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2012 DIGILAW 113 (PAT)

Dahu Yadav v. State of Bihar

2012-01-19

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Shyam Kishore Sharma, J.-Dahu Yadav, Ram Swamp Yadav and Rajendra Yadav have preferred this appeal against the judgment and order dated 23.9.1988 passed by the learned 5th Additional Sessions Judge, Munger in Sessions Trial No. 357 of 1984 convicting the appellants under Section 302/34, I.P.C. and sentencing them to undergo rigorous imprisonment for life and further convicting the appellant Rajendra Yadav under Section 324, I.P.C. and sentencing him to undergo rigorous imprisonment for one year and further convicting the appellants Dahu Yadav and Ram Swarup Yadav under Section 323, I.P.C. and sentencing them to undergo rigorous imprisonment for one year. However, all the sentences were ordered to run concurrently. The appellant No. 1 Dahu Yadav is the father of other two appellants. 2. Fardbeyan (Ext. 3) of Basudeo Yadav (PW 2), son of Palhoo Yadav resident of Nirwah, P.S. Sikandara, District Munger was recorded on 30.5.1983 at 6.30 p.m. by Sub Inspector S.N. Sharma of Nawada Police Station at Nawada Sadar Hospital, on the basis of which Sikandara P.S. Case No. 72 of 1983 was registered. It was alleged that at 6 a.m. on 30.5.1983 in the morning the informant was operating his latha on the well situated South of the house of Sadhu Yadav. Sadhu Yadav was turning the passage through which the water was to be carried to his field. At that very time, three named accused persons, who are appellants here, came there. Dahu Yadav (appellant No.1) stated that he would irrigate the crops first. Upon this assertion Dahu Yadav had altercation with Sadhu Yadav. Dahu Yadav said to Sadhu Yadav that at this time he would not allow the water to be carried to later field. Sadhu Yadav asked that only some portion of the field is to be watered, so he should be allowed to do it but he was not allowed. Dahu Yadav ordered his sons to kill Sadhu Yadav upon which Ram Swaroop Yadav gave a lathi blow on the temporal region of the right ear of Sadhu Yadav. When Sadhu Yadav fell down, Rajendra Yadav gave several lathi blows to him by reversing khanti which he was carrying meaning thereby assault was not by sharp edge weapon rather it was by hard and blunt portion of khanti. Dahu Yadav gave several lathi blows on the body of Sadhu Yadav. On cry Ramashray Prasad Yadav, son of Sadhu Yadav arrived. Dahu Yadav gave several lathi blows on the body of Sadhu Yadav. On cry Ramashray Prasad Yadav, son of Sadhu Yadav arrived. Rajendra Yadav injured him also on the head with edged portion of the Khanti. Ram Swamp Yadav gave a lathi blow on right hand and Dahu Yadav gave lathi blow on his left hand. On Cry several persons from the vicinity, namely, Kishun Yadav (PW 3), informant Parmeshwar Yadav (PW 4) and Ramdhani Yadav (not examined) came and saw the occurrence and after seeing them the accused persons fled away to their house. Informant with the help of others brought the injured for treatment to Sadar Hospital but he succumbed to his injuries at 1.30 p.m. on that day. Fard beyan resulted into Sikandara P.S. Case No. 72 of 1983 and after investigation, charge-sheet was submitted against the accused persons. Cognizance was taken and thereafter case was committed to the Court of Sessions where charges were explained to the accused persons who pleaded innocence and preferred to face the trial. 3. The defence of the accused persons was of false implication on account of a case lodged by them which had resulted into Sikandara P.S. Case No. 70 of 1983. In that occurrence, the appellant No. 1 was informant and his fardbeyan was recorded at Aliganj State Dispensary in which he claimed that while he was watering his vegetable plants by putting latha from the well, Sadhu Yadav came and told Dahu Yadav that his field would not be allowed to be irrigated and saying this Sadhu Yadav diverted the flow of water to his field. After some altercation Sadhu Yadav told his son Ramashraya Yadav (PW 1) to bring a lathi. On this Ramashraya Yadav and Basudeo Yadav (PW 2) came having lath. Basudeo Yadav (PW 2) instigated to assault upon which an initial assault was given by Basudeo Yadav upon the head of Dahu Yadav which caused an injury to his head. Sadhu Yadav (deceased of this case) gave a lathi blow to Dahu Yadav due to which his wrist of right hand was fractured. Ramasharaya Yadav (PW 1) gave a lathi blow to Dahu Yadav. When Ramswaroop and Rajendra came there running, they were also assaulted. After arrival of the co-villagers at the place of occurrence. Dahu and his sons were brought to the Aliganj State Dispensary in injured condition where fardbeyan was recorded. 4. Ramasharaya Yadav (PW 1) gave a lathi blow to Dahu Yadav. When Ramswaroop and Rajendra came there running, they were also assaulted. After arrival of the co-villagers at the place of occurrence. Dahu and his sons were brought to the Aliganj State Dispensary in injured condition where fardbeyan was recorded. 4. The trial Court disbelieved the defence version and came to the opinion that the prosecution was able to prove charges that on the date and time of the occurrence the accused persons have caused death to Sadhu Yadav and injury to the witnesses also. 5. This Court is required to see as to whether the prosecution was able to prove charges against the appellants beyond shadow of all reasonable doubts or not. 6. In order to substantiate the charge the prosecution has examined seven witnesses. There are PW 1 Rama Shraya Yadav (son of the deceased). PW 2 Basudeo Yadav (informant), PW 3 Kishun Yadav, PW 4 Parmeshwar Yadav, PW 5 Kartik Prasad, PW 6 Mehadi Hasan, PW 7 Udit Yadav. 7. PW 4 has been tendered. PWs 5 and 7 are formal witnesses. PW 6 is Sub-inspector of Police and PW 2 is the informant. P.Ws. 1 to 3 have been examined by the prosecution as eye-witnesses of the occurrence. PW 2 Basudeo Yadav has stated that on 30th May, 1983 the accused persons came and assaulted which caused death of Sadhu Yadav and injury to him and others. Similar is the evidence of PWs 1 and 3. 8. The learned counsel for the appellants submits that the definite case of the prosecution was that Sadhu Yadav was taken to Nawada Sadar Hospital where he died and the post-mortem was conducted on his dead body. Similarly, the two prosecution witnesses who were injured, were also treated by the doctors. The doctor(s) who conducted post-mortem or examined the injured have not been examined. There is nothing on the record from which it could be inferred that those doctors were either dead or not traceable. If the doctors were alive, they should have been brought. It was the onus upon the prosecution to bring them to support the prosecution case and its failure to bring the doctors for examination is fatal because this Court is required to see as to what was the cause of death and this could be explained by doctor alone. If the doctors were alive, they should have been brought. It was the onus upon the prosecution to bring them to support the prosecution case and its failure to bring the doctors for examination is fatal because this Court is required to see as to what was the cause of death and this could be explained by doctor alone. In absence of the evidence of the doctor with regard to cause of death it cannot be said that Sadhu Yadav had received injury in the manner as stated by the prosecution witnesses. The prosecution is not required to prove only that Sadhu Yadav has died rather it has to establish the cause of death which is under challenge. The defence version also is that Sadhu Yadav has died but the manner of assault was different. This could have been clarified by the evidence of the doctor. 9. If the prosecution comes out with a particular case, then the onus is upon the prosecution to prove the case and it has to establish the manner of occurrence and manner of assault which led to death. The death, according to prosecution witnesses, is on account of blow of lathi. Here the doctor's evidence could have clarified. In absence of examination of doctors this Court cannot see the reason of death. Once that fails, it is apparent that the prosecution had not done its duty with responsibility which it was required to do. Not only that non-explanation of injuries of the appellants is also a factor which had to be considered. DW 1 has stated about the injuries of the appellants and he has brought on record one of the injury reports from which it is apparent that the injury was caused to the accused/appellants also. This fact has not been stated either by any of the witnesses or by Investigating Officer. The injury report which has been brought on record by the defence is enough to establish that the appellants were also injured on that very date but it has not been explained by the prosecution who had duty to give correct version of the occurrence. It was for the Court to decide as to what was the reason of the occurrence. But non-explanation of the injury, on the other side, is another aspect which goes to the root of the matter. 10. It was for the Court to decide as to what was the reason of the occurrence. But non-explanation of the injury, on the other side, is another aspect which goes to the root of the matter. 10. The basic dispute was for the irrigation of land from a well. According to the defence version, Dahu Yadav was watering his field by fetching water from the well before and even then the prosecution party had diverted the water to be carried to their field and when the appellants protested, they were assaulted. The place of occurrence in the circumstances was sought to be explained by the Investigating Officer. The genesis of the occurrence was for taking water from the well. This question was put before Investigating Officer (PW 6) who in para 7 of his evidence has stated that he failed to investigate as to who was the owner of the well. This fact, to some extent, would explain the priority of fetching water from the well. This was not investigated into. 11. Another fact which has come on the record is the evidence of PW 6 in para 10 when he states that no blood was found on the place of occurrence and there was no trampling marks also. The manner of occurrence which has been explained by the witnesses was such that it would have left many signs of occurrence, namely, trampling, dragging and blood. Absence of any of these signs goes to show as to why the prosecution version of the occurrence was not in the manner as alleged. 12. To sum up, from the evidence which has been brought on the record it is apparent that the doctor who has conducted the post-mortem examination has not been examined, the doctor who has treated the injured has also not been examined, nothing has been found at the place of occurrence by the Investigating Officer (PW 6) and there is no explanation of the injuries of the defence by the prosecution. These are the vital aspects which create doubt in the prosecution version of the occurrence and it is apparent that the prosecution has not come with the correct version of the occurrence. In view of the doubt in the prosecution version it is apparent that the prosecution has failed to do its duty correctly. 13. These are the vital aspects which create doubt in the prosecution version of the occurrence and it is apparent that the prosecution has not come with the correct version of the occurrence. In view of the doubt in the prosecution version it is apparent that the prosecution has failed to do its duty correctly. 13. In the result, the impugned judgment of conviction and order of sentence is set aside and the appeal is allowed. The appellants are acquitted of the charges and are ordered to be discharged from the liabilities of their respective bail bonds. Appeal allowed.