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2014 DIGILAW 686 (PAT)

Raj Ballam Yadav v. State of Bihar

2014-06-19

ANJANA PRAKASH, DHARNIDHAR JHA

body2014
JUDGMENT (Per: HONOURABLE MR. JUSTICE DHARNIDHAR JHA) 1. These two appeals arise out of the judgment dated 23rd June, 1990, passed by 11th Additional Sessions Judge, Patna, in Sessions Trial No.608 of 1985/25 of 1987 by which seven appellants of the two appeals were convicted of offence under Section 302/34 Indian Penal Code and each of them was directed to suffer rigorous imprisonment for life. Appellant, Chandeshwar Yadav, (Cr. Appeal No.304 of 1990) had distinctly been charged under Section 27 of the Arms Act and after being convicted for that offence he was directed to suffer rigorous imprisonment for two years which sentence was to run concurrently with the sentence awarded to him under Section 302/34 Indian Penal Code. 2. PW 6, Devnarayan Singh, father of deceased Mathura Prasad Singh gave his fard-e-beyan in Patna Medical College & Hospital before the Pirbahore Police stating that he and his son deceased Mathura Prasad Singh were harvesting Masoor crop in their field. All on a sudden, nine accused persons named in the FIR came shouting Maro-Maro and surrounded the deceased Mathura Prasad Singh. Appellant Chandeshwar Yadav fired a shot from his pistol which hit the deceased and he fell down whereafter Appellant Yogendra Yadav threw a bomb upon him which detonated and caused injuries to the deceased. Persons, who were working around the field, rushed to the scene of occurrence whereupon the accused persons ran away from there. 3. The deceased was picked up and was rushed to Patna Medical College & Hospital where he was declared brought dead. 4. After recording the fard-e-beyan (Ext.5), Pirbahore Police held inquest upon the dead body of Mathura Prasad Singh as may appear from the evidence of PW 11, Giridhar Narayan Singh, who was posted in that Police Station and prepared the Inquest Report (Ext.6). He dispatched the dead body to the Post Mortem Room of Patna Medical College & Hospital for facilitating autopsy on the dead body. Dr. R. B. Choudhary, who was the Professor of Forensic Medicine in Patna Medical College and Hospital, held postmortem examination and prepared the report (Ext.9). The evidence has come from PW 12, Dr. R. P. Srivastava, Assistant Professor in Forensic Medicine, Patna Medical College & Hospital, that Dr. Choudhary demised. As such, he could not come to depose in Court. Dr. R. B. Choudhary, who was the Professor of Forensic Medicine in Patna Medical College and Hospital, held postmortem examination and prepared the report (Ext.9). The evidence has come from PW 12, Dr. R. P. Srivastava, Assistant Professor in Forensic Medicine, Patna Medical College & Hospital, that Dr. Choudhary demised. As such, he could not come to depose in Court. The learned Trial Judge considered the document Post Mortem Examination Report (Ext.9) to record certain findings which is one of the points which has fallen for our consideration and we propose to record our finding a bit later. 5. It appears from the evidence of PW 10, S. I. Madan Prasad, that initially a rumor was afloat that a fight had ensued between Yadav and Kurmi communities and the deceased Mathura Prasad Singh had fallen a bullet. That information was reduced into writing vide Station Diary Entry No.128 dated 10.03.1982. Subsequently, on receipt of the fard-e-beyan (Ext.5), the Officer-in-Charge of Phulwari sharif Police Station drew up the FIR of the case (Ext.7) and handed over the investigation to PW 10, who came to the place of occurrence and inspected the field where the incident had occurred and found that it was the field of one Bal Binod Singh where some blood stains were found on earth which was seized by preparing seizure memo. He noted down the description of the place of occurrence in the case diary and recorded the statement of the witnesses, but was relieved of the investigation. How the investigation proceeded from that stage is not known to us on account of non-examination of other Investigating Officer. At any rate, what transpires from the record is that seven appellants before us were put on trial and convicted under Section 302/34 Indian Penal Code with a distinct charge separately framed against Chandeshwar Yadav under Section 27 of the Arms Act. 6. The defence of appellants was of false implication and further that deceased Mathura Prasad Singh had been killed by someone else at a different point in time which could not be known to anyone and it was on account of some sort of rivalry that the appellants were implicated in this case. 7. 6. The defence of appellants was of false implication and further that deceased Mathura Prasad Singh had been killed by someone else at a different point in time which could not be known to anyone and it was on account of some sort of rivalry that the appellants were implicated in this case. 7. The prosecution in order to establish its case examined as many as twelve witnesses, out of whom, PW1 Nathun Singh, PW2 Hans Lal Singh, PW 3 Ambika Singh, and PW 5 Ram Babu Singh, came to support PW 6, the Informant of this case and father of the deceased Mathura Prasad Singh, as eye witnesses to the occurrence. PW 4 Jag Narain Singh is a witness of seizure of blood stained earth and other articles. PW 7 Mahendra Singh was also a formal witness, who had typed the Protest-cum-Complaint Petition which was filed by PW 6 during the pendency of the investigation complaining against unfair investigation by the Police Officers. PW 8 Laxmi Narayan Singh was yet another formal witness who had typed an affidavit on the instruction of Sri Satya Deo Singh, Advocate. PW 9 Sri Bhagwan Pandit was a witness of formal character, who had identified the writing and signature of ASI Giridhar Narayan Singh, who had written the fard-e-beyan and prepared the Inquest Report. PW 10, as we have already pointed out, was S.I. Madan Prasad, who had partly investigated the case and PW 11 is ASI Giridhary Narayan Singh, who, besides, preparing the Inquest Report after holding the inquest upon the dead body had also noted down the fard-e-beyan (Ext.5) of the Informant. 8. Learned trial Judge rejected the evidence of PW 2, Hans Lal singh, by giving reasons as appear in paragraph 10 of the judgment, but he accepted the evidence of other witnesses in spite of the fact that defence had drawn the attention of the witnesses and had very categorically suggested to them that they had not made some vital statements which could indicate that they were not present at the scene of occurrence and went on to hold the appellants guilty of committing the offence for which they had been sentenced as pointed out by us at the very outset of the present judgment. 9. 9. During the course of hearing, it was contended that using medical evidence without examination of the doctor as appears done by the trial Judge in paragraph 6 of the judgment is not only against the settled principle of law but appears giving rise to a conjecture coming out of the mind of the learned trial Judge. The learned trial Judge was imaging situation which was simply not supported by evidence. Submission was also that the basic prosecution case that the Informant and his deceased son were harvesting Masoor crop in their field also appears not established as the Informant himself had stated that it was not his field, rather, it was the field of one Bal Binod Singh. Submission in this connection is that evidence of the Informant that he and his sons were harvesting Masoor crop in two different parts of the field and simultaneously there were bundles of Masoor crop in the field, but the description of the place of occurrence given by PW 10 does not indicate that a single figment of harvested Masoor plant was found lying anywhere in the field. Initially, the prosecution case was that the occurrence had taken place in same very field from where Masoor crop was being harvested, but subsequently, during trial the Informant probably, being conscious of the fact that occurrence had taken place at some other field, had stated that he and his son ran away for their lives and the deceased was surrounded at some distance and was killed. Submission was that at any rate even assuming that medical evidence was admissible, the story of prosecution that Chandeshwar Yadav had fired a shot from pistol which hit the deceased whereafter Yogendra Yadav had exploded bombs appears doubtful story. 10. We may first point out that the learned trial Judge has accepted the evidence of PWs 1, 3, 5 and 6 holding that their evidence did not bear any material contradiction. But, while doing so he has also noted that the Investigating Officer, who had recorded the evidence of some of these witnesses, had not been examined. In the case of only one witness, i.e., PW 5 Ram Babu Singh, the learned trial Judge has recorded that PW 10 had examined him and no statement which was put to PW 5 during cross-examination as statement and as an improvement, was got proved from PW 10. In the case of only one witness, i.e., PW 5 Ram Babu Singh, the learned trial Judge has recorded that PW 10 had examined him and no statement which was put to PW 5 during cross-examination as statement and as an improvement, was got proved from PW 10. We find the findings correct, but only drawing attention and getting it proved from the Investigating Officer could not be a hallmark of accepting a witness. The evidence of witness could be judged and appreciated from many different angles. One has to read the probability as regards the claim of the witness that he was either present at the scene of occurrence or was present near it appropriately to see the manner of occurrence. It has been recorded by the learned trial Judge that Ram Babu Singh, brother of the deceased and son of the Informant was not figuring as a witness in the FIR, but his evidence was inspiring confidence. The learned trial Judge appears to have missed one of the most important aspects of the evidence of PW 5 which, in our opinion, was very material. PW 5 was the brother of the deceased. He was not figuring in the FIR and he stated that he was going to his field where the Masoor crop was being harvested by his father and brother and when he had reached near Tube Well, he saw nine accused persons coming raising cries of ‘kill him-kill him’. PW 5 did not do anything though he felt that he brother could be killed to either intervene into the matter or to save his brother. He does not even make any effort to pick his brother up, who was picked up by the persons other than PW 5. This conduct of PW5 appears to us extremely surprising and this is probably the reason that he was not cited as a witness in the FIR because he was nowhere around the place of occurrence. So far as witness PW 1, Nathun Singh, is concerned, he was clearly suggested that he never stated to the police that he was also harvesting his Masoor crop in his field. In paragraph 10, this witness had been very honest in admitting that he never stated before the police that he was harvesting Masoor crop in his field. So far as witness PW 1, Nathun Singh, is concerned, he was clearly suggested that he never stated to the police that he was also harvesting his Masoor crop in his field. In paragraph 10, this witness had been very honest in admitting that he never stated before the police that he was harvesting Masoor crop in his field. Not only that, he also admitted that he had not shown the harvested Masoor crop in the field to the IO. Thus, what appears to us is that there is serious doubt regarding the claim of the prosecution that PW 1, Nathun Singh, was also present at the scene of occurrence while he was harvesting his Masoor crop. The other witness, who has been believed by the court below, Ambika Singh (PW 3) had claimed that he was harvesting onions from his field which was lying just by the side of the field of the Informant which was seriously challenged by suggesting to PW 3 in paragraph 10 that he had not stated this fact of harvesting his onions before the police. What again has influenced our mind in not placing reliance upon the evidence of PW 3 is that he was questioned by the police on 29.04.1982, i.e., about one month and nineteen days and this witness in spite of the opportunity offered to him as may appear from paragraph 8 of the cross-examination did not give any explanation as to why he did not go before the police for making his statement. There is nothing in the evidence of PW 3 that he had gone out of village or had some other reasons so as not to appear before the police, rather, what we find is that he was a co-villager of the Informant, who was residing in the same village and he also claimed that he had given his statement on the very day of the incident which fact runs contrary to the specific challenge set up by defence with reference to a particular date on which the witness has been questioned by the police. Here is the reason which we find the defence of the appellants prejudiced on account of non-examination of the main Investigating Officer. Here is the reason which we find the defence of the appellants prejudiced on account of non-examination of the main Investigating Officer. The defence was very categorical in cross-examining PWs 1, 2 and 3 regarding the date on which they had given their statements before the police and the defence had suggested to the witnesses with reference to dates, but those questions were negatived by the witnesses. The fact would be verified or proved by examining the Investigating Officer, who could have been competent to say as to when he recorded the statement of PWs 1, 2 and 3. The non-examination of the Investigating Officer, as such, besides, not permitting the defence to prove the statement brought on record by drawing the attention of the witnesses, snatched the opportunities from it to establish the fact that the examination of the witnesses by the police was highly belated. These are the reasons upon which we have serious reservations in acting upon the evidence of these witnesses. 11. So far as the evidence of the Informant is concerned, the manner of occurrence could not be established because of the fact that Dr. R. B. Choudhary, who had held post mortem examination was not examined. It is true that PW 12, Dr. R. P. Srivastava, came forward to depose that Dr. Choudhary was dead and we do not have any hesitation in accepting that evidence, but there being no evidence as to what was the nature of injuries which were found on the dead body and what was the weapon by which those injuries could have been caused, the very use of that evidence by the learned trial Judge has not gone well with us. The opinion of the doctor was not there and if the Post Mortem Examination Report could be used, which was used by the learned trial Judge, then the trial Judge ought to have noted in his judgment that causing injury by bullet was categorically mentioned in it as an unlikely event. Thus, the very initial allegation as regards the manner of occurrence that appellant Chandeshwar Yadav had fired a shot stands disapproved from the very document which was relied by the learned trial Judge. Complicity of Chandeshwar Yadav and, as such, the manner of occurrence or the manner in which the assault was opened on the deceased becomes suspicious. Thus, the very initial allegation as regards the manner of occurrence that appellant Chandeshwar Yadav had fired a shot stands disapproved from the very document which was relied by the learned trial Judge. Complicity of Chandeshwar Yadav and, as such, the manner of occurrence or the manner in which the assault was opened on the deceased becomes suspicious. It is true that appellant Yogendra Yadav is alleged to have detonated a bomb, but once the major part of the story gets doubtful on account of the medical evidence, it is quite unsafe for us to hold the appellants guilty of having participated in the occurrence. 12. The use of the medical evidence without examining the doctor, in our opinion, was in exercise of complete violation of settled principle of law. In addition to above, what we find is that the learned trial Judge has allowed PW 12, Dr. R. P. Srivastava, to render an opinion that the injuries were sufficient in ordinary course of nature to cause death. The very evidence of PW 12 indicates that he was never associated with holding of postmortem examination. As such, his opinion is not only in different context but is also a completely inadmissible piece of evidence. In fact, the very use of the document in order to rely to give a finding so as to derive support to the opinion of the Court, in our considered view, is not permissible in law. 13. The above are the reasons upon which we find that the appellants deserve to be acquitted after being extended benefit of doubt. We hereby extend the benefit of doubt to the appellants and by allowing the two appeals the judgment and order of conviction dated 23.06.1990 passed by the 11th Additional Sessions Judge, Patna, in Sessions Trial No.608 of 1985/25 of 1987 is hereby set aside. All the seven appellants are on bail and, as such, they are discharged from the liabilities of their respective bail bonds. 14. Both the appeals stand allowed.