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2014 DIGILAW 1043 (JHR)

State of Jharkhand v. Bangali Yadav

2014-10-15

R.R.PRASAD, RONGON MUKHOPADHYAY

body2014
JUDGMENT : The appellant Bangali Yadav was put on trial in Sessions Trial No. 252 of 2010, on the charge of committing murder of one Krishna Yadav in furtherance of the common intention punishable under Sections 302/34 of the Indian Penal Code. The Additional Sessions Judge-I, Palamau at Daltonganj, having found the appellant guilty of the charge vide judgment dated 26/02/2013, awarded death sentence to the appellant vide order dated 07/03/2013. Being aggrieved with the judgment of conviction and order of sentence a criminal appeal has been preferred whereas the Court referred the matter under Section 374 of the Code of Criminal Procedure for confirmation of the order, upon which Death Reference No. 2 of 2013 has been registered. Both were heard together. 2. The case of the prosecution is that in the intervening night of 13/06/2009 and 14/06/2009 the deceased Krishna Yadav, the son of the informant Yashoda Devi (PW-4) had slept on the roof of a primary school situated at Tarudag Tola Dirhi alongwith Nagendra Kumar Parahiya (PW-1) and Arvind Parahiya (PW-2). The appellant Bangali Yadav came and cut Krishna Yadav by means of Tangi and fled away alongwith Gama Parahiya, Bhola Parahiya and Baldeo Parahiya, who were identified by the witness Nagendra Parahiya. On the next morning while the informant alongwith her husband was going to market, they were told by the son of Bali Yadav that their son has been killed. On hearing this, the informant returned home where her daughter Sabita Kumari told that Nagendra Parahiya had come and disclosed that the appellant Bangali Yadav has killed Krishna Yadav while he was sleeping alongwith him and Arvind (PW-2). On getting this information, she alongwith others came to the place of occurrence and found her son dead. 3. There the I.O. Kamlesh Paswan (PW-9), after getting information telephonically about the murder of Krishna Yadav, came to whom she gave her fardbeyan (Ext.4), upon which a formal FIR (Ext.3) was drawn and the case was instituted as Chhatarpur P.S. Case No. 69 of 2009 under Section 302/34 of the Indian Penal Code against the appellant and others. According to the informant PW-4 the appellant committed murder as there had been land dispute with the appellant. 4. The I.O. having taken over the investigation, prepared inquest report and inspected the place of occurrence. According to the informant PW-4 the appellant committed murder as there had been land dispute with the appellant. 4. The I.O. having taken over the investigation, prepared inquest report and inspected the place of occurrence. After preparing dead body Chalan, the dead body was sent for Post Mortem examination, which was conducted by Dr. Bijay Kumar Singh (PW-5). After holding autopsy on 15/06/2009, the Doctor did find the following injuries:- “(i) Incised wound over left size of neck-size-8 cm x 3 cm and bone deep cutting neck vessel and neck muscle. (ii) Incised wound left side of neck-size-6 cm x3 cm and bone deep cutting neck vessel and neck muscle and lower jaw bone. Both the injuries, according to the Doctor, were ante-mortem in nature and has been caused by sharp and heavy weapon. The death was caused due to haemorrhage and shock caused by the aforesaid injuries. 5. After completion of the investigation, the charge sheet was submitted against the appellant as well as Gama Parahiya, Bhola Parahiya and Baldeo Parahiya. Bhola Parahiya and Baldeo Parahiya were shown as absconder. Accordingly, the congnizance of the offence was taken and the case was committed to the Court of Sessions. The other accused Gama Parahiya seems to have absconded and, therefore, his case was split up and only the appellant was put on trial, during which 10 witnesses were examined of them PW-1 Nagendra Kr. Parahiya claimed to have seen the appellant cutting the neck of Krishna Yadav. However, during cross-examination, he did depose that he did see the appellant while he was about to jump down from the roof. According to PW-2 Arvind Parahiya, this appellant cut the neck and after cutting the neck while he was fleeing away, he was chased by him. In his cross-examination he did depose that it was PW-1, who told him that the appellant has committed murder of Krishna Yadav. PW-3 Sabita Devi is a hearsay witness, who came to know about the occurrence from Arvind Parahiya and Nagendra Parahiya. PW-4 the informant also happens to be a hearsay witness, who derived knowledge from Arvind Parahiya of her son being killed. PW-6 Birendra Parahiya and PW-7 Shambhu Parahiya are the witnesses to inquest, whereas Pws-8 and 9 are the formal witnesses. 6. After the closure of the prosecution case when the incriminating materials appearing against the appellant were explained under Section 313 Cr. PW-6 Birendra Parahiya and PW-7 Shambhu Parahiya are the witnesses to inquest, whereas Pws-8 and 9 are the formal witnesses. 6. After the closure of the prosecution case when the incriminating materials appearing against the appellant were explained under Section 313 Cr. P.C., it were denied by the appellant. 7. The Court having believed the testimonies of PWs-1 and 2 recorded the conviction and awarded death sentence. 8. Mr. K. Sarkhel, learned counsel appearing for the appellant submits that though PW-1 and PW-2 have claimed to have seen the appellant committing murder of the deceased, but their conduct is as such that their testimonies are not worth reliable, rather it deserves to be rejected out-rightly. In this regard, it was submitted that both the witnesses have claimed to have seen the occurrence and also saw the appellant running away, but they did not inform to the informant or any other persons, whose houses were there, rather they, according to their evidences, left the school and slept in other house and in the morning at 5.00 a.m. came to their houses and again slept there. Only on the next day of the occurrence at 10.00 a.m. PW-1 informed about the occurrence to the daughter of the informant, whereas even a man of ordinary prudence would have immediately raised alarm and would have informed to others including the informant whose house was quite nearby to the school. Admittedly, they never informed any of them immediately. This fact of not informing immediately couple with the other circumstances, would go to show that it could be the witnesses PW-1 and PW-2, who killed the deceased, but the Court below without considering all these aspect of the matter in right perspective recorded the order of conviction and strangely awarded death sentence as the instant case in any view of the matter never falls within the category of rarest of the rare cases and, therefore, the judgment and order of conviction and sentence is fit to be quashed. 9. As against this, learned counsel appearing for the State submits that though the conduct of the witnesses appears to be somewhat unnatural, but the fact is that they saw the appellant committing murder and the testimony to this effect has remained undented and, therefore, the Court below has rightly recorded the order of conviction. 10. 9. As against this, learned counsel appearing for the State submits that though the conduct of the witnesses appears to be somewhat unnatural, but the fact is that they saw the appellant committing murder and the testimony to this effect has remained undented and, therefore, the Court below has rightly recorded the order of conviction. 10. Having heard learned counsel appearing for the parties and on perusal of the records, we do find that PW-1 Nagendra Parahiya and PW-2 Arvind Parahiya have claimed to have been sleeping alongwith the deceased on the roof of the School in the night of the occurrence. According to PW-1, while they were sleeping, appellant came and cut Krishna Yadav with Tangi. At that point of time he woke up and identified him. He then made Arvind Parahiya (PW-2) to wake-up. But in the cross-examination he has testified that when Bangali jumped down from the roof, he identified him. At the same breath he said that he identified Bangali while he was at roof. According to PW-2, as has been testified in the examination -in-chief when the appellant cut the deceased, he alongwith PW-1 chased him, during which the appellant threatened him, but this fact has never been supported by PW-1 and also it gets falsified from the testimony made in the cross-examination wherein he had testified that when he woke up, he came to know from PW-1 that the appellant has committed murder of the deceased. Thereupon, they climbed down from the roof and came to their home and slept there. Only in the morning he informed about the occurrence to the villagers. More or less similar is the testimony of PW-1 on this point where he has testified that after the occurrence, he climbed down from the roof and slept in the house situated by the side of the school. He woke up at 5.0 a.m., and came to his home where he again slept till 10.00 a.m. Only thereafter, he informed about the occurrence to the sister of the deceased. 11. The conduct of the witnesses certainly seems to be unnatural as the witnesses allegedly claiming to have seen the appellant killing the deceased, natural conduct would have been to raise alarm as number of houses, as per the evidences of PW-4 and PW-8, were there near the school. 11. The conduct of the witnesses certainly seems to be unnatural as the witnesses allegedly claiming to have seen the appellant killing the deceased, natural conduct would have been to raise alarm as number of houses, as per the evidences of PW-4 and PW-8, were there near the school. Not only that even the house of the informant, as per her evidence, was only 20 cubits away from the school. Even the houses of the witnesses as per the evidence of PW4, were 20 cubits away from the place of occurrence. Further more, when two persons were there and the accused persons were never there, the question of witnesses being scared does not arise particularly when the place of occurrence was surrounded by so many houses. In that event, natural conduct of the witnesses would have been to inform to the persons or to raise alarm and even to inform the informant whose house was also nearby. Further conduct of PW-1 of sleeping in the house up to 10.0 a.m., also appears to be unnatural. Apart from that the conduct of the witnesses appears to be quite suspicious suggesting something otherwise in view of the evidence of the Doctor, where he has deposed that wind pipe (trachea) was not found cut and in that situation the deceased was in position to speak something and would have been saved if timely treatment would have been given. In spite of that the witnesses left the place leaving the deceased, who, in view of the evidence of the Doctor, may not have died by that time and came to sleep in their houses and slept in the morning till 10.00 A.M. Furthermore, the testimonies of the witnesses of identifying the accused in the dead of night in absence of any source of light is not worth acceptable. On the other hand, the conduct of the appellant shows about his innocence as from the evidence of PWs-6 and 7, it does appear that when the dead body was brought from the roof of the school to the police station this appellant had also accompanied to the police station, which in the normal situation is not expected from an accused. Furthermore, the appellant was never found to have absconded after the occurrence, rather as per the evidence of I.O., while the appellant was in his house, he was arrested. 12. Furthermore, the appellant was never found to have absconded after the occurrence, rather as per the evidence of I.O., while the appellant was in his house, he was arrested. 12. Thus, in the circumstances, stated above, the testimonies of PWs-1 and 2 never inspire confidence to be believed, rather the conduct of the witnesses is as such that their testimonies are liable to be rejected out-rightly. 13. Under the circumstances, the trial court seems to have committed a grave illegality in recording the order of conviction and sentence and, hence, it is hereby set aside. 14. Thus, this appeal is allowed. The appellant is directed to be released forthwith if not wanted in any other case. 15. Death reference is answered accordingly.