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2012 DIGILAW 907 (PAT)

Jago Yadav v. State of Bihar

2012-07-03

SHEEMA ALI KHAN

body2012
JUDGMENT The three appellants before this Court are aggrieved by the judgment and order dated 19th August 2000 in Sessions Trial No. 370 of 1990/70 of 1996 of 7th Additional Sessions Judge, Nalanda at Biharsharif who has convicted all the appellants to undergo R.I. for five years under section 307 of the Indian Penal Code and to pay a fine of Rs. 2000/- each and in default of payment of fine, R.I. for six months. Appellants 2 and 3 were further sentenced to undergo R.I. for three years under section 27 of the Arms Act. The sentences were to run concurrently. 2. The prosecution case in brief is that on 19.04.1995 at about 6.30 A.M. when Nirmala Kumari niece of informant Chotey Yadav aged 6 was going towards river side, the wife of Bindeshwar Yadav on seeing her, started abusing her alleging that she has uprooted the onion from the field of Yogendra Yadav. On this, Ravbindra Yadav protested and there was exchange of hot word between Rabindra Yadav and Yogendra Yadav. Yogendra Yadav assaulted Rabindra Yadav. Thereafter Rabindra Yadav fled away towards his house and he was followed by Yogendra Yadav, Ram Bachan Yadav , Jago Yadav, Surendra Yadav and Bindeshwar Yadav who were all carrying firearms. After hearing the noise, the informant came out of his house, it is said that Jago Yadav ordered Yogendra Yadav to kill him, thereupon Yogendra Yadav fired which hit Chotey Yadav on his chest. Ram Bachan Yadav also fired on Chote Yadav the informant which hit him in his stomach. 3. The trial court after discussing the evidence had acquitted the other two accused persons, namely Surendra Yadav and Bindeshwar Yadav. Altogether eight witnesses were examined in this case. P.W.1,2,3 and 5 are closely related to the informant P.W.6. P.Ws 5 and 6 are brothers. All these witnesses during examination have supported the prosecution version and they had stated that they saw the appellants and others carrying firearms and chasing Rabindra Yadav who entered in his house and closed the door. All the witnesses in chief have categorically stated that they had heard the sound of firing which according to them was made in the air. They also claimed to have heard Jago Yadav ordering his son and nephew to shoot Chotey Yadav who came out of the house on hearing the sound of firing. 4. All the witnesses in chief have categorically stated that they had heard the sound of firing which according to them was made in the air. They also claimed to have heard Jago Yadav ordering his son and nephew to shoot Chotey Yadav who came out of the house on hearing the sound of firing. 4. During the cross-examination P.W.1, 2, 3 and 5 have not been able to establish that they were in position to see the actual occurrence i.e. the appellants 2 and 3 firing from their gun on Chotey Yadav because the topography of the place of occurrence shows that their houses were not directly facing adjacent to the house of the informant. During the cross-examination P.W.5 claimed that he met Rabindra Yadav while he was running away from the field who disclosed the reason as to why he was being chased by the miscreants, whereas P.W.6 the informant has not supported this aspect as he categorically stated that while he was running towards his house he did not meet any one from of the village either near field or in the lane of the village. This dispels the version of P.W.5. According to P.W.4 he had disclosed the reason for the firing on his brother the informant and asked him not to open the door. However, Chotey Yadav is said to have partly opened the door and received pellet injuries. 5. There are other discrepancy in the evidence of P.Ws 1, 2, 3 and 5 regarding the firing. For example P.W.3 has stated in his cross-examination that Krishna Gope i.e. P.W.5 and Upendra Yadav P.W.2 were with him at the time when the firing was taking place, whereas P.W. 2 and 5 had not supported this part of the case. According to them they were at their house when the occurrence took place and they were able to witness the occurrence from their respective houses. The I.O. who has been examined in this case has supported the investigation carried out by him stating that he had visited the place of occurrence and found 25 pellet mark embedded in the door where Chotey Yadav was standing which is supporting the case that the appellants and others were aiming at the house of the informant. 6. Mr. The I.O. who has been examined in this case has supported the investigation carried out by him stating that he had visited the place of occurrence and found 25 pellet mark embedded in the door where Chotey Yadav was standing which is supporting the case that the appellants and others were aiming at the house of the informant. 6. Mr. A.K. Thakur, learned counsel appearing on behalf of the appellants has submitted that so far as Jago Yadav is concerned, he is the father of appellant No.2 Yogendra Yadav , and has been falsely implicated in this case by giving in the role of an order giver. It is submitted that the firing was supposedly taking place even before Chote Yadav opened the door and as such there was no occasion for any one to order the firing. I agree with the submission made by the learned counsel for the appellant so far as the submission regarding the allegation against Jago Yadav is concerned, he is acquitted of the charge under section 307 of the Indian Penal Code. 7. With respect to the other appellants counsel for the appellants submits that the prosecution has not been able to establish that P.Ws 1, 2, 3 and 5 were the eye witnesses to the actual firing. It is submitted that at most they could have come up with a case that on hearing the sound of firing they were able to see the miscreants, but to say that they were able to see the entire incident is an exaggeration, keeping in view the topography of the area . In their enthusiasm to support each and every part of their occurrence they have weakened rather than strengthened the prosecution version. 8. It is further submitted that had there been an intention to kill Chotey Yadav, then the appellant would have fired from a close range and repeated the firing, as Chotey Yadav himself has stated that he opened the door of his house and as such had exposed himself to the obvious danger of receiving a fatal shot. There were no intervening circumstances which had stopped the appellants from achieving their object if they had wished to kill Chotey Yadav. Referring to the injury report it is submitted that according to doctor P.W.8 the injuries were superficial and simple in nature. There were no intervening circumstances which had stopped the appellants from achieving their object if they had wished to kill Chotey Yadav. Referring to the injury report it is submitted that according to doctor P.W.8 the injuries were superficial and simple in nature. The doctor has relied on the X-ray report, which unfortunately has not been brought on record, but purportedly supports the injury. However, the doctor was asked direct question as to whether he has removed the pellets, which he had not removed, which according to the counsel for the appellants leads to the conclusion that the injuries were superficial and the shots were fired from a great distance. The doctor has given an explanation that the injury was only muscle deep, therefore, he had not removed the pellet from the chest of Chotey Yadav. In the circumstances it is submitted that it is not a case under section 307 I.P.C. rather it is a case under section 323 of the Indian Penal Code. 9. Considering the evidence and the injury report and the evidence of the informant discussed above this court comes to the conclusion that informant has not made out a case under section 307 I.P.C.and as such the court holds that the appellants no. 2 and 3 are guilty of offences under section 323 I.P.C and 27 of the Arms Act. The court takes into account that the occurrence is of the year 1995 and the parties are related to each other, therefore, it would not be in the interest of justice to send them back to jail and as such the sentence is modified to the period under gone which shall meet the ends of justice. So far appellants no. 2 and 3 are concerned, they are directed to pay a fine of Rs. 5000/- each, to the informant. It is further directed that the appellants shall deposit the said amount in court so that the informant or his heir, if he is not alive may withdraw the amount. 10. In the result, with the modification in sentence the appeal of appellant 2 and 3 is dismissed. The conviction and sentence passed against Jago Yadav (appellant no.1) is set aside and he is acquitted. This appeal is partly allowed. The appellants are discharged from the liabilities of their bail bonds.