Allahabad High Court
Lalai Yadav vs State Of U.P. on 27 February, 2017
Author: Ramesh Sinha
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Date of Judgment reserved: 18.01.2017 Date of delivery of Judgment: 27.02.2017 Court No. - 36 Case :- CRIMINAL APPEAL No. - 4117 of 2013 Appellant :- Lalai Yadav Respondent :- State Of U.P. Counsel for Appellant :- Shivakant Srivastava,Sanjeev Kumar Yadav Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 4783 of 2013 Appellant :- Shiv Chand Yadav Respondent :- State Of U.P. Counsel for Appellant :- Pramod Kumar Singh,S.R. Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Krishna Pratap Singh,J.
(Delivered by Hon'ble Krishna Pratap Singh,J.)
1. Heard Sri Ramesh Chandra Yadav and Sri Sanjeev Kumar Yadav, learned counsel for the appellant Lalai Yadav, Sri Ramesh Chandra Yadav, learned Amicus Curiae on behalf of the appellant Shiv Chand Yadav in connected Criminal Appeal No. 4783 of 2013 and Sri Ashish Pandey, learned A.G.A. for the State.
2. These two connected criminal appeals are directed against the judgment and order dated 07.09.2013 passed by learned Additional Sessions Judge, Court No. 7, Azamgarh, in Session Trial No. 251 of 2008, arising out of Case Crime No. 280 of 2005, Police Station Saraimeer, District Azamgarh (State of U.P. vs. Shiv Chand Yadav & Another) hence both criminal appeals are decided by the present common judgment.
3. Appellant Lalai Yadav in Criminal Appeal No. 4117 of 2013 has been convicted and sentenced under Section 302 read with Section 34 I.P.C. to serve life imprisonment along with a fine of Rs. 5,000/- and to undergo six months further imprisonment in default of payment of fine. He has also been convicted under Section 504 I.P.C. and sentenced to serve one year imprisonment.
4. Appellant Shiv Chand Yadav in Criminal Appeal No. 4783 of 2013 has been convicted and sentenced under Section 302 read with Section 34 I.P.C. to serve life imprisonment along with a fine of Rs. 5,000/- and to serve further six months imprisonment in default of payment of fine. He has also been convicted under Section 302 read with Section 301 I.P.C. and sentenced to serve life imprisonment along with a fine of Rs. 5,000/- and to undergo six months further imprisonment in default of payment of fine. He has been convicted under Section 504 I.P.C. and sentenced to serve one year imprisonment. Learned trial Court has further directed that all the aforesaid sentences of each one of the appellants shall run concurrently.
5. The first information report of the present incident was lodged on 15.07.2005 at about 17.15 hours at police station Saraimeer, District Azamgarh under Sections 302, 504, 114, 115, 120-B and 34 I.P.C. and Section 7 of Criminal Law Amendment Act regarding an incident said to have been taken place on 15.07.2005 at 3.45 p.m. in village Kolhua situated at a distance of about nine kilometers from police station.
6. Other facts of the case are that the appellants Lalai Yadav, Shiv Chand Yadav and deceased Deep Chand @ Deepu Yadav are the real brothers. The deceased Doodh Nath was son of the deceased Ram Karan Yadav. The appellants and three deceased persons are resident of village Kolhua, Police Station Saraimeer, District Azamgarh. The allegations as per the first information report are that on 14.07.2005 at about 12.00 P.M., the deceased Doodh Nath Yadave and Sita Ram were returning to their respective home through the pathway after ploughing their field catching hold the reins of bullocks one each. When Doodh Nath Yadav and Sita Ram reached near the field Deep Chand @ Deepu Yadav and appellant Shive Chand Yadav they were stopped by Deep Chand @ Deepu Yadav and appellant Shiv Chand Yadav and were questioned as to why they were proceeding along with the bullocks through that pathway; whereupon Doodh Nath Yadav and Sita Ram Yadav said , "this is the pathway. Why they were preventing them from proceeding that aforesaid pathway? Which pathway they will use." Hearing this Deep Chand @ Deepu Yadav and appellant Shiv Chand Yadav felt offended. Doodh Nath Yadav and Sita Ram caused their bullocks to turn to another route and went their homes. On 15.07.2005, while Doodh Nath Yadav and his father Ram Karan Yadav were planting paddy in their field at about 3.45 P.M., deceased Deep Chand @ Deepu Yadav and both appellants, with one volition, came over to the field of deceased Ram Karan Yadav hurling expletives and intending to kill them. Using abusive language against Doodh Nath Yadav and his father Ram Karan appellant Shiv Chand Yadav said, "How do they dare to prevent their movement yesterday?" On this appellant Lalai Yadav and deceased Deep Chand @ Deepu Yadav exhorted the appellant Shiv Chand Yadav "let us kill the father and son". Uttering these words, the appellants Shiv Chand Yadav and Lalai Yadav and deceased Deep Chand @ Deepu Yadav chased Ram Karan Yadav and Doodh Nath Yadav for assaulting them, who rushed for safety out of their fields. Deceased Doodh Nath Yadav rushed towards the field of one Ram Samujh Yadav then deceased Deep Chand @ Deepu Yadav chased the deceased Doodh Nath Yadav from behind in the meantime appellant Shiv Chand Yadav with the intention of causing of death Doodh Nath Yadav deliberately fired a shot with the country made pistol held in his hand, aiming at Doodh Nath Yadav but that shot hit Deep Chand @ Deepu Yadav who died. Appellant Shiv Chand Yadav exclaimed "bhaiya mar gaeel, hamaar goli tohke lag gaeel" (you brother, you have died! My bullet has hit you!). Making such utterances, he again fired a shot with his country made pistol at Doodh Nath Yadav resulting in his death. While absconding in the opposite direction kill Ram Karan Yadav, too, by firing him shot. This incident was witnessed by informant Ram Avadh PW-1, his niece Seema daughter of Ram Bhuj Yadav, Subedar Yadav PW-2 and others. Nobody dared to catch hold of the accused persons a lull prevailed for some time. Nobody was venturing out to go up dead body. It is also mentioned in the FIR that the accused persons are of aggressive nature and criminal proclivities. This incident has struck terror in nearby place. Hearing the sound of shots, people working in fields and his village folks have started running helter skelter. Subedar Yadav PW-2, ladies of the family and others were present on the spot. On the basis of written report Exhibit Ka-1 given by the Ram Avadh PW-1 a case was registered at the police station Saraimeer, District Azamgarh. On the basis of first information report Exhibit Ka-1, Chik FIR Exhibit Ka-11 and G.D. Exhibit Ka-12 were prepared. Thereafter, the Investigating Officer Omkar Nath Tiwari, PW-4 on receiving information immediately arrived at spot and collected the dead bodies of the three deceased persons and recorded the statement of the informant Ram Avadh, PW-1, blood stained earth and simple earth were collected and recovery memo Exhibit Ka-14 thereof was prepared. The Investigating Officer Omkar Nath Tiwari, PW-4 directed the Sub-Inspector B.B. Singh for performing inquest on the dead bodies of the deceased persons and slated inquest memo of deceased Doodh Nath Yadav, Deep Chand @ Deepu Yadav and Ram Karan, Exhibit Ka-15, Exhibit Ka-16 and Exhibit Ka-17 respectively. The other relevant papers i.e. photo lash, challan lash, Form-13, Seal impression, Letter to RI, Letter to C.M.O. etc. which documents are Exhibits Ka-18 to Ka-29 were also prepared. Investigating Officer during the course of investigation recorded the statement of the witnesses and accused. After completing the investigation, charge sheet Exhibit Ka-10 was forwarded against the accused-appellants. One country made pistol was also recovered at the instance of appellant Shiv Chand Yadav on 31.07.2005 at about 6.15 A.M. On the basis of memo Exhibit Ka-31 a case under Section 3/25/27 Arms Act was registered on 31.07.2005, on Crime No. 300 of 2005 at about 8.20 hours at police station Saraimeer, District Azamgarh. On the basis of Fard Exhibit Ka-31, Chik FIR Exhibit Ka-5 was prepared and after investigation charge sheet Exhibit Ka-32 under Section 3/25/27 Arms Act was forwarded against appellant Shiv Chand Yadav.
7. Postmortem examination on the dead body of the deceased Deep Chand @ Deepu Yadav was performed by the Doctor A.K. Mishra, PW-3 on 16.07.2005 at about 4.45 P.M. The cadaver was brought to the Doctor by the constable Ravindra Singh and constable Anil Kumar who had identified the dead body. Physique of the deceased was good and on his corpse Doctor has noted the following ante-mortem injuries:-
1. Fire arm wound of entry 2 Cm. x 2 Cm. x brain cavity deep, 5 Cm. behind left ear, Margin inverted, Singeing hair not present.
2. Fire arm wound of exit 4 Cm. x 3 Cm. brain cavity deep, 10 Cm. above left ear communicating to injury no. 1, margin everted.
Cause of death of deceased was shock and haemorrhage due to ante-mortem injuries. Postmortem examination report of the deceased Deep Chand @ Deepu Yadav is Exhibit Ka-2.
8. Postmortem examination on dead body of deceased Ram Karan Yadav was performed by Doctor A.K. Mishra, PW-3 on 16.07.2005 at about 3.15 P.M. The cadaver was brought to the Doctor by constable Ravindra Singh and constable Anil Kumar who had identified the dead body. Physique of the deceased was average and on his corpse Doctor has noted the following ante-mortem injuries:-
1. Lacerated wound 6 Cm. x. 1 Cm. bone deep, 4 Cm. above left eyebrow underlying bone fractured.
2. Fire arm wound of entry 3 Cm. x 2 Cm. x chest cavity deep, 3 Cm. below left scapular angle, Blackening and tattooing absent, Margin inverted.
3. Fire arm wound of exit 3 Cm. x 3 Cm. 3 Cm. below left shoulder joint front side and Communicating to injury no. 2, Margin everted.
Cause of death of deceased was shock and haemorrhage due to ante-mortem injuries. The postmortem examination report of deceased Ram Karan Yadav is Exhibit Ka-3.
9. Postmortem examination on dead body of deceased Doodh Nath Yadav was performed by Doctor A.K. Mishra, PW-3 on 16.07.2005 at about 4.00 P.M. The cadaver was brought to the Doctor by constable Ravindra Singh and constable Anil Kumar Yadav who had identified the dead body. Physique of deceased was average and on his corpse Doctor has noted the following ante-mortem injuries:-
1. Fire arm wound of entry 2 Cm. x 2 Cm. x bone deep, 12 Cm. above right elbow joint of right arm over lateral side, Blackening present Margin inverted, underlying of bone fractured.
2. Fire arm wound exit 3 Cm. x 3 Cm. x bone deep over medial side of right arm, 7 Cm. below axilla right side margin everted, communicating to the injury no. 1.
3. Fire arm wound of entry 2 Cm. x 2 Cm. x chest cavity deep, 7 Cm. below right axilla over right side chest Margin inverted, injury communicating to injury nos. 1 and 2 and one metallic bullet was recovered from the body.
The cause of death of deceased was shock and haemorrhage due to ante-mortem injuries. The postmortem examination report of deceased Doodh Nath Yadav is Exhibit Ka-4.
10. On the strength of the submitted charge-sheet, appellants were summoned. Since disclosed offences were exclusively triable by the Sessions Court the learned Chief Judicial Magistrate, Azamgarh committed the case to the Court of Sessions where it was registered as Session Trial no. 251 of 2008 (State vs. Shiv Chand Yadav and Others). The aforesaid Session Trial was transferred to the Additional Sessions Judge, Court No. 7, Azamgarh for trial.
11. Learned Sessions Judge charged the appellants-accused with offences under Sections 302/34, 504/34 I.P.C. and Section 7 Criminal Law Amendment Act on 19.08.2008. The appellant Shiv Chand Yadav was also charged with offence under Section 301 I.P.C. Appellant Lalai Yadav was also charged with offences under Sections 115 and 212 I.P.C. on 19.08.2008. Charges after being read over and explained to both the appellants. They pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish their guilt.
12. In order to prove its case, the prosecution has examined informant Ram Avadh, PW-1 and Subedar Yadav, PW-2 as witnesses of fact. Doctor A.K. Mishra, PW-3 who has conducted the postmortem examination of three deceased persons and S.O. Omkar Nath Tiwari, PW- 4 who has conducted the investigation and submitted the charge-sheet against the appellants are formal witnesses.
13. Informant Ram Avadh, PW-1 is the cousin (chachera bhai) of deceased Ram Karan. Ram Avadh, PW-1 has given detailed description of the incident and has assigned the specific role of firing by the appellant Shiv Chand Yadav. He has also stated that the incident occurred on 15.07.2005 at 3.45 P.M. His field is situated at the spot of occurrence. He was planting paddy there. The accused persons Lalai Yadav, deceased Deep Chand @ Deepu Yadav and Shiv Chand Yadav came over to the spot of occurrence. The trio of them challenged Ram Karan Yadav and Doodh Nath Yadav and while using expletives exhorted that let these persons be killed. There was a dispute between Ram Karan and Doodh Nath Yadav and the accused persons over a pathway. No case in connection with this pathway was pending in the Court. The deceased persons were his brothers; hence he knows them. He further stated that while making the exhortation, the accused persons gave a chase for an assault. Shiv Chand Yadav and Deep Chand @ Deepu Yadav who were armed with country made pistols, out of which appellant Shiv Chand Yadav opened fire from the country made pistol. He shot at Doodh Nath Yadav but it hit Deep Chand @ Deepu Yadav. Ram Avadh PW-1 has further stated that the deceased Doodh Nath Yadav was in front and Deep Chand @ Deepu Yadav was behind him, and Shiv Chand Yadav was behind Deep Chand @ Deepu Yadav. Shiv Chand Yadav, who was following, opened fire which hit Deep Chand @ Deepu Yadav. When Deep Chand @ Deepu Yadav fell down, Shiv Chand Yadav said "Bhaiya, the bullet hit you." He again stated that he did not measure the distance between the Doodh Nath Yadav and Shiv Chand Yadav whether it was 2 steps, 4 steps or 6 steps. Meanwhile, Ram Karan Yadav wished to turn back and run away. Ram Karan Yadav was the father of Doodh Nath Yadav. By that time, Shiv Chand Yadav opened fire at Ram Karan Yadav while turning towards him. Doodh Nath Yadav and Ram Karan Yadav met their deaths. Thereafter, the accused persons Lalai Yadav and Shiv Chand Yadav ran towards north and west. He had dictated the written report of this incident at the spot and lodged the first information report at police station on the same day. He does not remember its time. Besides him, his wife Kumari Devi and his niece Seema Devi were also present who were working on the field. There were many persons all around. He does not remember their names. He had got the complaint drafted by Om Prakash Singh, who had joined the crowd at the spot after the incident. This witness along with, Om Prakash Singh and Vishwas had visited the police station to lodge the complaint. Ram Avadh, PW-1 has undergone long cross-examination but nothing material could be elicited from his cross examination to make any dent on his credibility. He has also denied the suggestion of the defence that he has given false statement due to enmity.
14. Likewise Subedar, PW-2 has stated that three and half years have passed since the occurrence took place. It was around 3.45 P.M. Before the occurrence , Ram Karan, Doodh Nath Yadav, Shiv Chand Yadav and others had an argument over the bullocks being carried away. He was not there during the dispute. On the day of occurrence, Ram Karan Yadav and Doodh Nath Yadav were planting paddy in their fields. Shri Ram was mending the ridge of the field. At the same time many other villagers were also planting paddy in their respective fields. Meanwhile, Lalai Yadav, Deep Chand @ Deepu Yadav, Shiv Chand Yadav hurling abuses reached there and stated "How do you dare to obstruct our path". On this, Doodh Nath Yadav tried to restrain them from resorting to these acts. At this, they issued challenged, "Let us kill baap-beta (father and son) today." Hearing these words, Ram Karan Yadav and Doodh Nath Yadav left the plantation work and fled off the spot. These persons chased them. He tried to restrain them but they did not heed his words. Subedar Yadav PW-2 further stated that Deep Chand @ Deepu Yadav and Shiv Chand Yadav were pursuing Doodh Nath Yadav, who, after crossing the chak-road, turned towards the sugarcane field of Ram Samujh situated in the east. While Shiv Chand Yadav with the intention to kill fired a bullet, Deep Chand @ Deepu Yadav came in between. Sustaining bullet injury, Deep Chand @ Deepu Yadav fell down. At this, Shiv Chand Yadav said, "You are hit by the bullet." Again Shiv Chand Yadav fired a bullet at Doodh Nath Yadav, who sustaining injury fell down. He further deposed that Ram Karan Yadav turned and started fleeing off the spot, but Shiv Chand Yadav also killed him by firing a bullet. Aforesaid Shiv Chand Yadav and Lalai Yadav brandishing their country made pistols fled towards the west. Besides he, Ram Avadh PW-1 and his family members also reached there. The ladies of the family also reached there from the village and a scene of lamentations followed. Ram Avadh PW-1 got the report of the incident written and went to the police station where he got his report lodged. In connection with this occurrence, the Inspector (Daaroga Ji) has also interrogated him. Subedar Yadav, PW-2 has also undergone a lengthy cross examination but nothing in his cross examination could be elicited which makes his evidence unreliable.
15. After closure of prosecution evidence, statement of both the appellants were recorded under Section 313 Cr.P.C. In their examination under Section 313 Cr.P.C. the common defence of both the accused were that of denial and false implication. Appellant Shiv Chand Yadav has also stated that on 15.07.2005 at about 3.30 P.M. his brother deceased Deep Chand @ Deepu Yadav was going to bazar Lahi Diha to give milk. When deceased Deep Chand @ Deepu Yadav reached near tubewell of deceased Ram Karan, the deceased persons Ram Karan and Doodh Nath Yadav and Girish, informant Ram Avadh, PW-1, Krishna Kumar and Munib due to enmity exhorted to kill the Deep Chand @ Deepu Yadav. Deep Chand @ Deepu Yadav leaving the bicycle and milk container at chakroad and ran towards the field of sugarcane to save his life. All the above aforesaid persons had fired shot with country made pistol at Deep Chand @ Deepu Yadav and done him to death. The wife of the appellant Shiv Chand Yadav moved an application under Section 156 (3) Cr.P.C. By the order of Court a criminal case was registered as Case Crime No. 280A of 2005 but after investigation police had submitted final report.
16. Appellant Lalai Yadav has stated that at the time of incident he was not present at the place of occurrence. He was ploughing his field with the tractor of one Luttur. On behalf of the appellant Ram Roop DW-1 son of Bishesar has been examined in defence.
17. After appreciating the evidence on record, the trial Court convicted the appellants as above. Hence instance appeal.
18. The present appeal is of the year 2013, the appellants are languishing in jail since July 2005. It was listed in the cause list for final hearing but in spite of fact that names of the two counsels Sri Pramod Kumar Singh and Sri S.R. Sharma were printed in the cause list of dated 13.01.2017. But none of them appeared for appellant Shiv Chand Yadav to argue the case. Since the appeal could not have been kept pending in this Court for an unlimited period and Sri Ramesh Chand Yadav, Advocate has appeared and ready to argue the case of appellant Lalai Yadav. Appellant Lalai Yadav and appellant Shiv Chand Yadav are the real brothers and Sri Ramesh Chand Yadav, Advocate has sufficient experience of arguing the criminal appeals. Therefore, applying the law laid down by Hon'ble Apex Court in Bani Singh and Others vs. State of U.P. AIR 1996 SC 2639, Sri Ramesh Chand Yadav was appointed amicus curiae by this Court to argue the appeal of appellant Shiv Chand Yadav.
19. Sri Ramesh Chand Yadav, learned counsel for the appellant Lalai Yadav and also as Amicus Curiae for the appellant Shiv Chand Yadav has submitted that the appellants are quite innocent and have falsely been implicated in the present case due to ulterior motive by the informant. It was further submitted that first information report is belated without any satisfactory explanation. So called witnesses of fact are interested and chance witnesses who have stated contradictory statement which go to falsify the whole prosecution story. Prosecution witnesses are not trustworthy and reliable. It was further submitted that the prosecution has fully failed to prove its case beyond reasonable doubt and the judgment and order passed by the learned trial Court is not sustainable in the eye of law. Lastly it was submitted that impugned judgment and order of the trial Court is liable to be quashed.
20. Learned A.G.A. for the State has submitted that in this case prompt first information report has been lodged and prosecution witnesses are found to be wholly reliable. He has further submitted that the accused-appellants have come with vague defence of the enmity and no specific enmity with family of deceased Ram Karan and his son deceased Doodh Nath Yadav could be brought to the notice of the Court to show such defence of false implication has any substance. He has further submitted that the appellant Shiv Chand Yadav is the person who has fired with country made pistol at three deceased persons and caused their death so the case of the prosecution stands fully proved.
21. We have considered the submissions advanced by the learned counsel for the parties and perused the judgment of the trial Court as well as record of the case.
22. In the present case in our considered opinion there is no delay in lodging first information report. The incident of this case is alleged to have taken place on 15.07.2005 at 3.45 P.M. and FIR of this case has been registered on the same at 17.15 hours i.e. only after 1 hour and 30 minutes of the incident. According to the chik report the distance of the village Kolhua from the police station was 9 kilometers. Hon'ble Apex Court in catena of decision has held that promptness in filing FIR gives assurance of veracity of the informant and reflects first hand account of occurrence and persons responsible therefor. Object to insist upon prompt FIR is to obtain information regarding circumstances in which crime was committed, names of the actual culprits, parts played by them as well as the names of the eye witnesses. FIR is a variable piece of evidence though not substantive evidence. Therefore, in this case prompt FIR has been lodged and specific allegation of firing by country made pistol at the three deceased persons namely Deep Chand @ Deepu Yadav, Ram Karan Yadav and Doodh Nath Yadav has been assigned to the appellant Shiv Chand Yadav.
23. Learned counsel for the appellants has submitted that the informant Ram Avadh PW-1 is cousin (chachera bhai) of Subedar Yadav PW-2. Subedar Yadav PW-2 is real brother of the deceased Ram Karan Yadav. It was submitted that they are related and interested witnesses. In this way both the witnesses of fact are interested and partisan witnesses. Independent witness of the case has not been examined by the prosecution. It would not be just and proper to place reliance on interested witnesses, so the statement of both the prosecution witnesses should be discarded.
24. It is true that the informant Ram Avadh PW-1 is the cousin (chachera bhai) brother of Subedar Yadav PW-2 and Subdedaar Yadav PW-2 is the real brother of deceased Ram Karan Yadav, so it can be said that they are related witnesses but there is no law that evidence of close relatives can not be acted upon even if they are wholly reliable and their presence on the scene of occurrence stands established. We have seen that Ram Avadh, PW-1 and Subedar Yadav, PW-2 have undergone a lengthy cross-examination but nothing in their cross-examination could be elicited which makes their evidence unreliable. In a judgment passed in case of Mano Dutt v. State of U.P., 2012 (4) SCC 79 Hon'ble Apex Court on this point has observed as follows:
"There is no bar in law in examining family members or any other person, as witnesses since in cases involving family members of both sides it is a family member or a friend who come for the rescue of injured. When statement of such witness is found to be credible, reliable, trustworthy, admissible in accordance with law and corroborated with other witnesses or documentary evidence of the prosecution, court cannot reject such evidence merely on ground that witness was family member or interested witness or person known to affected party. However, where testimony of sole witness is discarded in toto as being wholly unreliable, no amount of corroborating can cure that defect."
25. In case of Kuriya and another v. State of Rajasthan, (2012) 10 SCC 433 Hon'ble Apex Court has held in paragraph 34 as under:
"The testimony of an eye witness, if found truthful, cannot be discarded merely because the eye-witness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated."
26. In such circumstances, it could not be expected that these close relatives of the deceased Ram Karan Yadav and deceased Doodh Nath Yadav would spare the real assailant and falsely implicate the innocent persons. The defence could not show that their defence is probable. The case of the defence is not the least probable that he has been falsely implicated due to enmity. No such enmity could be elicited in the cross examination nor any specific enmity was suggested.
27. Appellant-accused Shiv Chand Yadav in his examination under Section 313 Cr.P.C. has stated that on 15.07.2005 at 3.30 P.M. his brother deceased Deep Chand @ Deepu Yadav was going to Lahi Diha bazar to give milk. When deceased Deep Chand @ Deepu Yadav reached near the tubewell of deceased Ram Karan, the deceased Ram Karan, deceased Doodh Nath Yadav, Girish, informant Ram Avadh PW-1, Krishna Kumar and Munib due to enmity exhorted to kill the Deep Chand @ Deepu Yadav. Deep Chand @ Deepu Yadav leaving the bicycle and milk container on the Chakroad ran towards the field of sugarcane to save his life. All the above aforesaid persons fired with country made pistol at the Deep Chand @ Deepu Yadav and done him to death. His wife had moved application under Section 156(3) Cr.P.C. and by the order of Court a criminal case was registered as Crime No. 280A of 2005 but after investigation police has submitted final report. Appellant Shiv Chand Yadav has put these facts in his defence but there is no corroborative material in the support of above fact. The criminal case of Crime No. 280A of 2005 was lodged after three months. There is no recovery of milk container or bicycle of the deceased Deep Chand @ Deepu Yadav to show that he was going to give milk on the date of incident as was alleged in cross report lodged by the wife of appellant Shiv Chand Yadav Smt. Vimla Devi. In prompt FIR lodged by the prosecution itself, it has been clearly mentioned that when the appellant Shiv Chand Yadav fired on Doodh Nath Yadav the fire hit his brother Deep Chand @ Deepu Yadav, therefore this defence of the appellant Shiv Chand Yadav is meaningless. If this version and suggestion by the defence is taken to be correct, the natural ramification of it will be that the major part of the prosecution version will stand proved by the this defence case itself. It then becomes proved that the incident had occurred at the time, date and place as alleged by the prosecution in which country made pistol was used to cause injuries to the three deceased persons. It also establishes the presence of informant as well as three deceased Deep Chand @ Deepu Yadav, Ram Karan Yadav and Doodh Nath Yadav at the place of incident during its happening. Once these facts are admitted to the appellant Shiv Chand Yadav the scope of scrutiny remains in a narrow area only to judge as to whether prosecution case about participation by appellants is true or defence plea that informant and deceased Ram Karan, deceased Dood Nath Yadav, Girish, Krishna Kumar and Munib being the real assailant is correct. When the facts and circumstances are scrutinized it transpires that prosecution story holds the ground seems to be correct version because Ram Avadh PW-1 and Subedar Yadav PW-2 unambiguously stated that three deceased persons were shot dead by the fire arm. The fires were shot by the appellant Shiv Chand Yadav with country made pistol with the intention of causing death of deceased. We have seen that in spite of searching cross examination defence has not been able to dislodge their evidences. In the present case, medical report as well as defence version both establishes medical consistencies with ocular version. In the present case it is also established that FIR of the incident was lodged very promptly diminishing the chances of it being fabricated and cooked up. FIR also contains all the essential details naming the appellant Shiv Chand Yadav as main assailant.
28. Learned counsel for the appellants submitted that prosecution has not given any explanation regarding injury no. 1 of the deceased Ram Karan Yadav. It was further submitted that the failure of the prosecution not to give reasonable explanation of the injury no. 1 of the deceased Ram Karan Yadav would go against the prosecution and throw a doubt on the prosecution case and the statements of the prosecution witnesses.
29. In our opinion the above submission is misconceived in the present case. The evidence on record show that the appellant Shiv Chand Yadav had fired at three deceased persons with the country made pistol, as a result of which they had died. Prosecution has proved its case beyond all reasonable doubt. It is not the law or invariable rule that prosecution will have to explain every injury of the deceased Ram Karan Yadav. From very beginning it is the case of the prosecution that appellant Shiv Chand Yadav had fired a shot with the country made pistol which struck the deceased Ram Karan Yadav, receiving gun shot injuries he had died on spot. On the cadaver of Ram Karan Yadav following ante-mortem injuries were found:-
1. Lacerated wound 6 Cm. x. 1 Cm. bone deep, 4 Cm. above left eyebrow underlying bone fractured.
2. Fire arm wound of entry 3 Cm. x 2 Cm. x chest cavity deep, 3 Cm. below left scapular angle, Blackening and tattooing absent, Margin inverted.
3. Fire arm wound of exit 3 Cm. x 3 Cm. 3 Cm. below left shoulder joint front side and Communicating to injury no. 2, Margin everted.
30. It is true that the prosecution has not explained the injury no. 1 of the deceased Ram Karan Yadav but injury nos. 2 and 3 are gun shot injuries. Ram Avadh Yadav PW-1 and Subdear Yadav PW-2 has deposed that the appellant Shiv Chand Yadav had fired shot at the deceased Ram Karan Yadav, which proved fatal. Eye witness version is to be accepted. Injury nos. 2 and 3 were sufficient in ordinary course of nature to cause death. Direct evidence of death of Ram Karan Yadav by gun shot injuries are available, therefore, the failure of prosecution not to give reasonable explanation of injury no. 1 of the deceased Ram Karan Yadav can not be a ground to record the acquittal of accused-appellant Shiv Chand Yadav.
31. In these circumstances, we are of the opinion that no explanation of the injury no. 1 of the deceased Ram Karan Yadav by prosecution would not go against or throw any doubt on prosecution case.
32. According to the prosecution the role of exhortation has been assigned to the appellant Lalai Yadav. Appellant Lalai Yadav has been convicted and sentenced by the learned trial Court under Section 302 read with Section 34 and under Section 504 I.P.C. With the help of Section 34 Lalai Yadav has been convicted and sentenced. It is essence of Section 34 I.P.C. that a person must be physically present at the actual commission of the crime. In other words accused must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in the same way or other at the time of crime is actually being committed. From evidence available on record in the present case does not show that any overt act have been done by the appellant Lalai Yadav. Some active participation especially involving physical violence is necessary under Section 34 I.P.C. According to the statement of Ram Roop DW-1 at the time of incident appellant-accused Lalai Yadav was ploughing his field with the tractor of one Luttur. Appellant Lalai Yadav was not present at the place of occurrence. Statement of Ram Avadh PW-1 and Subedar Yadav PW-2 do not show that the appellant-accused Lalai Yadav had fired shot at any deceased at the time of commission of offence. Evidence available on record does not show that he had any active participation at all in the preparation and commission of crime.
33. Taking into consideration the facts and circumstances of the instant case, it appears that appellant Lalai Yadav had not common intention to commit the murder of Deep Chand @ Deepu Yadav, Ram Karan Yadav and Doodh Nath Yadav and he had not caused to death of the above three deceased persons. We have seen that the role attributed to the appellant-accused Lalai Yada is of exhortation. We have also seen that the defence of the appellant Lalai Yadav is that he was not present at the scene of the occurrence at the time of incident. He was ploughing his field with the tractor of one Luttur. There is no evidence on record to show that he had fired shot with the country made pistol at any of the deceased and there is no reliable evidence to show the participation of the appellant Lalai Yadav in assault of three deceased persons. Therefore Section 34 I.P.C. would have no obligation. The impugned judgment of the trial Court has failed to notice and take into account the probabilities and embellishment that had been highlighted above. In our opinion the impugned judgment and order for conviction and sentence of appellant Lalai Yadav can not be sustained and is liable to be reversed.
34. Under the circumstances and for the reasons given above, the Criminal Appeal No. 4117 of 2013 (Lalai Yadav v. State of U.P.) is allowed. The impugned judgment and order of trial Court so far it relates to conviction of appellant-accused Lalai Yadav is set aside and appellant-accused Lalai Yadav is acquitted of all charges levelled against him. The sole appellant Lalai Yadav in Criminal Appeal No. 4117 of 2013 is in jail, he is directed to be released forthwith unless required in some other case.
35. So far as the impugned judgment and order against appellant Shiv Chand Yadav is concerned no error has been committed by the learned trial Court Judge and we hereby concur with his findings and conclusions. The charges of murder and insult intended to provoke breach of peace levelled against him are well proved, therefore appellant Shiv Chand Yadav has been rightly held guilty and has been rightly convicted for life imprisonment and imprisonment of one year as it is not a case which falls within the category of rarest of rare cases. A precipitated residue of our above discussion is that Criminal Appeal No. 4783 of 2013 (Shiv Chand Yadav vs. State of U.P.) filed by the appellant Shiv Chand Yadav lacks merit and is hereby dismissed.
36. Let a copy of this judgment be sent to the concerned learned Sessions Judge, to take necessary action immediately for compliance of this judgment.
(Krishna Pratap Singh,J.) (Ramesh Sinha, J.)
Order Date :- 27.02.2017
A.K.Verma