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2014 DIGILAW 897 (PAT)

Dukhharan Yadav v. State of Bihar

2014-08-21

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
Judgment This appeal has been preferred against the judgment of conviction dated 29.06.1991 and the order of sentence dated 1.07.1991 passed by the learned 4th Additional Sessions Judge, Aurangabad in Sessions Trial No.209/1984/82/1987 by which all the appellants have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and the appellant no.3 Sahendra Yadav has been further convicted under Sections 323/34 of the Indian Penal Code, but no separate sentence has been passed. 2. The prosecution case, in brief, is that on 10.01.1984 at about 4.00 P.M., the appellant no.1 Dukhharan Yadav and his sons-appellant no.2 Mahendra Yadav and appellant no.3 Sahendra Yadav were digging the Ota (made up soil) and the northern wall of the informant (P.W.5) for making a whole in the wall for exit, her husband Chandradeo Yadav (deceased) protested the action of the appellants. While the deceased, husband of the informant was filling up soil, the appellant no.1 Dukhharan Yadav armed with Lathi, the appellant nos. 2 and 3 Mahendra Yadav and Sahendra Yadav armed with Khanti assaulted the husband of the informant, which caused injuries in his head. Her husband became senseless. He was taken to the Hospital. The occurrence was witnessed by Mushan Dusadh (P.W.1) and others. It has been further alleged that the informant was also assaulted with Lathi causing her injuries. The Fardbeyan of the informant (Ext.2) was recorded by A.S.I. R.S. Singh (P.W.9) on 10.01.1984 at about 9.30 P.M. in the Sadar Hospital, Aurangabad. On the basis of Fardbeyan, a formal FIR (Ext.3) was registered as Aurangabad P.S. Case No.16 dated 10.01.1984. After investigation, charge-sheet was submitted. Cognizance was taken. The case was committed to the court of sessions. Charges were framed. All the appellants were charged for the offence punishable under Sections 302/34 and 323/34 of the Indian Penal Code to which they denied and claimed to be tried. The defence of the appellants is that they are innocent and have been falsely implicated in this case due to land dispute between both the parties. After the trial, the appellants have been convicted and sentenced, as aforesaid. 3. The learned counsel for the appellants has submitted that there is no specific allegation of overt act against the appellants. There is no post-mortem examination report on the record to show the cause of death of the deceased. After the trial, the appellants have been convicted and sentenced, as aforesaid. 3. The learned counsel for the appellants has submitted that there is no specific allegation of overt act against the appellants. There is no post-mortem examination report on the record to show the cause of death of the deceased. The deceased got injury on his head when he was extracting wood from the dilapidated house, which struck on the head of the deceased resulting into his death in the Hospital. 4. The learned counsel for the State has submitted that P.Ws. 1, 3, 5 and 7 are the eye witnesses to the occurrence and they have supported the prosecution case. P.W.9, Investigating Officer has also stated that he has received the inquest report showing the deceased died due to head injuries. P.W.10 Dr. Kishori has examined the injured and has found lacerated wound on the head of the deceased as the injury was grievous; the deceased was referred to P.M.C.H, Patna for treatment. 5. This Court is required to reappraise the evidence and to see as to whether the prosecution has been able to substantiate its case beyond shadow of all reasonable doubts against the appellants. 6. In order to prove its case, the prosecution has examined six witnesses. They are namely, P.W.1 Musan Dusadh, P.W.2 Chandradeep Dusadh, P.W.3 Akhilesh Yadav, P.W.4 Rajendra Singh, P.W.5 Sugbasiya Devi, P.W.6 Sheoraj, P.W.7 Shakuntala Devi, P.W.8 Dwarika Ram, P.W.9 Ram Subhag Singh and P.W.10 Dr. Kishori Lal Sah. 7. D.W.1 Chandrika Yadav has been examined on behalf of the defence. 8. P.W.5 is the informant of the case and wife of the deceased. She has stated that at the time of occurrence, she was in her house. Her husband was cutting fodder in his courtyard. After getting the noise, she came out of the house. Her husband Chandradeo Yadav (deceased) and her daughter Shakuntala Devi (P.W.7) followed her. She saw that the appellants were digging her Ota for making an exit. Her husband protested and intervened. Thereafter, appellant nos. 2 and 3 assaulted him with Khanti and appellant no.1 assaulted him with Lathi. The assault of Khanti was made on the head of the deceased causing injuries and he became senseless. She saw that the appellants were digging her Ota for making an exit. Her husband protested and intervened. Thereafter, appellant nos. 2 and 3 assaulted him with Khanti and appellant no.1 assaulted him with Lathi. The assault of Khanti was made on the head of the deceased causing injuries and he became senseless. When she went to the rescue of her husband, she was also assaulted by appellant no.3 with Lathi as iron part of the Khanti was thrown; she got injuries in her right thumb and between the fingers. Her husband was taken to Aurangabad Sadar Hospital, but he remained senseless. His treatment was made. The police came there and recorded her Fardbeyan. In her cross-examination, she has stated that the appellants are her Gotia. There is no dispute for share in the property. The partition had already taken place 20 years back. 9. P.W.7 is the daughter of the deceased. She has also supported the version of P.W.5. She has stated that appellant no.2 assaulted the deceased with Khanti in his head. The appellant no.3 also assaulted with Khanti in his head and appellant no.1 assaulted on the back of the deceased. When her mother P.W.5 went to his rescue, she was assaulted by appellant no.1 which caused injuries in her thumb. 10. P.W.1 has stated that he was in the Khaliyan and he was informed by one Chandradeep. He told that Chandradeo was injured and he was taken to the Hospital. He went at the place of occurrence and saw Chandradeo was lying on the cot. He and others took him to the Hospital. It appears that P.W.1 is not the eye witnesses to the occurrence. 11. P.W.2 has stated that Shakuntala (P.W.7), daughter of Chandradeo (deceased) asked him to take her father to the Hospital. He went to the place of occurrence and saw that Chandradeo was lying on the cot. He and others took him to the Hospital. It appears that P.W.2 is not the eye witness to the occurrence. 12. P.W.3 has stated that he saw the occurrence of assault. Chandradeo Yadav was assaulted by the appellants with Khanti and Lathi. After the assault, Chandradeo became senseless. It appears that this witness has claimed to be an eye witness of the occurrence, but according to P.W.2 he came to the place of occurrence after the arrival of P.W.2. 13. 12. P.W.3 has stated that he saw the occurrence of assault. Chandradeo Yadav was assaulted by the appellants with Khanti and Lathi. After the assault, Chandradeo became senseless. It appears that this witness has claimed to be an eye witness of the occurrence, but according to P.W.2 he came to the place of occurrence after the arrival of P.W.2. 13. P.W.4 has stated that the deceased was taken to P.M.C.H., Patna from Aurangabad Sadar Hospital. He saw him at PMCH, Patna where his treatment was going on. During treatment, the deceased died in PMCH, Patna. He has proved the inquest report (Ext.1). It appears that P.W.4 is not the eye witnesses to the occurrence. 14. P.W.6 has been tendered. 15. P.W.8 is a formal witness, who has proved the FIR (Ext.3). 16. P.W.9 is the Investigation Officer as well as he has recorded the Fardbeyan of the informant. He has stated that the place of occurrence is the Ota near the house of the informant measuring about 15 feet (10 Hath) from west to east and 12 feet (8 Hath) in width from north to south. He has found the soil dug. He did not find any bloodstain there. 9 feet east from the Ota, there is wall of the house of the accused/appellants. He has stated that he got information that the deceased died in the PMCH, Patna. He has stated in para 8 that the deceased died on 15.01.1984 at 12.00 P.M. and inquest report was received. In paragraph 10, he has stated that he has found the sign of dragging soil. The witnesses told him that at that place there was bloodstained, which was dragged by the accused. He has not mentioned the name of that witness. He has stated in paragraph 13 that he recorded the statement of P.W.3, who had stated before him that when he came out of his house and saw Chandradeo Yadav was injured and senseless. He has stated regarding the assault by Lathi and not of Khanti. He has also recorded the statement of P.W.5, wife of the deceased. She has not stated that appellant no.1 assaulted her husband with Lathi. She has stated that appellant no.1 assaulted her with Lathi. He has not stated that she got injury in her right thumb or between the fingers. P.W.7 has stated before him that appellant no.1 assaulted her father with Lathi. She has not stated that appellant no.1 assaulted her husband with Lathi. She has stated that appellant no.1 assaulted her with Lathi. He has not stated that she got injury in her right thumb or between the fingers. P.W.7 has stated before him that appellant no.1 assaulted her father with Lathi. She has also stated that appellant no.1 had assaulted her mother with Lathi. 17. P.W.10 Dr. Kishori Lal Sah has stated that on 10.01.1984 while he was posted at Sadar Hospital, Aurangabad as Assistant Civil Surgeon, he examined Chandradeo Yadav (deceased) and found the following injuries: (i) Lacerated wound on the head 3” x 2” x deep to the bone. (ii) Swelling in the back 4” x 3”. All the injuries were caused by hard and blunt substance may be Lathi. Injury no. (i) may cause death because patient was unconscious at that time. Injury No. (i) is grievous in nature and injury no. (ii) is simple in nature. He has proved the injury report, which has been marked as Ext.4. 18. The defence has also examined D.W.1 Chandrika Yadav. He has stated that on the date of occurrence when he was going to his field, he saw that Chandradeo Yadav (deceased) was taking out Kundi from his dilapidated house. Later on, he heard the noise that the Kundi fell in the head of the deceased and he became senseless. He took him out. Thereafter, he was taken to the Hospital. He (D.W.1) did not gone to the Hospital. He has stated that the appellants have been falsely implicated in his case. They were not present in the village. In his cross-examination, he has stated that the police has gone for investigation. At that time, he was not there. He has admitted that he did not go to the police nor the police made any inquiry from him. Admittedly, he has not made any statement before the police. He has made statement for the first time in the court. It appears that his evidence is not convincing and it is fit to be discarded. 19. From perusal of the record, it appears that the deceased died in the PMCH, Patna on 15.01.1984, but the post-mortem examination report is not on the record, as such, it cannot be said as to what was the reason for the death of Chandradeo Yadav, deceased. 19. From perusal of the record, it appears that the deceased died in the PMCH, Patna on 15.01.1984, but the post-mortem examination report is not on the record, as such, it cannot be said as to what was the reason for the death of Chandradeo Yadav, deceased. It is the constant evidence of P.W.5 and P.W.7 that the appellants were digging the Ota, a high surface made of soil and the wall of the deceased. When the deceased protested, he was assaulted by the appellants with hard blunt substance. P.Ws. 1, 2 and 3 have also found the deceased lying at the place of occurrence in injured and senseless condition. The evidence of P.Ws. 5 and 7 stands corroborated by the medical evidence of P.W.10 who had found lacerated wound on the head of the deceased. Injury no. (i) measuring 3” x 2” x deep up to the bone on the head of the deceased, which had been found to be grievous and may cause death as the patient was senseless at that time. After seeing the gravity of the injury, the doctor opined that injury no. (i) was grievous in nature and injury no. (ii) swelling in the back of the deceased was 4” x 3” and it had been found simple in nature. There is no injury report regarding the treatment and the injury of the informant (P.W.5). For holding a person guilty under section 323 of the Indian Penal Code, it is not necessary that treatment should be made by a doctor and injury report should be there. P.W.5 has stated that when she went to the rescue of her husband, Sahendra Yadav appellant no.3 assaulted her with Lathi, whereas, her daughter P.W.7 Shakuntala Devi has stated that when her mother went to rescue her father, appellant no.1 Dukhharan Yadav assaulted her in her right thumb, whereas, the Investigating Officer (P.W.9) has stated that P.W.5 and P.W.7 stated before him that appellant no.1 Dukhharan assaulted P.W.5 with Lathi and relying on their evidence, appellant no.3 Sahendra Yadav has been held guilty by the learned trial court, which does not appear to be correct in view of the different versions of P.Ws. 5 and 7, which is not corroborated by any other evidence, as such, conviction of appellant no.3 Sahendra Yadav under Section 323 of the I.P.C. is set aside. 20. 5 and 7, which is not corroborated by any other evidence, as such, conviction of appellant no.3 Sahendra Yadav under Section 323 of the I.P.C. is set aside. 20. Since there is no post-mortem examination report showing the cause of death, the conviction of the appellant under Section 302 of the I.P.C. would not be attracted. However, there is sufficient material on the record to show that the appellants had common intention to assault the deceased, who had objected to the digging of Ota of the deceased. As such, all the appellants are held guilty under Section 325 read with section 34 of the Indian Penal Code. 21. It appears that the appellants have no criminal antecedent and they have remained in custody for some time. 22. Considering the facts and circumstances stated above, all the appellants are sentenced to the period already undergone by each of them. 23. In the result, this appeal is dismissed with the aforesaid modification in the judgment of conviction and order of sentence. The appellants are on bail. They are discharged from the liability of their respective bail bonds. Dharnidhar Jha, J. : I agree. Appeal dismissed.