Patna High Court
Akalu Yadav And Ors vs State Of Bihar on 5 July, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 328 of 1993
Arising Out of PS.Case No. - 73 Year- 1986 Thana - Arrah Muffasil District- BHOJPUR
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1. Akalu Yadav son of Tengari Yadav.
2. Potar Yadav @ Ram Kishun Singh, son of Ram Jatan Yadav.
3. Kamlesh Yadav, son of Akalu Yadav.
All residents of Village - Barki Sandya, P.S. - Arrah Muffasil, District -
Bhojpur.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellant/s : Mrs. Rina Sinha, Amicus Curiae
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date: 05-07-2017
The present appeal was preferred against the
judgment of conviction and sentence dated 21st May, 1993 passed
by Sri Satyadeo Prasad, learned 8th Additional Sessions Judge,
Arrah (hereinafter referred to as 'Trial Judge') in Sessions Trial
No. 182 of 1987 (arising out of Arrah Muffasil P.S. Case No. 73 of
1986). By the said judgment, the learned Trial Judge has convicted
all the three appellants for offence under Section 302 of the Indian
Penal Code and sentenced them to undergo rigorous
imprisonment for life. However, the learned Trial Judge acquitted
remaining five accused persons from all the charges. Even the
Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017
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aforesaid appellants were acquitted in respect of other charges.
2. In the aforesaid trial i.e. Sessions Trial No. 182 of
1987, eight accused persons were tried, namely; 1. Aklu Yadav
(appellant no. 1), 2. Paras Yadav, 3. Potar Yadav (appellant no. 2),
4. Matar Yadav, 5. Sheo Prasad Yadav, 6. Rajgrihi Yadav, 7. Jagdish
Yadav and 8. Kamlesh Yadav (appellant no. 3). Charges were
framed on 20th January, 1989 against appellant no. 1 (Aklu Yadav)
and he was charged under Section 324 of the Indian Penal Code
for voluntarily causing hurt to Bikram Yadav by sharp cutting
weapon. Appellant no. 2 (Potar Yadav) was charged for offence
under Section 302 of the Indian Penal Code for committing
murder intentionally and knowingly of Bikram Yadav. Accused
Paras Yadav, Kamlesh Yadav (appellant no. 3), Matar Yadav,
Rajgrihi Yadav, Sheo Prasad Yadav, Jagdish Yadav and Aklu Yadav
(appellant no. 1) were charged for offence under Sections
302/149 of the Indian Penal Code. Accused Paras Yadav, Kamlesh
Yadav (appellant no. 3), Matar Yadav, Rajgrihi Yadav, Sheo Prasad
Yadav and Jagdish Yadav were further charged for offence under
Section 323 of the Indian Penal Code.
3. Prosecution case in short is that on 16-07-1986 at
about 3:45 P.M. in Ara Hospital, Sub-Inspector of Police S.P.Singh
Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017
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recorded fardbeyan of Sheo Kumar Yadav, informant (P.W.-3). In
the fardbeyan, the informant stated that on the same date i.e. on
16-07-1986at about 11:00 A.M., his Pattidar (Gotiya) Aklu Yadav was erecting a wall, which had fallen down. The construction work started encroaching over the land of the informant. At that very time, Kamlesh Yadav (appellant no. 3) and Aklu Yadav (appellant no. 1) were present and to help them, he had called Matar Yadav, Rajgrihi Yadav, Sheo Prasad Yadav, Jagdish Yadav, Paras Yadav, Potar Yadav from outside. When the informant noticed that accused persons were constructing the wall encroaching over his land, he went to the place of construction and asked the accused persons to construct the wall over their own land. Thereafter, accused Aklu Yadav (appellant no. 1) and other accused persons named in the fardbeyan started abusing informant side. The informant stated that Rajgrihi Yadav, who was carrying lathi in his hand, instigated other accused persons to kill the informant. Thereafter, accused Aklu Yadav (appellant no.
1), who was carrying bhala in his hand, gave bhala blow on just above the temporal region of his brother Bikram Yadav. Potar Yadav, who was carrying khanti in his hand, gave blow on the head of his brother and Jagdish Yadav thereafter started pressing Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 4/19 his chest while he had fallen. The informant further stated that appellant no. 3 (Kamlesh Yadav) gave blow from the blade side of spade on the forehead. The informant further stated that when he with his Bhaujai (brother's wife) i.e. wife of Bikram Yadav and other gotiya Ram Pravesh Yadav called, then accused Sheo Prasad Yadav gave lathi blow on his chest & left hand and also abused. He disclosed that his brother's wife (deceased wife) Sarswati Devi was assaulted by accused Paras Yadav by means of lathi on her hand and ribs. In the said occurrence, he stated that Ram Pravesh Yadav also received injury. In the meanwhile, villagers arrived and witnessed the occurrence. Thereafter, the brother of the informant (Bikram Yadav) was carried on a cot to Ara Hosptial with the help of Ram Ratan Yadav (P.W.-2), Ram Babu Rai (P.W.-
4) and others. He disclosed that on way to Hospital, his brother succumbed to his injuries and thereafter, fardbeyan of informant was recorded in the hospital. On the basis of fardbeyan of the informant, a formal F.I.R. was lodged against eight named accused persons on the same date, vide Ara Muffasil P.S. Case No. 73 of 1986.
4. It is case of the prosecution that subsequently, inquest report was prepared, dead-body was sent for post-mortem Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 5/19 examination and post-mortem on the dead-body was held on the same date i.e. 16-07-1986, in which, about four injuries were found on the person of the deceased Bikram Yadav. Police after registering F.I.R., started investigation and on 05-07-1986, submitted chargesheet against eight accused persons, which includes three appellants. Thereafter, on 05-08-1986, the learned Magistrate took cognizance of offence and the case was committed to the court of sessions on 02-06-1987. After commitment, on 20-01-1989, charges were framed, which has been indicated hereinabove. Since accused persons denied charges, they were put on trial. During trial, to prove the case, prosecution examined altogether eight witnesses. Out of them, P.W.-1 (Saraswati Devi, wife of the deceased), P.W.-2 (Ram Ratan Yadav), P.W.-3 (Sheo Kumar Rai @ Sheo Kumar Yadav, brother of the deceased and P.W.-4 (Ram Babu Rai @ Ram Babu Yadav) were examined as ocular witness to the occurrence. Dr. Bismila Khatun, Civil Assistant Surgeon, Sadar Hospital, Ara, who had examined the injuries of Saraswari Devi (P.W.-1), was examined as P.W.-5. P.W.-6 Dr. Mahesh Kumar Sinha, Civil Assistant Surgeon, Sadar Hospital, Ara had examined the injuries of Sheo Kumar Yadav (informant) and he also examined the injuries of Ram Pravesh Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 6/19 Yadav (not examined). P.W.-7 (Sheo Pujan Singh), Sub-Inspector of Police is the investigating officer and P.W.-8 (Dr. Rameshwar Singh), Deputy Superintendent, Sadar Hospital, Ara had conducted post-mortem examination on the dead-body of deceased (Bikram Yadav). From the defence side also, two witnesses were examined, who were Pashupati Nath Upadhyaya (D.W.-1) and Dr. Satish Kumar Sinha (D.W.-2). D.W.-1 has simply proved a sale-deed and D.W.-2 has stated that he had examined the injuries of accused Aklu Yadav (appellant no. 1) at 3:45 P.M. on the same date. After conclusion of the prosecution evidence, statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973. During which, they denied the charges and finally, by the impugned judgment, the learned Trial Judge acquitted all the accused persons from charge section, save and except Section 302 of the Indian Penal Code, that too in respect of aforesaid three appellants, otherwise all other five accused persons were acquitted. So far as appellants are concerned, they were acquitted from other charges. After the judgment of conviction and sentence, the three appellants preferred the present appeal, which was admitted for hearing on 26-08-1993 and while admitting, all the three appellants were Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 7/19 directed to be released on bail.
5. At the time of hearing on 24-05-2017, when case was taken up, none appeared on behalf of the appellants. Thereafter, again on 21-06-2017, there was non-appearance on behalf of the appellants. Keeping in view the fact that the appeal was of the year 1993, the Court considered that it was not appropriate to defer hearing and as such, on 21-06-2017, Smt. Rina Sinha, learned counsel was requested to assist the Court, as Amicus Curiae, and she started argument, which was heard in part on 21-06-2017. Again, it was heard on 22-06-2017 and matter was again heard today. Even till date, the learned Advocate, who had filed vakalatnama on behalf of appellants, has not appeared.
6. Smt. Rina Sinha, learned Amicus Curiae has argued that order of judgment of conviction is liable to be set aside mainly on the ground that in the present case, there was allegation of murder of only one person and as such, in a case of murder of one person, there was no reason to convict all the three appellants under Section 302 of the Indian Penal Code. She further submits that since the charges were not framed against appellant no. 1 & 3 separately for offence under Section 302 of the Indian Penal Code, but they were charged for offence under Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 8/19 Sections 302/149 of the Indian Penal Code, in any event, the appellant no. 1 & 3 were not required to be convicted for offence under Section 302 of the Indian Penal Code. So far as appellant no. 2 (Potar Yadav) is concerned, she has argued that in the post- mortem examination report, the doctor, who conducted autopsy, had found four injuries on the person of the deceased. According to her, in a case where there were four injuries, it was difficult to come to the conclusion about the cause of death by which injury, however; she does not dispute that the doctor, who conducted autopsy, i.e. P.W.-8 (Dr. Rameshwar Singh) has given specific opinion that cause of death was due to injury no. 1 i.e. "one bruise 2 ½" X 2" on right parietal and temporal area of skull". According to learned Amicus Curiae, all the injuries were found above the neck of the deceased and in that situation, it was difficult to come to the conclusion regarding the cause of death by specific injury. In sum and substance, it has been argued that without framing charge for offence under Section 302 of the Indian Penal Code separately, the learned Trial Judge has committed serious error in convicting all the three appellants only for offence under Section 302 of the I.P.C., whereas, in the case, only one person namely Bikram Yadav was done to death. On Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 9/19 aforesaid ground, a prayer has been made to set aside the impugned judgment.
7. Sri Ajay Mishra, learned Addl. Public Prosecutor submits that in the case, evidence is consistent on the point of manner of occurrence and giving injuries to deceased, however; he accepts that there is technical error in the order, which can be cured by this Court. He submits that in view of evidence on record, even if any of the accused person may not specifically be held guilty and convicted under Section 302 of the Indian Penal Code, but the evidence suggests that with common object death was done and as such, they are liable to be convicted under Section 302 read with Section 149 of the Indian Penal Code. He further submits that at least, appellant no. 1 (Aklu Yadav) & 3 (Kamlesh Yadav) were charged for offence under Sections 302/149 of the Indian Penal Code and separate charge under Section 302 of the I.P.C. was framed against appellant no. 2 (Potar Yadav @ Ram Krishna Singh). He submits that in the judgment, only correction is required on the point of finding on conviction. So far as sentence is concerned, even in case of proof of offence under Sections 302/149 of the Indian Penal Code, minimum sentence is life, which has already been imposed by the trial court. Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 10/19
8. Besides hearing learned counsel for the parties, we have perused the materials on record. In the case, Saraswati Devi (P.W.-1) is the wife of deceased and she, in her examination-in- chief in paragraph -1 of her deposition, has stated that on the date of occurrence, Aklu Yadav and Kamlesh Yadav, appellant no. 1 & 3 respectively were erecting a wall encroaching two cubits over the land of the informant. At that very time, Rajgrihi Yadav, Potar Yadav, Jagdish Yadav, Paras Yadav and Matar Yadav were also present. She further stated that on being asked not to do the said work by her husband, accused Rajgrihi Yadav insisted to construct the wall at the same place. Thereafter, the accused Rajgrihi Yadav exhortted other accused persons to kill him. Thereafter, Aklu Yadav (appellant no. 1), who was carrying bhala, Potar Yadav was carrying khanti, Matar Yadav carrying spade in their hands started assaulting her husband (Bikram Yadav). P.W.- 1 in paragraph - 3 has made specific statement that appellant no. 1 (Aklu Yadav) gave bhala blow on the head of her husband, whereas, appellant no. 2 (Potar Yadav) gave khanti blow over the head of her husband and Kamlesh Yadav (appellant no. 3) gave spade blow on the forehead (in the middle of the head of her husband). She further stated that she too was assaulted by means Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 11/19 of lathi by Paras Yadav, Matar Yadav and Sheo Prasad Yadav. She further disclosed that accused Paras Yadav assaulted Ram Pravesh over his eye by lathi. She claimed that the occurrence was witnessed by Ram Jatan, Ram Babu, Chhabila Dusadh and others. She has stated that her husband died on way to hospital. This witness i.e. P.W.-1 was cross-examined in detail, however; nothing could be extracted to create any doubt on her evidence, rather in her cross-examination, she had further clarified regarding the manner of occurrence and act/role played by all the accused persons.
9. Ram Ratan Yadav (P.W.-2) is also one of the eye- witness to the occurrence. He deposed that at the time of occurrence, he was at his own house and after hearing hulla from inside courtyard of Bikram Yadav, he arrived there and seen that Aklu Yadav (appellant no. 1) was erecting a wall and that wall was being constructed in the courtyard of informant, which was objected by Bikram Yadav and others. He stated that accused Rajgrihi Yadav, Jagdish Yadav, Sheo Prasad Yadav and Potar Yadav (appellant no. 2) were assisting them in constructing wall. This witness further stated that he tried to intervene, in the meanwhile, the appellant no. 1 (Aklu Yadav) inflicted bhala blow Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 12/19 on the forehead of Bikram Yadav. Accused Kamlesh Yadav (Appellant no. 3) gave spade blow on the middle of the forehead of Bikram Yadav and Potar Yadav (appellant no. 2) gave blow from the rod side of the khanti on the head of deceased Bikram Yadav. He has also stated regarding assault given by other accused persons as well as assault given to Sarswati Devi (wife of deceased). He also identified all the accused persons in dock. In his cross-examination, in paragraph - 13, he has categorically stated that he had seen three injuries on the person of deceased Bikram Yadav as well as injuries of Sarswati Devi (P.W.-1). He stated in paragraph - 15 that on way to Ara Hospital, Bikram Yadav died near Ramna Maidan. Though, this witness was cross- examined at length, nothing was brought on record to suggest any doubt on his evidence.
10. Similarly, P.W.-3 Sheo Kumar Rai (informant) has stated that he had witnessed the occurrence and he had given detail of the assault given by each of the accused. His evidence is consistent with the evidence of P.W.-1 and P.W.-2. He too was cross-examined at length, but nothing could be shown to create any doubt on his evidence. In paragraph - 18, he has stated that Aklu Yadav (appellant no. 1) had also filed a counter case. He has Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 13/19 given detail about the manner of the occurrence taken place. He has categorically stated about the assault given by accused persons in the occurrence and specifically blow given by the appellants, as stated by P.W.-1 and P.W.-2.
11. P.W.-4 Ram Babu Rai @ Ram Babu Yadav is also one of the eye-witness. His evidence is also consistent with the evidence of other eye-witnesses.
12. Dr. Smt. Bismilla Khatoon was examined as P.W.-5 and this witness has examined the injuries of P.W.-1 Sarswati Devi (wife of the deceased). In her examination-in-chief, she had stated that on examination of Sarswati Devi, she had found following injuries on her person:-
"(i) A swelling on the back of left hand (3" X 3")
(ii) A swelling on the left arm 2 ½ " X 2"
(iii) A swelling 1 ½ " X 1" on the right side of scalp.
(iv) Complain of pain, but no injury, on the left side of neck."
She opined that injury no. 2 & 4 were simple in nature caused by weapon like lathi and regarding injury no. 1, she stated that it was caused by hard and blunt substance.
13. P.W.-6 Dr. Mahesh Kumar Sinha, who was posted on 16-07-1986 as Civil Assistant Surgeon, Sadar Hospital, Ara and Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 14/19 at 7:20 P.M., he had examined injuries of Sheo Kumar Yadav (P.W.-3) informant and stated that he found following injuries:-
"(i) Swelling - 1 ½ " X ¾" over centre of skull vault
(ii) Swelling - 1 ½ " X 1" over left shoulder
(iii) Swelling - ¾" X ½ " over lateral aspect of left wrist."
And he further stated that all injuries were simple in nature caused by hard and blunt substance. In paragraph - 4 of his examination-in-chief, he further stated that on the same date i.e. 16-07-1986 at 7:30 P.M., he examined injuries of Ram Pravesh Yadav (not examined) and found following injuries:-
"(i) Abrasion - ½" X ¼" over right upper eye-lid
(ii) Swelling - ¾" X ½" over right upper eye-lid
(iii) Swelling - 2" X 1 ½ " over centre of back in middle."
And he opined that injuries were simple in nature caused by hard and blunt substance. He also proved the injury report of Sheo Kumar Yadav (P.W.-3) informant and injury report of Ram Pravesh Yadav, which was marked as Ext. 3 and 3/1 respectively.
14. P.W.-7 Sheo Pujan Singh, Sub-Inspector of Police was investigating officer of the case, who investigated the case and after investigation on 10-10-1986, he submitted charge-sheet. He has stated in paragraph - 8 of his examination-in-chief that he Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 15/19 received information regarding the occurrence and thereafter, he made station diary entry no. 247 dated 16-07-1986. He received an information regarding death of Bikram Yadav in an occurrence, thereafter, he visited Ara Hospital. He prepared inquest report and also sent the dead-body for post-mortem examination. He conducted investigation and submitted charge-sheet after finding the case true against accused persons. However, in his cross- examination he has accepted that prior to information regarding death of Bikram Yadav, he had recorded station diary entry no. 246 dated 16-07-1986 and recorded fardbeyan of appellant no. 1 (Aklu Yadav), which is a counter case, otherwise in the cross- examination, nothing could be extracted to create any doubt on his evidence.
15. P.W.-8 Dr. Rameshwar Singh, who was posted on 16-07-1986 as Deputy Superintendent, Sadar Hospital Ara, had conducted post-mortem examination on 16-07-1986 at about 5:30 P.M. and on dead-body of deceased Bikram Yadav, he had found following injuries:-
"(i) One bruise 2 ½ " X 2" on right parietal and temporal area of skull. On dissection there was clotted and semi-clotted blood under the skull.
Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 16/19 There was a facture of right parietal and right temporal bone of the skull. On opening of cranial cavity, clotted and semi-clotted blood were found in the right side of cranial cavity and right parietal and temporal lobes of brain was found lacerated.
(ii) One incised wound ½" X 1/8" X bone deep in the middle of forehead.
(iii) One incised would 1½" X 1/8" X bone deep in between eye-brows.
(iv) One lacerated wound 1½" X ½" X bone deep on left parietal area of skull."
In paragraph 2 of his examination-in-chief, he had stated that injury no. 1 and 4 were caused by hard and blunt substance, whereas, injury no. 2 & 3 were caused by sharp cutting weapon, such as; bhala. He further stated that in his opinion, the cause of death was injury no. 1.
16. Before the trial court on behalf of the defence, two witnesses were got examined namely Pashupati Nath Upadhyaya (D.W.-1) and Dr. Satish Kumar Sinha (D.W.-2). D.W.-1 (Pashupati Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 17/19 Nath Upadhyaya) had only proved a sale-deed, whereas, D.W.-2 (Dr. Satish Kumar Sinha) had stated that he had examined injury of Aklu Yadav on the date of occurrence at about 3:45 P.M.
17. On going through the entire evidence, the Court is of the opinion that there is consistency in the evidence and there is no reason to raise any doubt. However, the learned Trial Judge has committed an error in convicting all the three appellants for offence under Section 302 of the Indian Penal Code. Fact remains that charge under Section 302 of the I.P.C. was framed solely against appellant no. 2 (Potar Yadav) besides other sections and appellant no. 1 & 3 were charged for offence under Sections 302/149 of the Indian Penal Code. Besides this, appellant no. 1 (Aklu Yadav) was charged for offence under Section 324 of the Indian Penal Code, whereas, appellant no. 3 (Kamlesh Yadav) was further charged under Section 323 of the Indian Penal Code.
18. On going through the evidences of P.Ws. 1, 2, 3 & 4, it is evident that the accused persons had killed Bikram Yadv with common object. There was specific accusation against appellant no. 2 (Potar Yadav) regarding giving blow from the khanti on the head of the deceased Bikram Yadav. This fact was stated by all the eye-witnesses i.e. P.Ws.1 to 4. The doctor (P.W.-8), who conducted Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 18/19 autopsy on the dead-body, has stated that injury no. 1 i.e. "one bruise 2 ½ " X 2" on right parietal and temporal area of skull", which was caused by hard and blunt substance, was the cause of death of deceased. It is case of the prosecution that this blow by the hard and blunt substance was given by appellant no. 2 (Potar Yadav) and this was the reason that charge under Section 302 I.P.C. was framed against Potar Yadav (appellant no. 2) only and other two appellants (appellant no. 1 & 3) were charged for offence under Section 302/149 of the I.P.C. Since there were specific evidence of common object against all the three appellants, the Court is of the opinion that learned Trial Judge had committed an error in convicting all the appellants under Section 302 of the I.P.C. So far as sentence is concerned either under Section 302 of the I.P.C. or Section 302 read with Section 149 of the I.P.C., minimum sentence would be rigorous imprisonment for life and as such, so far as sentence part is concerned, there is no error.
19. Accordingly, the judgment on the point of conviction, so far as conviction of appellants under Section 302 of the I.P.C. is concerned, is modified to the extent of conviction under Section 302 read with Section 149 of the Indian Penal Code, Patna High Court CR. APP (DB) No.328 of 1993 dt.05-07-2017 19/19 in view of provision contained in Section 386 of the Code of Criminal Procedure, 1973.
20. Accordingly, conviction of all the three appellants is converted from Section 302 of the Indian Penal Code to Section 302 read with Section 149 of the Indian Penal Code. Since there is no error in the sentence, there is no reason to interfere with the judgment of sentence.
21. The appeal stands dismissed with modification of conviction, as indicated hereinabove.
22. Since, all the appellants were extended the privilege of bail by order dated 26-08-1993, in view of dismissal of this appeal, their bail-bonds are, hereby, cancelled and they are directed to surrender before the trial court for serving their sentence.
(Rakesh Kumar, J.)
(Mohit Kumar Shah, J.)
Anay
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