Patna High Court
Rajendra Yadav vs The State Of Bihar on 29 February, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.620 of 2021
Arising Out of PS. Case No.-10 Year-2006 Thana- BHAPTIAHI District- Supaul
======================================================
Rajendra Yadav Son of Late Nathuni Yadav Resident of village - Samda, P.S.-
Ratanpura, Distt.- Supaul. ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 700 of 2021
Arising Out of PS. Case No.-10 Year-2006 Thana- BHAPTIAHI District- Supaul
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1. Ramotar Yadav Son of Birkhu Yadav Resident of Village- Ram Nagar, Ward
No.10, P.S.- Bhaptiyahi, District- Supaul.
2. Sri Prasad Yadav Son of Late Ganga Yadav Resident of Village- Ram Nagar,
Ward No.10, P.S.- Bhaptiyahi, District- Supaul.
3. Lalan Yadav Son of Ramotar Yadav Resident of Village- Ram Nagar, Ward
No.10, P.S.- Bhaptiyahi, District- Supaul.
4. Rajendra Yadav Son of Late Aharfi Yadav Resident of Village- Ram Nagar,
Ward No.10, P.S.- Bhaptiyahi, District- Supaul.
... ... Appellants
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 620 of 2021)
For the Appellant : Mr. Prafull Chandra Thakur, Advocate
For the State : Ms. Shashi Bala Verma, Additional PP
(In CRIMINAL APPEAL (DB) No. 700 of 2021)
For the Appellant : Mr. Pramod Mishra, Advocate
For the State : Ms. Shashi Bala Verma, Additional PP
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 29-02-2024
These appeals are arising out of the judgment of
conviction dated 18.08.2021 and the order of sentence dated
19.08.2021passed by learned Additional Sessions Judge-V, Supaul in Session Trial No.15 of 2008/Session Trial No.158 of 2008, Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 2/29 (Bhaptiyahi P.S. Case No.10 of 2006, dated 06.04.2006, G.R. No. 222 of 2006, under Sections 147, 148, 149, 341, 302 of the Indian Penal Code (in short 'IPC').
2. By the judgment under appeal (hereinafter referred to as the 'impugned judgment') the learned trial court has been pleased to hold appellants Ramotar Yadav and Sri Prasad Yadav guilty for the offences under Sections 148, 341 and 302/149 IPC. Appellants Rajendra Yadav, son of Asarfi Yadav, Lalan Yadav and Rajendra Yadav, Son of Nathuni Yadav have been held guilty for the offences under Sections 147, 341 302/149 IPC. Appellants Ramotar Yadav and Sri Prasad Yadav have been sentenced to undergo rigorous imprisonment for three years under Section 148 IPC and 15 days simple imprisonment under Section 341/149 IPC. Further they have been sentenced to undergo life imprisonment under Section 302/149 IPC and each have to pay Rs.50,000/- as fine and in default of payment of fine they have to undergo two years additional simple imprisonment. Appellants Rajendra Yadav, son of Asarfi Yadav, Lalan Yadav, Rajendra Yadav, Son of Nathuni Yadav have been sentenced to undergo one year rigorous imprisonment under Section 147 IPC and fifteen days simple imprisonment under Section 341/149 IPC and imprisonment for life with fine of Rs. 50,000/- each under Section 302/149 IPC, in Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 3/29 default of payment of fine two years simple imprisonment has been awarded to them. All the sentences are to run concurrently.
3. From the records it would appear that Session Trial No.15 of 2008 and Session Trial No.158 of 2008 were registered after separation of the trials of some of the accused from main Session Trial Case No. 379 of 2006. In both the trials, the accused persons were facing charges under Sections 147, 341, 302/149 IPC. Accused Ramotar Yadav and Sri Prasad Yadav who were connected to Session Trial No.15 of 2008 were additionally charged for the offence under Section 148 IPC.
4. The four accused persons namely Ramotar Yadav, Sri Prasad Yadav, Lalan Yadav and Rajendra Yadav, Son of Asarfi Yadav were tried in Session Trial No.15 of 2008 whereas accused Rajendra Yadav, Son of Nathuni Yadav and Kusum Lal Yadav have faced trial in Session Trial No.158 of 2008. During pendency of the trial, on 20.10.2016 accused Kusum Lal Yadav died, therefore the trial against him stood abated. Both the trials were merged by the order of the learned Sessions Judge passed on 16.03.2010.
5. As per the prosecution story, on 06.04.2006 in the morning informant's labour Jai Narayan Sharma had gone to plough the field and his brother Surya Narayan Yadav had also gone to the field to serve breakfast to the labourer. The informant and his son while going to the field saw the accused persons including the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 4/29 appellants variously armed going towards the field. The labourers, on seeing the accused persons, fled away. It is alleged that the accused persons caught hold of the brother of the informant and assaulted him by various arms and kept on assaulting him till his death. They also chased the informant and his son but they saved their lives by fleeing. In the meantime, informant's elder brother and nephew came and they all took the dead body of his brother to their home. It is alleged that due to previous enmity and land dispute, the occurrence took place in which younger brother of the informant was killed.
6. On the basis of the fardbeyan of the informant (PW-2), the First Information Report (in short 'FIR') was registered. Police investigated the case and a charge-sheet was filed against all the accused persons under Sections 147, 148, 149, 341 and 302 IPC. Cognizance was taken vide order dated 19.03.2007. Records were committed to the court of Sessions where Sessions Trial No.15 of 2008 was registered on 16.07.2008 whereas Session Trial No.158 of 2008 was committed to the court of Session on 28.07.2008. As stated above, the charges were framed against the accused persons. The accused persons denied the charges and claimed to be tried.
7. On behalf of the prosecution, nine witnesses were examined who are as under:-
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 5/29 Hare Ram Yadav (PW-1), Lal Dev Yadav @ Lalu Prasad Yadav (PW-2), Rameshwar Yadav (PW-3), Darpi Sharma (PW-4), Gujay Yadav (PW-5), Bhati Yadav (PW-6), Sahadeo Sharma (PW-
7), Ram Nandan Paswan (PW-8) and Dr. Rakesh Kumar PW-9 have been examined.
8. The following documents have been exhibited on behalf of the prosecution:-
"Written report of the FIR (Exhibit '1'), the forwarding report of the FIR (Exhibit '1/1'), formal FIR (Exhibit '2'), the inquest report (Exhibit '3') and is the postmortem report (Exhibit '4')."
9. On the basis of the evidences and the exhibits laid on behalf of the prosecution, the learned trial court held that the prosecution in this case has been able to prove the guilt of the accused persons beyond all reasonable doubts. Hence, the accused persons are liable to be convicted for the offences for which they have been charged and sentenced accordingly as noted above.
Prosecution evidence- Analysis
10. Hare Ram Yadav (PW-1) has stated that on 02.05.2010 Ramotar Yadav, Shiv Prasad Yadav, Rama Kant Yadav, Lalan Yadav and Upendra Yadav came to his house, abused him and told that if he would depose against them then he would be killed and thrown. Lalan Yadav who is a driver told this witness that if he would depose against him then he would crush him to death under the vehicle. PW-1 therefore demanded security so that he can Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 6/29 depose. The learned trial court fixed the case for his evidence on 17.05.2010 i.e. after a week and directed Superintendent of Police, Supaul and officer in charge of the Bhaptiyahi Police Station to do the needful to provide security to this witness. Thereafter, PW-1 was examined on 16.03.2017. He claimed that on the date of occurrence he, his father and uncle Lalu Prasad Yadav and cousin brother were going to the same land with a chauki and ropes to work. They saw that from east Manjun Yadav armed with ballam in his hand, Ramakant with farsa, Ramotar with dabiya, Sri Prasad with bhala, Lalan, Upendra, Rajendra and Kishun Lal all armed with lathi and Rajendra with bhala lathi reached at the field. His uncle reached at the field with breakfast. Ramakant instigated- 'maro', his uncle started running, then the accused persons surrounded him in the field of Jagdev Yadav. Manjun assaulted his uncle with ballam on his face, Ramotar assaulted by dabiya on his head and Ramakant assaulted on his head by farsa, Sri Prasad assaulted by bhala and when his uncle was falling down, Rajendra Yadav pierced into his head a bhala. The other accused persons assaulted his uncle by lathi. People from Sharma Tola had assembled on hulla. Manjun lifted the dead body on his shoulder and started fleeing away, on hulla raised and seeing the people, he slammed down the dead body and fled away. PW-1 claimed that they went to the dead body and found that his uncle was dead. Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 7/29 Thereafter, the dead body was brought to his house, Police was informed, the Police came and then FIR and postmortem took place.
11. In his cross-examination, PW-1 has stated that he did not remember the khata number and plot number of the field in which he was going to work. He stated that after murder, the accused persons have filed a title suit of the land and his father is a party in that title suit. The land is situated at a distance of one kilometer from his house. He had seen the accused persons at some distance but he cannot say that from how much gaj (yards) or hand he had seen. He cannot say that from how much distance he had seen the accused persons. According to him, for the first time he had seen the dead body in the field. In the said field, he, his father, Rameshwar Yadav, Laldeo Yadav, Vijay Yadav, Darpi Sharma and Lalan Sharma were there. The dead body had been thrown at the river bank. According to this witness, the blood-soaked soil was taken from the field after five-six days. Police had seized the dead body from his house, there also blood was lying.
12. Laldeo Yadav @ Lalu Prasad Yadav is PW-2. This witness is the informant of the case. According to him, he, his halwaha (ploughman) Jai Narayan Sharma and Lalan Sharma had gone to plough the field. Surya Narayan Yadav @ Bachu Yadav (deceased) reached with the breakfast on the field, from behind, Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 8/29 Vijay Yadav, Rameshwar Yadav, Hare Ram Yadav and he himself came on the field, then he saw that nine persons were coming from east side and they were armed with weapons. PW-2 claimed that they raised hulla that 'idM+ks' (catch), then the 'halwaha' (ploughmen) ran towards western direction. Lalan Sharma stood at the aar (boundary of the land). Manjun Yadav pierced ballam in the head of Surya Narayan Yadav. Ramakant assaulted on his head by farsa, Shiv Prasad Yadav assaulted by bhala, Ramakant Yadav assaulted by dabia and when he fell down Rajendra Yadav assaulted on his face, the other accused persons assaulted by lathi. PW-2 claims that when he raised hulla then people assembled there and the accused persons fled away. This witness states that the accused persons left the dead body at the river bank (dhar). When this witness went there near the dead body, he found that the dead body was in pool of blood. He claims to have brought the dead body to his house and went to the Police Station whereafter Police came and recorded his statement.
13. In his cross-examination, PW-2 has stated that he had not told Police that there was any land dispute with the accused persons. He has stated that in his fardbeyan he has stated that Jai Narayan Sharma and Lalan Sharma had gone to plough the field and from behind Vijay Yadav, Rameshwar Yadav, Hare Ram Yadav and he had gone to the field where he had seen the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 9/29 occurrence. In paragraph '5' of his cross-examination, he has stated that he had brought the dead body from near the river bank, he had gone to the river bank at 10.30 a.m. Blood was lying at the river bank and he had shown the blood to Daroga Jee. In paragraph '11' of his cross-examination, this witness has stated that the land of place of occurrence is his khatiyani land. The accused persons are his agnates. Mangal had his share in the khatiyani land but he cannot say as to when did he execute the sale of his share in the khatiyani land. He denied the suggestion that wife and son of Mangal Yadav had sold the rest of the land to accused Kusum Lal. PW-2 admits in his cross-examination that he had purchased the land from the son of Mangal Yadav namely Nathuni Yadav. He has stated that on the said date, the purchased land was not being ploughed. In paragraph '12', he has stated that a title suit is going on with the accused persons, the ploughing was taking place in his land and there was no dispute on the said land. This witness denied the suggestion that his brother was killed by someone else and his dead body was thrown at the river bank and when he came to know that the dead body of his brother is lying at the river bank then he came there and took the dead body to his house. In paragraph '16' of his cross-examination, this witness has stated that he reached at the field first, there was no crowd and his Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 10/29 brother was lying unconscious. He saw his brother unconscious in the field of Jagdev Yadav. He states that at that time his brother Rameshwar and others were there and when the accused persons shouted to catch them, then this witness started running towards Sharma Tola raising hulla. Sharma Tola is situated at a distance of half kilometer from where many people came. In paragraph '19', he says that the accused persons had fled with the dead body from the field of Jagdev Yadav, he had shown the field of Jagdev Yadav to Police, he had gone to the river bank but he cannot say how much time it will take in reaching the river bank from his field on foot. This witness states that blood was lying in the field of Jagdev Yadav but he cannot say whether blood had fallen on way or not. He had shown the Police the field and river bank. He denied the suggestion that Rajendra is permanently staying at Samda and the accused persons have been falsely implicated because he could not take possession of the land of which sale deed was executed by father of Rajendra.
14. Rameshwar Yadav is PW-3. This witness has supported the prosecution saying that Jai Narayan Sharma and Lalan Sharma had gone to plough the field and his brother Surya Narayan Yadav @ Bachu Yadav had gone with the breakfast on the field. He has claimed that from behind Laldev Yadav and Vijay Yadav had gone with chowki and spade thereafter he and Hare Ram Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 11/29 Yadav started and from some distance he had seen the occurrence. This witness has stated in his examination-in-chief that he and others had brought the dead body from the river bank to his house whereafter went to the Police Station, Daroga Jee came and their statements were recorded. He has accepted in paragraph '3' of his cross-examination on behalf of Rajendra Yadav, Son of Nathuni Yadav that he had taken sale deed from Nathuni and Rajendra was living in village Samda for two-three years prior to the occurrence. In paragraph '5' of his cross-examination, PW-3 has stated that his statement was not recorded by Police and he had put his signature on the statement of Laldev (PW-2). In paragraph '9', he has given description of the land which he had purchased from Nathuni Gope. He has stated that the deceased had purchased Plot No. 3049 apart from other plots under Khata No. 494 from Nathuni. In paragraph '10' of his cross-examination, he has specifically stated that murder took place on Plot No. 3049. He denied the suggestion of the defence that his statement was recorded in Police and he had stated that his brother Laldev @ Lalu Prasad Yadav had told him that the accused persons had committed murder of Surya Narayan Yadav @ Bachu Yadav.
15. Darpi Sharma is PW-4. This witness has stated that at 10.30 am he was going from his house to catch train and when he reached near the southern river bank (dhar bhitta) then saw Bachu Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 12/29 Yadav (deceased) was going with the breakfast for his halwaha (ploughmen). PW-4 claimed that Bachu was surrounded by haseri (mob), they asked him to untie the 'hal' (plow) on which Bachu told that he was ploughing his own field. This witness has stated that thereafter the accused persons assaulted Bachu Yadav. Bachu fell down whereafter Ramakant said that the dead body be made to disappear then all left with the dead body on the shoulder, other people assembled then they threw the dead body at the river bank and fled away. This witness told Rameshwar, the brother of Bachu, then he brought the dead body to his house and on information sent to the Police Station, Barababu came and brought the dead body to Supaul. In paragraph '2' of his cross-examination, he has stated that Lalu Prasad Yadav and Rameshwar Yadav had brought the dead body from the river bank. Blood was lying at the river bank. This witness stated that Police did not arrive at the river bank. According to this witness, there were around thirteen persons and people from both the sides were there. In paragraph '4', he has stated that Rajendra Yadav is permanently living at Samda and there is a land dispute between Rameshwar and the accused persons. This witness has further stated that there is no land dispute over the land of occurrence.
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 13/29
16. Gujay Yadav (PW-5) and Bhati Yadav (PW-6) are not witnesses to the facts and circumstances of the case as they did not know anything about the occurrence.
17. Sahdev Sharma (PW-7) has stated that when he reached at the door of Bachu Yadav then he found that the dead body was lying wrapped with bedspread (chadar) but he did not see any injury. According to him, Daroga Jee had seized the blood soaked soil/earth but he had not seen the occurrence from his own eyes.
18. Ram Nandan Paswan (PW-8) is the Officer-in-Charge of Bhaptiyahi Police Station who was posted there on 06.04.2006. In his examination-in-chief, he has stated that he got oral information that in village Ramnagar a murder has taken place. On information, he reached the house of the deceased Surya Narayan Yadav and found that his dead body was in the pool of blood. Lal Dev Yadav (PW-2) had given his statement about the occurrence which was recorded and FIR was lodged. He has proved the fardbeyan (Exhibit '1'), endorsement made thereon in his writing and signature (Exhibit 1/1) and the formal FIR registered by Shankar Ram, A.S.I. (Exhibit-2). He had prepared the inquest report which was marked as Exhibit-3. This witness has given the description of the place of occurrence and has stated that he had seized the blood soaked soil from the place of occurrence and also Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 14/29 recorded the statement of the witnesses. He has stated in paragraph '2' that he reached the village at 1:00 pm (afternoon) and registered the FIR at 17:00 hours (5:00 pm). Between 1:00 am to 5:00 pm he had recorded the statement of witnesses. He had gone to the way (rasta) the dead body was brought by the informant to his house from the place of occurrence. According to him, the distance is one kilometer. He did not find a drop of blood on way. The blood had stopped oozing out from the body. He had seen the injuries on the body. PW-8 did not seize the clothes of the deceased and did not send the blood soaked soil which he had seized for examination.
19. This witness has further stated in paragraph '4' that the occurrence took place on account of ploughing of the field but in course of investigation he had not seen the documents of the land. In paragraph '5', PW-8 has stated that after registration of the formal FIR he had not recorded the statement of the informant or any other witnesses. He had assumed the investigation at the place of occurrence itself and before registration of the formal FIR.
20. Dr. Rakesh Kumar (PW-9) had conducted the postmortem on the dead body of Surya Narayan Yadav @ Bachhu Yadav. He found the following injuries on his body:-
"(A) Skull-(i) depressed fracture of skull at left parietal & frontal region.
(ii) fracture skull bone over left side of occipito parietal region of skull Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 15/29
(iii) Subcutaneous haemorrhage & clot
(iv) lacerated brain matter mixed with blood & clot. (B) Vertebra - intact (C) Meningitis of brain - torn Brain & spinal cord -Intact Thorax - wall ribs & cartilage - Intact Pleura - Intact Larnyx & trachea -Intact Lung - Intact & pale Pericardium - Intact both chambers of heart- empty large vessels - Intact walls of abdomen- Intact peritoneum - Intact Mouth oesophagus & condition of teeth mouth closed teeth Intact Stomach & ib contents - Contents partially digested boiled rice & creamy food materials.
Small intestine-intact Large Intestine- intact Liver- pale Spleen- pale Kidney right & left- pale bladder- empty organs of generation internal & external intact Injury
(i) A bruise of size about 4" x 1" over left side of face extending from and below the lobule of left ear to he lateral angle of left angle.
(ii) Incised wound of size about 1" x ½" x ¼" deep over lateral end of left eyebrow.
(iii) A triangular incised wound of of size about 1½" x ½" x ¼" over anterior part of left frontal region of scalp just anterior to hair crease.
(iv) An oblique incised wound of size about 1" x ½" x ¼" deep over upper part of left temporal region of scalp.
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 16/29
(v) An incised on wound of size about 2 ½" x ½" x ¼"
deep over mid line of fronto parietal region of scalp.
(vi) An incised wound of size about 4" x 2"x muscle deep with exposed skull bone over right occipito parietal of scalp.
(vii) A bruise of size about 4" x 1" over upper part of right deltoid region of upper arm.
(viii) Two bruises over anterior & posterior part of right shoulder of size about 2" x 1".
(ix) A bruise of size about 1" x 1" over left shoulder.
(x) Two parallel bruises of size about 2" x 1" over posterior lateral aspect of left upper arm.
(xi) Three bruises of size about 4" x 1" over middle & lower thoracic region of back.
(xii) An oblique bruises of size about 2" x 2" over upper part of left waist."
Submission on behalf of the appellants
21. Learned counsel for the appellants has assailed the impugned judgment on various grounds. It is submitted that on a careful reading of the evidences of the prosecution witnesses such as PWs 1, 2, 3 and 4 it would appear that they have tried to project themselves as eye witnesses but their evidences are not consistent, suffer from material discrepancies and inherent contradictions.
22. Learned counsel submits that PW-2 who is the informant of the case is brother of the deceased. He has stated in his fardbeyan (Ext. 1) that on 06.04.2006 in morning his labour Jay Narayan Sharma had gone to plough the field situated west to the village near the river bank (dVkj ?kkV). His brother Surya Narayan Yadav had gone with breakfast of the labourer but in his evidence, Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 17/29 in course of trial, PW-2 has improved upon his case and made a statement that Jay Narayan Sharma and Lalan Sharma had gone to plough the field. These two persons who were allegedly ploughing the field have not been examined in course of trial.
23. Learned counsel further submits that in his examination-in-chief PW-2 states that when he raised hulla then people assembled and the accused persons fled away leaving/throwing the dead body on the river bank. Thereafter, the dead body was brought to the house and this witness went to the Police Station. It is submitted that if PW-2 went to the Police Station, his statement at the Police Station has been suppressed by the prosecution. Contrary to the claim of PW-2 that he went to the Police Station whereafter Police came, the Officer In-charge of the Police Station (PW-8) has stated that he had got information about murder of someone in Ram Nagar and on basis of that information he came to the village. PW-8 has suppressed as to who informed him and whether he entered the said information in the Station Diary of the Police Station.
24. Learned counsel further submits that in his cross- examination, PW-2 has tried to suppress the fact that there is a land dispute between the parties. In paragraph '3' of his evidence he has stated that there is no land dispute with the accused persons and he had not stated before Police that there is a land dispute with the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 18/29 accused persons. This witness has been materially contradicted by his own brother (PW-3) who has specifically stated in paragraph '9' of his cross-examination that Plot No. 3049 was purchased from Nathuni Gope by the deceased and in paragraph '10' of his evidence, he has stated that the murder took place on Plot No. 3049.
25. Learned counsel further submits that PW-1 who is the nephew of the deceased and son of PW-2 has stated in his examination-in-chief that the accused persons had surrounded the deceased in the field of Jagdeo Yadav where he was assaulted and thereafter, his dead body was being taken away by the accused persons but when a hulla was raised and people came then the accused persons fled away after throwing the dead body and on the advice of the co-villagers, the dead body was brought to the house and Police was informed. It is submitted that in this case no independent witness who may be a co-villager of the informant or deceased could be examined in course of trial. PW-1 has not said about presence of Darpi Sharma (PW-4) who has come as a chance witness. PW-1 has stated that he, his father, uncle and cousin brother were going with Chauki and Rassi (rope) to work in the said field and prior to them his uncle (deceased) had gone with the breakfast on the field. This witness has also tried to suppress that there was a prior land dispute. He could not say as to from how much distance he had seen the accused persons. In paragraph '5' of Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 19/29 his cross-examination he has stated that for the first time he had seen the dead body in the field and he was there with his father Rameshwar Yadav, Laldeo Yadav, Vijay Yadav, Darpi Sahni and Lalan Sharma but in course of trial Vijay Yadav, Darpi Sahni and Lalan Sharma have not been examined. It is submitted that so far as PW-4 is concerned, his name is Darpi Sharma and he claims himself as a chance witness. In course of his cross-examination, PW-4 has stated that at 10:30 am he left his house to catch the train and had reached there after 10 minutes. He has stated that there were altogether '13' persons and then this witness says that there were people from both sides. This witness has stated that Police had not come at the river bank and he cannot say the chauhaddi (boundary) of the place of occurrence. It is, thus, submitted that PW- 4 is totally un-believable. PW-4 had no reason to be at the place of occurrence which was situated south to his house at a distance of half kilometer. In paragraph '5', PW- 4 has stated that there is a road beside the field but PW-8 in his description to the place of occurrence has not stated about the presence of any road in the boundary of the land. It is thus, submitted that in this case PW-4 has been planted only at a later stage. The informant (PW-3) has in his fardbeyan not stated about presence of PW-1 or PW-2 with him near the place of occurrence.
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 20/29
26. Learned counsel submits that in this case PW-8 did not record the statement either of the informant or of any of the witnesses after registration of the FIR and PW-3 has categorically stated in paragraph '5' of his evidence that his statement was not recorded in Police. It is submitted that about Rajendra Yadav son of Nathuni Yadav the witnesses have stated that he was not living in the village for two-three years prior to the occurrence.
27. It is thus, submitted that the present case is a case of false implication of the accused persons on account of land dispute and the prosecution witnesses had not seen the occurrence. There is no independent and reliable witness in this case, the place of occurrence, date and time of occurrence and the manner of occurrence are not proved.
Submissions on behalf of State
28. Ms. Shashi Bala Verma, learned Additional P.P. has opposed these appeals. It is submitted that the prosecution witnesses particularly PW-1, PW-2, PW-3 and PW-4 are the eye witnesses to the occurrence. They have narrated the place of occurrence, date and time of occurrence and the manner of occurrence. It is submitted that the prosecution witnesses are also consistent, hence no interference is required to the judgment of the learned trial court.
Consideration
29. Having heard learned counsel for the appellants and learned Additional P.P. for the State as also on perusal of the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 21/29 records, this Court finds that the learned trial court could not appreciate that the prosecution witnesses in this case are highly inconsistent and tentative in their approach. As regards the place of occurrence, the informant (PW-2) has stated in his fardbeyan that Jay Narayan Sharma had gone to plough the land/field situated west to the villager near dVkj /kkj (river bank). The occurrence took place at about 10:30 am, he and his son Vijay Yadav had seen from some distance. In this case Vijay Yadav has not been examined in course of trial. Hare Ram Yadav (PW-1) has been introduced in course of trial to say that on the said date, he was going to work in the field with his father, uncle and the cousin brother. About the plot in which he was going to work, he has stated that he did not remember Khata Number and Khesra Number of the plot but he has stated that the land is situated at a distance of one kilometer from his house and he had left for the said plot at 10:00 am. This witness is, therefore, not giving the description of the place of occurrence save and except to say that it is at a distance of one kilometer from his house. PW-3 is brother of PW-1. The father of PW-1 has stated that on 06.04.2006 Lalan Sharma and Jay Narayan Sharma had gone to plough the field. In his examination-in-chief he has not given the description of the place of occurrence. He has only stated that he saw that from eastern direction nine persons armed with different weapons were coming to the land which was being ploughed. This Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 22/29 witness has stated that when he and others raised hulla, people ran from Sharma Toli whereafter, the accused persons fled away leaving the dead body. In his cross-examination, this witness has stated that he and the deceased had got executed sale deed of Plot Nos. 3048, 3049, 3050 and other plots in Khata No. 94. The occurrence had taken place on Plot No. 3049. This witness was not examined by Police and he has made his statement for the first time in course of trial. This witness has denied the suggestion that his statement was recorded by Police. Thus, this witness is also not a witness as regards the place of occurrence. So far as Darpi Sharma (PW-4) is concerned, he has stated that he reached at southern dhar (river bank) from his house at 10:30 am when he was going to catch the train and saw the occurrence. In order to claim his presence, he has stated that there is a rasta (road) besides the land of occurrence but the I.O. (PW-8) has given the boundary of the land and according to him, the land of occurrence is situated south-west to Ram Nagar butted and bounded by the land of Jagdeo Yadav in north, Surya Narayan Yadav (deceased) in south, plot of Jogendra Mahto in East and plot of Manohar Pandey in west. It is evident from deposition of PW-8 (I.O.) that there is no rasta (road) passing through the land of occurrence.
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 23/29
30. Regarding a chance witness in the case of Harbeer Singh v. Sheeshpal reported in (2016) 16 SCC 418, the Hon'ble Supreme Court has observed in paragraph '23' as under:-
"23. The defining attributes of a "chance witness"
were explained by Mahajan, J., in Puran v. State of Punjab30. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence."
31. In the case of Suresh & Anr. v. State of Haryana reported in (2018) 18 SCC 654, the Hon'ble Supreme Court observed in paragraph '47' as under:-
"47. ..............Nonetheless, the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence (refer to Satbir v. Surat Singh11 and Harjinder Singh v. State of Punjab12). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (refer to Shankarlal v. State of Rajasthan13). The behaviour of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (refer to Thangaiya v. State of T.N.14 )."
30 AIR 1953 SC 459 : 1953 Cri LJ 1925 11 (1997) 4 SCC 192 : 1997 SCC (Cri) 538 12 (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28 13 (2004) 10 SCC 632 : 2005 SCC (Cri) 579 14 (2005) 9 SCC 650 : 2005 SCC (Cri) 1284 Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 24/29
32. PW-8 has stated that the land of occurrence is situated at a distance of one kilometer from the door of the house of the informant, he had visited the place of occurrence but in between that one kilometer he did not find a drop of blood. PW-8 claims that he had seized blood soaked soil but that was not sent for examination. If his statement is considered with the evidence of PW-1, PW-1 has stated that the blood soaked soil/earth was taken from the plot/field after 5-6 days. According to PW-1, blood had fallen on the earth at the door of the house where the dead body was lying but PW-8 says that no blood was lying at the place where the dead body was lying at the door. This Court, therefore, finds that the prosecution has miserably failed to prove the place of occurrence in this case.
33. On further examination of the materials in form of the prosecution evidences, this Court finds that in this case the informant (PW-2) claims that he had gone to the police station but the I.O. (PW-8) says that he came to Ram Nagar at the door of the informant on getting information that a murder has taken place. Thus, to this Court, it appears that the first version of the informant who claims to have gone to the police station has been suppressed. If PW-2 had gone to the police station as stated by him and informed PW-8 about the occurrence then it is beyond comprehension to understand as to why the fardbeyan of PW-2 was Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 25/29 not recorded at the police station. The distance between the house of the informant and the Police Station is fifteen kilometer, therefore, Police not recording the fardbeyan of the informant at the Police Station and then coming to the door of the informant at about 1:00 pm and without registration of the FIR starting investigation by the I.O. would prove fatal to the prosecution case. In paragraph '5' of his cross-examination, the I.O. (PW-8) has accepted that after registration of the formal FIR he did not record the statement of the informant or any other witnesses.
34. Apart from above, one more fact which remains unexplained is the fact that in this case the formal FIR was registered on 06.04.2006 at 17:00 hours, prior to that inquest report had already been prepared at 14:00 hours but the copy of the FIR was sent to the court of learned Chief Judicial Magistrate, I/C, Supaul only on 08.04.2006. There is also an overwriting over the date mentioned in the inquest report.
35. The Doctor (PW-9) has proved the postmortem report (Ext. 4) who has stated in paragraph '4' that he had not mentioned the age of the injuries in the postmortem report. A perusal of the postmortem report (Ext. 4) shows that the dead body was received for postmortem on 07.07.2006 at 07.30 am (morning) and the autopsy was conducted on the same day at 7:50 am (morning). Non-mentioning of age of the injuries and the delay in receipt of the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 26/29 dead body for postmortem are to be seen in the light of the prosecution evidences wherein PW-3 has claimed in his statement that the dead body was lying in pool of blood but the I.O. (PW-8) has stated that he did not see blood at the place where the dead body was lying and he had not seen even a drop of blood on the way within one kilometer from the place of occurrence to the door of the informant. I.O. (PW-8) has stated that on the dead body there was a black colour underwear, full banyan, red colour gamcha but he had not seen any blood on these cloths. He was told by the witnesses that the deceased was assaulted in standing condition and when PW-8 was suggested by the defence, he stated that if assault will take place in standing condition then blood would be there on the cloths. I.O. therefore, did not record presence of blood in the case diary. I.O. had not visited the river bank (Dhar).
36. All these materials would give rise to a possible fact that Surya Narayan Yadav @ Bachhu Yadav had been murdered at some point of time, his dead body was thrown by some unknown persons and over the period by the time the informant and his family came to know about the murder, it was too late, no blood was coming out from the body. The Doctor (PW-9) was also not in a position to ascertain the age of the injuries. Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 27/29
37. To this Court, therefore, it appears that there is no eye-witness to the occurrence and the prosecution is not able to prove the manner of occurrence beyond all reasonable doubts.
38. At this stage, this Court would notice the observations of the Hon'ble Supreme Court in the case of State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh reported in (1974) 3 SCC 277 wherein the Hon'ble Supreme Court has laid down the mode of appreciation of evidence and general principles regarding presumption of innocence. The Hon'ble Supreme Court has been pleased to holed that a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
39. Kali Ram v. State of H.P., reported in (1973) 2 SCC 808, the Hon'ble Supreme Court has held in paragraph '25' as under:-
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 28/29 other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh3, a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
3 (1974) 3 SCC 227 : 1973 SCC (Cri) 886.
Patna High Court CR. APP (DB) No.620 of 2021 dt.29-02-2024 29/29
40. In the kind of materials discussed here-in-above, this Court is of the considered opinion that the learned trial court could not appreciate the prosecution evidences keeping in view the material inconsistencies and contradictions. The impugned judgment, therefore, suffers from several infirmities, hence, it is liable to be set-aside. The appellants have made out a case for acquittal giving them benefit of doubt. In result, the impugned judgment is set aside. The appeal is allowed. The appellants are said to be in custody, they would be released forthwith, if not wanted in any other case.
(Rajeev Ranjan Prasad, J) (Shailendra Singh, J) Rishi/-
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