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2014 DIGILAW 1039 (PAT)

Upendra Yadav v. State of Bihar

2014-09-26

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 Upendra Yadav has been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. The appellant no. 2 Srikant Yadav has been convicted for the offence under Section 149 read with Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged by the informant P.W. 4 Ram Charitra Yadav is that on 27.08.1988 in the morning his father Surjug Yadav (P.W. 5) went to the west of the village for attending the call of nature and while returning, uprooted Tutbhut plants for Datwan at about 6:00 A.M. in the morning. Then the accused Nathun Yadav (died) gave a lathi blow on his left leg and when he turned back he saw accused Srikant Yadav armed with lathi and Upendra Yadav armed with a country made pistol standing there along with two unknown persons armed with lathi. The further case is that Nathun Yadav commanded his son Upendra Yadav to shoot, whereupon, Upendra Yadav fired with his country made gun causing injury on the chest of Surjug Yadav, the father of the informant, as a result of which he fell down on the ground. The informant claimed to be the eye-witness to the occurrence and has stated that other witnesses Prabhu Yadav and Ramashish Yadav had also seen the occurrence. The informant stated that the cause of occurrence is the land dispute. However, the occurrence took place at 6:00 A.M. on 27.08.1988. The fardbeyan of the informant was recorded at 4:00 P.M. on 27.08.1988 in Indira Gandhi Surgical Ward of P.M.C.H., Patna by Pirbahore Police as the victim, the father of the informant, was lying injured in unconscious state in the hospital. 4. On the fardbeyan of the informant, the First Information Report was lodged by Giriyak Police Station under Nalanda district on 01.09.1988 and the investigation proceeded. 4. On the fardbeyan of the informant, the First Information Report was lodged by Giriyak Police Station under Nalanda district on 01.09.1988 and the investigation proceeded. After investigation, charge-sheet was submitted and cognizance was taken, the case committed to the Court of Sessions and after commitment charge was framed against three accused persons, namely, Nathun Yadav, Upendra Yadav and Srikant Yadav. However, during trial Nathun Yadav died and hence, prosecution against him abates. 5. During trial, ten witnesses were examined on behalf of the prosecution. The witnesses examined are P.W. 1 Satyendra Kumar, P.W. 2 Ramashish Yadav, P.W. 3 Sarjug Yadav, Son of Late Karu Yadav, P.W. 4 Ram Charitra Yadav, the informant, P.W. 5 Sarjug Yadav, Son of Sri Ram Roop Yadav, the victim, P.W. 6 Raj Kishore Choubey, the Investigating Officer, P.W. 7 Dr. Brajeshwar Kumar Sinha, the Doctor in P.M.C.H., Patna, P.W. 8 Ram Baran Kumar, P.W. 9 Dr. Prem Chand Prasad, Medical Officer in Sadar Hospital, Bihar Sharif who examined the victim and referred to P.M.C.H., P.W. 10 Awdhesh Prasad, Advocate Clerk who has formally proved the writing and signature on the fardbeyan. The documentary evidence proved in the case are Ext. 1 the signature of the informant on the fardbeyan, Ext. 2 is the sanction order, Ext. 3 is the injury report, Ext. 4 is the injury report in injury register, Ext. 5 is the writing and signature on fardbeyan, Ext. 6 is the writing and signature on formal First Information Report, Material Ext. 1 is blood stained towel, material Ext. 2 is blood stained Ganjee. The trial court, taking into consideration the evidence both oral and documentary, convicted the appellants and sentenced as mentioned above. 6. Learned counsel for the appellants, however, contended that there is no eye-witness to the occurrence, except the evidence of informant and neither there is any corroboration of the evidence of informant. The evidence of P.W. 5 is not reliable and the medical evidence falsifies the oral evidence and has challenged the judgment of conviction and order of sentence on various grounds. 7. Learned Amicus Curiae appearing on behalf of appellant no. 2 has submitted that in the First Information Report no role has been attributed against appellant no. The evidence of P.W. 5 is not reliable and the medical evidence falsifies the oral evidence and has challenged the judgment of conviction and order of sentence on various grounds. 7. Learned Amicus Curiae appearing on behalf of appellant no. 2 has submitted that in the First Information Report no role has been attributed against appellant no. 2, except his presence at the place of occurrence though it is stated that there were five persons at the place of occurrence, the appellants, the father of the informant and two other unknown persons. However, no role has been attributed to two unknown persons and whatever the role is attributed that is attributed to the accused Nathun Yadav and accused Upendra Yadav. However, the prosecution has developed the story by attributing role to the appellant no. 2 Srikant Yadav at the stage of trial and there is tendency to falsely implicate the appellant no. 2 developing the prosecution story from stage to stage regarding his implication in the occurrence and the subsequent role has been attributed which can well be inferred as an afterthought. 8. Learned counsel for the appellant no. 1, however, contended that the appellant no. 1 has falsely been implicated in this case due to land dispute. There is no eye-witness to the occurrence, except the informant and there is no corroboration to the evidence of the informant claiming to be the eye-witness and his evidence is not reliable for conviction. It has further been contended that the medical evidence falsify the oral evidence as the doctor has stated that the injury is possible when both the accused and the appellant no. 1 were in standing position whereas during the evidence it has come that due to injury by lathi the victim fell down and was shot when he was attempting to rise and further it has come in evidence that the shot has been made from a close range but the medical evidence does not indicate any charring and blackening. It has also been contended that at the time of occurrence the victim was wearing a Ganjee. It has also been contended that at the time of occurrence the victim was wearing a Ganjee. The Ganjee has been brought in evidence but it has only one hole, though it is alleged that the shot by which the victim got injured caused two injuries; one wound of entry and other wound of exit on chest and back but the Ganjee brought in evidence as material evidence has got only one hole. However, there is probability that when the bullet passes through the Ganjee is required to have two holes, one wound of entry and other wound of exit and further the objective evidence that the bullet or pellet has not been found and recovered from the place of occurrence. It has also been contended that the Investigating Officer has not proved the place of occurrence. It has further been contended that two doctors have examined the victim, the one who examined and gave first aid but did not give injury report and subsequently, the doctor who examined the victim at P.M.C.H. gave the injury report and hence, the doctor who did the surgical intervention have not given the injury report hence, the injury report by the doctor who examined the victim after surgical intervention by first doctor is not reliable. It has further been contended that the shot has been fired by fire-arm but there is no repetition of the firing and hence, it cannot be inferred that there was intention to kill. 9. The second limb of argument advanced by the learned counsel for the appellant no. 2 is that even in case it is found that the appellant no. 2 having been guilty for the offence under Sections 149 read with Section 307 of the Indian Penal Code then having regard to the fact that the occurrence is of the year 1988 and during the period of trial, the appellant no. 2 has already remained in jail custody for about one year and several months and the appellant no. 2 has suffered a lot and hence, a sympathetic view may be required for sentencing the appellants. 10. 2 has already remained in jail custody for about one year and several months and the appellant no. 2 has suffered a lot and hence, a sympathetic view may be required for sentencing the appellants. 10. Learned counsel for the State, however, contended that there are several witnesses to the occurrence as the occurrence took place in the morning at 6:00 A.M. and the possibility of the witness to be present at the spot at about the time and place of occurrence cannot be ruled out. The victim and the accused were the co-villagers and the witnesses are the residents of same village and the allegation is of gun shot in the village itself in broad day light, hence, there is nothing to disbelieve the evidence of the witnesses who have come to depose about the firing and the corresponding injury is found by the doctor to support the prosecution case and the medical evidence of the doctor is itself a corroboration to the evidence of the victim. The Investigating Officer gave the description of the occurrence in the orchard and merely because the Investigating Officer has stated that he was not shown the place of occurrence by the informant or the victim is absurd and of no significance when Investigating Officer in his evidence in examination-in-chief has stated about the place of occurrence giving a description. However, it has come in evidence that at the place of occurrence there was long grasses of SUN and further just after the occurrence the injury of the victim was tied with a Gamacha and was taken to the hospital and hence, the probability that blood was not found at the place of occurrence which is apparent and hence, prosecution has proved the case beyond reasonable doubt. 11. Taking into consideration the respective submissions of the parties, the question for consideration is whether the prosecution has been able to prove the charges leveled against the appellants beyond reasonable doubt. 12. 11. Taking into consideration the respective submissions of the parties, the question for consideration is whether the prosecution has been able to prove the charges leveled against the appellants beyond reasonable doubt. 12. Now the prosecution case in the First Information Report is that while the victim was returning after attending the call of nature, he uprooted Tutbhat plants for making Datwan at about 6:00 A.M. then he was assaulted by lathi on his leg by one accused Nathun Yadav (dead) and when the victim turned round then found Srikant Yadav armed with lathi and Upendra Yadav armed with gun and other two unknown persons armed with lathi and then on the command of Nathun Yadav, Upendra Yadav fired from his gun causing injury on the chest of the victim. The occurrence took place at village Sunderpur P.S. Giriak, district Nalanda, Biharsharif and the victim was examined by the doctor P.W. 9 at about 8:45 A.M. at Sadar Hospital, Bihar Sharif and the doctor has stated that the injured-victim was examined and referred immediately to P.M.C.H. and has opined that the age of the injury was within six hours and has proved Ext. 4 his report only for referring the injured for P.M.C.H. and in cross-examination has stated that before referring the injured he had given only first aid treatment to the injured. 13. P.W. 7 is the doctor who examined the victim at the P.M.C.H. and he in his evidence has stated that on 27.08.1988 he was posted at P.M.C.H. as Casualty Registrar, Surgery and examined the victim in surgical ward at 12:30 P.M. as the patient was referred from Bihar Sharif and found following injury (i) lacerated wound 1” x ½” over the sturnum in the middle with charring over the margin (ii) lacerated would 1/2” x 1/2” on the right side of the chest. Both wounds were communicating to the chest cavity. The nature of injuries has been shown to be grievous. Both the injuries were surgical treated at Sadar Hospital, Bihar Sharif. The injuries were not X-rayed. No pellet or bullet was found and he did not find any fracture. Both wounds were communicating to the chest cavity. The nature of injuries has been shown to be grievous. Both the injuries were surgical treated at Sadar Hospital, Bihar Sharif. The injuries were not X-rayed. No pellet or bullet was found and he did not find any fracture. However, he stated that the doctor who treated the injured first is the best person to say about the age of injury and the weapon used when the patient was wearing clothes at the time when injury were caused there will be charring marked on clothes as well as on the skin. By the ‘charring’ he means to say burning and blackening due to burn. He further deposed that blackening and charring indicate that firing was done from a close range i.e. two to three feet. The injury is possible when the shooter and the victim is in standing position within the distance of three feet and has stated that he has not mentioned in his injury report about the fire-arm injury and has proved the injury report Ext. 3 in his pen and signature. 14. Hence, from the evidence of both the doctors P.Ws. 7 and 9, it is apparent that the version of occurrence is corroborated by evidence of P.W. 7 when he examined the victim at 8:45 A.M. and found the injury within six hours and he referred the patient to the P.M.C.H. taking into consideration the seriousness of the offence where at P.M.C.H. P.W. 9 examined the victim at 12:30 P.M. on same day and found a fire-arm injury from a close range with wound communicating to each other and also found the charring on his person and has opined that the injury inflicted from close range by fire-arm, hence, corroborated both the time and manner of occurrence. 15. P.W. 5 is the injured and in his evidence has supported the prosecution case that while he was uprooting Tutbhat plants Nathun Yadav gave a lathi blow and then Srikant Yadav also assaulted by lathi on his leg and has asserted that he fell down. However, no role has been attributed to Srikant Yadav in the First Information Report. So the case regarding the implication of Srikant Yadav is being developed from case in First Information Report. However, no role has been attributed to Srikant Yadav in the First Information Report. So the case regarding the implication of Srikant Yadav is being developed from case in First Information Report. He has stated that when he fell down saw the accused persons armed with lathi and gun and then Nathun Yadav abated and on being commanded, Upendra Yadav fired causing injury on the chest and thereafter on Hulla his son Ram Charitra Yadav tied the chest with a towel and was taken on cot. The evidence of this witness was also recorded after two months of occurrence before the Magistrate after his treatment. However, in his cross-examination, he has stated that he does not remember whether he has deposed before the Magistrate regarding the assault by Srikant Yadav on his leg. The statement recorded under Section 164 Cr.P.C. though has not been proved in evidence but on record there is no mention in the statement recorded under Section 164 Cr.P.C. of this witness about the assault by Srikant Yadav on the person of injured. 16. P.W. 4 is the informant and he in his evidence has supported the prosecution case and stated that while the victim was uprooting the Tutbhat plants after attending the call of nature Nathun Yadav, Srikant Yadav armed with lathi and Upendra Yadav with country made gun and two others unknown were armed with lathi assaulted and has stated that Nathun Yadav gave a lathi blow and Srikant Yadav also gave lathi blow then his father fell down then on the order of Nathun Yadav, Upendra Yadav fired causing injury in the chest of the victim and, therefore, he has stated that he went there tied the injury with towel and took him to the hospital and has stated that at the time of occurrence he was at a distance of 50 yards when he heard the sound of firing then he went thereafter hearing the sound of firing and his father was lying injured Satyendra Yadav, Sarjug Yadav, Ramashish Yadav, Prabhu Yadav, Yogendra Yadav were at the place of occurrence when they reached there. However, the presence of witnesses at the time of occurrence cannot be doubted and just after the occurrence and on the sound of hearing he went there and at the time of occurrence he was at a distance of 50 yards and hence, the probability of the witness having present at the site of occurrence and having seen the occurrence cannot be ruled out. 17. However, having regard to the fact that regarding the implication of appellant no. 2 Srikant Yadav is concerned, this witness P.W. 4 in his First Information Report has not stated about assault by Srikant Yadav and it is apparently developed in the subsequent stage, in contradiction to his statement made in the Fardbeyan which is earliest in point of time when First Information Report was lodged and is author of the First Information Report where no role of assault by Srikant Yadav of having assaulted the victim with lathi on his knee and further the story about the falling down of the victim on assault is also a development and embellishment in the prosecution story. 18. However, P.W. 1 in his evidence though stated about the occurrence regarding the presence of Nathun Yadav, Srikant Yadav and Upendra Yadav and assault by Nathun Yadav on the leg of Sarjug Yadav and on command of Sarjug Yadav firing by Upendra Yadav. However, P.W. 1 has not attributed the role of assault by lathi by Srikant Yadav. 19. P.W. 2 though has also supported the prosecution case as in the First Information Report to have seen the victim Sarjug Yadav uprooting the Tutbhat plants and Nathun Yadav assaulted Surjug Yadav on his leg and this witness has stated that when Sarjug Yadav fell down Srikant Yadav gave a lathi blow on his left leg and Sarjug Yadav when tried to get up then Upendra Yadav fired. However, this witness has stated that his statement was not recorded by the police. However, in cross-examination, he has stated that no one assaulted Sarjug Yadav after he fell down. However, this witness has stated that his statement was not recorded by the police. However, in cross-examination, he has stated that no one assaulted Sarjug Yadav after he fell down. However, on strictly scrutinizing the evidence of this witness, it is apparent that though the witnesses supported the prosecution case about the firing but his evidence about the assault by Srikant Yadav in examination-in-chief to have assaulted on head by lathi then Sarjug Yadav fell down then in cross-examination his evidence that none assaulted Sarjug Yadav after his having been fallen down and hence, his evidence is contradictory regarding the assault by Srikant Yadav. 20. P.W. 3 has supported the prosecution case and he also stated about the assault by Srikant Yadav in addition to the supporting the prosecution case. 21. P.W. 6 is the Investigating Officer. He has stated in his evidence that the place of occurrence was stated to be in the west of the village and has stated that though the place of occurrence is at the distance of 500 yards west in the village Sunderpur is orchard with grasses to the length of man height and there are trees and found some of Tutbhat uprooted though has stated that he has not found any blood and it was disclosed that the accused persons concealed themselves. 22. However, a great emphasis has been made by the learned counsel for the appellants on the evidence of Investigating Officer in his cross-examination that neither he found blood nor any one shown him the place where the victim got fire-arm injury and hence, it is submitted that the place of occurrence has not been established. It has further been contended that neither blood was found nor the cartridges of bullet nor pellet was recovered. However, the Investigating Officer in his evidence itself has stated that he examined the place of occurrence which is orchard having grasses of SUN and he found Tutbhat plants having been uprooted itself indicates the place of occurrence having been established and the Investigating Officer in his deposition has stated that trees and grasses were there and the witnesses also in their evidence has stated that the place of occurrence to the west of the village in the orchard and hence, the place of occurrence has duly been established. 23. The Investigating Officer in his evidence has also stated that P. Ws. 23. The Investigating Officer in his evidence has also stated that P. Ws. 1, 2, 3 and 4 have not stated before him about the assault by Srikant Yadav on the leg (Dhona) of the victim. However, it is true that the contradiction has not been taken in the manner as provided in law by first drawing the attention of the appellants on the part of the statement made by him before police and then bringing those materials by the evidence of police were really stated before him in his statement under Section 161 Cr.P.C. and hence, it is apparent that the defence though have not taken the contradiction properly in accordance with law. However, it is apparent that in the First Information Report itself no role has been attributed to the appellant no. 2 though the prosecution story has been developed even by the victim in his statement recorded after two months have attributed the role of assault to Srikant Yadav which is on record and the informant also in the First Information Report has not attributed the role of assault to the appellant no. 2 and it is apparent that the prosecution has developed the story of implication of Srikant Yadav at a later stage of the evidence hence, the statement of the victim before the Court is apparently in contradiction to his earlier statement under Section 164 of the Cr.P.C. and when P.W. 5 the victim’s attention has drawn under Section 164 Cr.P.C. he stated that he does not remember itself indicates that he was evasive to answer when confronted and P.W. 4 has also in his evidence has gone contrary to his statement on the basis of which the First Information Report was lodged and hence, it is apparent that the involvement of the appellant no. 2 Srikant Yadav and attributing him the role of assault is an afterthought. 24. However, so far as the case of appellant no. 2 Srikant Yadav is concerned, no role has been attributed to Srikant Yadav in the Fardbeyan or on the basis of which First Information Report drawn and it is apparent that prosecution has developed the prosecution case by attributing role to Srikant Yadav there is no evidence even that the five person there at the time of occurrence were there with common object to kill. Neither in First Information Report nor in evidence any fact mention to infer that the act was committed in furtherance of common object. 25. However, so far the evidence about firing by the appellant no. 1 Upendra Yadav is concerned, there is specific consistent case of prosecution from the Fardbeyan and the evidence adduced that Upendra Yadav fired from a point blank range on the command of Nathun Yadav causing injury on the chest of the victim and there is evidence of the doctor that the injury was of fire-arm and further the doctor has reported that the injury has been made at the point blank range and has found the injury of charring on the chest and hence, has corroborated the prosecution and found two injury communicating to each other. There is corresponding injury on the chest as well as on the Ganjee has also been found, however, only objection that Ganjee has only one hole. However, the Ganjee was not inordinary Ganjee but it was a Khadi Ganjee and hence, the probability of itself being removed from back may not be ruled out and merely on that objection, prosecution story cannot be rejected when otherwise the allegation being corroborated by the medical evidence of the wound of entry and wound of exit as well as a hole in the Ganjee. However, it is stated that no blood was found at the place of occurrence but the prosecution evidence itself is that just after the occurrence the person reached there and wrapped the wound by tieing the injury with towel and hence, the probability of falling out the sufficient blood to mark it may be missing that too the investigation produced after lodging the First Information Report on 01.09.1988 whereas occurrence is of 27.08.1988. However, it is stated that the pellet or bullet could not recover. However, it has come in evidence that at the place of occurrence there was long grasses of SUN and the pellet may have lost in grasses and could not have been found out by the Investigating Officer. 26. However, the contention of the learned counsel for the appellants is that there is no eye-witness to the occurrence and the appellants have falsely been implicated for land dispute does not stand to reason and satisfy the judicial conscience in view of the evidence discussed above and facts and circumstances of the case. 26. However, the contention of the learned counsel for the appellants is that there is no eye-witness to the occurrence and the appellants have falsely been implicated for land dispute does not stand to reason and satisfy the judicial conscience in view of the evidence discussed above and facts and circumstances of the case. The occurrence took place in the morning at 6:00 A.M. while the victim went to attend the call of the nature. The occurrence took place in the village. The probability of the witnesses having been out in the field, the place of occurrence, the description of the place of occurrence has been mentioned is orchard where the grasses of SUN were grown to the man height and the nearby and the probability the other villager were also having gone out to attend the call of nature in the early hour which is nearby the house. It was early hour of the day and occurrence took place at the open place and hence, the probability of having seen the occurrence on the shot of firing cannot be ruled out and further there is all probability that the informant at least has seen the occurrence when the assault alleged and firing alleged to have been made from the close range within two and three feet and both the parties were well known to each other and hence, the statement that the witnesses have not the eye-witness does not stand to reason. However, the oral evidence is also supported by the medical evidence when the doctor has found the gun shot injury from the close range and there is explanation for not found the blood just after the occurrence and towel was tied round the injury. However, merely because there is only one hole in the Ganjee and the hole in back of the Ganjee did not find there is various possibilities and probabilities that the Ganjee was a Khadi Ganjee and probability of its being given way to bullet or pellet are there and hence, merely for that reason the prosecution case cannot be brushed aside to disbelieve. 27. 27. The infirmities pointed out that the first doctor did not give injury report and surgical intervention but the first doctor has stated in his evidence that he gave first aid and for that reason when the second doctor has given a report and given his opinion that the injury by fire-arm communicating to each other cannot be brushed aside. 28. However, it has been asserted that the occurrence took place in the year 1988 and there is only one single fire wound shot and there is no repetition and hence, the offence under Section 307 of the Indian Penal Code is not made out. 29. However, to make out an offence under Section 307 of the Indian Penal Code, the considerations are what are the weapons used, the part of the body selected for injury and the impact is relevant consideration. However, the weapon is said to be the gun, the part of the body selected is the chest. The most vital part of the body and the impact by which the injury indicates it was a bullet injury which passed through chest with an wound of entry and would of exit itself is sufficient to hold the intention to kill and offence under Section 307 of the Indian Penal Code is made out against appellant no. 1 Upendra Yadav. 30. However, taking into consideration the facts and circumstances of the case that the occurrence took place in year 1988 and appellant no. 1 suffered the rigor of criminal prosecution since 1988, the ends of justice shall be met by sentencing the appellant no. 1, Upendra Yadav to undergo rigorous imprisonment for four years for the offence under Section 307 of the Indian Penal Code and one year for the offence under Section 27 of the Arms Act. However, both the sentences shall run concurrently. 31. However, having regard to the fact that no role attributed to appellant no. 2 in the First Information Report and there is development in the prosecution story and contradiction in evidence of the prosecution witness, I find that the prosecution has not been able to prove the charges against the appellant no. 2, Srikant Yadav beyond reasonable doubt and the appellant no. 2 in the First Information Report and there is development in the prosecution story and contradiction in evidence of the prosecution witness, I find that the prosecution has not been able to prove the charges against the appellant no. 2, Srikant Yadav beyond reasonable doubt and the appellant no. 2 deserves the benefit of doubt and hence, the judgment of conviction and order of sentence recorded against him is hereby set aside and is ordered to be acquitted of the charges leveled against him and he is discharged from the liabilities of his bail bonds. 32. Accordingly, the appeal is allowed in part. Appeal partly allowed.