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2012 DIGILAW 2 (PAT)

Anup Yadav v. State of Bihar

2012-01-02

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (ORAL) Per Shyam Kishore Sharma, J.- Cr. Appeal No. 412 of 1989 (DB) filed on behalf of Anup Yadav. Lakhan Yadav and Company Yadav is against the judgment of conviction and order of sentence dated 29.07.1989 whereby the 9th Additional Sessions Judge. Munger in Sessions Case No. 930 of 1986 relating to Surajgarha P.S. Case No. 177(7) of 1986/G.R. Case No. 623 of 1986 whereby the appellant No.1 Anup Yadav has been found guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and appellant Nos. 2 and 3 have been convicted under Sections 324, 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for six months each. Other eleven accused persons who were put on trial along with the appellants were acquitted. 2. The prosecution case relates to an occurrence of 28.07.1986 which resulted in killing of Medo Yadav and in the occurrence other persons who have been examined either as witnesses or have not been examined were acquitted. The fardbeyan (Ext.1) of Asharfi Yadav PW 7 resulted into a case under Sections 147, 148, 149, 323, 324, 307 and 379 of the Indian Penal Code, After death of one of the injured Section 302 of the Indian Penal Code was added. 3. The fardbeyan was recorded by S.I. C.K. Mishra (not examined) on 28.07.1986 at 2.15 p.m. in State Dispensary Surajgarha. District-Munger wherein the informant• PW 7 stated that at preceding 11.00 a.m. his son Sunil Yadav PW 5 was taking his cattle for grazing. It was objected to by Mahabir Yadav (since acquitted) saying that the cattle would not be allowed to be taken through the way. This obstruction resulted in verbal altercation upon which Mahabir Yadav (since acquitted) exhorted Sunil Yadav to test their strengths. It was objected to by Mahabir Yadav (since acquitted) saying that the cattle would not be allowed to be taken through the way. This obstruction resulted in verbal altercation upon which Mahabir Yadav (since acquitted) exhorted Sunil Yadav to test their strengths. Sometime thereafter, Mahabir Yadav (since acquitted) with bhala, Ayodhya Yadav (since acquitted) with bhala, Rajendra Yadav (since acquitted) with bhala, Lakhan Yadav (appellant No.2) with bhala, Brahmdeo Yadav (since acquitted) with bhala, Anup Yadav (appellant No.1) with bhala, Kamleshwari Yadav @ Kamla Yadav (since acquitted) with bhala, Mauji Yadav (since acquitted) with lathi, Bano Yadav (since acquitted) with lathi, Shankar Yadav (since acquitted) with lathi, Bhasso Yadav (since acquitted) with lathi, Bajrangi Yadav (since acquitted) with lathi, Company Yadav (appellant No.3) with lathi and Kamli Yadav (since •acquitted) with lathi came shouting slogans and at the behest of Mahabir Yadav (since acquitted) Medo Yadav (deceased) was assaulted by Anup Yadav by bhala upon his head and thigh. Sunil Yadav PW 5. Asharfi Yadav PW 7 were assaulted by Appellant No. 2 through bhala, Shyamsundar Yadav (not examined) was assaulted by Kamli Yadav by bhala, Asharfi Yadav PW 7 was assaulted by Bajrangi Yadav (sirice acquitted) by lathi, Jago Yadav PW 1 assaulted by Ayodhya Yadav (since acquitted), Medo Yadav (the deceased) was also assaulted by Appellant No.3, Mulho Yadav and Kalo Yadav were assaulted by Rajendra Yadav (since acquitted). The injured persons were carried for treatment to Surajgarha Hospital. Medo Yadav (the, deceased) was referred to Munger Sadar Hospital where he succumbed to the injuries. The occurrence was on account of obstruction of passage to the cattle heads. The fardbeyan resulted into a case. 4. The occurrence was investigated into and after investigation charge-sheet was submitted. The case was being tri-able by the Sessions Court completion of paraphernalia where charges were explained. Charge under Sections 148, 302, 149 and 329 of the Indian Penal Code were framed against Ayodhya Yadav. Rajendra Yadav. Lakhan Yadav. Kamli Yadav. Company Yadav and others. Charge under Sections 147, 302/149 and 323 of the Indian Penal Code was framed against Bajrangi Yadav, charge under Sections 148 and 302 of the Indian Penal Code was framed against Anup Yadav along with others, Mahabir Yadav, Brahmdeo Yadav and Bhano Yadav were charged under Sections 148, 302/149 of the Indian Penal Code, Kamleshwari Yadav @ Kamla Yadav. Shankar Yadav. Shankar Yadav. Bhano Yadav and Mauji Yadav were charged under Sections 147. 302/149 of the Indian Penal Code whereas 14 accused persons namely, Mauji Yadav, Bano Yadav, Shankar Yadav, Kamleshwari Yadav @ Kamla Yadav, Mahabir Yadav, Bhasso Yadav, Brahmdeo Yadav. Lakhan Yadav. Rajendra Yadav, Ayodhya Yadav. Bajrangi Yadav, Anup Yadav. Company Yadavand Kamli Yadav were charged under Section 380 of the Indian Penal Code. The charges were explained to the accused persons upon which they pleaded their innocence so the trial proceeded. 5. The defence of the accused persons was of false implication on account of enmity from before. Their further defence was that the implication because a case was instituted by Kamli Yadav against the deceased Medo Yadav and others in which Medo Yadav and eleven other accused persons have framed unlawful assembly and they attacked with deadly weapons at 11.00 a.m. on 28.07.1986 which resulted into a protest. Their further defence was that there was no intentions at all to cause death and the injury to the accused persons were concealed. Asharfi Yadav and others were assailants causing injury to Nunuwati Devi, Parmeshwar Yadav, Ramanand Yadav, Anup Yadav and Shyamli Yadav. 6. In order to prove its case the prosecution has examined nine witnesses, they are PW 1 Jago Yadav, PW 2 Mullho Yadav, PW 3 Shiva Yadav, PW 4 Dashrath Yadav, PW 5 Sunil Yadav, PW 6 Jugal Yadav, PW 7 Asharfi Yadav, PW 8 Dr. Rana Pratap Singh has conducted the post-mortem examination of Medo Yadav and PW 9 Dr. Upendra Singh has treated the injured of the case. One formal witness Nand Kishore Choudhary a police constable was examined as Court witness who has proved the inquest report (Ext. 6) and Para-14 of the case diary. The injury reports of the injured have come on the record vide Ext. 3 to 3/5 and indoor register entry No. 3196 to 3202 have been brought on record through (Ext. 4). Cadestral survey map of Mauja Salempur has been exhibited as (Ext. 8). 7. 6) and Para-14 of the case diary. The injury reports of the injured have come on the record vide Ext. 3 to 3/5 and indoor register entry No. 3196 to 3202 have been brought on record through (Ext. 4). Cadestral survey map of Mauja Salempur has been exhibited as (Ext. 8). 7. Though the defence has examined its witnesses which have been discussed in the judgment and which are available with the record but the paper book which has been prepared by the office of this High Court does not contain their depositions but perusal of the record exhibited that on the basis of materials made available through paper book it was appropriate to dispose of this appeal considering the pendency since 22 years for the appeal so the appeal has been disposed of after perusal of the paper despite the lacuna of the defence witnesses that deposition of the defence witnesses are not in the paper book. 8. Before proceeding further it would be appropriate to note down the evidence of the doctor who has conducted the postmortem examination of the deceased at 9.45 a.m. on 29.07.1986. The dead body of Medo Yadav was brought by police constable No. 446 Dhaneshwar Ram (not examined) and police constable No. 564 Shiv Nath Singh and Shiv Yadav (not examined). The doctor has found the following injuries upon the deceased: (I) Rounded bandaged over the head. On, removal of the said bandage the doctor found that the injury was lacerated wound 1- 1/2 " x1" x skull cavity deep over the left side of the parietal bone. Further dissection revealed fracture on the parietal bone in an irregular shape as shown in the diagram of the post-mortem report. (II) Multiple bruises were found in numbers all measuring between 4-1/2" x 2" over the left shoulder region, One bruise on the left infra-scapular region measuring 5" x 2". The death was caused on account of injury No. I which was the head injury involving brain substance and opinion of the doctor was that all the injuries were caused by hard and blunt substances may be by blunt portion of bhala and by lathi. The time elapsed since death was between 6 to 12 hours prior to the post-mortem. Injury No. I was sufficient to cause death. 9. PW 9 has examined the injured at 1.20 p.m. on 28.07.1986 at Surajgarha State Dispensary. The time elapsed since death was between 6 to 12 hours prior to the post-mortem. Injury No. I was sufficient to cause death. 9. PW 9 has examined the injured at 1.20 p.m. on 28.07.1986 at Surajgarha State Dispensary. The injured were Jugal Yadav. Medo Yadav, Sunil Yadav. Asharfi Yadav, Jago Yadav and Shyamsundar Yadav, The doctor has found, Jugal Yadav had a simple injury caused by hard and blunt substance within 12 hours at the time of examination. Sunil Yadav had injury of 1/2" x 1/2" x 1 on the right forearm and it was caused by sharp pointed weapon like bhala his injuries was simple. Jago Yadav had swelling on the left little finger and abrasion on the same finger his injuries were caused by hard and blunt substances and by pointed weapon like bhala. Shyamsundar Yadav (not examined) had one lacerated wound 1" x 1/2" x 1/2" which was simple in nature and might have been caused by hard and blunt objects. Mullho Yadav had injury of 1-1/2" x 1/2" x 1/2" over the head and one abrasion upon the head and his injuries were caused by hard and blunt substances and by sharp pointed weapon. Both his injuries were simple in nature. Asharfi Yadav PW 7 had simple injury of 1/2" x 1/2 " x 1" deep over the right leg and the injury was caused by sharp pointed weapon. In cross-examination this witness has stated that he has examined the injured between 12.45 p.m. to 1.20 p.m. on 28.7.1986. 10. With the aforesaid ocular medical evidence the prosecution case has to looked into and it has to be seen whether the prosecution was able to prove the charge against the appellants beyond shadow of all reasonable doubts or not. PW 7 had described the occurrence which has taken place at 11.00 a.m. on the date of occurrence. On the day of occurrence, Sunil Yadav was taking his cattle towards his field it was objected to by Mahabir Yadav. This objection resulted in exchange of hot words. Mahabir Yadav rushed towards his house and returned with spear. Simultaneously, Mauji Yadav, Bano Yadav, Shankar Yadav, Kamleshwari Yadav @ Kamla Yadav, Bhasso Yadav, Brahmdeo Yadav. Lakhan Yadav. Rajendra Yadav. Ayodhya Yadav, Bajrangi Yadav, Anup Yadav, Company Yadav and Kamli Yadav came there.. This objection resulted in exchange of hot words. Mahabir Yadav rushed towards his house and returned with spear. Simultaneously, Mauji Yadav, Bano Yadav, Shankar Yadav, Kamleshwari Yadav @ Kamla Yadav, Bhasso Yadav, Brahmdeo Yadav. Lakhan Yadav. Rajendra Yadav. Ayodhya Yadav, Bajrangi Yadav, Anup Yadav, Company Yadav and Kamli Yadav came there.. Mahabir Yadav, Ayodhya Yadav, Rajendra Yadav, Lakhan Yadav, Brahmdeo Yadav, Anup Yadav and Kamleshwari Yadav @ Kamla Yadav were having bhala in their hands, whereas, rests were having lathi Sunil Yadav rushed towards his Dalan but he was chased up to there by the accused persons. Anup Yadav gave a bhala blow upon the head and thigh of Medo Yadav causing injury to him. While assaulting Medo Yadav, Anup Yadav has used the blunt portion of bhala upon which Medo Yadav fell down under the impact of the assault and thereafter, he was assaulted by Company Yadav. Company Yadav assaulted the informant also which has caused injury on his right hand and the shoulder. Bajrangi Yadav assaulted Asharfi Yadav PW 7 which has caused injury slightly below the light knee. Ayodhya Yadav assaulted Jago Yadav by bhala causing injury upon the left index finger. Rajendra Yadav has assaulted Mullho Yadav which has caused injury upon his head. Lakhan Yadav has assaulted Sunil Yadav by, bhala which has, caused injury upon the light knee. Kamleshwart Yadav @ Kamla Yadav assaulted Shyamsundar Yadav by his boola which has injured his light leg below the knee. While escaping the accused persons have carrted away ten packets of wheat. Each packet contained one Mann (40 Kgs.) in quantity. The injured were brought to Surajgarha Hospital and from there Medo Yadav was referred to Munger Sadar Hospital but he succumbed to the in juries. 11. PWs 1, 2, 5, 6 and 7 are injured witnesses. PWs 3 and 4 are not injured witnesses but they have supported the occurrence. Their evidence is almost in the similar way as that given by the informant. So, their evidence does not require to be discussed separately. 12. Learned Counsel for the appellants has assailed the judgment and it has been submitted that the place of occurrence has been changed and this fact has been taken into account and considered by the trta1 Court also but the Investigating Officer has not been examined. So, their evidence does not require to be discussed separately. 12. Learned Counsel for the appellants has assailed the judgment and it has been submitted that the place of occurrence has been changed and this fact has been taken into account and considered by the trta1 Court also but the Investigating Officer has not been examined. Thus, place of occurrence could not be proved and it has caused major prejudice to the prosecution case. It has been submitted that in this view of glaring inconsistencies the Court should have acquitted the appellants also. It has also been submitted that whatever enmity was it was with Sunil Yadav and nothing has come on the record that the accused persons were having any enmity with Medo Yadav and so there was no occasion for them to kill him. The simple nature of injury to Sunil Yadav shows that there was no intention at all to cause major harm to him also. 13. According to the fardbeyan which is the first version of the occurrence, it is apparent that the occurrence was reported to police by PW 7 whose fardbeyan was recorded at State Dispensary Surajgarha. That fardbeyan was recorded at 02.15 p.m. on 28.07.1986. PW 2 in para-2 has stated that after the occurrence Medo Yadav was brought to Surajgarha Police Station where statement of this witness was taken by the police officer. PW 3 brother of the deceased in para-3 has stated that Medo Yadav was carried to Government Hospital at Surajgarha through Surajgarha Police Station. PW 1 in para-4 has stated that at Surajgarha Police Station. Asharfi Yadav has given his statement which 'has resulted into a case and thereafter, the injured were referred to Surajgarha Hospital. PW 5 in para-4 states otherwise when he states that after the occurrence Medo Yadav was taken straightway to Surajgarha Hospital and from there he was referred to Munger Sadar Hospital. It has been submitted that the evidence of the doctors negates the ocular version because the doctor PW 9 in para-9 of his cross-examination has stated that between 12.45 p.m. to 01.20 p.m. on 28.07.1986 he has examined the six injured witnesses. If the evidence of eye witnesses are considered then it is apparent that either they have not given correct version of the occurrence or they have tried to conceal major part of the occurrence. If the evidence of eye witnesses are considered then it is apparent that either they have not given correct version of the occurrence or they have tried to conceal major part of the occurrence. Because not even one witness has stated that any of the injured was taken to hospital between 12.45 p.m. to 01.20 p.m. on 28.07.1986, Therefore the prosecution witnesses are inconsistent when some of them have described that after the occurrence the injured were either taken to the hospital straightway or to the Police Station but all have stated that it was prior to the time mentioned by the doctor. The very fardbeyan negates the manner of assault also because the doctor who conducted the post-mortem examination has not found any corresponding injury upon the thigh of the deceased. Not only that the first version of the occurrence describes that Medo Yadav was assaulted by boola by Anup Yadav but when the post-mortem examination report shows that assault was not any sharp pointed weapon then it appears that the prosecution witnesses have developed the story of assault by blunt portion of bhala. This was not the version and it appears that the prosecution has developed his case to show that could suit the subsequent development which has taken place after medical examination or post-mortem of the deceased. 14. Another fact which' has been taken into account by the trial Court is that the place of occurrence was not proved and the prosecution has developed its story with regard to place of occurrence and the trial Court has disbelieved the story propounded by the prosecution regarding manner of occurrence and place of occurrence, In such view of contradictory version coming on the record with regard to place of occurrence. it was imperative upon the prosecution to explain it through examination of the Investigating Officer but the prosecution could not give any plausible explanation as to why it has failed to examine the Investigating Officer. 15. It has come in the record that Kamleshwari Yadav @ Kamla Yadav has sustained injury. His injury was grievous and dangerous to life. The onus is always upon the prosecution to prove the case beyond all reasonable doubts. 15. It has come in the record that Kamleshwari Yadav @ Kamla Yadav has sustained injury. His injury was grievous and dangerous to life. The onus is always upon the prosecution to prove the case beyond all reasonable doubts. Once it has come on the record that on the same date and time injury was caused to other side also and that injury was serious or dangerous then the prosecution was required to explain as to in what nature such injury was caused. This has not been brought on record and it appears that the prosecution has tried to conceal the real facts associated with the occurrence, To sum up it is apparent that non-explanation of the Investigating Officer has caused great prejudice to the defence and place of occurrence has not been established at all. Non-examination of dangerous nature upon the prosecution side is itself a sufficient ground to cast a shadow of doubt with regard to the prosecution version of the occurrence. Examination of witnesses much prior to fardbeyan and contradictory evidence of the Witnesses with regard to place of fardbeyan gives another angle to the occurrence and in such circumstances argument of the learned Counsel for the appellant that the First Information Report is ante dated gets credence and the First Information Report itself becomes a doubtful piece of evidence. The first version of the occurrence that assault was by bhala has been negated by the doctor later on. The witnesses have developed the prosecution case regarding manner of occurrence and this also caused doubts as to whether the correct version has been brought on record. Cumulative effect of the facts narrated above is that the prosecution has tried to conceal the real version of the occurrence. As such, doubt is created with regard to manner of occurrence Once a doubt is created then the benefit is bound to go to the accused persons namely the appellants. 16. In the result the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted and they are discharged from the liability of their bail bonds. Appeal allowed.