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2017 DIGILAW 217 (PAT)

Hansraj Gond S/O Ramlal Gond v. State of Bihar

2017-02-08

KISHORE KUMAR MANDAL, SANJAY KUMAR

body2017
JUDGMENT : Sanjay Kumar, J. Hansraj Gond (A-1), Ganesh Gond (A-2), Nand Lal Sah @ Nandlal Gond (A-3), Ram Prasad Gond (A-4) and Feku Gond (A-5) along with others were put on trial for having committed murder of the brother of the informant and also for having attempted to cause murder of the informant. They have been held guilty by the learned Sessions Judge-II, Bagaha vide judgment of conviction dated 12.12.2012 passed in S.T. No. 170 of 1998. A-1 (Hansraj Gond) was held guilty under Section 302 IPC and was sentenced to undergo R.I. for life with imposition of fine with default clause. A-2 (Ganesh Gond) was held guilty under Section 302 IPC and similarly sentenced to undergo R.I. for life with fine having default clause. He was also held guilty under Section 307 IPC for having attempted to cause death of the informant and was sentenced to undergo R.I. for 10 years with fine having default clause. A-3 Nand Lal Sah @ Nandlal Gond, A-4 (Ram Prasad Gond) and A-5 (Feku Gond) were held guilty under Section 307 IPC and sentenced to undergo R.I. for 10 years with imposition of fine having default clause. 2. The prosecution case germinates out of Bagaha P.S. Case No. 224/1997 recorded on the basis of fardbeyan made by Ramakant Yadav (P.W.-10) on 1.10.1997 at about 1 p.m. at the Sadar Hospital which was recorded by P.W.-12 (Raghunath Singh). The prosecution case as set out in the fardbeyan (Ext-5) and projected at the trial, in brief, is that on 01.10.1997 at about 8.40 in the morning, the informant along with his brother Kedar Yadav (deceased) and Ram Raj Bhagat (P.W.-9) set out to Khaira Pokhra where there is railway station. As they covered around 1 km on the village road and reached near the Peepal tree which is also know as Brahm Asthan, it is stated that co-accused Uma Shankar Bhagat (since absconding), Hansraj Gond (A-1), Laxman Gond (facing separate trial)Ganesh Gond (A-2) who were sitting near the Brahm Asthan from before stepped on the road. Coaccused Uma Shankar Yadav exhorted other co-accuseds to finish all of them and he himself caught the deceased by throwing gamcha around his neck and was dragged and made to fall on the flank on the road where after all of them started assaulting the victim. Coaccused Uma Shankar Yadav exhorted other co-accuseds to finish all of them and he himself caught the deceased by throwing gamcha around his neck and was dragged and made to fall on the flank on the road where after all of them started assaulting the victim. Co-accused Uma Shankar Yadav was armed with knife (chura) and he assaulted the deceased several times. A-1 was armed with small bhala and had also assaulted the victim. Co-accused Laxman Yadav and A-2 assaulted the victim with lohbanda with which they were armed. Seeing the assault on the deceased, the informant tried to escape in the nearby cane field. In the meantime, A-5, A-4 and A-3 who were sitting in the nearby field along with other co-accused captivated the informant and started assaulting him with lathi. In the meantime, Laxman Yadav, A-1 (Handraj Gond), also joined them and assaulted him with lohbanda and other weapons. When he fell down, the accused persons only thereafter stopped assaulting him. The deceased having received the injuries at the hands of the accused persons, died at the place of occurrence. On hulla, the villagers arrived and carried him along with deceased to the Sub-Divisional Hospital where in course of treatment of his injuries, he made the ferdbeyan (Ext.-5) which was recorded by P.W.-12. The motive for the occurrence is assigned as village politics. The Investigating Officer upon registration of the formal F.I.R. took up the investigationally. The dead body was sent for post-mortem. The Doctor performed the autopsy on the cadaver on the same day at 2.30 p.m. and submitted the report. The statement of the witnesses were recorded and upon conclusion of the investigationally, charge-sheet was led against the present appellants and other accused persons whereon cognizance was taken and the case was committed to the Court of Sessions for trial. On 23.11.2008, the learned Trial Court framed charges against Uma Shankar Gond, Hansraj Gond (A-1), Laxman Gond, and Ganesh Gond (A-2) and further charges were framed under Section 307 IPC against the rest of the accuseds/appellants. The appellants abjured the guilt and claimed to be tried. The defence of the appellants is that they have falsely been implicated in this case. The deceased Kedar Yadav was a veteran criminal and he might have been killed by some other persons but not by the appellants. The appellants abjured the guilt and claimed to be tried. The defence of the appellants is that they have falsely been implicated in this case. The deceased Kedar Yadav was a veteran criminal and he might have been killed by some other persons but not by the appellants. Be it noted that in course of trial, coaccused Uma Shankar Gond absconded and his trial was separated. Similarly, the trial of co-accused Laxman Yadav was also separated. 3. In order to substantiate the charges, the prosecution, in all, examined 15 witnesses. P.W.-1 (Ramakant Rai) is an F.I.R.witness who has supported the case as hearsay witness. P.W.-2 (Lallan Yadav ) is again an F.I.R. witness who has not been relied upon and declared hostile. P.W.-3 (Raja Singh) and P.W.-4 Sahdev Yadav have also been declared hostile by the prosecution. P.W.-5 (Asharfi Yadav) and P.W.- 6 (Haribans Yadav) have given the hearsay account of the case. P.W.-7 (Jag Yadav) is the father of the deceased and is also a witness to the recording of the ferdbeyan at the hospital by P.W.-12 (Raghunath Singh). P.W.-8 Bal Sunder Yadav is an F.I.R. named witness who has given hearsay account of the part of the prosecution case. P.W.-9 (Ram Raj Bhagat) and P.W.-10 (Ramakant Yadav, informant) are the eye witnesses who have narrated the ocular version of the prosecution case. P.W.-11 ( Dr. P.K. Praveen) is the doctor who examined the informant (P.W.- 10) of his injuries and submitted the injury report (Ext.4). He had also performed the post-mortem on the cadaver and submitted the report which is placed at Ext.-3. P.W.-12 (Raghunath Singh, A.S.I.) before whom the ferdbeyan was recorded, is also the Investigating Officer of the case. P.W.-13 Bandhu Yadav) and P.W.-14 (Janardan Yadav) have been tendered by the prosecution. P.W.-15 (Doma Yadav) is a witness who claims to have arrived at the place of occurrence on hulla. He has been cited, as such, in the ferdbeyan. The prosecution, however, declared him hostile. While the incriminating materials were put to the appellants under Section 313 Cr.P.C., they simply denied the accusations. 4. Besides the aforesaid, the documentary evidence such as postmortem report (Ext-3), injury report of informant (Ext-4), fardbeyan (Ext-5) and formal FIR (Ext-7) have been produced by the prosecution. The prosecution, however, declared him hostile. While the incriminating materials were put to the appellants under Section 313 Cr.P.C., they simply denied the accusations. 4. Besides the aforesaid, the documentary evidence such as postmortem report (Ext-3), injury report of informant (Ext-4), fardbeyan (Ext-5) and formal FIR (Ext-7) have been produced by the prosecution. We further find that defence in order to establish the enmity of deceased with other persons and also his antecedents filed certified copy of FIR of Bagaha P.S.Case No.177 of 1997, Bagaha P.S.Case No.420 of 1992, Semra P.S.Case No.59 of 1993 and Semra P.S.Case No.64 of 1992 (Ext-A, A/1 A/2 and A/3 respectively). Charge sheet of aforesaid four cases (Ext-B, B/1, B/2 and B/3). 5. We have heard Mr. Bamdeo Pandey, learned counsel for the appellants, Sri Satyanarayan Prasad, Additional P.P. for the State and also Mr. Neeraj Kumar @ Sanidh, Amicus Curiae. 6. The counsel for the appellants has contended that the prosecution has not been able to establish the guilt of the appellants. There is no eye witness to the occurrence. The informant PW-10 has been projected as eye witness to the occurrence but from his evidence itself his presence on the place of occurrence appears doubtful. He further submits that the deceased was a hardcore criminal having several cases against him and he might have been murdered by someone on account of enmity and criminality at different place. On account of enmity, the present appellants have been roped. The dead body was not recovered from the place of occurrence as no incriminating material was found at the place of occurrence. At the time of conducting autopsy, the doctor visualized mud over the dead body but it is not mentioned in the inquest report. He further submitted that none of the witness from the locality has been examined in this case. As against this, the learned Additional P.P. has submitted that the informant of this case is an eye witness to the occurrence as he was also assaulted by the appellants. The appellants have not been able to discredit the ocular evidence of the informant and other witnesses who immediately arrived at the place of occurrence. The evidence of witnesses are consistent on the point of manner of occurrence committed by the appellants and so the court below rightly convicted the appellants. 7. The appellants have not been able to discredit the ocular evidence of the informant and other witnesses who immediately arrived at the place of occurrence. The evidence of witnesses are consistent on the point of manner of occurrence committed by the appellants and so the court below rightly convicted the appellants. 7. In view of submissions of both the parties, we proceed to carefully scan the evidence on record. The homicidal death of the deceased is not in dispute. The doctor PW-11 in his evidence has stated about sharp cut lacerated wound on his neck and sharp penetrating in the abdomen besides other injuries over eyelid, cheek, broken upper jaw etc. He has proved the postmortem report as Ext-3. The postmortem was conducted on 01.10.1997 and according to this witness death occurred within six hours from the time of conducting autopsy. The evidence of doctor establishes the fact that the death occurred at about 8 A.M. on 08.10.1997. He further deposed that on the same day, he examined Ramakant Yadav (PW-10) and found seven injuries on his person. The injury report of the informant has been marked as Ext-4. He has identified the informant also in the Court at the time of evidence after verifying mark of identification on the person of informant. In cross-examination of this witness, we find that there is no cross-examination on the injuries of informant. Thus, it is established that the informant sustained injuries on his person on the date and time of the occurrence. 8. The informant PW-10 in his evidence has stated that he along with his brother (deceased) and co-villager Ram Raj Bhagat (PW-9) proceeded to board the train at village-Khairpokhara and as soon as reached at the place of occurrence, co-accused Uma Shankar Bhagat, Lakshman Yadav and appellants Hansraj Gond and Ganesh Gond armed with chhura, bhala and lohbandha intercepted and assaulted his brother. The informant attempted to escape from there but he was immediately surrounded by other co-accused adjacent to the place of occurrence and was assaulted. The informant attempted to escape from there but he was immediately surrounded by other co-accused adjacent to the place of occurrence and was assaulted. The learned counsel while creating doubt over the presence of this witness at the place of occurrence has cited para-13 of his evidence wherein he has stated that on the date of occurrence he was on duty in Health Department at Bagaha Block No.2 and the period of his duty was from 8 A.M. to 12 noon and 4 P.M. to 6 P.M. in the evening. We find that in examination of chief he has specifically stated that at about 8.45 P.M. he along with his deceased brother and Ram Raj Bhagat (PW-9) had proceeded for boarding the train. We don't find from his deposition that he was present on duty on that date and time of occurrence. His evidence is to the effect that on the relevant date, he was not on leave. In the evidence of PW-9, we find that his evidence is consistent with the evidence of the informant. He has also stated the same version that he had proceeded at about 8.45 A.M. in the morning. Both these two witnesses in one tone have stated that the appellant Hansraj Gond, Ganesh Gond and other coaccused Lakshman Yadav and Uma Shanker Yadav caught hold of Kedar Yadav and assaulted him to death. The informant Ramakant Yadav raised alarm and tried to forbade them whereupon other appellants no.2 to 5 appeared from the adjoining sugarcane field and assaulted the informant. PW- 9 has further stated that the brother of the informant died on the spot. The deceased and injured were moved to the hospital where informant was examined. The doctor has found seven injuries on the person of the informant. The injury report has been marked as Ext-4. The appellants have not challenged the injuries sustained by the informant. There is no suggestion either to the doctor or to the informant during cross-examination that these injuries were either manufactured or manipulated. It is not the case that the informant was on leave. The informant asserts that he was on duty and on the date of occurrence, he had proceeded to board the train for going to Bagaha. PW-1 is a chance witness and he, in course of going to board the train, had reached at the place of occurrence. It is not the case that the informant was on leave. The informant asserts that he was on duty and on the date of occurrence, he had proceeded to board the train for going to Bagaha. PW-1 is a chance witness and he, in course of going to board the train, had reached at the place of occurrence. He also saw the appellants assaulting the deceased and the informant. On the arrival of this witness, the appellants fled away. The learned counsel for the appellants further drew our attention at paras-13 and 14 of his cross-examination and submitted that the informant Ramakant Yadav was unconsciousness and not in a position to speak. He recovered on the following day and only then he had occasion to talk with him. The informant PW-10 at para-18 has stated that he was conscious even after sustaining injuries. He was treated and partially recovered on the same day. The doctor has also reported about his injuries as simple in nature. After recording of fardbeyan he put his signature. This shows that he was fully conscious and was in a position to narrate the manner of occurrence to the police officer. PW-8 Balsunder Yadav is resident of same village and after hearing sound of quarrel reached at the place of occurrence where his brother Ramakant Yadav narrated him about the manner of occurrence. 9. The learned counsel for the appellant cited para-11 of PW-12 (Investigating Officer) wherein he has stated that the deceased was involved in 10-15 criminal cases. He had close link with the hardcore criminals and so he might have been killed by some one else in criminal activity. But this probability cannot be accepted in face of direct ocular evidence of PWs-8, 9 and 10. We have examined their evidence. They all stood to their cross-examination and nothing material has been elicited in their cross-examination to discredit their testimony. The informant himself is an injured eye witnesses who was assaulted by the appellant at the same time. His evidence is thus most reliable and trustworthy. It is supposed that no one will leave the real culprit and falsely implicate some one else. That apart, there is nothing on record to show the magnitude of enmity between the accused(s)/appellant(s) and the informant. 10. His evidence is thus most reliable and trustworthy. It is supposed that no one will leave the real culprit and falsely implicate some one else. That apart, there is nothing on record to show the magnitude of enmity between the accused(s)/appellant(s) and the informant. 10. So far non-examination of the witness from the place of occurrence is concerned, we find that the place of occurrence is a lonely place by the side of road running north to south. The Investigating Officer PW-12 at para-20 has stated that the residential area situates after one kilometer in northern side and 1½ kilometer in southern side. The adjoining land near place of occurrence was vacant (Sareh) land having paddy crop on western side and sugarcane crop on eastern side of the village road. All the witnesses are residents of nearest place from the place of occurrence and so their presence and arrival at place of occurrence immediately appears to be natural. 11. The learned counsel further argued that the place of occurrence is not established. The doctor has found mud on the dead body at the time of conducting autopsy. The Investigating Officer has not found mud near the place of occurrence and so the place of occurrence is not established. We have carefully gone through the evidence and we find that the Investigating Officer has clearly stated that the dead body was found in a ditch near Pipal tree by the side of road and towards the west, there is paddy crop field where the informant and deceased were assaulted. He has clarified that due to mud and water he did not find blood stain at the place of occurrence. The informant PW-10 at para-19 has stated that sufficient blood had fallen on the ground. The occurrence in question took place at about 9 A.M. whereas the investigationally commenced after recording of fardbeyan at about 1 P.M. so it is just possible that the blood might have been diluted in the mud found at the place of occurrence after passing a period of about four hours. 12. In view of discussions made above, we find that the conviction and sentence of appellants no.1 and 2 under Section 302 of the IPC as recorded by the learned court below is based on the evidence on record and it requires no interference. 13. 12. In view of discussions made above, we find that the conviction and sentence of appellants no.1 and 2 under Section 302 of the IPC as recorded by the learned court below is based on the evidence on record and it requires no interference. 13. So far conviction of appellant Ganesh Gond, Nand Lal Sah, Ramprasad Gond and Feki Gond for the offence under Section 307 of the IPC is concerned, we have examined the evidence on record very carefully. The informant has stated that after seeing the assault on his brother, he attempted to escape from the place of occurrence in order to save himself. But in the meanwhile the appellants Nand Lal Sah @ Nandlal Gond, Ram Prasad Gond and Feku Gond and two or three others suddenly appeared from a sugarcane field and assaulted him. The informant fell down and thereafter appellant nos.1 and 2 also came and assaulted him. The appellant nos.3 to 5 were neither armed with any lethal weapon nor they assaulted the deceased. They appeared from sugarcane field only when the informant raised alarm and started fleeing from the place of occurrence. In such circumstance it cannot be said that the appellants who assaulted the informant had common intention of murderous assault on the informant. The main target of the appellant nos.1 and 2 was the deceased and not the informant. The informant has sustained simple injuries (lacerated and bruise) caused by hard blunt substance. In evidence, the informant has stated at para-25 of his evidence that he sustained injuries on both the hands. The doctor has reported all the injuries on the person of the informant as simple in nature caused by hard blunt substance. 14. In view of discussions made above, we do not find any merit in the Patna High Court CR. APP (DB) No.41 of 2013 dated 08-02-2017 11 appeal so far conviction and sentence of appellant nos.1 and 2 under Section 302 of the IPC is concerned. The conviction of appellant nos.2 to 5 under Section 307 of the IPC is altered to Section 323 of the IPC and, accordingly, their sentence is reduced to the period already undergone by them. 15. The appeal is dismissed with modification(s) in finding(s) and sentence. Kishore Kumar Mandal, J. - I agree.