Patna High Court
Shyam Yadav vs The State Of Bihar on 4 May, 2018
Author: Prakash Chandra Jaiswal
Bench: Ravi Ranjan, Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1018 of 2012
Arising Out of PS.Case No. -53 Year- 2010 Thana -Puraini District- M adhepura
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Popis Yadav S/o Parmanand Yadav Resident of Village - Sapardah Gote, Police Station - Puraini, District - Madhepura.
.... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With =========================================================== Criminal Appeal (DB) No. 962 of 2012 Arising Out of PS.Case No. -53 Year- 2010 Thana -Puraini District- M adhepura =========================================================== Shyam Yadav S/o Late Bisheshwar Yadav Resident of Village- Sapardah Gote, Police Station- Puraini, District- Madhepura .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance:
For the Appellants : Mr. Viveka Nand Singh, Advocate.
Mr. Aarsh Kumar, Advocate.
Mr. Animesh Kumar Mishra, Amicus Curiae.
For the State : Mr. Ashwini Kumar Sinha, APP. For the Informant : Mr. Brij Mohan Kumar Singh, Advocate.
=========================================================== Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 2/19 CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN and HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL) Date: 04-05-2018 As both these criminal appeals have cropped up from the same judgment and order of conviction and sentence, hence they are taken up together for consideration and disposed of by this common judgment.
2. Heard learned counsel for the appellant, Mr. Animesh Kumar Mishra, learned Amicus Curiae and learned APP for the State on these criminal appeals.
3. These criminal appeals have been preferred against the Judgment and Order of conviction dated 25.08.2012 and order of sentence dated 04.09.2012 passed by Adhoc Additional Sessions Judge-IV, Madhepura in Sessions Trial No. 60 of 2011 arising out of Puraini P.S. Case No. 53 of 2010, whereby the learned trial court acquitted Parmanand Yadav, Ramanand Yadav, Brajesh Yadav and Arvind Yadav and convicted the appellant Popis Yadav under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and Shyam Yadav under Section 302/34 of the Indian Penal Code and sentenced Popis Yadav to undergo imprisonment for life and also slapped him with fine of Rs. 5000/- under Section 302 of Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 3/19 the Indian Penal Code and further sentenced him to undergo R.I. for three years under Section 27 of the Arms Act and in case of default of payment of fine, to further undergo R.I. for six months, both the sentences were directed to run concurrently and sentenced Shyam Yadav to undergo imprisonment for life and slapped him with fine of Rs. 5000/- and in default of payment of fine, to further undergo R.I. for three months under Section 302/34 of the Indian Penal Code.
4. Factual matrix of the case is that Puraini P.S. Case No. 53 of 2010 was instituted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act against the accused Shyam Yadav, Popis Yadav, Brajesh Yadav, Arvind Yadav, Parmanand Yadav and Ramanand Yadav on the basis of the fardbeyan of Bhola Yadav, Son of Late Mahabir Yadav recorded by S.I. Vakil Prasad Yadav, S.H.O., P.S. Puraini on 04.06.2010 at 05:00 AM at the door of the informant in village - Sapardah with the allegation in succinct that in the night of 03.06.2010 while the informant and his son Anmol Yadav were sleeping in the mid-night at 2 AM on 04.06.2010, he woke up sensing footfall of some persons and in the moon and torch light, he spotted Shyam Yadav and Popis Yadav armed with pistol there and on the order of Shyam Yadav, Popis Yadav resorted firing on the left temple of his son Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 4/19 resultantly his son Anmol Yadav died instantly. Brajesh Yadav, Arvind Yadav, Parmanand Yadav and Ramanand Yadav all armed with weapons standing beside them committed murder of his son Anmol Yadav. After gunning his son down, two miscreants escaped towards east while four escaped towards south. Then responding hulla made by him, locals congregated there.
5. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the aforesaid accused persons.
6. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of Adhoc Additional Sessions Judge-IV, Madhepura for trial.
7. Charge against the accused was framed under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried.
8. To substantiate its case, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses namely, Mahadeo Yadav as PW-1, Pintu Yadav as PW-2, Sanjay Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 5/19 Yadav as PW-3, Jhuno Yadav as PW-4, Chattish Yadav as PW-5, informant Bhola Yadav as PW-6, I.O. Wakil Prasad Yadav as PW-7 and Dr. Suman Kumar Jha who conducted the autopsy of the cadaver of the deceased as PW-8. Prosecution has also filed and proved some documents by way of documentary evidence in the case.
9. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons neither adduced any ocular nor documentary evidence in buttress of their case.
10. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph.
11. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts Popis Yadav and Shyam Yadav have preferred the aforesaid two Criminal Appeals.
12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not.
13. It is submitted by learned counsel for the Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 6/19 appellants and learned Amicus Curiae that as per the F.I.R., only informant is the eye witness of the occurrence as locals had arrived at the place of occurrence after decamping of the accused persons responding hulla made by the informant. The informant has also not taken the name of PW-1, PW-2, PW-3, PW-4 and PW-5 arriving at the place of occurrence at the time of occurrence and witnessing of the occurrence by them. Hence, aforesaid witnesses do not happen to be eye witness of the occurrence. It is further submitted that as per the witnesses' account, appellant Popis Yadav resorted firing on the left temple of the deceased from point blank range but the doctor has not found any charring or any blackening mark around the wound. The aforesaid aspect of the case rules out the witnesses to be the eye witness of the occurrence and also rules out the prosecution case. It is further submitted that the occurrence is of night of around 2 AM on 04.06.2010 and the said night was dark night. As per Hindi Calendar, it was Krishna Paksha Saptami. PW-1 Mahadeo Yadav in Para-4 of his cross-examination has also stated that it was dark night. As per the prosecution case and account of the informant as well as other witnesses, they have identified the appellants in the torch light but no torch was either produced before the I.O. or was seized by the I.O. So there was no source of identification at the time of occurrence. So million dollar Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 7/19 question arises as to how the informant and other witnesses identified the appellants in the dark night without any source of identification which creates serious doubt about the prosecution case and complicity of the appellants in the occurrence. It is further submitted that there is no animosity between the accused and the deceased and no motive behind the occurrence has been assigned by the prosecution, so why the appellants would eliminate the deceased. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charge levelled against the appellants beyond all reasonable doubts by adducing reliable, trustworthy and worth credence evidence. Hence, the Judgment and order of conviction and sentence passed by learned Trial Court is liable to be set aside and the appellants are entitled to be acquitted.
14. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant who happens to be the eye witness of the occurrence and who was sleeping with the deceased at the time of occurrence had fully supported the prosecution case and other witnesses who had also witnessed the occurrence have corroborated the prosecution case. I.O. has found pillet embedded in the bolster of the deceased and blood at the Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 8/19 place of occurrence. Ocular evidence also stands corroborated by medical evidence and the learned trial court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence which is liable to be upheld and these two appeals are shorn of merit and are liable to be dismissed.
15. From perusal of the record, it appears that to substantiate its case, prosecution has examined altogether six material witnesses in the case. Out of them, PW-1 Mahadeo Yadav, PW-2 Pintu Yadav, PW-3 Sanjay Yadav, PW-4 Jhuno Yadav and PW-5 Chattish Yadav do not happen to be eye witnesses of the occurrence albeit they have made an abortive bid to support the prosecution case by giving statements in consonance to the prosecution case in their respective examination-in-chief. As PW-1 Mahadeo Yadav has stated in Para-5 of his cross-examination that he had arrived at the door of Anmol Yadav preceding to hulla. Anmol was lying dead there and was bleeding profusely. The aforesaid statement of PW-1 candidly indicates that he had arrived at the place of occurrence after culmination of the occurrence and had not seen the occurrence of resorting firing upon Anmol Yadav by Popis Yadav. Though PW-1 has claimed to have identified the appellant Popis Yadav in the occurrence as an assailant, but from Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 9/19 perusal of the examination-in-chief of the said witness, it appears that he has failed to identify the appellant Popis Yadav in the dock. So the question arises that if the aforesaid witness has failed to identify the appellant Popis Yadav in the dock, then how he could have allegedly identified him in the occurrence in the dark night without any source of identification as as per his account as given in Para-4 of his cross-examination, it was dark night at the time of occurrence and he has not disclosed any source of identification. PW-2 Pintu Yadav has stated in his examination-in-chief that at the time of occurrence he had stepped out of the house at the bank of canal and after urination he regressed to his courtyard. In Para-33, 35 and 36 of his cross-examination, he has further stated that he listened hulla made by his father 2-3 minutes later to his arrival at his courtyard and then rushed at the place of occurrence. The aforesaid statement of PW-2 indicates that he had arrived at the place of occurrence responding hulla made by his father (informant). But from perusal of the prosecution case, it appears that the informant had made alarm after departure of the accused persons from the place of occurrence after committing the occurrence. Thus, PW-2 Pintu Yadav had arrived at the place of occurrence responding aforesaid alarm made by his father after departure of the accused persons from the place of occurrence and Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 10/ 19 appears to have not witnessed the occurrence of assault upon the deceased. PW-3 Sanjay Yadav has stated in Para-22 of his cross- examination that while he stepped out of the stable, he witnessed wound at one place on the person of Anmol (deceased). The aforesaid statement of PW-3 also eloquently indicates that the said witness had not witnessed the occurrence of assaulting the deceased by the appellant Popis Yadav rather when he stepped out of the stable, he had witnessed one wound on the person of the deceased which means that he had arrived at the place of occurrence after culmination of the occurrence. PW-4 Jhuno Yadav has stated in his examination-in-chief that at the time of occurrence, he was sleeping on the terrace of his house and woke up on the firing sound and rushed to the door by flashing torch and witnessed the accused persons armed with weapons there. His father was crying and was complaining to Shyam Yadav as to why Popis Yadav resorted firing upon his son, whereupon the accused persons asked him to keep mum else to face dire consequence. Thereafter, the accused persons decamped in two directions. The aforesaid statement of PW-4 indicates that he had not witnessed resorting firing upon the deceased Anmol Yadav by Popis Yadav rather had arrived at the place of occurrence after aforesaid firing and seen his father crying and making complain with Shyam Yadav Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 11/19 about gunning down Anmol Yadav by Popis Yadav. Moreover, in para-15 of his cross-examination, he has candidly stated that when he arrived at the place of occurrence, his brother (deceased) had died by that time. PW-5 Chattish Yadav has stated in his examination-in-chief that at the time of occurrence he was sleeping on the terrace of his house and woke up responding the firing sound and rushed to the door of Bhola Yadav (informant) and found Anmol lying dead there. He was gunned down. In Para-8 of his cross-examination, he has further stated that when he arrived at the place of occurrence, he found Anmol Yadav lying dead one sided. The aforesaid statement of PW-5 eloquently indicates that the said witness has also not witnessed the occurrence rather had arrived at the place of occurrence after culmination of the occurrence and found the deceased Anmol lying dead there. Moreover, in para-3 of his cross-examination, he has candidly denied to have witnessed the occurrence. Though PW-5 has stated in Para-1 of his examination-in-chief that Bhola Yadav divulged him that Parmanand Yadav, Ramanand Yadav, Shyam Yadav, Popis Yadav, Arvind Yadav and Brijesh Yadav arrived at his door armed with weapons and on the order of Shyam Yadav, Popis Yadav resorted firing upon Anmol, but the informant Bhola Yadav has not corroborated the factum of divulgence of the aforesaid occurrence Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 12/ 19 to PW-5 and for want of corroboration, the aforesaid testimony of PW-5 is also not admissible in evidence even as hearsay witness.
16. PW-4 Jhuno Yadav has stated in Para-14 of his cross-examination that preceding to his arrival at the place of occurrence, only Sanjay Yadav of his family had arrived there and no one else from his family was present there. In Para-15 of his cross-examination he has further stated that when he arrived at the place of occurrence, his brother had died by that time. The aforesaid statement of PW-4 candidly rules out arrival of PW-1 Mahadeo Yadav and PW-2 Pintu Yadav who happen to be brother of the informant and brother of the deceased respectively at the place of occurrence preceding to arrival of PW-4 Jhuno Yadav and witnessing of occurrence of assault by them as Jhuno Yadav had arrived at the place of occurrence preceding to aforesaid witnesses and had found the deceased dead there. The aforesaid statement of PW-4 also indicates that the said witnesses had also not witnessed the occurrence of resorting firing upon the deceased by the appellant Popis Yadav. Hence, PW-1, PW-2 and PW-4 have not witnessed the aforesaid occurrence of resorting firing upon the deceased by the appellant Popis Yadav. Moreover, informant has not stated in his fardbeyan about arrival of his family members i.e. PW-1, PW-2, PW-3 and PW-4 at the place of occurrence at the time Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 13/ 19 of occurrence rather has stated that responding alarm made by him after departure of accused persons, locals had congregated at the place of occurrence. Though in Para-1 of his examination-in-chief, he has stated that Sanjay who was sleeping in the stable had arrived at the place of occurrence and Mahadeo and others had also rushed there, then the accused persons made good their escape resorting firing in the air. But aforesaid statement of the informant itself also eloquently indicates that Sanjay Yadav (PW-3) and Mahadeo Yadav (PW-1) and others had arrived at the place of occurrence after culmination of the occurrence of resorting firing upon Anmol by Popis Yadav and had not witnessed the aforesaid occurrence. Moreso informant in Para-46 and 47 of his cross-examination has further stated that after sustaining injury by Anmol, Sanjay Yadav (PW-3), Jhuno Yadav (PW-4), Pintu Yadav (PW-2) and Mahadeo Yadav (PW-1) had arrived at the place of occurrence immediately. Womenfolk of the house had also arrived there. They had seen the deceased and mark of firing on his person. The aforesaid statement of the informant also eloquently indicates that the aforesaid witnesses had arrived at the place of occurrence after culmination of the occurrence and had witnessed Anmol (deceased) lying dead there.
17. Now the only witness left to be examined is the Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 14/ 19 informant Bhola Yadav (PW-6). From perusal of the testimony of the informant as given by him in his examination-in-chief, it appears that he has supported the prosecution case as an eye witness of the occurrence by stating that at the time of occurrence, he was sleeping at the door of his son Anmol. Anmol was sleeping on bench while he was sleeping on chauki. He woke up sensing the footfall of the people and flashed the torch and spotted Shyam Yadav, Paro @ Parmanand Yadav, Ramanand Yadav, Brijesh Yadav, Arvind Yadav and Popis Yadav armed with weapons there. Shyam Yadav gave order to Popis Yadav to gun down Anmol Yadav. Whereupon Popis Yadav resorted firing upon Anmol Yadav. When he made alarm complaining atrocity made by the accused persons, the accused persons asked him to keep mum else to face dire consequence. His elder son Sanjay Yadav who was sleeping in stable also arrived there and Mahadeo and others also rushed there, then accused persons made good their escape by resorting firing in the air. It is settled law that conviction can be made only on the basis of testimony of the solitary eye witness, if the same is found to be fully reliable and unblemished, but from perusal of the statement of the informant as given by him in his examination-in- chief, it appears that the informant has claimed to have identified the accused persons in the occurrence in the torch light while in his Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 15/ 19 fardbeyan he has stated that he had identified the accused persons in the occurrence in the moon and torch light. The occurrence is of 2 AM on 04.06.2010. From perusal of Shri Vakateshwar Shatabdi panchangam, it appears that as per the Hindi Calendar, it was Krishna Paksha Saptami which means that it was day of dark night. Moreover, PW-1 Mahadeo Yadav in Para-4 of his cross- examination has stated that it was dark night on the date of occurrence. The aforesaid aspect of the case and account of the witnesses candidly indicates that it was dark night at the time of occurrence and not the moon light as stated by the informant in his fardbeyan. The informant, PW-3 and PW-4 have claimed to have identified the accused persons in the torch light, but the informant has stated in para-24 and 25 of his cross-examination that he had not handed over the said torch to the police and police had also not demanded the same from him. I.O. (PW-7) in Para-53 of his cross- examination has stated that there was no source of light at the place of occurrence. In the aforesaid aspect of the case, I find that there was no source of identification at the place of occurrence at the time of occurrence, then million dollar question arises as to how the informant and other witnesses had identified the accused in such a dark night without any source of identification which creates serious doubt about the prosecution case.
Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 16/ 19
18. The informant has stated in Para-44 of his cross- examination that bullet was fired near the temple of Anmol from point blank range. Likewise, PW-2 Pintu Yadav has stated in Para- 38 of his cross-examination that the accused resorted firing upon his brother Anmol from point blank range. The aforesaid statement of the witnesses indicates that the appellant Popis Yadav had resorted firing on the temple of the deceased Anmol Yadav from point blank range.
19. As per the 25th Edition of Modi's Medical Jurisprudence, if a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. Blackening is found, if the firearm like pistol is discharged within about two feet.
20. As the appellant Popis Yadav had resorted firing upon the deceased by means of pistol, so as per the Modi's Medical Jurisprudence, in case of assault by means of pistol from point Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 17/ 19 blank range, the wound of entry must be lacerated and surrounding skin must be scorched and blackened. But from perusal of the post mortem report marked as Exhibit-5 and testimony of Dr. Suman Kumar Jha (PW-8) who conducted the autopsy of the cadaver of the deceased, it appears that the doctor has found one wound of entry of size of ½" x ½" over let ear with inverted margin. He has not found the aforesaid wound as lacerated. In Para-17 of his cross- examination, he has stated that he has not found any charring or blackening or mark of any gunpowder on the wound. In Para-19 of his cross-examination, he has stated that if firing is made from within the distance of 9 inch, there is charring mark and blackening on the wound. The aforesaid contradiction between the statement of the informant and that of PW-2 and medical evidence creates serious doubt about witnessing of the occurrence of assault upon the deceased by appellant Popis Yadav by the said witnesses. The testimony of the informant also does not stand corroborated by any other eye witness of the occurrence. There is no consistent ocular evidence regarding the occurrence. In view of the aforesaid contradictions and aspect of the case, aforesaid testimony of the informant does not inspire my confidence to hold conviction of the appellants relying upon the same.
21. The place of occurrence as stated by the Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 18/ 19 informant in Para-29 of his cross-examination also does not matches with the place of occurrence as found by the I.O (PW-7) and described in Para-8 of his examination-in-chief as the informant in para-29 of his cross-examination has stated that towards north of the place of their sleeping (place of occurrence) there is house of Buchendra Yadav, towards south there is door of Ajay Yadav, towards East there is bandh and towards west there is canal, but I.O. has stated in Para-8 of his examination-in-chief that towards North of the place of occurrence there is straw house of the informant Bhola Yadav, towards South there is straw house of Ajay Yadav, towards East there is field of Ajay Yadav and towards West there is door and baithaka of the informant and thereafter there is canal. Thus, the place of occurrence as stated by the informant is in quite contradiction to that found by the I.O. Hence, the place of occurrence also does not stand established by the prosecution.
22. In the aforesaid facts and circumstances of the case and discussion made by me herein above, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction Patna High Court CR. APP (DB) No.1018 of 2012 dt.04-05-2018 19/ 19 and sentence passed by the learned trial court is set aside and the appellants are acquitted of the charge levelled against them giving them benefit of doubt. As the appellant Popis Yadav is in custody, he is directed to be released forthwith from the custody, if not wanted in any other case while as the appellant Shyam Yadav is on bail, he is discharged from the liability of his bail bonds. Accordingly, these two criminal appeals are allowed.
23. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Mr. Animesh Kumar Mishra, and learned Amicus Curiae be paid prescribed fee by the Patna High Court Legal Services Committee.
(Prakash Chandra Jaiswal, J) Dr. Ravi Ranjan, J: I agree.
(Dr. Ravi Ranjan, J) Mishra/-
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