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2013 DIGILAW 248 (PAT)

Shashi Mohan Yadav v. State of Bihar

2013-02-22

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (CAV) Hemant Kumar Srivastava, J. This Criminal Appeal has been preferred against the judgment of conviction dated 18-12-2000 and sentence order dated 20-12-2000 passed by Sri Shreenarayan Choudhary, Sessions Judge, Katihar in Sessions Case No. 357 of 1988 by which and whereunder, he convicted the appellants for the offences. punishable under Sections 304(II)/34 and 323/ 34 of the Indian Penal Code and sentenced them to undergo R.I. for ten years for the offence under Section 304(ii) of the Indian Penal Code but no separate sentence was passed for the offence under Section 323/34 of the Indian Penal Code. 2. The brief fact, giving rise to file this Criminal Appeal, is that PW 9 Prabhu Kumar Yadav gave his statement to Officer-in-charge of Kadwa Police Station on 25-10-1983 at about 10.00 a.m. to this effect that on the same day, at about 6.30 a.m. his father, Khitish Mohan Yadav and uncle, Nandlal Yadav (PW 7) were fixing poles to barricade their kitchen garden just East of their house. In the meantime all the appellants having lathi in their hands came there and forbade his father and uncle to fix pole but his father and uncle did not listen upon which appellant, Shashi Mohan Yadav uttered to kill them and gave lathi blow on the head of his father as a result of which his father sustained injury on his head and became unconscious. The appellant Devendra Yadav too gave lathi blow to his uncle as a result of which his uncle also became unconscious. When both the aforesaid persons fell down on earth, the appellant, Mahendra Yadav assaulted them with lathi. On alarm, witnesses namely, Sheikh Sarfuddin (PW 2), Sheikh Azimuddin, Anik Lal Yadav and others arrived there. Both the injured were taken to hospital. 3. On the basis of aforesaid statement of PW 9, Kadwa P.S. Case No. 182 of 1983 under Section-307 of the Indian Penal Code was registered against the appellants. 4. PW 13 Ramanand Singh took charge of investigation. He recorded the statement of injured Nandlal Yadav (PW 7) but he could not record the statement of Khitish Mohan Yadav as he was in unconscious state. 4. PW 13 Ramanand Singh took charge of investigation. He recorded the statement of injured Nandlal Yadav (PW 7) but he could not record the statement of Khitish Mohan Yadav as he was in unconscious state. PW 13 prepared injury reports of Khitish Mohan Yadav and Nandlal Yadav (PW 7) recorded the further statement of PW 9 inspected the place of occurrence and after completion of investigation, submitted charge-sheet under Sections-302, 307/34 of the Indian Penal Code as before completion of investigation, Khitish Mohan Yadav succumbed to his injuries. 5. On being receipt of the charge-sheet, cognizance was taken and the case was committed to the Court of Sessions, in usual way. 6. All the above-said three appellants were put on trial and. they were jointly charged for the offences punishable under Sections 302/34, 307/34 of the Indian Penal Code. The appellants denied the charges and claimed to be tried. 7. In order to prove its case, prosecution examined, altogether, 14 witnesses and got exhibited first information report as Ext 1 and post-mortem report of deceased, Khitish Mohan Yadav as Ext 2. The statements of appellants were recorded under Section-313 of the Cr.P.C. in which they reiterated their innocence. One defence witness was examined on behalf of the appellants and from perusal of statements of appellants as well as trend of cross-examination of the prosecution witnesses: it appears that defence of appellants was totally denial of the prosecution story. 8. The learned trial Court, having appreciated the materials available on the record, convicted and sentenced the appellants in the manner, as stated above. 9. Learned counsel appearing for appellants challenged the impugned judgment of conviction and sentence order submitting that prosecution could not succeed to prove genesis of the occurrence because according to prosecution case itself, the alleged occurrence took place on account of fixing and removing poles from the disputed land but DW 1 has, specifically, stated that neither any measurement of the land had been done nor any pole had been fixed on the disputed land. He further submitted that the prosecution also could not succeed to prove the manner of occurrence because prosecution witnesses contradicted each others on the aforesaid points and, therefore, learned trial Court has committed an error in convicting the appellants. He further submitted that the prosecution also could not succeed to prove the manner of occurrence because prosecution witnesses contradicted each others on the aforesaid points and, therefore, learned trial Court has committed an error in convicting the appellants. He, further, submitted that neither original post-mortem report of the deceased was brought on record nor the carbon copy of the post-mortem report was proved by the doctor who had conducted post-mortem examination and therefore, in absence of statement of doctor, the post-mortem report (Ext 2) cannot be looked into evidence because the appellants could not get any opportunity to challenge the veracity of contents of the post-mortem report. He further submitted that no injury report of PW 7 was produced before the trial Court and, furthermore, there was nothing before the trial Court to infer that all the appellants committed the alleged crime in furtherance of their common intention. 10. On the other-hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that all the materials witnesses including the injured, PW 7 supported the alleged occurrence and prosecution succeeded to prove its case beyond any shadow of reasonable doubts and. therefore, the learned trial Court rightly convicted and sentenced the appellants. 11. Now the question arises as to whether the impugned judgment of conviction and sentence order is liable to be sustained or not? 12. As I have already stated that altogether 14 prosecution witnesses were examined by the prosecution in course of trial and out of whom; PWs 2, 7, 9 & 11 claimed themselves to be eye-witness of the alleged occurrence. 13. PW 1 has been declared hostile by the prosecution but he admitted in his examination -in-chief to this extent that on the alleged date of occurrence, when he came near the place of occurrence, he found Khitish Mohan Yadav and Nandlal Yadav lying on the earth having sustained injuries on their head. Similarly, PW 6 has also been declared hostile by the prosecution and he stated nothing in his deposition. 14. PWs 3, 4, 5, 8 & 14 were tendered by the prosecution and all the aforesaid prosecution witnesses stated that they had not seen the alleged occurrence. 15. PW 10 is a police official. Similarly, PW 6 has also been declared hostile by the prosecution and he stated nothing in his deposition. 14. PWs 3, 4, 5, 8 & 14 were tendered by the prosecution and all the aforesaid prosecution witnesses stated that they had not seen the alleged occurrence. 15. PW 10 is a police official. He stated that he took charge of investigation on 28-07-1984 and handed over charge of investigation to Sri P.N. Singh on 04-02-1985 and he did nothing in course of investigation. 16. PW 12 Md. Yasin Ansari is a compounder and stated that on 28-10-1983, he was posted as compounder in Sadar Hospital, Purnea where Dr. S. Prakash was also posted as Assistant Civil Surgeon. This witness stated that Dr. S. Prakash has already been superannuated and after retirement, his whereabouts is not known to him. This witness proved carbon copy of post-mortem report which had been affixed on a register. The Photostat copy of aforesaid carbon copy of post-mortem report, was proved by this witness as Ext. 2. 17. PW 13 Ramanand Singh is I.O. of this case and as I have already stated, this witness after completion of the investigation submitted charge-sheet against the appellants. 18. PW 2 Sarfuddin stated that there was dispute between the parties in respect of a Banswali land and on 24-10-1983, measurement of the aforesaid land was done by Ameen and pole was fixed on the aforesaid land but on the same day at about 6.30 p.m. the appellants removed the poles and fixed the same on the land of informant. He further stated that on 25-10-1983, Khitish Mohan Yadav (deceased) called Azimuddin, Washiuddin, Adbul Qayum, Mukhtar etc including him on the place of occurrence and narrated the story of removal of pole by the appellants. This witness further stated that appellants were also present there and he as well as other persons tried to settle the dispute of the parties but servant of appellant No. 1 Shashi Mohan Yadav brought lathi and handed over to the appellants and after that, appellant No. 1 gave lathi blow to Khitish Mohan Yadav and similarly, appellant, Devendra Yadav also gave lathi blow to Khitish Mohan Yadav which hit on the head of Khitish Mohan Yadav and he fell down on the earth. He further stated that appellant; Devendra Yadav also assaulted Nandlal Yadav (PW 7) with lathi. He further stated that appellant; Devendra Yadav also assaulted Nandlal Yadav (PW 7) with lathi. He further stated that after the occurrence both the injured were brought to Barsoi hospital but Khitish Mohan Yadav was referred to Katihar Hospital as his condition was serious. He further stated that Khitish Mohan Yadav died in Katihar hospital. 19. PW 11 Washiuddin stated that one day prior to the alleged occurrence, an altercation had taken place between the parties on the point of fixing of poles and measurement of land. He further stated that poles were fixed on the land at the direction of the punches but in the evening of the same day the deceased informed him as well as other punches that appellants had removed the poles and after that he alongwith others came on the land and found that the poles had already been removed. He further stated that again next morning at about 6.00 a.m. the deceased Khitish Mohan Yadav called him and thereafter he alongwith others went on the place of occurrence and again he as well as other punches got fixed poles on the aforesaid land and while he was returning to his home he heard noise and returned back near the place of occurrence and saw that appellant. Shashi Mohan Yadav and Devendra Yadav assaulted the deceased Khitish Mohan Yadav and his brother with Lathi and having sustained Lathi blow both the injured persons fell down on the earth and became unconscious and after that both the injured were taken to hospital. He further stated that Khitish Mohan Yadav died in course of his treatment. On being cross-examined this witness stated at paragraph-7 of his cross-examination that one Yusuf Amin had measured the land and fixed poles on the aforesaid land. At paragraph-9 of his cross-examination he admitted that he had not seen the appellant Devendra Yadav on the place of occurrence on the alleged date of occurrence. 20. On perusal of statements of PW 2 & PW 11, it is apparent that both the witnesses claimed themselves to be eye-witness of the alleged occurrence and both the witnesses stated that it was Yusuf who measured the land and fixed poles on the aforesaid land. Both the aforesaid witnesses further admitted that the alleged occurrence took place on account of removal of poles from the aforesaid land. 21. Both the aforesaid witnesses further admitted that the alleged occurrence took place on account of removal of poles from the aforesaid land. 21. The above said Yusuf was examined on behalf of the defence as defence witness No. 1. The aforesaid witness stated that he had not measured the land of informant and appellants nor had fixed any pole on the lands of aforesaid persons. 22. PW 13, the Investigating Officer stated at paragraph-3 of his examination-in-chief that the place of occurrence of the case is a Bari which is situated between the houses of informant and appellants. This witness stated that he did not find any material thing on the place of occurrence but on being cross-examined by the defence he stated that he found two poles fixed on the lands of informant though he did not seize the aforesaid poles. 23. PW 7 Nandlal Yadav is injured of this case and he has supported the factum of fixing and removal of poles and stated that the alleged occurrence took place when the punches were trying to settle the dispute. Similar statement has been made by PW 9 the informant of this case and stated that the alleged occurrence took place when the poles were removed by the appellants and punches were trying to settle the dispute. 24. On careful scrutiny of the depositions of prosecution witnesses as well as defence witness. I find that prosecution succeeded to prove this fact that the alleged occurrence took place on account of fixing and removal of poles from the disputed land and, therefore, prosecution succeeded to prove the genesis of the occurrence. 25. PW 2 stated that appellant, Satish hurled lathi blow to, the deceased and after that appellant, Devendra Yadav gave lathi blow to deceased Khitish Mohan Yadav, which hit on his head. The appellant, Devendra Yadav also assaulted Nandlal Yadav (PW 7) with lathi. On being cross-examined by the defence this witness stated at paragraph-5 of his cross-examination that first lathi blow to deceased Khitish Yadav was given by appellant, Shashi Mohan Yadav who gave two lathi blows to deceased and both the aforesaid blows hit on the head of deceased, Khitish Mohan Yadav and after that, appellant. On being cross-examined by the defence this witness stated at paragraph-5 of his cross-examination that first lathi blow to deceased Khitish Yadav was given by appellant, Shashi Mohan Yadav who gave two lathi blows to deceased and both the aforesaid blows hit on the head of deceased, Khitish Mohan Yadav and after that, appellant. Devendra Yadav gave single lathi blow to deceased Khitish Mohan Yadav which hit on his head, PW 7 Nandlal Yadav stated that while punches were trying to settle the dispute an altercation took place between the parties and in the meantime one, Budhu Yadav, who happens to be servant of the appellant brought lathis and handed over to the appellants and after that appellant, Shashi Mohan Yadav assaulted with lathi to Khitish Mohan Yadav whereas; the appellant. Devendra Yadav assaulted him with lathi and having sustained injuries he as well as his brother. Khitish Mohan Yadav fell down on earth and became unconscious. He further stated that he regained his consciousness at Katihar and came to know that his brother Khitish Mohan Yadav has already died. At paragraph-13 of his cross-examination he stated that since he became unconscious he could not say as to whether appellant, Mahendra Yadav had assaulted him or not. 26. PW 9 Prabhu Kumar Yadav is informant of this case and stated that while punches were trying to settle the dispute the appellant. Shashi Mohan Yadav asked his servant to bring lathis and after that servant and his brother in law brought lathis and after that appellant Shashi Mohan Yadav ordered the others to kill and gave lathi blow on the head of his father Khitish Mohan Yadav and having sustained injury he fell down on the earth. He further stated that appellant, Devendra Yadav gave lathi blow on the head of his uncle. Nandlal Yadav and he too fell down on the earth. He further stated that when the aforesaid both injured persons fell down on earth appellant Mahendra Yadav hurled lathi on both the aforesaid persons. He further stated that after the occurrence injured were taken to hospital and his father died at Katihar hospital in course of his treatment. On being cross-examined by the defence he admitted at paragraph-6 of his cross-examination that since last ten days the dispute between the parties in respect of land was going on. He further stated that after the occurrence injured were taken to hospital and his father died at Katihar hospital in course of his treatment. On being cross-examined by the defence he admitted at paragraph-6 of his cross-examination that since last ten days the dispute between the parties in respect of land was going on. He further admitted at paragraph-8 of his cross-examination that before the occurrence his father and uncle had also fixed two poles on the land. He further admitted at paragraph-9 of his cross-examination that appellant; Mahendra Yadav had given lathi blows to his father and uncle. 27. PW 11 Washiuddin stated that appellant, Shashi Mohan Yadav gave lathi blow to deceased whereas; Devendra Yadav gave lathi blow to brother of Khitish Mohan Yadav. On being cross-examined by the defence, this witness stated that he had not seen Mahendra Yadav on the place of occurrence at the time of alleged occurrence. 28. On careful scrutiny of the deposition of above-said prosecution witnesses, I find that except PW 9, none of the prosecution witnesses stated against the appellant, Mahendra Yadav and except PW 9, almost all the eye-witnesses claimed that appellant, Shashi Mohan Yadav, and Devendra Yadav participated in the alleged crime and PW 11 admitted that appellant, Mahendra Yadav was not present on the place of occurrence at the relevant time and therefore, in my view, the prosecution could not succeed to prove the participation of appellant, Mahendra Yadav in alleged crime beyond all shadow of reasonable doubt and appellant. Mahendra Yadav is entitled to get benefit of doubt. 29. As I have already stated that PW 2 stated that appellant, Shashi Mohan Yadav hurled lathi on the deceased Khitish Mohan Yadav and the appellant. Devendra Yadav also hurled lathi on the deceased and after that appellant, Devendra Yadav assaulted PW 7 injured. Nandlal Yadav With lathi whereas; PW 7 Nandlal Yadav stated that appellant, Shashi Mohan Yadav, assaulted the deceased, Khitish Mohan Yadav whereas; appellant. Devendra Yadav assaulted him with lathi. Similarly, PW 9 stated that it was appellant, Shashi Mohan Yadav who assaulted deceased. Khitish Mohan Yadav with lathi causing head injury to him whereas; appellant Devendra Yadav assaulted PW 7 injured. Nandlal Yadav with lathi. Similarly, PW 11 stated that appellant. Devendra Yadav assaulted him with lathi. Similarly, PW 9 stated that it was appellant, Shashi Mohan Yadav who assaulted deceased. Khitish Mohan Yadav with lathi causing head injury to him whereas; appellant Devendra Yadav assaulted PW 7 injured. Nandlal Yadav with lathi. Similarly, PW 11 stated that appellant. Shashi Mohan Yadav gave lathi blow to the deceased whereas; appellant Devendra Yadav assaulted the injured Nandlal Yadav, so, on perusal of the statements of above-said prosecution witnesses it would appear that except PW 2 almost all the witnesses stated that the deceased. Khitish Mohan Yadav sustained lathi injury at the hands of appellant. Shashi Mohan Yadav and so far as appellant, Devendra Yadav is concerned he did not even touch the body of deceased. Khitish Mohan Yadav and the appellant Devendra Yadav assaulted the injured Nandlal Yadav. Admittedly, prosecution did not bring any injury report of injured. PW 7 Nandlal Yadav, so, in absence of aforesaid injury report, it is hard to believe that injured. Nandlal Yadav had sustained injury in the aforesaid occurrence, particularly, in the circumstance, when prosecution stated that Nandlal sustained injury on his head and got his treatment in hospital for near about two months and, therefore, in the aforesaid circumstance appellant, Devendra Yadav is too entitled to get benefit of doubt. 30. The post-mortem report (Ext 2) reveals that only one stitch wound on the head with three stitches was found on the person of deceased and on removal of the stitches one lacerated wound 1" x 1/2" x bone deep on the head was found. Furthermore, on dissection parietal bone and occipital bones were found fractured, so, the aforesaid post-mortem report shows that the deceased had sustained only one injury on his person. There is consistent evidence of the prosecution witnesses that the injury found on the person of the deceased is attributed to appellant No. 1, Shashi Mohan Yadav. Furthermore, on dissection parietal bone and occipital bones were found fractured, so, the aforesaid post-mortem report shows that the deceased had sustained only one injury on his person. There is consistent evidence of the prosecution witnesses that the injury found on the person of the deceased is attributed to appellant No. 1, Shashi Mohan Yadav. It has been argued on behalf of the appellants that the doctor who conducted the post-mortem examination on the corpus of the deceased was not examined and therefore the post-mortem report could not be read in evidence but I am not at all convinced with the aforesaid submission because PW 12 specifically, stated that the doctor who conducted postmortem examination had already been retired and his whereabouts was not known to any person and, therefore, it is apparent from the aforesaid fact that the doctor, who had conducted post-mortem examination was not available and that was the reason, the prosecution could not succeed to examine the aforesaid doctor. Moreover, almost all the eye-witnesses stated that the appellant No. 1, namely, Shashi Mohan Yadav gave lathi blow causing head injury to deceased. Khitish Mohan Yadav who died in hospital in course of treatment and the PW 12 brought the register on which carbon copy of post-mortem report of deceased. Khitish Mohan Yadav had been pasted and the aforesaid PW 12 stated that he was acquainted with the writing of doctor who conducted post-mortem examination of deceased. Khitish Mohan Yadav and therefore even if the doctor who conducted postmortem examination of deceased Khitish Mohan Yadav was not examined by the prosecution examination then also the appellants cannot get any benefit on account of non-examination of the aforesaid doctor. 31. The learned trial Court has convicted the appellants, Devendra Yadav and Mahendra Yadav under Section-304(II) and Section-323 of the Indian Penal Code taking the aid of Section-34 of the Indian Penal Code by holding at paragraph-22 of the impugned judgment that all the appellants were responsible equally. As I have already stated that the prosecution could not succeed to prove this fact that appellant. Mahendra Yadav had participated in the alleged crime and. Accordingly, appellant, Mahendra Yadav is entitled to get benefit of doubt and similarly. I have already stated that the appellant Devendra Yadav is said to have assaulted PW 7 Nandlal Yadav but not a chit of paper regarding the treatment of aforesaid. Mahendra Yadav had participated in the alleged crime and. Accordingly, appellant, Mahendra Yadav is entitled to get benefit of doubt and similarly. I have already stated that the appellant Devendra Yadav is said to have assaulted PW 7 Nandlal Yadav but not a chit of paper regarding the treatment of aforesaid. Nandlal Yadav has been brought on record by the prosecution and the aforesaid appellant. Devendra Yadav had not even touched the body of the deceased and the aforesaid Devendra Yadav is also entitled to get the benefit of doubt, therefore, in my opinion, the aforesaid appellants could not have been convicted under Sections-304 (part-II) and 323 of the Indian Penal Code taking the aid of Section-34 of the Indian Penal Code. Furthermore, the witnesses stated that when an altercation took place between the parties all the appellants were unarmed and servant of appellant No. 1, Shashi Mohan Yadav as well as his brother-in-law brought lathis and handed over lathis to appellants and after that appellants assaulted the deceased as well as PW 7 Nandlal Yadav. The Ext. 1 FIR reveals that PW 9 has not stated the aforesaid fact in his first statement. No doubt the FIR is not a substantial piece of evidence but it appears to me that in course of trial the prosecution witnesses developed the aforesaid story. Moreover, as I have already stated that appellant. Devendra Yadav and appellant, Mahendra Yadav did not even touch the body of the deceased. Khitish Mohan Yadav and therefore merely because they were present at the place of occurrence they could not be convicted with the aid of Section-34 of the Indian Penal Code for the offence committed by the appellant. Shashi Mohan Yadav. Similarly, when the appellants. Devendra Yadav and Mahendra Yadav have not been found guilty and the appellant. Shashi Mohan Yadav has been found guilty under Section 304(II) of the Indian Penal Code in my view the appellant. Shashi Mohan Yadav cannot be convicted under Section 323/34 of the Indian Penal Code for assault of injured. Nandlal Yadav because there is nothing on the record to establish this fact that the appellant. Shashi Mohan Yadav had assaulted the injured Nandlal Yadav. 32. As I have discussed above that prosecution could not succeed to prove charges against appellants. Shashi Mohan Yadav cannot be convicted under Section 323/34 of the Indian Penal Code for assault of injured. Nandlal Yadav because there is nothing on the record to establish this fact that the appellant. Shashi Mohan Yadav had assaulted the injured Nandlal Yadav. 32. As I have discussed above that prosecution could not succeed to prove charges against appellants. Devendra Yadav and Mahendra Yadav and therefore, the conviction and sentence order of the appellants Devendra Yadav and Mahendra Yadav are liable to be set aside. So far as appellant, Shashi Mohan Yadav is concerned admittedly the deceased was cousin brother of the appellant. Shashi Mohan Yadav and the alleged occurrence took place 30 years ago on account of land dispute and only single blow was given by the appellant. Shashi Mohan Yadav to deceased Khitish Mohan Yadav and therefore, to meet the ends of justice it would be proper to reduce his sentence and accordingly in my view, the end of justice would be met if the appellant. Shashi Mohan Yadav is sentenced to undergo rigorous imprisonment for 5 years instead of undergo rigorous imprisonment for 10 years. 33. On the basis of aforesaid discussions this Cr. Appeal is partly allowed and, accordingly, the judgment of conviction dated 18-12-2000 and sentence order dated 20-12-2000 are set aside in respect of appellant Nos. 2 & 3 namely. Devendra Yadav & Mahendra Yadav only and accordingly both the aforesaid appellants are acquitted of the charges. Both the aforesaid appellants are on bail. They are discharged from the liabilities of their bail bonds. 34. So far as appellant Shashi Mohan Yadav is concerned. his conviction under Section-323/34 of the Indian Penal Code is set aside but his conviction under Section-304 (II) of the Indian Penal Code is confirmed and sentence order dated 20-12-2000 is modified to the above extent. Appellant, Shashi Mohan Yadav is directed to surrender before the Court below within a period of one month from today to serve out his sentence. The learned Court below shall take steps to procure the appearance of appellant. Shashi Mohan Yadav so that he could serve his sentence. Appeal partly allowed.