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2012 DIGILAW 1167 (PAT)

Suraj Yadav v. State of Bihar

2012-08-23

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Smt. Sheema Ali Khan. J.- This appeal is directed against the judgment passed by the 2nd Additional Sessions Judge, Nawada on 10th August, 2000 in Sessions Trial No. 142 of 1998/15 of 1999 whereby he has convicted the appellant under Section 304 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years. 2. The prosecution case, in brief, is that there was a fight between• the two brothers i.e. Ram Swaroop Yadav (the deceased) and the appellant Suraj Yadav for the reason that the goat of Ram Swaroop Yadav had destroyed the garlic plants of Suraj Yadav. During the exchange of hot words, the appellant Suraj Yadav is said to have inflicted two lathiblows on the head of Ram Swaroop Yadav which caused his death. The occurrence was witnessed by the wife of the deceased. Manti Devi (PW 3), who is the informant of this case as well as by the daughter Chinta Devi (PW 1). 3. The defence on behalf of the appellant is that no such occurrence took place, rather the deceased died because of a fall from the half-built house. The said defence is based on an affidavit filed by Jitani Devi, the mother of the appellant and the deceased. The affidavit was notorized on 24.04.1998 i.e. at least three months after the occurrence. In order to prove the affidavit, two witnesses have been examined on behalf of the defence. 4. Altogether, five witnesses have been examined in this case on behalf of the prosecution. Dr. Manohar Lal. PW 4 has supported that there are two injuries on the head of the deceased, one on the left parietal region and the second on the right parietal region. PW 4 was questioned as to whether the injuries were possible by a fall from the wall. PW 4 has categorically stated that it is not possible that the injuries would have been caused by a fall from the wall in view of the fact that the injuries were on both sides of the head. 5. This Court will now examine as to whether the ocular evidence supports the manner in which the injuries were received by the deceased. PW 1 Chinta Devi has stated that she heard her mother raising an alarm when she was cooking food in• the room. 5. This Court will now examine as to whether the ocular evidence supports the manner in which the injuries were received by the deceased. PW 1 Chinta Devi has stated that she heard her mother raising an alarm when she was cooking food in• the room. On hearing the sound of raised voices, she ran outside and witnessed the occurrence. According to this witness, there was blood on the spot where her father fell down. She has also stated that there was blood mark on his clothes etc. The evidence of PW 1 cannot be disbelieved on any ground whatsoever. The appellant has not been able to point out any contradictions in her evidence which would help the appellant in this case. 6. PW 2 Saudagar Yadav is a formal witness who has proved the carbon copy of the inquest report. 7. PW 3 Manti Devi is the informant of this case and wife of the deceased. She has fully supported the prosecution case. Both, PWs 1 and 3 admitted that there was hard feeling between the two brothers because of land dispute. According to PW 3, she used to look after her mother-ill-law Jetani Devi. Jetani Devi had 10 kathas of land which the elder brother wanted to keep for himself, which led to tension between the parties. However, the immediate cause of the present occurrence was not the land dispute, rather it was the dispute regarding the goat destroying the garlic. The evidence of PW 3 is quite clear regarding both, the cause of the occurrence and the manner in which it took place. It is admitted by the witnesses as well as the Investigating Officer who has been examined in this case that the place of occurrence was the aangan of the common house of the two brothers. The cross-examination does not disclose any material which would lead this Court to disbelieve this witness. 8. It may be pointed out here that both PWs 1 and 3 have supported the fact that two pucca rooms were being built which is in front of the old huts where the appellant and the deceased live. It is also admitted that the walls had already been constructed on all four sides and curing of the walls was taking place. It is also admitted that the walls had already been constructed on all four sides and curing of the walls was taking place. It is on the basis of this fact that a defence has been raised that Ram Swaroop Yadav had climbed on the top of the wall in order to sprinkle water on the wall which led to a fall, causing his Death. However,this aspect of the matter has not been proved by the appellant. The statement of Jetani Devi, the mother of the deceased and the appellant, cannot be relied upon as it has been given after three months of the occurrence, besides which, the doctor has already found that the injuries are not possible because of a fall. 9. The Investigating Officer Md. Sibli has been examined as PW 5 in this case. He has supported the prosecution version. The only aspect which has been pointed out by the Counsel for the appellant is that contrary to the version of PWs 1 and 3, that blood had fallen on the ground, is not supported by the Investigating Officer as he has not mentioned this fact in the case diary. According to this Court, it is not very important in the facts of this case that the blood should have been recovered from the place of occurrence. Even according to the defence version, the deceased had fallen on the ground from a wall causing injuries on his head, in both circumstances, their ought to have been blood stains at the place of occurrence. Thus, the failure of the Investigating Officer to record this aspect of the matter could not be very important in the peculiar facts of this case. 10. It has been argued on behalf of the appellant that the occurrence did not take place in the manner alleged, rather the dispute between the two brothers regarding a piece of land belonging to their mother, has led to the implication of the appellant. The defence version that Ram Swaroop Yadav died because of the injuries sustained from falling from the wall, has already been discussed and rejected and therefore, the submissions made on behalf of the appellant are not acceptable to this Court. 11. The defence version that Ram Swaroop Yadav died because of the injuries sustained from falling from the wall, has already been discussed and rejected and therefore, the submissions made on behalf of the appellant are not acceptable to this Court. 11. DW 1 Awadhesh Kumar and DW 2 Arun Kumar who were examined to prove Exhibit-A are formal witnesses who have typed the affidavit and were present at the time of swearing of the affidavit. In the cross-examination, DW 1 has not been able to say as to how he knows Jetani Devi or whether she signed the affidavit out of her own free will. The defence witnesses have no personal connection with Jetani Devi. 12. After considering the entire evidence, this Court finds that the prosecution has been able to prove the charges levelled against the appellant and the conviction of the appellant is in accordance with law. However, considering the submission on behalf of the appellant that he has remained in custody for two years and 10 months, and that the occurrence has taken place in the year 1998, this Court alters the sentence as period already undergone and further directs the appellant to pay a fine of Rs. 7,000/- to be paid to the wife of the deceased Ram Swaroop Yadav i.e. Manti Devi. The trial Court is directed to issue notice to the appellant as well as to Manti Devi. The appellant should pay the fine within a period of four months on valid service of notice, failure to pay the fine, would lead the rigorous imprisonment for one year. The appellant would be discharged from the liabilities of the bail bond furnished earlier in this case only after payment of fine before the trial Court. 13. In the result, this appeal is dismissed with the alteration in the sentence. Appeal dismissed.