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2015 DIGILAW 405 (PAT)

Garbhu Yadav v. State of Bihar

2015-03-10

GOPAL PRASAD, I.A.ANSARI

body2015
JUDGMENT : I. A. Ansari, J. Under the judgment, dated 09.09.1993, passed, in Sessions Trial No. 45 of 1990/18 of 1992, by learned 3rd Additional Sessions Judge, Nawadah, while the appellant, Garbhu Yadav, stands convicted under Section 302 of the Indian Penal Code, Bilti Devi stands convicted under Section 302 read with Section 109 of the Indian Penal Code. Following their conviction, the accused-appellants have been sentenced to suffer imprisonment for life. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) On 23.09.1989, at about 09.00 AM, an altercation took place between Samudri Devi (since deceased) and Bilti Devi wife of accused Garbhu Yadav. Following the verbal altercation between the two female persons, Bilti Devi exhorted her husband, accused Garbhu Yadav to kill Samudri Devi and, with this utterance, Bilti Devi brought a farsa, a sharp-edged weapon, and handed over the same to her husband, accused Garbhu Yadav, who, in turn, gave a blow with the said weapon on the neck of Samudri Devi. The blow proved fatal, Samudri Devi fell down and died on spot. On hearing altercation between the said two female persons, their co-villagers had assembled at the place of occurrence, they caught hold of accused Garbhu Yadav and snatched away the weapon from his hand. The informant, Siya Rajak (PW 10), son of the deceased, went to Roh Police Station and orally informed the police about the occurrence. (ii) The information, so given by Siya Rajak, was reduced into writing and treating the same as First Information Report, Roh Police Station Case No. 51 of 1989, under Section 302/34 of the Indian Penal Code, was registered against the accused persons, namely, Garbhu Yadav and Bilti Devi. 3. During investigation, police seized the alleged weapon of assault, held inquest over the dead body of Samudri Devi, which was also subjected to post mortem examination, and, on completion of investigation, charge sheet was laid, under Section 302/34 of the Indian Penal Code, against the two accused persons. 4. At the trial, while a charge, under Section 302 of the Indian Penal Code, was framed against Garbhu Yadav, a charge, under Sections 302 read with Section 109 of the Indian Penal Code was framed against Bilti Devi. Both the accused pleaded not guilty to their respective charges. 5. In support of their case, prosecution examined altogether 12 (twelve) witnesses. At the trial, while a charge, under Section 302 of the Indian Penal Code, was framed against Garbhu Yadav, a charge, under Sections 302 read with Section 109 of the Indian Penal Code was framed against Bilti Devi. Both the accused pleaded not guilty to their respective charges. 5. In support of their case, prosecution examined altogether 12 (twelve) witnesses. The two accused were, then, examined under Section 313(1)(b) of the Code of Criminal Procedure and, in their examinations aforementioned, both the accused denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, arrived at the finding that accused-appellant, Garbhu Yadv, had been proved guilty of the charge under Section 302 of the Indian Penal Code and Bilti Devi had been proved guilty of the charge under Section 302 read with Section 109 of the Indian Penal Code, the learned trial Court convicted them accordingly. Following their conviction, sentence has been passed against the convicted persons as mentioned above. 7. Aggrieved by their conviction and the sentence passed against them, both the convicted persons have preferred this appeal. 8. We have heard Mr. Abhinash Kumar, learned Counsel, appearing as Amicus Curiae, and Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor, appearing on behalf of the State. 9. In order to correctly appreciate the evidence, which has been adduced by the prosecution against the two accused-appellants, it is imperative to take note of the evidence of Dr. B. P. Bhagat (PW 11), who had, admittedly, conducted, on 24.09.1989, post mortem examination on the dead body of Samudri Devi, and found the following ante mortem injuries: “(i) One incised wound measuring 7” x 2”x 1/2” on the left side of face and neck below ear lobule damaging skin. Superficial face muscles. Major veins and nerves and fraction of mandible bone;” 10. On Dissection, the doctor (PW 11) found as follows: “Brain, heart even kidney, spleen, lungs all were found pale and intact. Stomach was intact and contains semi digested food, small and large intestines were intact. Uterus was intact and non-gravid. Urinary bladder intact and empty.” 11. Superficial face muscles. Major veins and nerves and fraction of mandible bone;” 10. On Dissection, the doctor (PW 11) found as follows: “Brain, heart even kidney, spleen, lungs all were found pale and intact. Stomach was intact and contains semi digested food, small and large intestines were intact. Uterus was intact and non-gravid. Urinary bladder intact and empty.” 11. In the opinion of the doctor (PW 11), death was caused due to shock and haemorrhage, resulting from the injuries sustained by the said deceased, the injuries have been caused by a sharp cutting weapon. 12. Neither the finding of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on and death of, the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 11). 13. We, therefore, held that Samudri Devi died, because of one incised wound on the left side of face and neck below ear lobule sustained by the said deceased. 14. Bearing in mind the medical evidence on record, which shows that the said deceased had sustained incised wound on the left side of the face and neck below the ear resulting into her death, let us, first, turn to the evidence of the informant (PW 10), Siya Rajak, who is claimed to have seen the occurrence of assault on, and killing of, Samudri Devi from the commencement to the end and he was the one, who had lodged the First Information Report. 15. Describing the occurrence, PW 3 (Mithilesh Prasad Yadav) has deposed that on the day of the occurrence, at about 9.00 AM, he went to the house of the deceased on hearing hulla and saw that an altercation was going on between deceased Samudri Devi and accused Bilti Devi, accused Garbhu Yadav came there and his wife, accused Bilti Devi asked her husband to kill the deceased. P.W.10 goes on to depose that accused Bilti Devi fetched a farsa and handed over the same to her husband, who, in turn, gave a blow, with the said weapon, on the neck of the deceased, who fell down and died, whereupon their co-villagers caught hold of the accused with the farsa, took him along with the weapon and the said dead body to the police station and handed over the accused and the weapon to the police. 16. In order to determine the veracity of the evidence given by the informant, when we take into the account the contents of the First Information Report, we notice that according to the First Information Report, while Samudri Devi was standing at her door, accused Garbhu Yadav went there, accompanied by his wife, accused Bilti Devi, and gave Samudri Devi a blow by means of farsa on her neck and, having suffered the blow with the said weapon at the hands of accused Garbhu Yadav, Samudri Devi fell down and became unconscious and, thereafter, when hulla was raised, informant’s co-villagers assembled at the place of occurrence. 17. When the contents of the First Information Report are considered in the light of the evidence, which the informant has given, it becomes abundantly clear that informant has made substantial improvements in the evidence given at the trial inasmuch as what is sought to be projected by the informant, at the trial, is that it was accused Bilti Devi, who had fetched farsa and handed over the same to her husband, who, in turn, given the blow, with the farsa, on the neck of the said deceased and that the villagers were already present there, when the occurrence took place; whereas the villagers, according to the contents of the First Information Report, came to the place of occurrence after the assault on Samudri Devi had already taken place and that Bilti Devi was not the one, who had brought the farsa and handed over the same to her husband, rather, her husband (accused Garbhu Yadav) was the one, who had brought with him the farsa to the house of Samudri Devi and gave blow, by means of the said farsa, on Samudri Devi causing her death. 18. 18. Two of the most prominent and noticeable features in the description of the occurrence given by the informant are: (i) That accused Bilti Devi has been ascribed an overt act by claiming that she was the one, who had fetched farsa and handed over the same to her husband, which was used by her husband to give the fatal blow on Samudri Devi, whereas she was, according to the First Information Report, not the one, who had carried the farsa to the house of the said deceased, rather, it was her husband, accused Garbhu Yadav, who had carried the farsa to the house of the deceased and given, by means of the same, on the neck of the deceased and (ii) That the villagers were already present at the place of occurrence, when the occurrence of assault on Samudri Devi, at the hands of the accused Garbhu Yadav, took place; whereas the First Information Report clearly indicates that the villagers arrived after the occurrence had already taken place. 19. Why such improvements were required to be made by PW 10 becomes clearly discernible, when we take note of the evidence of PW 8 (Bindu Rajak), whose name appears in the First Information Report itself as a witness. According to the evidence of this witness (PW 8), who is daughter-in-law of deceased Samudri Devi, while Samudri Devi was having altercation with Bilti Devi, accused Garbhu Yadav came there and his wife, Bilti Devi, asked her husband to kill Samudri Devi and that accused Bilti Devi also fetched a farsa from her house and handed over the same to her husband, who, in turn, gave a blow by means of farsa on the neck of the said deceased, who fell down, and the people, who had surrounded the accused, caught hold of the accused with farsa. 20. From the cross-examination of PW 8 (Bindu Rajak), it transpires that she reached the place of occurrence after Samudri Devi had already fallen on the ground having sustained a blow on her neck by means of farsa allegedly sustained by her at the hands of accused Garbhu Yadav. 20. From the cross-examination of PW 8 (Bindu Rajak), it transpires that she reached the place of occurrence after Samudri Devi had already fallen on the ground having sustained a blow on her neck by means of farsa allegedly sustained by her at the hands of accused Garbhu Yadav. In her cross-examination, PW 8 has conceded, in no uncertain words, that their co-villagers were very unhappy with accused Garbhu Yadav and his wife, Bilti Devi, and they all discussed the case and decided to ensure that Garbhu Yadav is convicted and that his wife shall also be roped in. 21. In the light of the evidence of PW 8, it becomes abundantly clear that PW 10 made improvements in his evidence over the contents of the First Information Report in order to bring his evidence in tune with the evidence of PW 8. Either, therefore, the version of the occurrence given in the First Information Report was untrue or the evidence, given at the trial, is false. If the Court cannot discern as to which of the said two versions is true, benefit of such uncertainty has to be given to the accused-appellants. 22. Close on the heels of the evidence of PW 8, we notice that PW 2 has deposed that on hearing hulla, at about 9.00 AM, he went to the house of deceased Samudri Devi and saw that an altercation was going on between the deceased and accused Bilti Devi. It is in the evidence of PW 2 that accused Garbhu Yadav came to the place of occurrence and his wife, Bilti Devi, asked him to kill the deceased and, thereafter, accused Bilti Devi fetched a farsa and handed over to the same to accused Garbhu Yadav, who, in turn, gave blow by farsa on the neck of Samudri Devi, who fell down and died, whereupon their co-villagers caught hold of accused Garbhu Yadav with farsa and took him with the said weapon and the dead body of deceased to the police station. In his cross-examination, PW 2 has clarified that he had strain relation with accused Garbhu Yadav and that their co-villagers had discussed the case and decided that Garbhu Yadav’s conviction must be ensured. 23. What emerges from the above discussion is that the witnesses, examined by the prosecution including PWs. In his cross-examination, PW 2 has clarified that he had strain relation with accused Garbhu Yadav and that their co-villagers had discussed the case and decided that Garbhu Yadav’s conviction must be ensured. 23. What emerges from the above discussion is that the witnesses, examined by the prosecution including PWs. 2, 8 and 10, were not only interested witnesses, but also were partisan in nature and that they have roped in Bilti Devi as an accused falsely. Witnesses, who can go to the extent of falsely implicating an innocent person as a guilty one in a case as serious as offence of murder, cannot at all be believed in or relied upon. 24. Coupled with the above, it is worth pointing out that the entire genesis of the occurrence, as unfolded in the First Information Report, was clearly changed, at the trial, by the witnesses following the mutual consultations, which they had with each other. This becomes transparent, when we notice that the remaining witnesses of the prosecution have also deposed, in tune with the evidence of PWs 2, 8 and 10, that accused Bilti Devi brought a farsa from her house and handed over the same to accused Garbhu Yadav and he (Garbhu) gave, in turn, blow by means of farsa on the neck of the said deceased, whereas the First Information Report alleged that it was accused Kallu Yadav who had carried with him farsa to the house of Samudri Devi and gave a blow on Samudri Devi’s neck by means of the said farsa. 25. Thus, the evidence of remaining so-called eyewitnesses clearly show that they, too, have fallen in line with PWs. 2, 8 and 10 and twisted and turned their evidence in order to ensure that the two accused-appellants get convicted. 26. In view of the fact that the evidence of all the witnesses, who have been examined by the prosecution as eye-witnesses to the alleged occurrence, stand on the same footing as do the evidence of PWs. 2, 8 and 10 and twisted and turned their evidence in order to ensure that the two accused-appellants get convicted. 26. In view of the fact that the evidence of all the witnesses, who have been examined by the prosecution as eye-witnesses to the alleged occurrence, stand on the same footing as do the evidence of PWs. 2, 8 and 10, it logically follows that the evidence, which has been adduced by the prosecution, is nothing, but admixture of half-truth and untruth and since the truth, if any, is so inextricably mixed with the falsehood that it is wholly impossible to disengage the truth from the half-truth and untruth, the prosecution’s case has to be held as wholly unsafe to believe in or rely upon. 27. The above aspects of the case appear to have completely escaped the attention of the learned trial Court, which did not, in fact, make any attempt to determine if the parrot like descriptions of the occurrence, given by the so-called eye-witnesses, could have been believed in, and/or safely relied upon or not. 28. What crystallizes from the above discussion is that none of the incriminating circumstances, which the learned trial Court has relied upon, could be proved legally and convincingly. In the face of such a state of evidence on record, the two accused-appellants ought to have given benefit of reasonable doubt. 29. At any rate, in the light of the nature of the evidence on record, the prosecution could not have been held, and ought not to be held, to have proved their case beyond reasonable doubt against the accused appellants. Consequently, the accused- appellants deserve to be accorded, at least, benefit of doubt. 30. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been accorded, at least, benefit of doubt. 31. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 32. Since the accused-appellant Bilti Devi is on bail, her bail bonds are hereby cancelled and her sureties shall stand discharged. 33. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 32. Since the accused-appellant Bilti Devi is on bail, her bail bonds are hereby cancelled and her sureties shall stand discharged. 33. As the accused-appellant, namely, Garbhu Yadav, is in custody, he is directed to be released forthwith if not required to be detained in connection with any other case. 34. Let the Amicus Curiae be paid a fee of Rs.5,000/-. 35. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.