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2014 DIGILAW 954 (PAT)

Sunaina Yadav @ Sunil Yadav v. State of Bihar

2014-09-05

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
JUDGMENT : (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) These two appeals have been preferred by the six appellants against the judgment and order of conviction and sentence dated 02.04.1992 and 03.04.1992, respectively, as passed by the 4th Additional District and Sessions Judge, Nalanda in Sessions Trial No. 341 of 1988/112 of 1990, whereby appellant Raghunandan Yadav has been found guilty for offence punishable under Section 302 of the Indian Penal Code (for short ‘I.P.C.’), rest have been found guilty primarily for offence punishable under Section 302/149 of the I.P.C. and all of them have been found guilty for offence punishable under section 148 of the I.P.C. and Section 27 of the Arms Act. They have been variously sentenced, all up to life imprisonment, with direction that the sentences would run concurrently. 2. All the appellants are related to each other; inasmuch appellants Pramod Yadav and Sunaina Yadav alias Sunil Yadav are sons of appellant Raghunandan Yadav. Appellant Ramdeo Yadav is son of appellant Yugal Yadav. Appellant Bijendra Yadav and rest are Gotias (agnates). They are all alleged to have shot dead Jai Prakash Yadav, son of Sitaram Yadav (P.W.9). 3. The prosecution case is based upon a fardbeyan recorded by Umesh Chandra Dubey, Inspector of Police of Rahui Police Station, District Naslanda upon statement of Sitaram Yadav (P.W.8), father of the deceased, in the early hours of morning on 23.06.1986, inter-alia, alleging that at about 2 am while the informant and his family members were sleeping in their house, they heard appellant Raghunandan Yadav shouting and abusing them. He got up and heard Raghunandan Yadav screaming that informant’s buffalo had become loose and had entered his khand adjacent to his house. Informant then asked his son (deceased) Jai Prakash Yadav to go and fetch the buffalo. Jai Prakash Yadav went, got the buffalo back and tied near his house, whereafter all the six accused persons, variously armed with guns and rifle, came and started abusing the informant and his family members. Jai Prakash Yadav and the informant then came out and told them to stop abusing. On this, it is alleged, appellants Yugal Yadav and Ramdeo Yadav started pulling Jai Prakash Yadav (deceased). Sunaina Yadav then ordered for killing Jai Prakash Yadav, upon which appellant Raghunandan Yadav fired from his rifle hitting Jai Prakash Yadav on his chest, as a result of which dropped dead. On this, it is alleged, appellants Yugal Yadav and Ramdeo Yadav started pulling Jai Prakash Yadav (deceased). Sunaina Yadav then ordered for killing Jai Prakash Yadav, upon which appellant Raghunandan Yadav fired from his rifle hitting Jai Prakash Yadav on his chest, as a result of which dropped dead. All the accused persons, thereafter, went away. While this was happening and people were screaming, several villagers assembled there. This fardbeyan was signed by the informant and two other witnesses, but none of the attesting witnesses was examined in course of trial. The prosecution case further is that the Police had immediately come after hearing the gun-shot and after recording fardbeyan, they immediately arrested some of the accused persons. Investigation was carried out and charge-sheet having been filed and cognizance having been taken, the case was committed to the court of session for trial. Charges having been framed and the accused persons having pleaded not guilty, they were tried, convicted and sentenced as stated above. 4. In order to establish and prove its case, the prosecution has examined in all nine witnesses. P.W. 1 is Dr. R. B. P. Rukhriyar, who was then posted as Medical Officer in Nalanda Sadar Hospital and who conducted the post-mortem examination and submitted post- mortem report (Ext.1). P.W. 2 Ganesh Yadav is named witness in the fardbeyan and allegedly an eye witness to the occurrence. P.W. 3 Munni Devi is the sister of the deceased and allegedly an eye witness. P.W. 4 Parmeshwari Devi is mother of the deceased and also allegedly an eye witness. P.W. 5 Tanik Yadav is is also a neighbour and F.I.R. named witness. P.W.6 Shyampari Devi is the wife of the deceased and allegedly an eye witness. P.W. 7 is Vijay Chand Singh Yadav, who is the brother of the deceased and named in the F.I.R. as a witness, but he has merely been tendered. P.W.8 Sitaram Yadav is the informant and the father of the deceased and is also alleged to be an eye witness. P.W. 9 Umesh Chandra Dubey is the Inspector of Police, who recorded the fardbeyan of the informant and investigated the case. 5. P.W.8 Sitaram Yadav is the informant and the father of the deceased and is also alleged to be an eye witness. P.W. 9 Umesh Chandra Dubey is the Inspector of Police, who recorded the fardbeyan of the informant and investigated the case. 5. Starting with the evidence of P.W.8 Sitaram Yadav (informant), who is father of the deceased, he states that at 2 am on 23.06.1986 while he and his family members were sleeping on the terrace of their house, they heard appellant Raghunandan Yadav abusing them and shouting that the informant’s buffalo has become loose and has trespassed into his private land adjacent to the house. Thereafter, all the persons came down. Informant asked his son Jai Prakash Yadav to fetch buffalo, upon which he went and brought the buffalo and tied it with the peg. When this was being done, all the six accused persons variously armed with rifle and gun, with the exception of Bijendra Yadav, who had a gun in his hand and Pramod Yadav, who had a khanti in his hand, came and started abusing the informant and his family members. They protested, upon which appellant Sunaina Yadav is said to have ordered to kill, whereupon appellants Yugal Yadav and Ramdeo Yadav caught hold of Jai Prakash Yadav and appellant Raghunandan Yadav shot at him in his chest, as a result of which Jai Prakash Yadav fell down. He further states that apart from his family members, Ganesh and one Chhote had also seen the occurrence. Jai Prakash Yadav, who dropped to the ground, was then put on a cot to be taken for treatment, but he was found dead. In paragraph 12 of his cross-examination, he admits that his son, deceased Jai Prakash Yadav, was involved in several cases of theft and dacoity. There had been orders passed under Anti Gunda Act (Bihar Control of Crimes Act). He had been detained several times. Informant had a licensee gun, which he had about 3-4 years back deposited with a dealer, but it had not been returned to him. In paragraph 13 of his cross-examination, he admits that as between P.W. 2 Ganesh Yadav and the appellants, there had been a proceeding under Section 144 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) in relation to their adjoining lands. In paragraph 13 of his cross-examination, he admits that as between P.W. 2 Ganesh Yadav and the appellants, there had been a proceeding under Section 144 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) in relation to their adjoining lands. In paragraph 14 of his cross-examination, he admits that there is a Pathna Farm, situated east of the village on Ranchi-Patna Road, but denies of any Police patrolling to be there in the night. In paragraph 17 of his cross-examination, he states that appellant Raghunandan Yadav was not carrying any arms earlier but when he came along with other accused persons, they were all variously armed. He admits that his son was also abusing the appellants. He admits that he had made statement before the Police about details of arms, which were in the hands of the accused persons. He says that at the place, where deceased Jai Prakash Yadav fell down, there was no bleeding or stains of blood. There was blood stain in his vest, which was taken by the Police. He denied the suggestion that, in fact, there had been 7-8 rounds of firing and that the deceased was killed elsewhere and his dead body had been brought and kept at his house and the appellants were confined in their house. He denied the suggestion that they themselves fired 7-8 rounds to attract the Police. The Police went to the house of the three appellants and arrested them, but he was not aware what were seized from their house. 6. We would now consider the evidence of other witnesses. Ganesh Yadav is P.W.2, who as per the F.I.R., had witnessed the occurrence. When, we see his evidence, he is confronted with his statement made before the Police, he denies having made statements on the date of occurrence to the Police that he was told that Jai Prakash Yadav had been killed by the appellants, which was a clear admission that he was not present at the scene of the occurrence when the occurrence took place. His statement to that effect in paragraph no.5 of his cross-examination is contradictory to the statement of P.W. 9 Investigating Officer as found in paragraph 22 of his cross-examination. He admits that as between him and the appellants there is a proceeding under section 144 of the Cr.P.C. pending. His statement to that effect in paragraph no.5 of his cross-examination is contradictory to the statement of P.W. 9 Investigating Officer as found in paragraph 22 of his cross-examination. He admits that as between him and the appellants there is a proceeding under section 144 of the Cr.P.C. pending. He admits that after 15 minutes of the occurrence, the Police had arrived at the place of occurrence. He also then admits that apart from some blood stains on the vest of the deceased, there was no blood stain either on the cot or at the place where the deceased was shot and dropped dead. He denied the suggestion that, in fact, he had not seen the occurrence and out of enmity he was deposing in favour of the informant. 7. We then have P.W. 3 Munni Devi, who is sister of the deceased. She repeats what was stated in the fardbeyan. She also states in her cross-examination that her brother after being shot dropped dead and there was no bleeding. She goes further to state that there was no blood stain on his clothes and he did not even wither s(struggle) before death. She admits that she had given her statement to the Police. 8. We then have evidence of P.W. 4 Parmeshwari Devi, who is the mother of the deceased. She again reiterates what was stated in the fardbeyan. She states in her cross-examination that when appellant Raghunandan Yadav had been abusing, none from the neighbourhood came and at that time Raghunandan was not armed. She states that till the shot was fired, they had not screamed. The shot was fired from about 5-6 yards. There was no bleeding. There was little blood-stain in the vest. To specific question about the deceased Jai Prakash Yadav having figured as accused in various cases, she denies the same. She even denies that he is accused in any dacoity case. She denies that there was any proceeding taken by the Collector passing externment order against him. She admits of having made statement before the Police. She admits in her cross-examination that there was a gun in the house in her husband’s name, which, on the same day, had been deposited at Biharsharif. 9. P.W. 5 is Tanik Yadav. She denies that there was any proceeding taken by the Collector passing externment order against him. She admits of having made statement before the Police. She admits in her cross-examination that there was a gun in the house in her husband’s name, which, on the same day, had been deposited at Biharsharif. 9. P.W. 5 is Tanik Yadav. He is a witness to the occurrence as named in the F.I.R. and claims to be an eye witness, but in very opening paragraph of his examination-in-chief, he says that while he was sleeping in his house, he heard lot of shouts and then a gun fire. It is then he got up and went out to look into the matter. Thus on his own admission, he has not seen any part of the occurrence. He is not an eye witness. He denies that there was any proceeding under Section 144 of the Cr.P.C. with the accused persons. Let it be noted that P.W. 2 Ganesh Yadav and P.W.5 Tanik Yadav, apart from being neighbours, are cousins as well. In paragraph 10 of his cross-examination, he says that the Police came upon information given by the informant. He denies suggestion that he had not named the accused persons in his statement before the Police. 10. P.W. 6 Shyampari Devi is the wife of the deceased Jai Prakash Yadav. She says that while all other family members were sleeping on the terrace of the house, she alone was sleeping in the Angan (courtyard). At about 2 in the morning, she heard appellant Raghunandan Yadav abusing when her family members got up. Jai Prakash Yadav (her husband) came down and went to fetch buffalo. When her husband came back with the buffalo and tied it with a peg, all the appellants came variously armed and her husband was shot dead by appellant Raghunandan Yadav on the orders of appellant Sunaina Yadav. In her cross-examination, she claims ignorance about her husband having been arrested earlier and implicated in the case of dacoity. She denies that her husband had been away for several months. She admits that her statement was taken soon after the incident by the Police. She admits in her cross-examination that when the accused persons came, they had not raised any alarm nor had the deceased tried to run away even after appellant Sunaina Yadav ordered to kill him. She denies that her husband had been away for several months. She admits that her statement was taken soon after the incident by the Police. She admits in her cross-examination that when the accused persons came, they had not raised any alarm nor had the deceased tried to run away even after appellant Sunaina Yadav ordered to kill him. Even when the appellants caught hold of her husband and shot him, she did not raise any alarm. She denied the suggestion that her husband had been shot elsewhere in course of some dacoity and the case was falsely lodged. 11. P.W.7 Vijaychand Singh Yadav is the brother of the deceased. He has been tendered. 12. From the evidence of the prosecution, so far two-three things are clear. They are consistent that their buffalo had strayed in the land of the appellants, which had infuriated the appellants. Prosecution is consistent that two of the appellants i.e. Yugal Yadav and Ramdeo Yadav had caught hold of Jai Prakash Yadav (deceased) and appellant Raghunandan Yadav, on the order of appellant Sunaina Yadav, fired a single shot, as a result of which Jai Prakash Yadav died at the spot. Prosecution witnesses i.e. the sister of the deceased, mother of the deceased and wife of the deceased admitted that even though Jai Prakash Yadav died because of gun shot, which was fired at his chest, it did not bleed. Police had come immediately to the place of occurrence. Except for the informant, rest denied that Jai Prakash Yadav was of criminal antecedent. 13. Now we come to the evidence of the Investigating Officer Umesh Chandra Dubey (P.W.9). In his examination-in-chief, he states that while he and other Police officials were on night patrolling duty near Pathna Farm on National Highway, they heard gun fire coming from the village. They went there and saw people assembled. On reaching the place of occurrence, they saw that dead body of Jai Prakash Yadav was lying on a cot. He recorded the statement of the informant and other witnesses, prepared inquest report and then arrested the accused persons, whose houses were searched. In his cross-examination, he admits that they had heard about 7-8 rounds of gun-shots and not one as is the prosecution case. He recorded the statement of the informant and other witnesses, prepared inquest report and then arrested the accused persons, whose houses were searched. In his cross-examination, he admits that they had heard about 7-8 rounds of gun-shots and not one as is the prosecution case. When he is questioned about the place of occurrence, he categorically states that he had not even found a drop of blood anywhere at the place of occurrence. He had found some blood-stains on the cot, but there was no blood stain on the floor below the cot. He then contradicts the statements of various witnesses. 14. The last witness, we would consider, is P.W. 1 Dr. R. B. P. Rukhriyar, who conducted the post-mortem examination and submitted post-mortem report (Ext.1). According to him, there was a singular bullet injury just below and medially to the left nipple on the chest touching the aorta. Upon dissection, he found that the entire chest and abdominal cavity was full of blood and left lobe of the liver was lacerated. There was a through and through lacerated wound between both chambers of the heart, diaphragm below heart was also perforated. One bullet was found lodged in the left abdominal cavity just above the left kidney. Stomach, bladder and rectum were found empty. To the question as to what would be the effect of such injury, he fairly opined that there had to be profused bleeding. 15. Learned counsel for the appellants submits that if we totally see the evidence, it would immediately be clear that the entire prosecution story has been falsely set up. He rightly points out first that all family members, who were examined prior to the examination of informant, namely, P.W. 3 sister of the deceased, P.W. 4 mother of the deceased and P.W.6 wife of the deceased, have deliberately tried to suppress the criminal antecedent of the deceased, but at last the informant (P.W.8) admits in paragraph 12 of his cross-examination that not only the deceased was accused in several dacoity and theft cases, but proceedings had also been taken against him under the Anti Gunda Act (Bihar Control of Crimes Act) for preventive detention or externment. This becomes material because the suggestion of the defence is that the deceased had actually been shot some where else, his dead body was brought and then the informant, having fired from his gun several times to attract the Police’s attention, put the blame on the appellants with whom he and other witnesses were on inimical terms. Learned counsel for the appellants also rightly submits that when the informant asked about his gun, he has stated that he had deposited his gun 2-3 years prior to the occurrence with the dealer, but his wife admits that it is on the date of occurrence that the gun was deposited with the dealer. This establishes the defence version that it is the informant, who had used his gun 7-8 times and yet the prosecution maintains that singular shot was fired killing Jai Prakash Yadav. The Investigating Officer also clearly states that having heard 7-8 rounds of firing while on night patrolling duty, he had rushed to the place of occurrence. This again falsifies the prosecution case. 16. Then most crucial thing is that the prosecution is consistent that the deceased was shot from a distance of about 4-5 yards by a rifle straight at his chest while two persons were holding his hands. Apart from the improbability of a person being shot in this manner, for fear of injury to others holding him, what is more significant is that if a person is shot from a distance of 5 yards and that too at his chest, then one expects the bullet to travel through and through in a straight line. Secondly having been shot at the chest damaging the heart, there ought to be profused bleeding even though the person died immediately. What we find from the post-mortem report is that the bullet has travelled along the body entering from the chest, going through the heart and then lodging above the left kidney having damaged part of the liver. This would not have been possible if Jai Prakash Yadav was standing and being caught hold by two persons and was shot from front about 5 yards away by a rifle. The nature of the injury is not consistent with the oral evidence at all. Secondly even the Doctor opines that there had to be profused bleeding but all prosecution witnesses were consistently saying that there was absolutely no bleeding. The nature of the injury is not consistent with the oral evidence at all. Secondly even the Doctor opines that there had to be profused bleeding but all prosecution witnesses were consistently saying that there was absolutely no bleeding. The Investigating Officer also did not find any blood anywhere. The Doctor, upon dissection, found the chest and abdominal cavity full of blood. Obviously because not a single drop of blood was found by the Investigating Officer at the spot, it means that the person had not been shot there or that he had not died there. The digestive system being found empty is another important factor. He is supposed to have been shot at about 2 am. Therefore, he would have his last meal, which would still be within his digestive system and not that it would be empty. All these put together clearly shows beyond reasonable doubt that deceased Jai Prakash Yadav was not shot at the place and in the manner, much less by the persons, as alleged by the prosecution. The trial court failed to notice the said facts. We have, thus, no option, but to hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts. 17. Accordingly, both the appeals are allowed and judgment of conviction and order of sentence passed against the appellants by the trial court are set aside. The appellants are acquitted of the charges levelled against them and they are discharged from the liability of their bail bonds. Appeals allowed.