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2013 DIGILAW 811 (PAT)

Sudarshan Yadav v. State of Bihar

2013-07-15

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2013
Judgment Shyam Kishore Sharma, J. Above named sole appellant has assailed the judgment of conviction and the order of sentence dated 27th April, 1989 passed in Sessions Case No. 252 of 1986/12 of 1986 by the learned 2nd Additional Sessions Judge, Gaya whereby the accused was found guilty for the offence punishable under section 396 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. After the mid-night, at about 1.00 AM of 15/16.4.1985, about a dozen dacoits bazed upon the house of the informant Ramautar Yadav (PW 8) and they murdered his son Babu Lal Yadav and also caused injury to Chinta Devi, granddaughter of the informant and daughter of the deceased. The FIR was registered against unknown. The fard-beyan (Ext. 1) of PW 8 was recorded at 7.45 AM on 16.4.1985 divulged the commission of dacoity. At the time of dacoity, the informant was sleeping in his house. The informant’s son Babu Lal Yadav (deceased) was sleeping in the Sehan of his house and inmates were sleeping inside the house. After hearing the sound of firing, the informant woke up and noticed 10-12 dacoits. The informant’s son Babu Lal Yadav was done away by them. The accused persons bazed into the house and carried away a box of tin and a Khakhi colour leather bag containing some ornaments and clothes of Chinta Devi. Not only the goods were taken away, but the informant’s grand-daughter Chinta Devi (PW 7) and Sugba Devi (not examined) were also injured. The fard-beyan containing signature of attesting witness Surendra Prasad (not examined) and L.T.I. of Dular Chand Yadav (PW 3) resulted into the formal FIR (Ext. 2) under section 396 of the Indian Penal Code against a dozen unknown accused and the looted goods were described to be valued rupees four thousand and investigation commenced. Inquest report (Ext. 3) of the dead body was prepared, seizure of blood etc. (Ext. 4 and 4/1) were prepared and injury report of Chinta Devi (Ext.5) was obtained. The post mortem report (Ext. 6) of Babu Lal Yadav was obtained from the hospital. The statements of witnesses were recorded. The place of occurrence was inspected. Inquest report (Ext. 3) of the dead body was prepared, seizure of blood etc. (Ext. 4 and 4/1) were prepared and injury report of Chinta Devi (Ext.5) was obtained. The post mortem report (Ext. 6) of Babu Lal Yadav was obtained from the hospital. The statements of witnesses were recorded. The place of occurrence was inspected. The Police found the case to be true and submitted charge sheet, upon which the Court acted by taking cognizance and committed the case to the court of Sessions where charge under section 396 of the Indian Penal Code was explained to the sole accused. He pleaded innocence and faced trial. 3. The defence of the accused was of false implication and also that the informant and accused persons are inmates of the same house and they belong to same board, and still the appellant was not named, so he is innocent. His further defence was that on account of property dispute, the appellant was framed in. 4. In order to support its case, the prosecution has examined Kauleshwari Devi wife of the deceased as PW 1, Sheo Shankar Singh as PW 2, Dularchand Yadav, an attesting witness of fard-beyan, as PW 3, Muni Lal Singh as PW 4, Ram Briksh Singh as PW 5, Sukhari Yadav (tendered) as PW 6, Chinta Devi, daughter of the deceased as well as injured of the case, as PW 7, Ramautar Yadav, father of the deceased as well as the informant, as PW 8, Md. Azhar, the Part Investigating Officer, as PW 9 and Dr. Mithilesh Kumar Sharma who conducted autopsy upon the dead body of Babu Lal Yadav as PW 10. 5. The trial court, after considering the oral evidence as well as facts available on the record, found him guilty and passed the order of conviction. 6. Now, this Court is to see as to whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 7. The doctor’s evidence is that on 16.04.1985, autopsy of the dead body of Babu Lal Yadav was conducted and the doctor has found one entry as well as one exit wound caused by fire-arm and some injuries caused by hard blunt substance. 7. The doctor’s evidence is that on 16.04.1985, autopsy of the dead body of Babu Lal Yadav was conducted and the doctor has found one entry as well as one exit wound caused by fire-arm and some injuries caused by hard blunt substance. The death of Babu Lal Yadav due to use of firearm and hard blunt substance has not been challenged and the post mortem report read with inquest report clearly establish, beyond the shadow of all reasonable doubt, that in the night of 15/16.4.1985 Babu Lal Yadav was shot dead. Once it has been established that Babu Lal Yadav was the victim of culpable homicide amounting to murder, his death was not natural. Now, it has to be seen as to whether his death was associated with the offence of commission of dacoity or not. 8. The evidence of informant is being reproduced for the purpose to ascertain the evidences. PW 8 is the unfortunate father whose son was killed by the dual hands of dacoit in the night. He described himself to be between 80-85 years on the date of deposition. His deposition was recorded after one year of the occurrence. He stated that he knew from his grand-daughter Chinta Devi (PW 7) in the night of dacoity itself that amongst dacoits, Sudarshan Yadav (appellant) was one of them. Sudharshan is non-else but the grandson of the informant. He is the son of the informant’s nephew. The informant has stated that the informant and the accused are sharing one common board and partition was having height with one hand, which separates the house of the informant and the accused. It has come in the evidence that Sudarshan was demanding 2 bighas more land after partition, which was not being accepted by the informant and that lead to the killing. The informant narrated the relationship with the accused wherein he stated that he and Bhajan Yadav are the brothers and accused Sudarshan is grandson of Bhajan Yadav. There was partition long back and the informant has only four granddaughters; first is Chinta Devi. He has stated that for the first time, Police came about 10-12 hours after his granddaughter Chinta Devi told about the culprit. 9. Chinta Devi (PW 7) while being examined as a witness has supported the occurrence and has claimed to identify the accused in the torch light being flashed by the accused persons. He has stated that for the first time, Police came about 10-12 hours after his granddaughter Chinta Devi told about the culprit. 9. Chinta Devi (PW 7) while being examined as a witness has supported the occurrence and has claimed to identify the accused in the torch light being flashed by the accused persons. She has stated that she has narrated this fact immediately to all including the informant as well as to her parents. Though she has stated that all the dacoits were having mask but how she has identified this accused who is her relative is not clear. 10. Other evidences are just academic in nature. Though PW 1 is the wife of the deceased but she has not claimed direct identification of her own family member, namely, the accused and she has stated that she knew from Chinta Devi in the night itself that the occurrence was committed by the accused. The suspicion was that some outsiders have taken toddy and non-veg dinner just prior to the occurrence, so that it was suspected that Sudarshan might have involved those persons in the offence for committing dacoity and killing of Babu Lal Yadav. PW 2 is a hearsay witness who has come after hearing hulla and saw Babu Lal Yadav dead there. He also knew that the offence was committed by the accused. 11. PW 3 Dularchand Yadav though is an attesting witness was knowing about the occurrence committed by Sudarshan Yadav but it is not clear as to why he kept mum and fard-beyan was recorded against unknown. 12. Evidence of PW 5 is identical and similar to the evidence of PW 1 as he was not a witness to the occurrence rather he knew from the informant who knew from Chinta Devi. 13. The Investigating Officer who has conducted major portion of the investigation has not been examined and the Investigating Officer who has been examined by the prosecution has only initiated the investigation, thereafter, there is no information as to what revealed during investigation. 14. 13. The Investigating Officer who has conducted major portion of the investigation has not been examined and the Investigating Officer who has been examined by the prosecution has only initiated the investigation, thereafter, there is no information as to what revealed during investigation. 14. Learned counsel appearing on behalf of the appellant submitted that the informant and accused are of same stock, resident of same dwelling unit and known from before as being own family member but it is strange that fard-beyan given after a good 6-7 hours had no mention of any role of the accused and it has been submitted that implication was only with a view to put pressure on a dispute which related to cutting of a Taar tree as well as demand of extra share in the partition. 15. We have analyzed the evidence and the submissions. The fard-beyan is against unknown. The FIR is not a definite encyclopedia of the offence but fard-beyan gives a hint at least for proving the occurrence. In a case of dacoity, which is generally committed by unknown and the FIR is generally against unknown and identification follows later on by TIP whose names have come on the basis of confession or in course of recovery of certain articles. That is not a case here. The accused and the informant are resident of same house. The informant and all the witnesses have stated that immediately after the occurrence Chinta Devi told that offence was committed by Sudarshan Yadav. It is not clear as to why the informant kept mum and suspected none at the time of giving his fard-beyan. Considering the motive as alleged and as brought on the record through evidence, it is apparent that both sides were at loggerheads due to cutting of Taar tree as well as partition of family property and that appears to be a valid reason for implicating the accused. Had the accused participated in the offence and his name, as stated by PW 7, was known in the night itself, then what was the reason as to why this vital information was not given to the Investigating Officer and the FIR remained against unknown. 16. Had the accused participated in the offence and his name, as stated by PW 7, was known in the night itself, then what was the reason as to why this vital information was not given to the Investigating Officer and the FIR remained against unknown. 16. This is a case in which the prosecution apparently has not been able to prove and explain as to why name of the accused was brought later although he was well known in the night itself but his name has not come on the record as the Investigating Officer who recorded the statement of the witnesses has not been examined. There is grave prejudice to the defence. In this case, non-examination of the Investigating Officer has left this development uncovered and the prosecution has not cared as to in which circumstances the name of the accused has come during investigation. 17. Considering the aforesaid discussions, we hold that the prosecution has miserably failed to prove its charge against the sole appellant beyond the shadow of all reasonable doubts. In the result, this appeal is allowed and the judgment of conviction and the order of sentence is set aside. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds. Appeal allowed.