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2012 DIGILAW 1324 (PAT)

State Of Bihar v. Benjo Yadav son of Ucho Yadav

2012-09-18

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA, J.) Heard learned lawyer for the State. Nobody responses on behalf of respondents despite repeated calls. 2. This Government Appeal is of the year 1990 and its relates to an occurrence of the year 1979 so it is being disposed of after hearing learned Additional Public Prosecutor and after perusal of the lower court record and the impugned judgment. 3. During pendency of the appeal respondent nos. 7 to 12, namely, Kansol Yadav, Uchho Yadav, Bhocho Yadav @ Subodh Yadav, Panna Yadav, Koko Yadav and Muso Yadav have died. This assertion was verified and so the names of respondent nos. 7 to 12 were expunged from the array of respondents. The appeal has proceeded against remaining respondents, namely, Benjo Yadav, Siya Saran Yadav, Anirudh Yadav, Bipin Yadav, Balbir Yadav, and Bijendra Yadav. 4. The judgment impugned is dated 23rd August 1990 passed by the learned 4th Additional Sessions Judge, Munger in Sessions Case No. 26 of 1982 arising out of Gogri P. S. Case No. 3(12) of 1979. 5. The prosecution case, in brief, is that accused Nago Yadav, Ucho Yadav and Panna Yadav are full brothers and sons of Suryanarain Yadav of village Siswa, P. S. Gogri, District Munger. Accused Koko Yadav, Muso Yadav, Bhocho @ Subodh Yadav, Kansol Yadav and Bijendra Yadav are the sons of accused Nago Yadav. Accused Balbir Yadav, Anirudh Yadav, Siyasaran Yadav and Benjo Yadav are the sons of accused Ucho Yadav, whereas, Bipin Yadav is the son of accused Panna Yadav. Ext. 9 is fard beyan from which it appears that the accused Nago Yadav and Ucho Yadav were having animosity with the informant because the accused persons were grazing the crop by letting loose cattle in the field. In the night of the occurrence at about 2/3 a.m. the first informant and his brother Rajpati Yadav had gone to see the wheat crop and they noticed that mare and two colts were grazing the wheat crop of the informant. The informant captured the mare and the colts and tied them near his house. On the following morning he visited Sarpanch and reported regarding the conduct of accused Nago Yadav. Thereafter, Sarpanch, Srikant Yadav, Ramdeo Yadav and Kamleshwari Yadav visited the informant’s house. The informant captured the mare and the colts and tied them near his house. On the following morning he visited Sarpanch and reported regarding the conduct of accused Nago Yadav. Thereafter, Sarpanch, Srikant Yadav, Ramdeo Yadav and Kamleshwari Yadav visited the informant’s house. On 4.12.1979 at about 6.30 p.m. the informant and his brother Rajpati Yadav and Rampukar Yadav along with Sarpanch and others started for the grazed filed of the informant and when they reached near the Basa of Nago @ Nageshwar Yadav they thought to take Nageshwar Yadav to show him the grazed wheat crop. In the meantime, accused Nago Yadav, Ucho Yadav, Panna Yadav, Koko Yadav, Muso Yadav, Bhocho Yadav @ Subodh Yadav, Cansol Yadav, Bijendra Yadav, Balbir Yadav, Anirudh Yadav, Siyasaran Yadav, Benjo Yadav, and Bipin Yadav having traditional weapons and fire arms assembled at the house of Nago Yadav and they protested against capturing of mare and bringing of Panch there. Naso was holding the pistol, whereas, Ucho Yadav, Balbir Yadav, Bijendra Yadav, Siyasaran Yadav and Bipin Yadav were having lathi in their hands. Accused Koko Yadav, Anirudh Yadav, Benjo Yadav and Panna Yadav were armed with Bhala, whereas, accused Muso Yadav and Kansol Yadav were having garasa. The accused Nago Yadav and Ucho Yadav ordered the other accused persons to assault the informant and his persons and thereafter, Nago Yadav and Ucho Yadav chased the informant and others escaping. The informant and others after being chased were assaulted. Accused Kako Yadav gave a bhala blow on the chest of Rajpati Yadav, Balbir Yadav gave a lathi blow on the temporal region of Rajpati Yadav who fell down and, thereafter, he was mercilessly assaulted by the accused persons. The informant’s mother came after hearing noise but she was assaulted by garasa and lathi. On account of mercilessly assault Rajpati Yadav was killed and the case was registered. After investigation charge-sheet was submitted. After cognizance the case was committed to the court of session where on appearance of the accused charges were explained to them to which they denied and pleaded innocence, so the trial proceeded. 6. In order to prove its charge the prosecution has examined eleven witnesses, namely, Krishnadeo Yadav (P.W. 1), Rampukar Yadav (P.W. 2), Shreekant Prasad Yadav (P.W. 3), Bashishtha Pd. Yadav (P.W. 4), Doodhmati Devi (P.W. 5), Ramdev Yadav (P.W. 6), Bisekha Devi (P.W. 7), Dr. 6. In order to prove its charge the prosecution has examined eleven witnesses, namely, Krishnadeo Yadav (P.W. 1), Rampukar Yadav (P.W. 2), Shreekant Prasad Yadav (P.W. 3), Bashishtha Pd. Yadav (P.W. 4), Doodhmati Devi (P.W. 5), Ramdev Yadav (P.W. 6), Bisekha Devi (P.W. 7), Dr. Ram Krishna Paswan (P.W. 8), Lakhan Lal Yadav (P.W. 9), Shyamlal Prasad (P.W. 10), and Dr. Brijnandan Pd. Yadav (P.W. 11). 7. Inquest report (Ext. 4) and post-mortem report (Ext. 2) were brought on record. The court has considered the evidence of all the witnesses and found that the witnesses had strong vengeance to implicate the accused persons. This was found in the testimony of P. W. 3, who has stated that on the alleged date of occurrence Lakhan Yadav had given a written report regarding the grazing of his field and capturing of mare and colts. It was also taken into account that there was a strong circumstance to say that Uchho Yadav and his sons were not present on the date and time of the occurrence. Delay in lodging the information was also taken into account. It has come in the evidence of Investigating Officer that the place of occurrence was situated at a distance of 60 to 65 yards from the State Dispensary but no information was given to the police in a considerable period of time. It has been held that the delay had no explanation. The defence version for occurrence was that the occurrence has taken place in different manner and at different time and this was found by the trial court to be plausible. The dead body of Rajpati Yadav was found by the side of an adda running east and west. The house of Rajpati was on the eastern boundary of the field where the dead body was lying. The trial court found that not even an independent witness has been examined. The evidence was that occurrence was taken place in the village which has good number of inhabitants. Non-examination of independent witnesses was held to be a circumstance which has created doubt in the mind of the court. 8. The order of acquittal can not be interfered unless it is shown that the order has been passed beyond record and in illegal manner. The rule of criminal jurisprudence is that the Court has to presume the innocence of the accused. 8. The order of acquittal can not be interfered unless it is shown that the order has been passed beyond record and in illegal manner. The rule of criminal jurisprudence is that the Court has to presume the innocence of the accused. The guilt has to be established beyond shadow of all reasonable doubts. Even if a doubt remains in the prosecution version then the benefit of doubt goes to the accused. The circumstances discussed by the trial court have been well explained and it has reason to arrive at the conclusion that the prosecution had not been able to prove its case beyond shadow of all reasonable doubts. 9. In view of the above discussion, we do not find any illegality or impropriety in the impugned judgment so it does not require any interference by this Court. 10. In the result, this Government Appeal is held to be without merit and it is, accordingly, dismissed.