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2014 DIGILAW 683 (PAT)

Jai Kishore Yadav v. State of Bihar

2014-06-18

ANJANA PRAKASH, DHARNIDHAR JHA

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JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) Appellant Jai Kishore Yadav of Criminal Appeal (DB) No.105 of 1991 has been convicted under Section 302 I.P.C. and sentenced to R.I. for life as also under Section 148 I.P.C. and sentenced to R.I. for six months. Appellants Shibu alias Shib Charan Yadav, Sarbin Yadav, Joginder Yadav and Arbind Yadav of Criminal Appeal (DB) No.114 of 1991 have been convicted under Section 326 I.P.C. and sentenced to R.I. for two years, Appellants Shibu alias Shib Charan Yadav, Joginder Yadav and Arbind Yaav have been convicted under Section 148 I.P.C. and Appellant Sarbin Yadav has been convicted under Section 147 I.P.C. and sentenced to R.I. for six months under each count by a judgment dated 8.2.1991 passed by the Additional Sessions Judge XI, Munger in Sessions Trial No.79 of 1983. 2. The case of the prosecution according to P.W.6 Prakash Yadav is that on 13.6.1982 at about 8:30 A.M. he saw the Appellant Shibu alias Sheo Charan Yadav cutting his ‘Pusta’, at which he protested but he continued to do so. Just then the deceased Balmiki Yadav arrived and attempted to stop the accused persons from demolishing the ‘Pusta’ as it would damage their wall during rainy season. Enraged at this, Jai Kishore Yadav asked all the accused persons to come with arms and finish the entire family. He then proceeded to assault the deceased Balmiki Yadav with a bhala on account of which he fell down and died. The rest of the accused persons also assaulted the Informant. 3. The defence of the Appellants was that a cattle shed belonging to them was attempted to be captured by the prosecution party, at which a fight ensued. In this course Damodar Prasad, brother of Appellant Jai Kishore Yadav, Sarbin Yadav, Yoginder Yadav, Arbind Yadav and son of Appellant Shibu Yadav attempted to stop them, but instead they got enraged and started to assault him with bhala and farsa. He then fell down and the deceased Balmiki Yadav gave bhala blows and attempted to pierce a bhala blow on him. Just then Mangroo Yadav, his uncle D.W.3, arrived there and extricated the bhala from his hand and instead assaulted the deceased Balmiki Yadav. A counter case was instituted which was proved as Exhibit-A by the Investigating Officer. 4. He then fell down and the deceased Balmiki Yadav gave bhala blows and attempted to pierce a bhala blow on him. Just then Mangroo Yadav, his uncle D.W.3, arrived there and extricated the bhala from his hand and instead assaulted the deceased Balmiki Yadav. A counter case was instituted which was proved as Exhibit-A by the Investigating Officer. 4. During trial, the Prosecution examined as many as thirteen witnesses out of whom P.W.11 Hari Nandan Yadav is a Tendered Witness. P.W.7 Jugal Yadav has been declared Hostile. P.W.8 Dr. Anirudh Prasad examined the Informant. P.W.9 Dr. Ramesh Chandra Mishra examined one Suresh Prasad Yadav, son of Yogendra Prasad Yadav, with whom we have no concern and Ravi Kumar Yadav (P.W.1). P.W.10 Dr. R. N. Singh held the postmortem of the deceased. P.W.12 Ram Kishore Yadav is a formal witness on Inquest Report. P.W.13 Zahir Alam is the Investigating Officer. 5. The Counsel for the Appellants submits that even though Rishideo Yadav, Ravindra Yadav, Radhe Yadav and Besheshwar Yadav have been named in the First Information Report and these names have been reiterated in the evidence during trial by the Informant, but none of them have been examined by the Prosecution. He further submits that Jugal Yadav, who was named in the First Information Report, has not supported the case of the prosecution and hence was declared hostile. As for the rest of the Prosecution Witnesses, none of them have been named and, therefore, they should be disbelieved. The further submission is that there is documentary as well as oral evidence in support of the fact that the occurrence had taken place in another manner which was suggested even to the witnesses during trial, but they have merely denied it and none of them have offered any explanation to the same. In view of such denial, evidently the Prosecution case is fit to be disbelieved. He further submits that if at all the occurrence had taken place, it was on account of right of private defence which was available to them as per Section 100 of the Indian Penal Code. 6. On the other hand, the Counsel for the State submits that there is consistent evidence by eye witness account of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6, who have supported the Prosecution case in its entirety and, therefore, the Appeals have no merit. 6. On the other hand, the Counsel for the State submits that there is consistent evidence by eye witness account of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6, who have supported the Prosecution case in its entirety and, therefore, the Appeals have no merit. The further submission is that the Investigating Officer submitted Final Report in the counter version and hence that should be left out for consideration by this Court. 7. To enable understanding the arguments advanced on behalf of the parties, it would be relevant to refer to the relevant portion of the evidence on record. 8. P.W.1 Ravi Kumar Yadav is admittedly the brother of the Informant. He is only on the point of having reached the place of occurrence when Appellant Jai Kishore Yadav was pulling out bhala from the chest of the deceased. No doubt he stated that he saw the assault on the rest of the witnesses. In paragraph 7 it was suggested to him that in fact it was the prosecution party which was the aggressor and this occurrence had taken place in assertion of civil rights of the accused persons, to which he plainly denied knowledge. In paragraph 11 the facts of the counter version was suggested to him but once again he merely denied the same. 9. P.W.2 Surendra Yadav @ Suren Yadav is the cousin of the Informant who also stated that he along with P.W.1 went to the place of occurrence and merely saw the Appellant Jai Kishore Yadav puling out the bhala from the chest of the deceased Balmiki Yadav. He stated that a number of villagers had gathered at the place of occurrence, but it appears that not a single independent witness has been examined by the prosecution. In paragraph 11 it was suggested to him that in fact the Prosecution party was armed to which he gave a denial. 10. P.W.3 Arun Prasad Yadav @ Arun Kumar Yadav stated that in the morning of the day of the occurrence he saw Jai Kishore Yadav assaulting Balmiki Yadav with a bhala on his stomach while the rest of the accused persons had assaulted the witnesses. His evidence appears to be doubtful since he accepted that he used to work in a Taxi Stand and that on that particular day even while his working from 8:00 A.M. to 8:00 P.M. he was present in the village. His evidence appears to be doubtful since he accepted that he used to work in a Taxi Stand and that on that particular day even while his working from 8:00 A.M. to 8:00 P.M. he was present in the village. He was thus a chance witness. As for the manner of the occurrence, he says that when he arrived, the occurrence had already taken place and he had merely seen Prakash Yadav, the Informant, standing alone and quietly. In such circumstances, there was no reason why the accused persons would have assaulted the deceased without any provocation. He accepted that the left hand of Appellant Shiv Charan Yadav was cut and he was maimed as also he was an old person of around 80 years. He also denies the fact of the counter version. 11. P.W.4 Ramdeo Yadav @ Shyamdeo, who is also a chance witness, stated that in the morning of the occurrence the Informant was standing along with Jugal Yadav (P.W.7), Radhey Yadav (not examined), Ravindra Yadav (not examined), Rishideo Yadav (again not examined), Tuntun Yadav (not examined), Arun Yadav (not examined) and Jai Kishore Yadav was altercating with the Informant. Just then the deceased allegedly arrived there and enquired about the dispute. When he was informed, he also intervened and protested at the acts of Jai Kishore Yadav, at which the fight started. He describes the manner of occurrence. In his cross examination he accepted that he used to work as a Khalasi at the railway gumti and that he, Radhey Yadav and Prakash Yadav (P.W.6) were accused in a case instituted under Section 307 I.P.C. in which he was let off on probation while the rest were convicted and were sentenced for four years. He also accepted that on 8.1.1976 a case had been instituted against him by one Jain Nandan Yadav in which Appellant Jai Kishore Yadav was a witness. He gives a different version of the occurrence inasmuch as he says that while Jai Kishore Yadav was abusing Balmiki Yadav, the deceased, had come and started to talk with his brother, the Informant. Then the deceased asked Jai Kishore Yadav to stop the cutting of ‘Pusta’, but Jai Kishore Yadav did not abuse him and instead only said that he would continue to do so and he could do what he wanted. Then the deceased asked Jai Kishore Yadav to stop the cutting of ‘Pusta’, but Jai Kishore Yadav did not abuse him and instead only said that he would continue to do so and he could do what he wanted. It was then the deceased started to move towards Jai Kishore Yadav, at which he wielded a bhala blow. In paragraph 10 the fact of the counter version and that Damodar Prasad was being assaulted by the Prosecution party, at which Mangroo Yadav assaulted the deceased with the bhala, was suggested to him but he merely denied the same. 12. P.W.5 Prakash Chandra Yadav once again a chance witness stated that while he was going to the Bazar, he reached the house of the informant where he saw the occurrence. It appears that he was in service since 1972 but on the date of occurrence he said that it was a holiday and, therefore, he was at his home. It was suggested to him that he is a relative of the prosecution party but he denied the same. In paragraph 9 it was also suggested to him that Damodar Prasad had been assaulted by the prosecution party in which course Mangroo Yadav protested and instead assaulted the deceased, on account of which he died, but he also merely denied it. 13. P.W.6 Prakash Yadav is the Informant. During trial he stated that he along with him P.W.7 Jugal Yadav (Hostile), Rishideo Yadav, Radhe Yadav, Ravindra Yadav, Bisheshwar Yadav, Tuntun Yadav (none examined) were talking among themselves, when the altercation arose and Balmiki Yadav (the deceased) intervened, at which an altercation started between the two parties, in course of which he was assaulted. Several suggestions were given to him with regard to possession of the land, upon which the occurrence had taken place and that in fact the accused persons were merely asserting the rights over the same and it was the prosecution party which was the aggressor. It was also suggested to him that on the date of occurrence in fact Damodar Prasad was assaulted, which was protested by the rest of the accused persons and then Mangroo Yadav snatched the bhala from the hand of the deceased and assaulted him with the same, on account of which he died. He merely denied this suggestion. 14. P.W.13 Zahir Alam is the Investigating Officer. He merely denied this suggestion. 14. P.W.13 Zahir Alam is the Investigating Officer. He inspected the place of occurrence and found some blood spots outside corner of the house of the informant. He proves Exhibit-8 which is the counter version but adds that he has submitted final report in the matter (Exhibits A/B). 15. The defence examined four witnesses, whose evidence is important for evaluating the veracity of the present case. 16. D.W.1 Damodar Prasad is the brother of the Appellants Jai Kishore Yadav, Sarbin Yadav, Jogindra Yadav and Arbind Yadav and son of Appellant Shibu Yadav and states that on 13.6.1982 at about 8:00 A.M. while he was in his house and none else was present, the Prosecution party came there and started to construct a mud pusta, at which he protested that his father or brother was not there and they should not do such a thing. He was then assaulted him with fists and slaps, at which he started to scream. The fight escalated into a situation when the prosecution party came once again with arms and Balmiki Yadav, the deceased, started to assault him with the bhala. He was variously assaulted by the rest of the accused persons because of which he became unconscious and had to be removed to the Hospital. He then instituted a substantive case, the fard beyan of which has been proved as Exhibit A and a protest petition which was filed after final report was submitted. 17. Jogindra Yadav has been examined as D.W.2, who stated that when he returned from the field, he found his brother Damodar Prasad in an injured condition and was being taken to the Hospital. 18. D.W.3 Mangroo Yadav stated that on the date of occurrence the accused persons and deceased Balmiki Yadav were assaulting his nephew Damodar Prasad, on account of which he became unconscious. Since Balmiki Yadav was attempting to further assault Damodar Yadav, he snatched the bhala from his hand and instead assaulted him, on account of which he fell down and died. 19. D.W.4 Jagdish Pandit proved the injury report of Damodar Prasad. 20. Since Balmiki Yadav was attempting to further assault Damodar Yadav, he snatched the bhala from his hand and instead assaulted him, on account of which he fell down and died. 19. D.W.4 Jagdish Pandit proved the injury report of Damodar Prasad. 20. On a fair evaluation of the prosecution case what emerges is that none of the persons, who have deposed as eye witnesses, were named in the First Information Report, which cannot be viewed leniently since they were none others the close relatives of the informant or also injured in the same transaction. It thus appears that for some strange reason their names were not disclosed at the earliest instance probably so as to attempt to create a story which would be seem plausible and stand the scrutiny of the Courts. Further from the evidence of P.W.9 Dr. Ramesh Chandra Mishra that he had also examined one Suresh Pd. Yadav S/o Yogendra Pd. Yadav, of which there is no reference in the Prosecution story, raises a reasonable suspicion about the attempt of the Prosecution to create a false story. 21. It further appears that the unassailable fact is that some kind of occurrence had taken place on 13.6.1982 at 8:30 A.M. but not in the manner which has been brought before the Court. We cannot lightly brush away the evidence of the defence witnesses who appear trustworthy. Moreover, the fact that the prosecution witnesses did not offer any explanation to the bold suggestions of the Defence also is adverse to the prosecution story. 22. The other admitted fact that there was a bona fide dispute between the parties in which background independent witnesses, especially ones who were named in the First Information Report should have been produced by the Prosecution so as to enable the Court to arrive at a definite finding on the manner of occurrence. If the Prosecution fails in its duty, it would be difficult for the Court to accept the Prosecution case as it is presented before the Court and uphold the conviction of the Appellants. 23. However, we are not inclined to accept the submission of the learned Counsel for the Appellants with regard to their right of private since according to D.W.3 himself he had assaulted Balmiki Yadav, the deceased, not to thwart his design but in anger against the assault upon his nephew who had been rendered unconscious. 24. 23. However, we are not inclined to accept the submission of the learned Counsel for the Appellants with regard to their right of private since according to D.W.3 himself he had assaulted Balmiki Yadav, the deceased, not to thwart his design but in anger against the assault upon his nephew who had been rendered unconscious. 24. In view of the nature of the evidence of the witnesses as discussed above, we are inclined to give the benefit of doubt to the Appellants. 25. In the result, both the appeals are allowed and the judgment and order of conviction and sentence passed on 8.2.1991 by the Additional Sessions Judge XI, Munger in Sessions Trial No.79 of 1983 is set aside. The appellants are acquitted of the charges levelled against them and are discharged from the liabilities of their respective bail bonds.