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2014 DIGILAW 1048 (PAT)

Lakhan Yadav v. State of Bihar

2014-10-09

AMARESH KUMAR LAL, DHARNIDHAR JHA

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JUDGMENT : Dharnidhar Jha, J. The appellants were tried by the learned Additional Sessions Judge, Begusarai after being charged under Sections 147,323 and 302/34 IPC. By the judgment dated 29th February, 1992 they were held guilty of committing offences under Sections 302/34 IPC and also offences under Sections 147 and 323 IPC. The appellants were heard on sentence on 03.03.1992 and each of them were directed to suffer rigorous imprisonment for life for being convicted under Section 302/34 IPC and simple imprisonment for three years under Sections 147 and 323 IPC each. The sentences were directed to run concurrently. The appellants have come up before this Court through the present appeal to challenge the judgment of conviction and order of sentence. 2. As per the prosecution story, the informant along with the witnesses and deceased Shivjee Yadav were sitting at his Darwaja when the accused persons came there and started brick-batting. The informant, the deceased Shivjee Yadav and others ran away from the Darwaja. The accused persons chased and continued brick-batting. When the informant and the deceased arrived at the shop of one Saheb Sah, the informant was assasulted by some of the accused persons when the deceased Shivjee Yadav attempted to intervene and he was given blows with lathi by Adalat Yadav, Rajaram (since dead) and Ramjee Yadav. The deceased Shivjee Yadav fell down on the ground when Dropadi Devi is said to have hit him with brick-bats. The injured witnesses, like, P.Ws.7, 9 ( informant) and the deceased were rushed to Begusarai where they were treated and while the deceased was being treated in the hospital, he succumbed to his injuries. 3. The investigating officer has not been examined but what appears from the record of the case is that P.W.10 Dr. R.R. Prasad held postmortem examination on the dead body of the deceased Shivjee Yadav and found solitary fatal injury on his head measuring 6” in length. On dissection it was found that there was a depressed fracture on the parietal bone and the brain matter had been lacerated with bruised veins and other structures under the skull. R.R. Prasad held postmortem examination on the dead body of the deceased Shivjee Yadav and found solitary fatal injury on his head measuring 6” in length. On dissection it was found that there was a depressed fracture on the parietal bone and the brain matter had been lacerated with bruised veins and other structures under the skull. There was linear transverse fracture of parietal bone extending from right to left in the interior part of the skull and in the opinion of the doctor, the injury was sufficient in the ordinary course of nature to cause death which had probably been caused by hard and blunt substance such as lathi and brick-bats. 4. Fourteen witnesses were examined by the prosecution during the trial and as may appear from the very impugned judgment, the court rejected the claim of the witnesses, like, P.Ws.1, 2 and 5 that they were eye witnesses. However, the trial Court considered the evidence of P.Ws.7 and 9 who were injured and found them trustworthy and went on to record the finding of guilt against the appellants as noticed at the very outset of the present judgment. 5. After having heard the counsel for both the parties and after having gone through the evidence, we are of the view that the appeal lies in a very narrow compass. The court below had itself recorded that there was serious enmity between the parties and series of litigations were pending before the two sides. The informant P.W.9 had also admitted in paragraph-9 of his cross-examination that the litigation between the two sides was coming since 1968. In the above serious background of enmity, the court below still placed reliance upon the evidence of witnesses by holding that it was a tiny village where independent persons could be difficult to be found as regards the support to the allegations from independent sources. The court below while holding like above was itself recording that on account of the tiny nature of the village, the inter-se relationship between persons inhabiting village was so much of dependence upon each other that every one had been on one side of the two factions. The court below while holding like above was itself recording that on account of the tiny nature of the village, the inter-se relationship between persons inhabiting village was so much of dependence upon each other that every one had been on one side of the two factions. If this was of the view of the court below, then it was more necessary that the evidence of the two witnesses was appreciated very cautiously because the court below itself held that there was no independent, disinterested person available in the village to come forward to give untainted evidence in the case. We, as such, went on to scan the evidence of two witnesses, namely, P.Ws.7 and 9 ourselves with the assistance of the learned counsel for the parties and we find that placing reliance on the evidence of P.Ws.7 and 9 could not be safe in the inimical atmosphere which was prevailing in the village. P.W.7 was the brother of the informant, and, as such, the third brother of the deceased. The witnesses, as may appear from the evidence of witnesses, like, P.Ws.7 and 9, were interested and related as appears from the evidence of P.W.9 in paragraphs-4 and 5. P.W.7 was injured as appears from the medical evidence of P.W.12 Dr. S.M. Bakar. The deceased were firstly taken to Balia hospital and from there the deceased was taken to Begusarai hospital and as may appear from the evidence of P.W.7 in paragraph-11 the police had visited the hospital and probably had met him also, but he was not making any statement before the police. Not only that he admitted that he had given his statement to the police after a month and during that period, he was all along residing his village and every day of the month the investigating officer had visited the village for search of the witnesses but P.W.7 was never ready to give evidence to the investigating officer. We could not find out any reason assigned by the learned trial Judge, though he had noticed this fact of P.W.7 remaining present in the village for a month and not given evidence in his judgment in paragraph-17 as to why his evidence could be accepted. We could not find out any reason assigned by the learned trial Judge, though he had noticed this fact of P.W.7 remaining present in the village for a month and not given evidence in his judgment in paragraph-17 as to why his evidence could be accepted. We are of the opinion that there was some other reason which we are likely to point out a little bit later as a result of which P.W.7 was hesitant in coming forward for answering the questions put to him by the investigating officer. 6. P.W.9 has stated that initially the mar-pit had taken place at the Darwaja and then he and others had ran away to a place which has been described by him both as Darwaja and shop of one Saheb Sah. It was a day time occurrence having taken place at about 11 A.M. We may presume that the shop was open and the transactions were going on. The owner of shop, i.e., Saheb Sah, in our opinion was one of the most important persons who could have narrated the true manner of occurrence. P.W.9 has stated that some part of the occurrence had taken place at his Darwaja and further that there had been some brick-batting at his Darwaja. His FIR also indicated as if the place of occurrence could have been his own Darwaja. But during the course of his evidence, he shifted that place of occurrence from his Darwaja to the shop of the said Saheb Sah and this was the reason that the defence has drawn his attention to the fact that he had never stated in the fardbeyan that the deceased had been assaulted at the shop of Saheb Sah. Thus, what appears to us is that it was a purposeful improvement in the prosecution story when the informant was changing the place of occurrence from his Darwaja to the shop of Saheb Sah. We had already pointed out that the informant admitted that there was some sort of mar-pit at his very Darwaja and the very line of evidence which was given by the witness in paragraph-8 gives an impression as if there had been some sort of fight which was mutual in nature and further that deceased Shivjee Yadav was probably assaulted at the very Darwaja and some blood had oozed out there also from the nostril of the deceased. The evidence in paragraph-8 given by P.W.9 itself indicated as if the occurrence had taken place in some other manner at the Darwaja of the informant and that probably was the reason that P.W.7 was avoiding to face the police for giving his statement. Thus, what we find is that in spite of the two witnesses being injured it could be very unsafe to place reliance on the evidence of P.Ws.7 and 9. 7. The learned trial Judge has held that the case was not false. We indeed are upholding the finding that the prosecution case might not be false as regards the murder of deceased Shivjee Yadav but the suppression of the real manner of occurrence does lead us to a conclusion that the prosecution was guilty of suppression of real manner and place of occurrence and that was the reason as to why the investigating officer was not examined by the prosecution. This finding of our’s entitles the appellants to the benefit of doubt. 8. In the result, the appeal is allowed. The judgment of conviction and order of sentence are hereby set aside. The appellants are acquitted of the charges they had been held guilty of. They are discharged from the liabilities of their bail bonds. Appeal allowed.