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2019 DIGILAW 1751 (JHR)

Lakshman Yadav v. State of Jharkhand

2019-10-16

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : 1. Three persons, namely, Raja Ram Yadav, Sunil Kumar Singh and Lakshman Yadav have faced the trial in Sessions Trial Case No. 138 of 2005 on the charge under section 302/34 IPC and under section 27 of the Arms Act for murder of Nawal Kishore Singh. The convicts, namely, Raja Ram Yadav and Lakshman Yadav were convicted and sentenced to R.I. for life with fine of Rs. 20,000/- each under section 302/34 IPC, the accused, namely, Sunil Kumar Singh has been acquitted of the charge under section 302/34 IPC framed against him. 2. Subsequently, trial against Munna Singh and Kanhaiya Singh had commenced vide S.T. No. 138A of 2005 and at the time of the judgment in Sessions Trial Case No. 138 of 2005 it was pending. 3. The convict Raja Ram Yadav had preferred Criminal Appeal (D.B.) No. 295 of 2011, however, on his death during the pendency of the criminal appeal vide order dated 20.08.2019 it was dismissed as abated. 4. On the basis of the fardbeyan of Meena Singh recorded on 25.08.2003 at about 21.00 pm in her house, Sonari P.S. Case No. 69 of 2003 was lodged against Raja Ram Yadav, Sunil Yadav @ Tuntun Yadav and Lakshman Yadav and two other unknown persons under section 302/34 IPC and section 27 of the Arms Act. After the investigation, a charge-sheet was submitted against Raja Ram Yadav, Sunil Kumar Singh, Lakshman Yadav, Sunil Yadav @ Tuntun and Dudhai Yadav, showing Sunil Yadav @ Tuntun and Dudhai Yadav as absconders. 5. During the trial, the prosecution has examined ten witnesses; the informant, namely, Meena Singh, wife of the deceased, is PW-4 and the doctor who has conducted the post-mortem examination has been examined as PW-9. 6. The prosecution witnesses, namely, Suresh Sharma PW-1, Satendra Kumar Sharma PW-7 and Kailash Singh PW-8 have turned hostile. 7. The prosecution has projected Meena Singh, Pramila Singh and Kiran Singh as the eye-witnesses. 8. The prosecution has led documentary evidence, all without objection from the defence. 9. The prosecution's case is disclosed in the fardbeyan of Meena Singh who has stated that on 25.08.2003 at about 7.15 pm she was in her house alongwith other family members. At that time on hearing the bell ringing her daughter Kiran Singh queried about the visitor who replied that they were clients of Nawal Kishore Singh, the informant's husband. 9. The prosecution's case is disclosed in the fardbeyan of Meena Singh who has stated that on 25.08.2003 at about 7.15 pm she was in her house alongwith other family members. At that time on hearing the bell ringing her daughter Kiran Singh queried about the visitor who replied that they were clients of Nawal Kishore Singh, the informant's husband. When her husband opened the door the accused persons dragged him 10-15 yards outside the house and Sunil Yadav @ Tuntun Yadav fired two shots from his pistol on her husband. The informant has claimed that there were two other unknown accused persons also and while leaving the place of occurrence they had fired another shot. According to the informant, the reason why her husband was assaulted by the accused persons was a long standing land dispute and series of criminal cases between her husband and Raja Ram Yadav and Lakshman Yadav. In her examination-in-chief, the informant has narrated a similar story about the incident which had happened in the evening of 25.08.2003. She has proved her signature on her fardbeyan and the seizure list. Another eye-witness of the case is Pramila Singh, the second wife of Nawal Kishore Singh, the deceased. She has also narrated a similar story of the occurrence as has been described by the informant in her fardbeyan and when she was examined in the court. The daughter of the deceased, namely, Kiran Singh has also spoken about presence of her father, mother and the step-mother in the house in the evening of 25.08.2003, the call-bell ringing, the accused persons portraying themselves as the client of her father, dragging of her father by the accused persons and Sunil Yadav firing pistol shots on her father. 10. Dr. Niranjan Minz PW-9, who has conducted the post-mortem examination, has found the following injuries on Nawal Kishore Singh: Fire Arms Injuries Two set of fire arms wounds. First wound of entrace was on left neck upper part with tattooing marks and projectile after passing through mandible and fracturing third and fourth cervical vertebra made exit wounds behind right angle to mandible. The second wound of entrance was on the right chest with tattoo mark and the projectile passes through thoracic cavity passes through right lungs lacerating it and made wounds of exit on right specular region. 11. The second wound of entrance was on the right chest with tattoo mark and the projectile passes through thoracic cavity passes through right lungs lacerating it and made wounds of exit on right specular region. 11. According to PW-9, the cause of death was shock and haemorrhage resulting from the fire arm injury. 12. The presence of PW-4, PW-5 and PW-6 in the house in the evening of 25.08.2003 is natural and, in fact, there is no serious challenge by the defence to their presence in the house. Insofar as, dragging of Nawal Kishore Singh by the accused persons outside his house and his death by fire arm injury are concerned, these witnesses have stood to their ground during their cross-examination. Nothing material could be elicited by the defence during the cross-examination of PW-4, PW-5 and PW-6 which would substantially shake the foundation of the prosecution case. 13. In the aforesaid state of affairs, to convict the appellant with the aid of section 34 IPC the prosecution must prove that murder of Nawal Kishore Singh was in furtherance of common intention of the appellant. 14. In our opinion, presence of the appellant at the place of occurrence and at the time of the occurrence, may be there are some inconsistencies in the testimony of the eye-witnesses, have been proved by the prosecution. 15. Section 34 IPC embodies constructive liability. It makes other accused persons liable for the act of another. Section 34 IPC is not a substantive offence in itself but if it is found that the offending act was committed in furtherance of the common intention of all, it fastens the liability upon all. But, to rope in an accused with the aid of section 34 IPC, it must be proved that there was a pre-arranged plan and all the accused persons were acting in concert and the criminal act was accomplished in furtherance of common intention of all. But, to rope in an accused with the aid of section 34 IPC, it must be proved that there was a pre-arranged plan and all the accused persons were acting in concert and the criminal act was accomplished in furtherance of common intention of all. In the celebrated judgment in Mahbub Shan vs. Emperor, AIR 1945 PC 118 , the Privy Council has observed “when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.” This observation on section 34 IPC was made after the amendment in 1870 by which before the expression “each of such persons” the expression “in furtherance of common intention of all” was incorporated and after that the law on applicability of section 34 IPC has remained the same. 16. In paragraph no. 22 of the judgment in Sessions Trial Case No. 138 of 2005, the learned Additional Judicial Commissioner has recorded a finding that the specific role attributed to Raja Ram Yadav and Lakshman Yadav is of catching hold of Nawal Kishore Singh and dragging him 10-15 steps outside his house. It has come on record that there were series of litigations between the deceased and Raja Ram Yadav and Lakshman Yadav. In paragraph nos.101 to 107 of her cross-examination, the informant has given details of the criminal cases between her husband and the accused persons. Not only that, on so many other places during her cross-examination she has admitted enmity between her husband and Raja Ram Yadav and Lakshman Yadav, the present appellant. It is the prosecution's specific case that Nawal Kishore Singh has died due to injury caused by pistol shot, but the shot was not fired by Lakshman Yadav. 17. The intention of an accused can be gathered from the manner of occurrence, the assault weapon, the injuries caused to the victim and the role played by the accused in the occurrence. The prosecution, however, has failed to prove such facts which would disclose that the appellant alongwith other accused persons dragged Nawal Kishore Singh in furtherance of their common intention to murder him. The prosecution, however, has failed to prove such facts which would disclose that the appellant alongwith other accused persons dragged Nawal Kishore Singh in furtherance of their common intention to murder him. The prosecution has also failed to establish that the accused Sunil Yadav @ Tuntun Yadav was carrying a revolver was known to the appellant and he had the knowledge that murder of Nawal Kishore Singh may be caused in furtherance of common intention of all. On the contrary, the daughter of the deceased, namely, Kiran Singh-PW-6 has admitted in her cross-examination that the appellant is not the person who has played any role in the incident. 18. In view of the aforesaid facts, we find conviction of the appellant under section 302/34 IPC unsustainable and, accordingly, it is set-aside. 19. But, since the prosecution has established presence of the appellant at the place of occurrence and at the time of occurrence, and it has also been proved by the prosecution that the appellant has played a role in the occurrence, therefore, we hold that he is liable to be convicted and sentenced to R.I. for Ten years under section 326 IPC. 20. Mr. S.K. Keshri, the learned APP, states that the appellant has undergone more than Eleven years of imprisonment. 21. Accordingly, the appellant, namely, Lakshman Yadav shall be set free forthwith, if not wanted in connection to any other criminal case. 22. In the result, Criminal Appeal (DB) No. 252 of 2011 is partly allowed. 23. Let the lower-court records be transmitted to the court concerned, forthwith.