Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 790 (PAT)

Parmeshwar Yadav v. State of Bihar

2014-07-18

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
DHARNIDHAR JHA, J.:–The two appeals arise out of judgment dated 7.9.1991 passed by the learned 3rd Additional Sessions Judge, Nawadah in Sessions Trial No. 46 of 1982/86 of 1986 by which the six appellants, three in each of the two appeals, were held guilty of committing offence under Section 302/149 of the Indian Penal Code and were directed to suffer rigorous imprisonment for life. In addition to the above conviction appellant Guru Sahai Prasad Yadav and Jeetan Yadav @ Jeetan Mahto were also found guilty of committing offence under Section 323 of the Indian Penal Code, but no separate sentence was passed upon them by the learned Trial Judge. The two appeals have been preferred by the appellants to question the findings recorded by the learned trial Judge and appropriateness of the sentence passed upon them. 2. The deceased Munshi Yadav happened to be the full brother of the informant Sukhdeo Prasad Yadav (P.W. 4). It was stated that after having taken his dinner at about 7 p.m. on 13.11.1981, the deceased had gone into the fields located in the south east of the village for irrigating his field. The informant heard some whining sound coming from the direction in which his brother had gone. As such he went there to find that the six appellants were assaulting the deceased with the butt part of their lathies. The informant further found that appellant Guru Sahai Prasad Yadav had mounted over the chest of his brother Munshi Yadav while appellants Parmeshwar Yadav and Lalo Yadav were pressing the neck of his brother whose voice was quite choked, but was still sending out the signal that he was being killed. When the witnesses and the informant attempted to intervene, they were also assaulted with lathi by the appellants. It was specifically stated by the informant that appellant Janki Yadav gave two lathi blows on his right hand while Baleshwar Yadav (P.W. 2) was assaulted by appellant Jeetan Yadav @ Jeetan Mahto with lathi on his head. P.W. 1 Mosafir Yadav was give a lathi blow on his head by appellant Guru Sahai Prasad Yadav when the informant was being assaulted by others. P.W. 1 Mosafir Yadav was give a lathi blow on his head by appellant Guru Sahai Prasad Yadav when the informant was being assaulted by others. In spite of the resistance set up by the informant and his witnesses, the accused persons did not release the deceased and mounted and jumped over the chest of Munshi Yadav and continued giving blows with the butt part of lathis to him causing multiple injuries to him as a result of which the deceased became very precarious who was brought first to his house and, thereafter, was brought to the police station for lodging the report (Ext. 3). 3. On information being lodged at the police station, the case was investigated into by P.W. 7 S. I. Balmiki Sharma who was the Officer-in-Charge of Govindpur Police Station and he held inquest upon the dead body at the police station and prepared the inquest report (Ext. 4) and thereafter, recorded the statements of witnesses including the informant and others and came to the place of occurrence for inspecting it. He completed the investigation and sent up the accused persons for their trial. 4. The defence of the appellants, as may appear from paragraph 8 of the deposition of P.W. 4, was that they had been falsely implicated on account of the fact that appellant Rohan Yadav had filed a case against the deceased and others and no occurrence in the manner and of the description had ever taken place. 5. During the course of the trial, seven witnesses were examined by the prosecution out of whom P.W. 1 Mosafir Yadav, P.W. 2 Baleshwar Yadav, and P.W. 4 Sukhdeo Prasad, the informant, supported the story as eye witnesses. P. W. 3 Ramu Mahton who was named in the FIR as an eye witness was tendered for cross-examination. P.W. 5 Baso Yadav stated that he saw the informant and others carrying Munshi Yadav and on enquiry was told that he had been assaulted by the present set of appellants. Thus, he was not an eye witness to the occurrence, rather claimed knowledge about the incident from P.W. 4 and others. Dr. Surendra Prasad Singh (P.W. 6) had held post-mortem examination on the dead body of Munshi Yadav and had prepared Ext. 2, the post mortem examination report. 6. Thus, he was not an eye witness to the occurrence, rather claimed knowledge about the incident from P.W. 4 and others. Dr. Surendra Prasad Singh (P.W. 6) had held post-mortem examination on the dead body of Munshi Yadav and had prepared Ext. 2, the post mortem examination report. 6. It was contended by Sri Bikaram Deo Singh, learned counsel appearing on behalf of the appellants in the above noted two appeals that as in the FIR so in the deposition of witnesses there was no statement indicating that there was any source of light at the place of occurrence. As such, the identification in the night of 13th of November, 1981 appears not possible. The next contention was that the manner of occurrence was not corroborated by the medical evidence as no injury with the butt part of lathi was found on the dead body nor any signs of any one having jumped over the chest of the deceased or to have pressed the neck was recorded by the doctor. Not only the informant, but most of his witnesses, as per the prosecution story, were also assaulted by the accused persons, but neither they were treated by any doctor nor any injury report or any doctor was produced to testify to the above claim of the prosecution witnesses and that further created a doubt as regards the claim of the witnesses about their presence at the place of occurrence. On these submissions, Sri Singh submitted that the judgment impugned herein is fit to be set aside and that the appellants deserved to be acquitted. 7. Sri Dilip Kumar Sinha, the learned Additional Public Prosecutor as also Sri Krishna Kant Singh, the learned counsel appearing on behalf of the informant were replying to the above submissions by pointing out that the witnesses were consistent about the participation of the accused persons and there was no doubt that Munshi Yadav was killed and even if the evidence was not clear or unambiguous the participation of the accused persons was definitely established, rendering the judgment to be sustained in the eyes of law. 8. 8. There could not be any controversy about it that the informant (P.W. 4) and his witnesses, like, Mosafir Yadav and Baleshwar Yadav were not bearing any injury as the prosecution appears neither having produced the doctor nor the medical report in support of the claim of the witnesses that they had been assaulted by one appellant or the other. P.W. 1 Mosafir Yadav stated that he was assaulted by appellant Guru Sahai Prasad Yadav while P.W. 2’s claim was that he was given blows with lathi by appellant Jeetan Yadav @ Jeetan Mahto. P.W. 4 the informant, likewise, was also averring that he was beaten up when he attempted to intervene so as to saving his brother by appellant Janki Yadav and Guru Sahai Prasad Yadav. There were specific allegations appearing against appellants named above that they had given lathi blows to P.Ws. 1, 2 and 4 and as regards P.W. 4 he claimed that two blows were given to him. That claim of the witnesses could have been tested from two angles. They had gone to the police station with the dead body of Munshi Yadav and they had very well stated to the police at the very time of lodging of the report that they had been assaulted by different appellants with lathi. It has to be presumed that in performance of his duty of investigation P.W. 7 S. I. Balmiki Sharma must have perused the individual persons of P.Ws. 1, 2 and 4 and if he could have found any injury on their persons he was duty bound to issue a medical report addressed to the Doctor so as to procure medical certificates of injuries which could have been present on the persons of the three witnesses. Even if the doctor had not been examined, the Court could have considered that evidence of the Investigating Officer to hold that indeed the witnesses were injured as injuries were found by the Investigating Officer on their persons and could very well have treated as persons who were present at the place of occurrence. What we find from the evidence of P.W. 7 is that he had inspected the persons of P.Ws Baleshwar Yadav, Sukhdeo Prasad and Mosafir Yadav and had issued injury certificates (Ext. 5 series). Thus indicating that they were bearing injuries. We find from the perusal of Ext. What we find from the evidence of P.W. 7 is that he had inspected the persons of P.Ws Baleshwar Yadav, Sukhdeo Prasad and Mosafir Yadav and had issued injury certificates (Ext. 5 series). Thus indicating that they were bearing injuries. We find from the perusal of Ext. 5 series that indeed, there were simple injuries which were found in the form of some lacerations or abrasions on the hand, head and again on the left side of the head of the informant Sukhdeo Prasad Yadav, Baleshwar Yadav (P.W. 2) and Mosafir Yadav (P.W. 1). Thus, probabilising that they might have been present at the scene of occurrence. But then being an injured witness does not put a witness into the category of a reliable witness and what the Court is required to do in such cases also, is to appreciate the evidence of such witnesses as an ordinary witness. One of us writing the judgment of the Court in Shailendra Singh Vs. State of Bihar, reported in 2009(2) PLJR 753 had laid down the proposition that merely because a witness is injured that does not make him reliable and the Court has to appreciate the evidence of such witness in the same manner by marshaling the facts so as to finding out whether his evidence inspired its confidence. Adopting that approach of appreciating the evidence of witnesses, what we find is that in spite of being injured the evidence of the three witnesses, thats, P.Ws. 1, 2 and 4 lacks in many detail so as to inspiring our confidence. There is a consistency in the evidence of above noted three witnesses that Guru Sahai Prasad Yadav had mounted over the chest of the deceased and had also probably jumped over it. But, what we find is that there is no mark of any violence recorded by P. W. 6 Dr. Surendra Prasad Singh during the course of holding the post-mortem examination. Likewise, two appellants Parmeshwar Yadav and Lalo Yadav are consistently alleged by two witnesses, i.e., P.Ws. 2 and 4 to have pressed the neck of the deceased. But, again there was no mark so as to suggesting that the allegation and evidence in that behalf could be acceptable. P. W. 1 Mosafir Yadav was in fact naming only one appellant Lalo Yadav as regards the act of pressing the neck of the deceased and was not naming Parmeshwar Yadav. But, again there was no mark so as to suggesting that the allegation and evidence in that behalf could be acceptable. P. W. 1 Mosafir Yadav was in fact naming only one appellant Lalo Yadav as regards the act of pressing the neck of the deceased and was not naming Parmeshwar Yadav. In the FIR which was the basis of the prosecution case and, as such, a very important document in the hands of the defence, it was specifically stated that Guru Sahai Prasad Yadav had given blows with butt part of lathi as did other accused persons, but again what we find is that the informant was giving up that part of the story while deposing in Court and P. W. 1 was stating that it was Guru Sahai Prasad Yadav who had given butt blows to the deceased. When it was the turn of P. W. 2 Baleshwar Yadav, he was adding two names that of Parmeshwar Yadav and Janki Yadav to the name of Guru Sahai Prasad Yadav as persons who had given blows with butt part of lathi to the deceased. None of the witnesses was pointing out as to which part of the body was hit by the butt part of lathi and we cannot add from our own imagination that their evidence was telling us that the blows had landed over the head of the deceased. If the witnesses were indefinite in pointing out as to what part of the body of the deceased was hit by the butt part of lathis, then we cannot put words in their mouths to raise inference that the blows given by the butt part of lathi had fallen only on the head of the deceased as was suggested by the learned counsel for the informant and the State. We have already noted that the doctor did not find any injury caused by butt part of lathi to the deceased. What did the doctor find has been described by him as:— (i) swelling with contusion on the right side of the forehead just above the upper eye lid, and (ii) swelling with contusion on the left parital region of scalp. The doctor did not give any dimension of the two contused swellings which were found on the head of the deceased. The doctor did not give any dimension of the two contused swellings which were found on the head of the deceased. We may venture to note that contused swelling must bear dimensions and a doctor who was holding the post-mortem examination was supposed to note down the dimension of the injuries. But, in absence of any description/dimension of the contused injuries we find ourselves at a loss as to how should we describe these injuries, especially when, none of the witnesses say that any blow with any lathi or any other hard and blunt substance was given to the head of the deceased. This is one of the reasons which indicates that the witnesses might not have seen the occurrence probably because the source of light was so deficient at the place of occurrence that they could not pick up as to who had given blows with which weapon and at what part of the body of the deceased. As such, their evidence was as indefinite as we have just pointed out. Besides, what we further wish to add is that the doctor, as we have already noted, did not find any mark of violence either on the chest or the neck of the deceased. 9. When there is a doubt regarding witnesses being competent or regarding the claim of witnesses being eye witnesses, then it is always dangerous to place reliance upon such witnesses to sustain conviction. Munshi Yadav was indeed killed but we are of the view that witnesses had not really seen the occurrence and they probably spoke out of their imagination because there was no source of light available at the place of occurrence. 10. The deceased was definitely assaulted on his head and at least two blows were given to him, but the manner of occurrence and the story told in that behalf by the witnesses appears so absurd that when it is considered in the light of the evidence of the doctor, it renders them not an eye witness and their claim as such is fit to be rejected by us that they really had seen the occurrence. 11. In the result, the two appeals succeed and they are allowed. The judgment of conviction and order of sentence passed upon the appellants are hereby set aside. The appellants of the two appeals are on bail. 11. In the result, the two appeals succeed and they are allowed. The judgment of conviction and order of sentence passed upon the appellants are hereby set aside. The appellants of the two appeals are on bail. They shall stand discharged from the liabilities of their respective bonds. ?