellants and in this regard his specific criticism is the manner of arrival of the police at a lonely place despite no information given to the police by anyone of the prosecution side which according to him would vitally affect the whole manner of occurrence, specially, when the place of occurrence could also not be safely established in the light of the evidence of three witnesses. He has also submitted that even if the prosecution witnesses are believed entirely, the presence of a large number of incised injuries on the deceased about which there is no whisper in any of the evidence of the prosecution witnesses itself would give death nail to the entire prosecution case. He has finally summed up his submissions that as a matter of fact when it has also come in the evidence that the deceased was already an accused in the murder of one Ram Pujan singh and prosecution has also not at all explained as with regard to the deceased sustaining injury in course of murder of Brij Raj Singh taking place on the same day, the prosecution case launched against the appellants cannot be believed and their false implication on account of old enmity cannot be ruled out. 6. Per contra, Ms. Verma appearing on behalf of the State while defending the impugned judgment of conviction and sentence has submitted that it is not a universal rule that non examination of investigating officer would essentially prejudice the accused persons in all cases. In this regard, she has further submitted that the case diary had already been exhibited and this Court can definitely look into the same for removal of any doubt in the prosecution case. Ms. Verma has also submitted that once this much is an admitted fact that after giving three fire arm injuries on the person of the deceased, he was dragged by the appellants and others, it cannot be said that the incised injuries found on the person of the deceased did not get explained, inasmuch as, there was every possibility of inflicting such injuries on his person after his being dragged from the place where he had received the fire arm injuries. She has also submitted that three eye witnesses have fully supported the prosecution case and therefore, the enmity, which cuts both way, cannot be said to be the only ground for holding the conviction and sentence of the appellants to be bad. 7. Before we analyze the aforementioned submissions, it would be necessary for us to record that the prosecution in all had examined six witnesses out of whom Bihari Panday(PW-1), Swaminath Pandey(PW-3) and Jagarnath Panday (PW-4) are the eye witnesses whose presence is very much mentioned in the First Information Report. PW-2 (Baban Panday) is more or less a formal witness who has proved certain documents. Similarly, PW-5 (Murat Ram) who is a clerk in the office of Public Prosecutor has proved the case diary as also the fard beyan which bears the signature of ASI, Kamal Singh(Investigating Officer). PW-6 is Dr. C.M Singh, who had conducted the post mortem over the dead body of the deceased. Additionally, the prosecution has also exhibited six documents out of which Exhibit-1 is the fard beyan bearing signature of Baban Pathak, Exhibit-2 is the post mortem report of accused Lalan Pandey, Exhibit-3 is the fard beyan, Exhibit-4 is the F.I.R, Exhibit-5 is the command certificate and Exhibit-6 to 6/1 is the case diary. 8. The defence has not examined any witness nor has examined any document but from the trend of cross examination as also the statement of accused recorded under Section-313 Cr.P.C, it transpires that basically they had pleaded innocence and false implication on account of previous enmity. 9. The first and foremost issue which will go to the root of the matter and clinch the issue in favour of the appellants is non explanation of a large number of incised injuries on the person of the deceased. The prosecution in this regard has utterly failed to explain the obvious discrepancy in the ocular evidence vis-à-vis medical evidence. The consistent evidence of eye witnesses, PW-1(Bihari Panday), PW-3(Swaminath Panday) and, PW-4 (Jagarnath Panday) as with regard to the manner of occurrence and the objective finding of the Doctor who had conducted the post mortem over the dead body of the deceased person in fact cannot reconcile to each other. 10. The consistent evidence of eye witnesses, PW-1(Bihari Panday), PW-3(Swaminath Panday) and, PW-4 (Jagarnath Panday) as with regard to the manner of occurrence and the objective finding of the Doctor who had conducted the post mortem over the dead body of the deceased person in fact cannot reconcile to each other. 10. The informant, PW-4 (Jagarnath Panday), had alleged only three fire arm injuries to have been shot at the person of the deceased and that too by making improvement of his earlier version in the First Information Report wherein he had alleged the accused persons to have inflicted only two fire arm injuries on the deceased. In any event this much is admitted that he did not allege any other injury inflicted on the person of the deceased much less causing any incised injury by a sharp edged weapon on him. Moreover, if the evidence of PW-1(Bihari Panday), PW-3 (Swaminath Panday) and PW-4 (Jagarnath Panday) the three eye witnesses are taken into consideration, all the appellants are also said to have been armed with fire arm weapons. From their evidence, it is crystal clear that appellants Jitan Yadav, Ranglal Yadav and Sahzad Yadav were armed with guns whereas appellants Bhalu @ Jitendra Yadav and Dudhnath Yadav were said to have been armed with rifles whereas Ramasis was armed with a pipe gun and Bhagwan Yadav with a Katta. Thus even in the absence of evidence that any one of the accused persons was armed with a sharp edged weapon capable of inflicting incised injuries, the presence of as many as 8 incised injuries apart from three fire arm injuries on the person of the deceased would really make the whole prosecution case as with regard to the manner of occurrence doubtful. 11. In this regard, it has to be noted that PW-6, Dr. C.M Singh, who had conducted the post mortem on the person of the deceased on 14.11.1986 had found the following ante mortem injuries:- “(i) One circular wound ½” in circumference bond deep over left cheek with blackened charred and ragged margins. (ii) One oval wound 1/2” x 1/4” Skin and fascia deep with ragged and charred margins over left side of neck. (iii) Incised wound 1”x 1/4”x bone deep over centre of forehead with blood clot margins clear cut. (ii) One oval wound 1/2” x 1/4” Skin and fascia deep with ragged and charred margins over left side of neck. (iii) Incised wound 1”x 1/4”x bone deep over centre of forehead with blood clot margins clear cut. (iv) Incised wound 1” x 1/4” x skin and fascia deep with blood clot over left eye brow margins, clean cut. (v) Incised wound 1/2” x 1/4”x skin & fascia deep with blood clot over right eye brow margins clean cut. (vi) Incised wound 1”x 1/4”x bone deep with blood clot, over bridge of nose margins, clean cut. (vii) Incised wound 1/2” x 1/4” x skin and fascia deep blood clot over left mandibular over margins clean cut. (viii) Incised wound 1” x 1/4” x skin and fascia deep with blood clot over right ends of mouth, margins clean cut. (ix) Incised wound 1” x 1/2”x skin and fascia dep with blood clot over chin, margins clean cut. (x) Incised wound 1 1/2” x 1/4” x skin and fascia deep with blood clot over right mandibular area margins clean cut.” 12. As would be also apparent from the post mortem report no. 1 and 2, the two injuries which are said to have been serious in nature and the cause of death were fire arm injuries. The doctor in his opinion has however specifically stated that injury nos. 3 to 10 were caused by sharp edged weapon. As noted above, it is the consistent case of the prosecution that no one was armed with sharp edged weapon and/or such incised injuries were inflicted on the person of the deceased. That by itself would, therefore, make the prosecution case as with regard to manner of occurrence, wholly doubtful. Reference in this connection may be made to the judgment of the Apex Court in the case of Rakesh v State of M.P. (2011) 9 SCC 698 , wherein, it was held as follows:- “----------Where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved. (Vide State of U.P. V Hari Chand, (AIR 2009 SC (Supp) 1535: 2009 AIR SCW 3605) Abdul Sayeed V State of M.P.) (AIR 2011 SC (Cri) 964: 2010 AIR SCW 5701) and Bhajan Singh V State of Haryana, ( AIR 2011 SC 2552 )-----”. (Vide State of U.P. V Hari Chand, (AIR 2009 SC (Supp) 1535: 2009 AIR SCW 3605) Abdul Sayeed V State of M.P.) (AIR 2011 SC (Cri) 964: 2010 AIR SCW 5701) and Bhajan Singh V State of Haryana, ( AIR 2011 SC 2552 )-----”. The same view in fact has also been taken by the Apex Court in the case of Kathi Bharat Vajsur & Anr v State of Gujarat reported in 2012 CRI.L.J 2717, wherein, it has been held as follows:- “Though the ocular testimony of a witness has a greater evidentiary value vis-à-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence.” 13. At this stage, this Court must record that in the inquest report which was prepared by the unexamined I.O on 13.11.1986 at 11:50 pm in the night which has been exhibited through PW-2, it has been specifically mentioned that there were only two fire arm injuries on the person of the deceased. The non-examination of the investigating officer, therefore, has also prejudiced the appellants because if the investigating officer would have been examined he could have explained the reason for omission of such eight sharp cutting injuries found on the person of the deceased which in the post mortem report of PW-6 has been found as ante mortem injuries. 14. The submission of Ms. Verma, learned APP for the State that this Court even in absence of recording of evidence of investigating officer can look into the case diary as it has been exhibited by the prosecution must record here that where there is a valid explanation of non examination of the investigating officer and there are other materials to corroborate the main charge through some other ocular evidence, non examination of the investigating officer by itself cannot be held to be fatal to the case of prosecution. Here, however, when there is no evidence on the point of information given to the police officer by any of the member of the prosecution, look into the case diary will hardly serve any purpose. Here, however, when there is no evidence on the point of information given to the police officer by any of the member of the prosecution, look into the case diary will hardly serve any purpose. Similarly, arrival of police in the dead night at lonely place where the dead body of the deceased was recovered by the informant and the police officer did not find any incised injuries in his inquest report, the same cannot be explained by looking into the case diary even though it has been exhibited by the prosecution. The place of occurrence having been shifted by the prosecution from the place of actual assault to the place of recovery of the dead body, the case diary in itself cannot unfold the mystery. The role of investigating officer in the present case had assumed larger significance in view of totally conflicting and contradictory ocular evidence vis-à-vis medical evidence and in absence of any explanation for non examination of the investigating officer an adverse inference has to be necessarily drawn against the prosecution. 15. This Court will have also no difficulty in rejecting yet another submission of Ms. Verma, learned counsel appearing on behalf of the State that such injuries could have been inflicted on the deceased after he was dragged from the place where he had received fire arm injuries. In this regard, it has to be taken into account that firstly, none of the appellants were armed with any sharp edged weapon and secondly when the prosecution has specifically asserted through the evidence of PW-1, PW-3 and PW-4, the alleged eye witnesses, that on account of fire arm injuries received on the person of the deceased, he had immediately succumbed to his such injuries at spot whereafter only his dead body was dragged, there would not be any difficulty in holding that presence of such ante mortem eight incised injuries have not at all been explained by the prosecution. 16. There is yet another major chink which has given a fatal blow to the prosecution case. Admittedly, the occurrence is said to have taken place at 6 pm on 13.11.1986 but the arrival of the police and the delayed recording of the fard beyan after about five and a half hours at 11:30 pm has not been explained by the prosecution. Admittedly, the occurrence is said to have taken place at 6 pm on 13.11.1986 but the arrival of the police and the delayed recording of the fard beyan after about five and a half hours at 11:30 pm has not been explained by the prosecution. It is true that PW-1 had tried to explain that the arrival of the police which according to him was on an information given by PW-2 but when PW-2 was cross-examined on this aspect, he had candidly admitted that he had never gone to the police station nor had informed the police. Pw-4, the another eye witness has consistently claimed in his evidence that he had remained glue at the place of occurrence, where his son had been shot at. The crucial question, therefore, would be as to who had informed the police officer to arrive at a wholly lonely place? The prosecution has not given any answer to this aspect as well in its evidence. The non-examination of the investigating officer in fact on this score has again become crucially fatal to the prosecution case. 17. Apart from the aforementioned crucial unexplained infirmities in the prosecution case both with regard to presence of as many as eight incised injuries on the person of the deceased as also with regard to arrival of police at the place of occurrence and recording of fard beyan, this Court would also find that there is also clear admission on the part of one of the eye witnesses regarding taking place of murder of one Brij Raj Singh on the same day and the deceased sustaining injury on his person in course of the same almost at the same time when the prosecution party along with the deceased is said to have started for Rajpur Bazar. This part of the statement of PW-1 in paragraph no. 11 of his cross-examination even when had materially changed the whole genesis as also the manner of occurrence, nothing however was sought to be explained by the prosecution on this vital aspect through the remaining witnesses. This part of the statement of PW-1 in paragraph no. 11 of his cross-examination even when had materially changed the whole genesis as also the manner of occurrence, nothing however was sought to be explained by the prosecution on this vital aspect through the remaining witnesses. Thus, a possibility cannot be ruled out that the deceased had received injuries at the time of murder of Brij Raj Singh, a fact which was sought to be in fact concealed by the informant, inasmuch as, even when in the First Information Report he had claimed that the deceased had started along with him for Raghunathpur Bazar but in the cross-examination, he had accepted that the deceased did not start with him for bazar from village and had met him only later on in the bazar. The said aspect in fact also gets further corroborated from the evidence of the Doctor, PW-6, who had estimated the time since death of the deceased to be in between 12 to 24 hours, which would also cover the period of occurrence of the murder of Brij Raj Singh as clearly admitted by PW-1 in his evidence. 18. We have also considered the evidence of PW-3, the only other eye witness from whose evidence also, we do not find any explanation to any of the aforementioned aspects and therefore, we have no hesitation in holding that none of the three witnesses can be held to be truthful and reliable witnesses. Reference in this connection may be made to the judgment of the Apex Court in the case of Mahendra Pratap Singh vs State of U.P, reported in 2009(11) SCC 334 , wherein it had been held as follows:- “The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.” 19. Thus for the reasons indicated above, we are of the view that the conviction and sentence of the appellants cannot be maintained. The impugned judgment is, accordingly, set aside and the appellants who are already on bail are hereby discharged from the liability of their bail bonds. Thus for the reasons indicated above, we are of the view that the conviction and sentence of the appellants cannot be maintained. The impugned judgment is, accordingly, set aside and the appellants who are already on bail are hereby discharged from the liability of their bail bonds. Both these appeals are, accordingly, allowed. Appeal allowed.