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2012 DIGILAW 980 (PAT)

Lalan Yadav v. State of Bihar

2012-07-17

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–This appeal is directed against the judgment of conviction and the order of sentence dated 24th March, 2000 passed in Sessions Trial No. 31 of 1999/02 of 1999. Initially, the appellants were charged under Section 302 and 504 of the Indian Penal Code, but were finally convicted under Section 304/34 of the Indian Penal Code. The appellant no. 1 has been sentenced to undergo rigorous imprisonment for ten years having inflicted tangi blow on the informant and his wife, appellant no. 2, has been sentenced to undergo rigorous imprisonment for five years. 2. The First Information Report was instituted on the basis of the statement of the informant (deceased) on 27.11.1997 at about 10:30 AM for an occurrence which took place at 8 AM. The prosecution case is that the appellant no. 1 was fencing the road and thereby allegedly blocking it. The informant Damar Prasad Yadav stopped him from fencing the road, which led to exchange of hot words. It is alleged that Lalan Yadav first inflicted two lathis blow and thereafter inflicted a “tangi” blow on the head of the informant, as a result of which he fell down. He was taken to the Referral Hospital at Govindpur. He stated in his fardbayan that apart from his son, Ram Khelawan Yadav, Hari Yadav and Anil Yadav had seen the occurrence. The deceased was examined at Referrral Hospital, Govindpur and was referred to the Nawada Hospital, from where he was referred to P.M.C.H., Patna as his condition was serious. He died on 10.12.1997. 3. Altogether the prosecution has examined ten witnesses in this case. PWs 7 and 10 are the doctors, PW 6 is the Investigating Officer of this case and the other witnesses claim to be the eye-witnesses to the occurrence. 4. PW 1 Sumitra Devi has not mentioned as an eye-witness in the First Information Report, but she claims that she had accompanied her husband when he went to stop the appellant no. 1 from obstructing the road. At paragraph 10 of her deposition, this witness has stated that her husband remained unconscious throughout, even at Patna, and he never regained consciousness. A suggestion was given that the deceased had fallen down due to overdose of alcohol and hurt his head, as a result of which he received the injuries. 1 from obstructing the road. At paragraph 10 of her deposition, this witness has stated that her husband remained unconscious throughout, even at Patna, and he never regained consciousness. A suggestion was given that the deceased had fallen down due to overdose of alcohol and hurt his head, as a result of which he received the injuries. It would appear that PW 1 cannot be relied upon inasmuch as she is not named in the First Information Report and her presence at the place of occurrence has also not been acknowledged by any of the witnesses. 5. PW 2 Ram Khelwan Yadav is named in the First Information Report, he is the nephew of the deceased. He admits that he came to the place of occurrence when he heard the sound of raised voices and thereafter he saw the manner in which the occurrence took place. According to this witness, the land on which the appellant no. 1 was putting up his fence belongs to appellant no. 1 and his brothers. 6. PW 3 Hari Yadav is also named as eye-witness in the First Information Report. He supports the prosecution case in its entirety. He admits that he came to the place of occurrence when he heard the sound of raised voices, he saw Damar lying on the ground and blood was oozing out of his head. This witness also admits that the land on which Lalan Yadav, appellant no. 1, was putting up a fence, belonged to him. At paragraph 3, this witness stated that Lalan Yadav is his own brother. 7. PW 4 Gopal Kumar on hearing the commotion went towards it and heard the exchange of hot words and also claims to have witnessed the assault. At paragraph 5, this witness is rather confused when he states that Lalan Yadav was not fencing his own land and thereafter explains that he was actually fencing his (Lalan) own lands. This witness has not been named in the First Information Report as a witness to the occurrence. 8. PW 5 Ram Balak Prasad Yadav is the son of the deceased. He has proved the signature of his father on the fardbayan and has supported the prosecution case. There is no discrepancy in his cross-examination, which would lead this Court to discard his testimony. 9. PW 7 Dr. 8. PW 5 Ram Balak Prasad Yadav is the son of the deceased. He has proved the signature of his father on the fardbayan and has supported the prosecution case. There is no discrepancy in his cross-examination, which would lead this Court to discard his testimony. 9. PW 7 Dr. Ashok Kumar Yadav has conducted the postmortem and has proved his signature on the postmortem report, which has been marked as Exhibit-4. 10. PW 10 Dr. M. D. Tiwary was posted as the Medical Officer at the relevant time in the Primary Health Centre, Govindpur. He was the man who first examined the deceased. It has been pointed out on behalf of the appellants that this witness has not mentioned in the injury report prepared by him that the injury would in ordinary course lead to the death of the patient. It is submitted that this part has subsequently been added before the Trial Court. 11. PW 6 Anil Kumar Gupta is the Investigating Officer of this case. He has examined the place of occurrence but he has not contributed much to the prosecution case, except to support the fact that he had collected evidence and noted itdown in the case diary. As usual, the Investigating Officer has not done justice to his job. 12. The Trial Court after considering all the evidence and the arguments raised on behalf of the appellants, has convicted the accused persons under Section 304/34 of the Indian Penal Code taking into consideration that a single ‘tangi’ blow was inflicted on the deceased and that the occurrence took place at the spur of the moment, it was not pre-planned, and that the death occurred after a period of 13 days. 13. Counsel for the appellants, on the other hand, argues that this Court should ignore the evidence of PWs 1 and 4 as these two witnesses have not been named as being present at the place of occurrence by the informant (deceased) when he gave his fardbayan. In fact, there are discrepancies in the evidence of PWs 1 and 4 regarding certain aspects of the occurrence. PW 1 claims that the informant after being injured never gained consciousness. Her statement has not to be believed as it would mean that the informant has not given his fardbayan. In fact, there are discrepancies in the evidence of PWs 1 and 4 regarding certain aspects of the occurrence. PW 1 claims that the informant after being injured never gained consciousness. Her statement has not to be believed as it would mean that the informant has not given his fardbayan. PW 4, on the other hand, seems to be confused regarding the genesis of the occurrence, which would lead this Court to accept submissions on this aspect of the matter. 14. Having said as above, this Court will now consider the evidence of PWs 2, 3 and 5. These witnesses have supported the case as made out in the First Information Report. There are no discrepancies in the manner in which they have narrated the incident that took place on 27.11.1997. They are consistent with respect to the genesis and the manner of the occurrence and the place of occurrence. It has been argued that the appellant no. 1 was well within his right in building a fence on his own lands and it was the informant who had unnecessarily entered into a fight. This aspect of the matter that the lands belong to Lalan Yadav, is supported by PW 3 as well. It is perhaps for this reason and for the reason indicated above, that the Trial Curt has held appellants guilty for the offences punishable under Section 304/34 of the Indian Penal Code. 15. Considering the case of appellant no. 2, this Court noticed that none of the witnesses have attributed any overt act to her. It appears that she was made accused merely because she was present at the place of occurrence and perhaps supported her husband. However, it cannot be said that she shared a common intention along with her husband to injure/murder the informant. I, therefore, find that the Trial Court has not given any cogent reason for holding that the appellant no. 2 was guilty for the offences alleged. 16. Lastly, it has been argued on behalf of the appellants that the occurrence took place in the year 1997 and the appellant no. 1 has remained in custody for three years and almost two months. 2 was guilty for the offences alleged. 16. Lastly, it has been argued on behalf of the appellants that the occurrence took place in the year 1997 and the appellant no. 1 has remained in custody for three years and almost two months. It is, therefore, submitted on behalf of the appellants that they may not be sent back to jail, in the given facts of this case, as that there was no intention on his behalf to cause an injury which could lead to the death of the informant Damar Prasad Yadav. 17. Under the circumstances aforesaid, this Court acquits the appellant no. 2 for the charges levelled against her in this case and alters the sentence with respect to the appellant no. 1 to the period already undergone with further direction to the appellant no. 1 to pay a fine of Rs. 5,000/- to be paid to Sumitra Devi or her heirs, if she is not alive, failing which, the appellant no. 1 shall undergo rigorous imprisonment for one year. 18. Appellant no. 2 is discharged from the liabilities of the bail bonds furnished earlier in this case. However, appellant no. 1 would be discharged from the liabilities of the bail bonds only after depositing the amount of fine in the Trial Court. 19. In the result, the appeal of appellant no. 2 is allowed and the appeal of appellant no. 1 is dismissed with the alteration in the sentence as aforesaid.