Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 769 (PAT)

Kamleshwari @ Kamo Yadav v. State of Bihar

2013-07-05

RAJENDRA KUMAR MISHRA, V.N.SINHA

body2013
ORAL JUDGMENT V.N. SINHA, J. None appears for the appellant in Criminal Appeal (DB) No.265 of 2005. In the circumstances, we have requested Sri Atal Bihari to appear as Amicus Curiae in the said appeal. He shall be entitled for payment of fee as per Rule made by the Legal Services Authority, Bihar, Patna. 2. Heard learned Amicus Curiae in Criminal Appeal (DB) No. 265 of 2005 as also counsel for the appellant in Criminal Appeal (DB) No. 396 of 2005 and counsel for the State in both the appeals. 3. These two appeals are directed against the Judgment and Order dated 2, 7.4.2005 passed by the Additional District and Sessions Judge, Fast Track Court-III, Munger, in Sessions Case No.95 of 1984, whereunder Shashi Yadav (appellant in Criminal Appeal No.396 of 2005) has been convicted for the offence under Sections 302, 148 of the Penal Code, Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life with further direction to pay fine of Rs.2000/- in default of payment of fine to undergo further rigorous imprisonment for three months. For conviction under Section 148 of the Penal Code, Section 27 of the Arms Act, he has been directed to undergo rigorous imprisonment for three years each under the two counts. The other three appellants in Criminal Appeal (DB) No.265 of 2005 have been convicted for the offence under Sections 302/149, 147 of the Penal Code and directed to undergo rigorous imprisonment for life with further direction to pay fine of Rs.2000/-. In default of payment of fine, to undergo rigorous imprisonment for further six months. Under Section 147 of the Penal Code, three appellants of Criminal Appeal (DB) No.265 of 2005 have been directed to undergo rigorous imprisonment for three years. The sentences imposed on the four appellants has, however, been directed to run concurrently. 4. Prosecution case set out in the fardbeyan of the informant, Pratap Narayan Yadav (P.W.6) and the evidence of the eye witnesses is that on 29.8.1983 about 11 AM the informant his brother Rameshwar Yadav deceased alongwith Harish Chandra Prasad Yadav (P.W.2), Yogendra Prasad Yadav (P.W.1) was coming from his house at Harnathpur to his native village. 4. Prosecution case set out in the fardbeyan of the informant, Pratap Narayan Yadav (P.W.6) and the evidence of the eye witnesses is that on 29.8.1983 about 11 AM the informant his brother Rameshwar Yadav deceased alongwith Harish Chandra Prasad Yadav (P.W.2), Yogendra Prasad Yadav (P.W.1) was coming from his house at Harnathpur to his native village. When informant and others reached near the house of one Nageshwar Mandal (not examined), the four appellants and two others, i.e., Ravish Yadav and Bijli Yadav armed with revolver, lathi and spear suddenly appeared from the adjoining field in which maize crop was grown and appellant, Shashi Yadav, Ravish Yadav (absconder) shot his brother causing injuy on his head, armpit, leading to instant death of Rameshwar Yadav. After alarm being raised, villagers, Nunmani Yadav (not examined) and Baldeo Yadav (P.W.3) reached and saw Rameshwar Yadav lying on the ground having sustained firearm injuries on his person. The cause behind the occurrence is land dispute pending in the court of Sub Divisional Officer for the last ten years. S.I. Ajay Kumar Mishra of Kotwali P.S., Munger, arrived at the place of occurrence soon and recorded fardbeyan on 29.8.1983 at about 12.15 noon. 5. During investigation Investigating Officer recorded the statement of Yogendra Prasad Yadav, Harish Chandra Prasad Yadav, the two cousins of the deceased who accompanied him at the time of occurrence, informant, Baldeo Prasad Yadav, Brahamdeo Prasad Yadav, Suresh Yadav, as also collected post-mortem report from Dr. Anirudh Prasad, who earlier conducted the post-mortem on the person of the deceased. The Investigating Officer in the light of the statement of the witnesses, materials collected during investigation submitted chargesheet against the four appellants as also two others, Ravish Yadav and Bijli Yadav, who were, later, declared absconders. In the light of the materials in the chargesheet, cognizance of the offence was taken and, thereafter, case was committed to the court of sessions for trial. 6. During trial, besides the informant, Pratap Narayan Yadav (P.W.6), Yogendra Prasad Yadav (P.W.1) and Harish Chandra Prasad Yadav (P.W.2) examined themselves as eye witness in support of the charge levelled against the four appellants. 7. P.W.1, Yogendra Prasad Yadav, not only supported the occurrence in court but categorically asserted that it was Shashi Yadav, who first shot with his revolver on the temporal region of the deceased and simultaneously Ravish Yadav also shot at him near his armpit. 7. P.W.1, Yogendra Prasad Yadav, not only supported the occurrence in court but categorically asserted that it was Shashi Yadav, who first shot with his revolver on the temporal region of the deceased and simultaneously Ravish Yadav also shot at him near his armpit. The other accused persons named in the fardbeyan though armed with lathi and spear but did not commit any overt act. 8. P.W.2, Harish Chandra Prasad Yadav, also supported the occurrence and asserted that assailant of the deceased was Shashi Yadav and Ravish Yadav. He, however, clarified that it was Tribhuwan Yadav amongst the other co-accused named in the fardbeyan, who was armed with spear and threatened the informant and others present at the time of occurrence not to intervene otherwise they may also be assaulted. 9. P.W.3, Baldeo Prasad Yadav, a co-villager of the informant has stated that while he was taking bath in river Ganga, heard sound of firing and later while returning to the village saw the dead body of Rameshwar Yadav lying on the road. 10. P.W.4, Brahamdeo Prasad Yadav, is the seizure list witness in whose presence blood stained earth, empty cartridges were seized from the place of occurrence but the witness did not support seizure of blood stained earth and empty cartridges in his presence from the place of occurrence. He, however, proved his signature over seizure list Exts.1, 1/1. 11. P.W.5, Suresh Yadav, another co-villager of the informant, is also a formal witness as he has proved his signature over inquest report as Ext.1/3. 12. P.W.6, Pratap Narayan Yadav (informant), supported the occurrence. In his examination in chief, he categorically asserted that when he and his brother deceased as also two others were returning from his house in Harnathpur Diara to his native village-Mahuli, his brother deceased was shot by Shashi and Ravish Yadav and he died on the spot itself. The other accused persons named in the fardbeyan, though armed with lathi and spear did not commit any overt act but were present at the scene of occurrence. The informant in paragraph-10 and other paragraphs admitted that father of appellant, Shashi Yadav, Suresh Yadav was done to death and the informant and his brother, Kailu Yadav are accused in the said case. He, however, claimed ignorance about having definite knowledge of the said case. The informant in paragraph-10 and other paragraphs admitted that father of appellant, Shashi Yadav, Suresh Yadav was done to death and the informant and his brother, Kailu Yadav are accused in the said case. He, however, claimed ignorance about having definite knowledge of the said case. In paragraph-12 of his evidence, the informant gave details of the proceeding pending in the court of Sub Divisional Magistrate vide Case No.414M/1973 with regard to land, which was purchased by him from Bibi Fatima in which he was second party and the dispute between him and appellant, Shashi and the absconder, Ravish. The other accused persons named in the fardbeyan had no concern with the said dispute. In paragraphs-15, 16, informant further clarified that Pradumana Yadav and Tribhuwan Yadav are son and nephew of Ramlakhan Yadav, who was a witness against him in the murder case of Suresh, father of appellant, Shashi Yadav. In paragraph-18, informant further confirmed that he alongwith his deceased brother and two others were returning from their house in Harnathpur Diara to their native village. In paragraph-30, informant admitted that he did not disclose to the Investigating Officer that Tribhuwan was armed with spear, rather he had stated before the Investigating Officer that the accused persons other than the assailants were armed with lathi and spear. 13. Dr. Anirudh Prasad (P.W.7) in his evidence has confirmed the death of Rameshwar Yadav by two firearm injuries caused on his person by Shashi Yadav and Ravish Yadav. Ravish Yadav having been declared absconder, his case is not being considered in the present appeals. 14. From the evidence of the informant P.W.6 and the two eye witnesses, i.e., P.Ws.1 and 2, it is established that it was appellant Shashi Yadav, who inflicted firearm injury on the occipital region of the deceased, Rameshwar Yadav on 29.8.1983 at about 11.00 A.M. while he alongwith his brother P.W.6 (informant) and two others was returning from their house in Harnathpur diara (riverside) to their native village. Shashi Yadav having shot the deceased, has been rightly convicted by the trial court for the offence under Sections 302, 148 of the Penal Code and Section 27 of the Arms Act. Shashi Yadav having shot the deceased, has been rightly convicted by the trial court for the offence under Sections 302, 148 of the Penal Code and Section 27 of the Arms Act. The other appellants though present at the scène of occurrence and said to be armed with lathi, spear but their being no definite evidence as to who amongst the other co-accused was armed with lathi, spear and they having not committed any overt act, in our opinion, are required to be granted benefit of doubt as from the evidence of the informant P.W.6, it is quite clear that other appellants had no motive at all to assault the deceased for the reasons that they were not involved with the informant and the deceased in the land dispute which is the primal cause of occurrence. 15. In view of our findings above, Criminal Appeal (DB) No.265 of 2005 filed by the appellants, Kamleshwari @ Kamo Yadav, Praumana Yadav, Tribhuwan Yadav, is allowed and the three appellants being on bail are discharged from the liabilities of their bail bonds. 16. So far as Appellant Shashi Yadav {appellant in Criminal Appeal (DB) No.396 of 2005} is concerned, he raised the plea of juvenile during the pendency of the appeal and this Court under Order dated 27.7.2012 directed the Juvenile Justice Board, Munger, to enquire about his age on the date of occurrence, i.e., 29.8.1983. The Juvenile Justice Board, Munger, having made enquiry about the age of Shashi Yadav has found under Order dated 9.1.2013 passed in Misc. Case No.01 of 2012 that appellant, Shashi Yadav, was juvenile in conflict with law on 29.8.1983 and has submitted his report under Letter No.11 dated 11.1.2013 to the Deputy Registrar of this Court which was received under Receipt No.103 dated 15.1.2013 and has been placed on record of this appeal. In the light of the finding of the Juvenile Justice Board, Munger, contained in Order dated 9.1.2013, though the conviction of Shashi Yadav {appellant in Criminal Appal (DB) No.396 of 2005}, is upheld and his appeal is dismissed but he is directed to be released forthwith if not wanted in any other case as on the date of occurrence he was juvenile in conflict with law. Reliance in this connection has been placed on the Judgment of the Supreme Court in the case of Lakhan Lal versus State of Bihar, 2011(2) SCC 251 para 23. 17. Let copy of this order be sent to the Secretary of the Patna High Court Legal Services Committee for payment of fee to Mr. Atal Bihari. Appeal allowed.