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2014 DIGILAW 1183 (PAT)

Deo Narayan Yadav v. The State of Bihar

2014-12-01

AMARESH KUMAR LAL, DHARNIDHAR JHA

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JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) The six appellants of the two appeals were put on trial by being charged under Sections 147, 148, 302/149 and 460 IPC and by judgment dated 28.02.1992 in S.T. No. 90/1990 appellants Sikan @ Sikandar Yadav and Birin @ Birendar Kumar Yadav were held guilty of committing offences under Sections 148,302 and 460 IPC and each of them were directed to suffer rigorous imprisonment for one year under Section 148 IPC and for life under Sections 302/460 IPC. Appellants Pradeep Kumar Yadav, Upendra Yadav, Bambahadur Yadav and Surendra Yadav were convicted of offences under Sections 147, 302/149 and 460 IPC and each of them was directed to suffer rigorous imprisonment for six months and also for life respectively on the two respective counts. So far as appellant Deo Narayan Yadav was concerned, he was convicted under Section 147 IPC as also under Sections 148, 302/149 and 323 IPC and while he was awarded rigorous imprisonment for life under Sections 302/149 IPC, he was to suffer rigorous imprisonment for one year under Section 148 IPC and for six months under Section 147 IPC, besides suffering rigorous imprisonment for six months under Section 323 IPC. The sentences passed upon the appellants were directed to run concurrently. While the two appellants who have been convicted specifically under Section 302 IPC jointly preferred their appeals the remaining five joined together to challenge the judgment of conviction and order of sentence separately. 2. We have heard the two appeals together and are disposing them of by this common judgment. 3. At about 10 P.M. on 02.09.1984, as per the informant Abhay Kumar Bishwash (P.W.4), his injured brother Umesh Kumar Bishwash (P.W.3) and his deceased brother Pankaj Bishwash were reading on a Chauki in the electric light which had been put on. The accused persons who are the five appellants before us came there variously armed, out of whom, two appellants, namely, Siken @ Sikandar Yadav and Birin @ Birendar Kumar Yadav were carrying country made guns. At the orders of appellant Deo Narayan Yadav the first shot was fired by appellant Siken @ Sikandar Yadav upon the deceased Pankaj Bishwash who tumbled down from the Chauki and died there. The informant stated that he, just after arrival of the accused persons, had gone inside the Chauki to hid himself. At the orders of appellant Deo Narayan Yadav the first shot was fired by appellant Siken @ Sikandar Yadav upon the deceased Pankaj Bishwash who tumbled down from the Chauki and died there. The informant stated that he, just after arrival of the accused persons, had gone inside the Chauki to hid himself. He heard the appellant Deo Narayan Yadav remonstrating that Satyanarayan Bishwash the father of the informant was sleeping inside the room and he be also killed. Appellant Birin @ Birendar Yadav went, accordingly, inside the room and fired the shot and killed Satyanarayan Bishwash. The appellant Deo Narayan Yadav said to have given farsa blow to injured Umesh Kumar Bishwash (P.W.3). 4. It was stated by the informant that his mother and Bua (i.e., father’s sister) who was a widow and was residing in his house came hearing the sound of gun shot and started raising alarm by stating that they had killed the two persons. Other family members also raised hue and cry as a result of which, the accused persons ran away from there. 5. The informant came out from under the Chauki and found that deceased Pankaj Bishwash had been hit in his stomach and the omentum had come out and he was in a very precarious condition, whereas appellant Birin @ Birendar Kumar Yadav had been hit twice, one in his ribcage and other in his back by the gun shot and he had died of the injuries. P.W.3 Umesh Kumar Bishwash had been hit with farsa on the left scapula. As the injured Umesh Kumar Bishwash and Pankaj Bishwash were not dead, they were put on cots and were transported for being brought to Madhepura hospital, but Pankaj Bishwash died in the way and Umesh Kumar Bishwash was hospitalized for being treated. 6. It was very much admitted by the informant in his fardbeyan that one Surendra Yadav had been murdered in 1984 in which he along with his two brothers Pankaj and Ajay were put on trial but they were acquitted. Besides, there had been some dispute which was coming on between the parties regarding their title and possession over a pond. There were the cases for which the murders had been committed. 7. Besides, there had been some dispute which was coming on between the parties regarding their title and possession over a pond. There were the cases for which the murders had been committed. 7. The investigating officer was not examined and we do not have, as such, the evidence as to how the investigation was carried out, but it appears very much apparent from the record that the appellants were sent up for trial and they were convicted and sentenced as set out at the very outset of this judgment. 8. The defence of the appellants was of false implication on account of the enmity as also on account of being implicated by the villagers who had assembled there. They had also pleaded that in fact no witness had identified any of the appellants. 9. Five witnesses were examined, out of whom, P.W.5 Dr. Arun Kumar Mandal had held postmortem examination only on the dead body of Pankaj Bishwash and had issued the postmortem examination report (Ext-2). The doctor who had held postmortem examination on Satyanarayn Bishwash had not been examined nor the postmortem examination was tendered in evidence. As regards the doctor who had treated and first attended on the injured Umesh Kumar Bishwash (P.W.3) was not examined and we do not know as to what was the injury found on the person of P.W.2. 10. As regards the oral evidence, P.W.1 Shakuntala Devi, the widow and Bua of the informant appears not an eye witness as in paragraph-4 she stated that she and his Bhauji, i.e., brother’s wife (P.W.2) had come out of the house after hearing sound of gun shot and went near the dead bodies and found that deceased Satyanarayan Bishwash and Pankaj Bishwash had been shot at and that P.W.3 Umesh Kumar Bishwash had been injured by giving a blow with farsa. Thus, what appears from this line of P.W.4 is that she had arrived at the scene of occurrence only after there had been firing of shots and giving of blow with farsa. This inference appears more appropriately supported when we consider the evidence of P.W.1 in paragraph-5 when she stated that there was enmity between the family of the informant and the accused persons from quite prior to the occurrence and it was the reason that P.W.1 had implicated them as persons who could have committed the offence. This inference appears more appropriately supported when we consider the evidence of P.W.1 in paragraph-5 when she stated that there was enmity between the family of the informant and the accused persons from quite prior to the occurrence and it was the reason that P.W.1 had implicated them as persons who could have committed the offence. The evidence of P.W.2 Madhuri Devi does not appear standing on a better footing as regards P.W.1 Shakuntala Devi. She had supported the prosecution story in examination-in-chief as an eye witness by assigning clear roles to the two appellants Siken @ Sikandar Yadav and Birin @ Birendar Kumar Yadav, and also to appellant Deo Narayan Yadav, but when she was cross-examined she appears stating as may appear from paragraphs-5 and 6 that she was sleeping in the night of the occurrence with P.W.1 inside the house and she woke up after hearing the sound of three gun shots and came out running from inside with P.W.1 and saw that deceased Pankaj Bishwash was lying injured with his omentum popping out of the belly and her husband was also very restless on account of injury which had been caused to him. P.W.2 stated that seeing her husband and son in such precarious condition, she lost her consciousness and when she was revived to her consciousness, she heard from persons who had assembled there that it were the present set of appellants who had indulged in the commission of the offence. P.W.2 stated in paragraph-6 that on account of suspicion which arose out of the enmity her family had with the accused persons, she implicated them. P.W.3 injured Umesh Kumar Bishwash was also supporting the prosecution story in its entirety but what appears from the evidence in paragraph-6 is that in spite of electricity available in his locality his family did not have any electric connection nor there was any electricity generating set possessed by his family. P.W.3 Umesh Kumar Bishwash further stated in paragraph-7 that he was reading and at that time he was facing west and all on a sudden deceased Pankaj Kumar Bishwash hit by the gun shot and he tumbled down the Chauki on to the surface. P.W.3 Umesh Kumar Bishwash further stated in paragraph-7 that he was reading and at that time he was facing west and all on a sudden deceased Pankaj Kumar Bishwash hit by the gun shot and he tumbled down the Chauki on to the surface. He concealed himself under the Chauki so long the accused persons would be there and when his mother and Bua came out of the house they brought him out from under the Chauki and he also learnt the names of the accused persons from villagers who had assembled there and concluded that it were the present set of appellants who had committed the offence and also learnt that it was appellant Deo Narayan Yadav who had given the farsa blow to P.W.3. In paragraphs-8 and 9, the witness stated that it was on account of the old enmity existing between his family and that of the accused persons that he believed the words of villagers to name the accused persons. P.W.4 Abhay Kumar Bishwash, the informant of the case also appears supporting the case in his examination-in-chief, but in paragraphs 7, 8, 9 and 10, he gave evidence as if he was not an eye witness. His evidence is also of the same class and category as was given by P.W.3 Umesh Kumar Bishwash. P.W.4 Abhay Kumar Bishwash too stated that he also went under the Chauki and concealed himself and kept lying there by his belly with his faced towards the ground not to see any one and ultimately he came out to hear the villagers telling that it were the appellants who had committed the offence. 11. This is how the prosecution witnesses, in spite of having supported the prosecution story in examination-in-chief, had turned out not an eye witnesses during their cross-examination. They had given conflicting evidences in Court, once supporting the prosecution story by properly identifying and naming the accused persons, but at the other occasion when they were cross-examined by the defence, they had given evidence as if they had not seen any one and had identified them and had rather implicated the accused persons after hearing their names from his villagers who had assembled there. Who were the villagers who had stated the names of the appellants, had not been stated by any of the witnesses, like, P.Ws.1, 2, 3 and 4 and, as such, there was no evidence from such persons as the primary source of information who had given names of the witnesses. The contradictory evidence of the witnesses itself appears destructive of the value of their evidence, rendering it unsafe to uphold the conviction of the appellants. The prosecution probably finding itself in such a situation had given up the examination of the other doctors and the investigating officer. But, what struck us the most was that the Additional Public Prosecutor who was conducting the prosecution and the Court who was recording the evidence of the witnesses was completely blind to one situation that the witnesses had perjured themselves by making false statement on oath in cross-examination. The Additional Public Prosecutor was duty bound to seek the permission of the Court to declare the witnesses hostile and cross-examine them not only to the facts which they had stated in cross-examination but also to the fact that they had perjured themselves by making statements which was completely false. The officer who had recorded the statements was also probably blind to the above important aspect and from of the trial proceedings we are saddened to find that perjuring was allowed to be committed. However, these are matters which could have been taken note of quickly and with urgency, during the course of either the trial proceeding or when the judgment had been delivered. But, after twenty two years and more of time having been lapsed, we only have to lament the proceedings than to do any further. We find that the judgment of conviction and the order of sentence passed upon the appellants was not sustainable in view of the evidence which was available to us. 12. In the result, the two appeals succeed and they are allowed. The judgment of conviction and the order of sentence are hereby set aside. The appellants are on bail. They shall stands discharged from the liabilities of their respective bonds. Appeal allowed.