Patna High Court
Naresh Yadav And Ors. Etc. vs State Of Bihar on 28 January, 2000
Equivalent citations: 2000(48)BLJR963, 2000CRILJ2041
Author: Manohar Lal Visa
Bench: Manohar Lal Visa
JUDGMENT Manohar Lal Visa, J.
1. These two appeals have been heard together and are being disposed of by this common judgment because both the appeals arise out of the same judgment and order dated 6-4-1987 passed by VIth Additional Sessions Judge, Gaya, in Sessions Trial No. 228 of 1981/25 of 1984 convicting and sentencing the appellant Ram Pravesh Yadav to undergo life imprisonment under Section 302 of the Indian Penal Code (in short, 'IPC') and the remaining appellanmts to undergo life imprisonment under Section 302/149, IPC. Appellants Manilal Yadav, Surendra Yadav and Naresh Yadav have been further convicted and sentenced to R.I. for three months under Section 147, IPC, appellants Dilkeshwar Yadav and Raghubar Yadav have been further convicted and sentenced to R.I. for four months under Section 148, IPC and appellant Ram Pravesh Yadav has been further convicted and sentenced to R.I. for one year under Section 27 of the Arms Act. All the sentences have, however, been ordered to run concurrently.
2. The case of prosecution, in short, is that on 10-7-80 at about 7 a.m. informant Ram Ratan Singh (P.W. 3) along with his injured father Deodhari Yadav (not examined), Ravindra Yadav (P.W. 6) and Range Singh (since dead) went to Kurtha Thana within the district of Gaya taking the dead body of his elder brother Kam Nandan Yadav alias Guru Singh and lodged FIR stating therein that on 9-7-80 at about 11-11.30 p.m. he after taking meal was going to bed and at that time his deceased brother along with his other brothers Ram Chandra Yadav (P.W. 2) and Shiv Ratan Yadav (P.W. 5) was sleeping in the 'dalan' made of straw in front of female ward of his house. At that time about 10-15 persons making firing and raising, hulla of 'maro maro' came to his 'dulan'. On hearing the sound of firing and the hulla, the informant went on the roof of his house and flashed a torch towards the 'dalan' and saw the appellants Naresh Yadav, Manilal Yadav and Surendra Yadav armed with lathis, appellant Ram Pravesh Yadav armed with a gun and appellants Dilkeshwar Yadav and Raghubar Yadav armed with 'Chhura' along with Ram Swaroop Yadav (since dead) armed with gun and Jang Bahadur Yadav (since dead) armed with 'garasa' and some others who could not be identified by the informant. The appellants and their companions 'started' indiscriminately assaulting the family members of the informant Co-accused Jang Bahadur Yadav assaulted Ravindra Kumar (P.W. 6) a dumb and deaf nephew of informant, by garasa and when deceased Ram Nandan Yadav raised protest that why a dumb person was being assaulted Jang Bahadur Yadav ordered for killing him in which co-accused Ram Swaroop Yadav and appellant Ram Pravesh Yadav fired from their guns killing Ram Nandan Yadav. When the old father of informant raised protest he was also assaulted by appellants Manilal Yadav, Surendra Yadav and Naresh Yadav with lathis. Rangu Yadav (since died), the 'Samdhi' of brother of informant who was also at that time in the dalan was assaulted by appellants Dilkeshwar Yadav and Raghubar Yadav by 'chhura'. The brothers of informant after raising 'hulla' fled away from the 'dalan' and therefore they escaped from assault. Co-accused Ram Swaroop Yadav and appellant Ram Pravesh Yadav also fired on the informant but the shot did not hit the informant. Co-accused Jang Bahadur Yadav ordered his companions for killing other family members of the informant but in the meantime on 'hulla' villagers assembled there and the appellants fled away towards west and north. About the motive of occurrence the informant stated that two years prior to occurrence he had purchased land which the co-accused Jang Bahadur Yadav wanted to purchase and one year piror to occurence the appellants and their companions had assaulted his nephew Shiv Dutta Yadav (P.W. 4) and on account of these reasons there was enmity between the parties. FIR was registered under Sections 147, 148, 149, 302, 324, 323, IPC and 27 of the Arms Act against the appellants as well as against Ram Swaroop Yadav and Jang Bahadur Yadav. After investigation charge sheet under the same sections was submitted against the appellants as well as against Ram Swaroop Yadav and Jang Bahadur Yadav. The case was committed to the Court of Session and thereafter co-accused Ram Swaroop Yadav and Jang Bahadur Yadav died and therefore trial proceeded against the appellants only. Charge under Sections 302/149, IPC against all the appellants besides charges under Sections 302, IPC and 27 Arms Act against appellant Ram Pravesh Yadav and charges under Sections 148 and 324, IPC against appellants Dilkeshwar Yadav and Raghubar Yadav, charges under Sections 147 and 323, IPC against appellants Manilal Yadav, Surendra Yadav and Naresh Yadav were framed. The appellants denied the charges levelled against them and their defence as, it appears from the trend of cross-examination of prosecution witnesses is that they have been falsely implicated in this case on account of their enmity with the prosecution party. After the trial, the Court below found the appellants guilty and convicted and sentenced them as indicated above.
3. In order to prove its case, the prosecution has examined 8 witnesses in this case. Ram Ratan Singh (P.W. 1) is the informant, Ram Chandra Yadav (PW. 2) brother of informant and deceased, Shiv Dutta Singh (PW. 4) the son of deceased and Ravindra Yadav (P.W. 6) another son of deceased are said to be eye-witnesses to the occurrence. Shiv Ratan Gope (P.W. 5) who is also brother of deceased had seen the appellants and their companions taking part in assault and he then fled away and after his return he was told by his father and informant that appellant Ram Pravesh had committed the murder of deceased by firing. Dashrath Rai (P.W. 1), Ram Baleshwar (P.W. 7) and Ram Baleshwar Singh (P.W. 8) are formal witnesses who have proved signature (Ext. 1) of the then Officer-in-charge of Kurtha P.S. on FIR, signature (Ext. 1/K) of Dr. Jaglal Pd Gupta on FIR, carbon copy of post mortem examination report (Ext. 2) and carbon copy of case diary (Ext. 3). It appears that Ram Baleshwar (P.W. 7) and Ram Baleshwar Singh (P.W. 8) is the same person which is apparent from the parentage appearing on both the depositions. The signatures on both the depositions appear to be in the same writing.
4. Ram Ratan Singh (P.W. 3), the informant, in his evidence has stated that at the time of occurrence he, after taking meal, was going to sleep when he heard hulla and after hearing hulla he went on the roof of his house from where he saw about 15-20 persons in the 'Palani' situated towards north of his house and he identified the appellants and co-accused Jang Bahadur Yadav and Ram Swaroop Yadav (both dead now). Appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav were armed with guns, co-accused Jang Bahadur Yadav was armed with garasa, appellants Manilal, Yadav, Surendra Yadav and Naresh Yadav were armed with lathis and Raghubar Yadav and Dilkeshwar Yadav were armed with chhura. He identified the appellants and their companions in the light of a torch. In the 'Palani' deceased Ram Nandan Yadav, Ravindra Yadav alias Gunga (PW. 6), Ram Chandra Yadav (P.W. 2), Shiv Ratan Yadav (P.W. 5) and Rangu Yadav, 'samdhi' of his brother were sleeping and co-accused Jang Bahadur Yadav gave a 'garasa' blow on the back of Gunga Yadav and when the deceased raised protest, co-accused Jang Bahadur Yadav ordered for killing him on which appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav fired from their guns and Ram Nandan Yadav died on the spot. Appellants Raghubar Yadav and Dilkeshwar Yadav assaulted Rangu Yadav with 'chhura' and appellants Manilal Yadav, Surendra Yadav and Naresh Yadav assaulted the father of informant with lathi. When villagers started assembling there, the appellants and their companions fled away. Appellant Ram Pravesh and co-accused Ram Swaroop fired on him also but he was not hurt. On the next day, in the morning he took the dead body of deceased to Police Station where he lodged the FIR. About the motive of the occurrence he has said that he had purchased a land from one Balram Yadav and others and the appellants wanted to purchase the same land and they had assaulted his nephew also.
5. Ram Chandra Yadav (P.W. 2), the brother of deceased, in his. evidence has stated that at the time of occurrence he was sleeping in the 'Palani' along with deceased, his father, his nephews Ravindra Yadav (P.W. 6) and Shiv Dutta Singh (P.W. 4), his brother Shiv Ratan Gope (P.W. 5) and his samdhi Rangu Yadav. According to him, 14-15 persons variously armed with weapons entered the 'Palani' and amongst those persons he had identified the appellants and coaccused Jang Bahadur Yadav and Ram Swaroop Yadav who both are dead now. Appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav were armed with guns, co-accused Jang Bahadur was armed with garasa, appellants Dilkeshwar Yadav and Raghubar Yadav were armed with chhura and appellants Manilal Yadav, Surendra Yadav and Naresh Yadav were armed with lathis. Co-accused Jang Bahadur Yadav assaulted Ravindra Yadav (P.W. 6) with garasa and when the deceased raised protest appellant Ram Pravesh Yadav and coaccused Ram Swaroop Yadav fired on him and he fell down. Rangu Yadav and Deodhari Yadav were also assaulted. He came out from his 'Palani' and raised hulla on which villagers assembled there and the appellants fled away. The deceased died in the 'Palani' itself.
6. Shiv Dutta Singh (P.W. 4), the son of deceased, has stated that at the time of occurrence he was sleeping in the 'palani' along with his father when 15-16 persons entered the 'Palani' and he identified the coaccused Jang Bahadur Yadav and Ram Swaroop, Yadav and appellants. Co-accused Jang Bahadur Yadav assaulted Ravindra Yadav (P.W. 6) with garasa and when his father raised protest, appellant Ram Pravesh Yadav fired on his father and he then out of fear fled away from there and when the appelants and their companions left the place of occurrence he came back and found that his father had fallen down.
7. Shiv Ratan Gope (P.W. 5), another brother of deceased, has stated that at the time of occurrence he was sleeping in his 'Palani' and he woke up on hearing hulla when he saw 15-16 persons in his 'Palani' who were variously armed with lathi, garasa and chhura and amongst those persons he in the light of torch identified co-accused Jang Bahadur Yadav and Ram Swaroop and appellants and when they all resorted to assault he fled away from the place of occurrence and when they left the place he again came back there and he was told by his father and informant that appellant Ram Pravesh had fired on the deceased. Admittedly, he is not an eye-witness on the point of murder of deceased.
8. Ravindra Yadav (P.W. 6) is a dumb and deaf witness, whose evidence has been recorded on the basis of his signs and gestures by which he has simply indicated that his father as well as the man who had fired are dead now. He is not the son of deceased but the son of Shiv Ratan Yadav (P.W. 5). So his evidence that his father is also dead cannot be believed.
9. Now turning to the evidence of eyewitnesses to the occurrence we find that besides informant, there is evidence of Ram Chandra Yadav (P.W. 2) and Shiv Dutta Singh (P.W. 4) who have claimed to have seen the occurrence. The informant in his evidence has stated that appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav fired from their guns on the deceased and the deceased died. Ram Chandra Yadav (P.W. 2) has also in his examination-in-chief stated that appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav fired from their guns on the deceased but in para 7 of his cross-examination he has stated that co-accused Ram Swaroop Yadav entered with a double barrel gun in the Palani and he fired and the shot hit on the chest of the deceased. In the same breath he has stated that he woke up on hearing the sound of firing because at that time he was sleeping in the 'Palani' on a chowki. This evidence is against his evidence given in examinationin-chief that appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav fired on the deceased. If he woke on hearing the sound of firing made in the Palani then the question of his seeing co-accused Ram Swaroop entering the Palani with a double barrel gun and firing in the direction from east to west on the chest of the deceased does not arise. Shiv Dutta Singh (P.W. 4) has said that only appellant Ram Pravesh Yadav fired on his father who died. About coaccused Ram Swaroop Yadav he has clearly stated that he did not see him firing or doing anything in 'Palani'. So on the point of firing by guns we find that evidence of these three witnesses is not consistent. Besides this, Shiv Ratan Gope (P.W. 5) who on seeing appellants and their companions engaged in assault had fled away from the place of occurrence and after the appellants and their companions left the place of occurrence again came back there has stated that he was told by informant and his father that only appellant Ram Pravesh Yadav had fired on the deceased. He in para 11 of his evidence has said that he did not identify any of the accused persons when they were fleeing away. This evidence creates serious doubt on his being an eye-witness to the occurrence.
10. In this case all the witnesses who have claimed themselves to be the eye-witnesses to the occurrence are closely related with each other and belong to one family and are either brothers or nephew of the deceased. Enmity between the parties is admitted and no independent witness has been examined. The Court below in its judgment has opined that occurrence took place in the late hour of the night inside the house and in this view of the matter it is not expected from the prosecution to examine any independent witness on the point of occurrence We are unable to agree with this finding of the Court below because the informant in his evidence has stated that when the villagers started assembling there the appellants and their companions fled away. Similarly Ram Chandra Yadav (P.W. 2) in his evidence has stated that when the villagers came to the place of occurrence appellants and their companions fled away towards north and Shiv Dutta Singh (P.W. 4) in para 6 of his evidence has stated that 30-40 persons of his village had assembled after the occurrence and in para 10 of his evidence he has said that the villagers had chased the appellants and their companions upto a distance of 200 yards from the 'Palani'. In this view of the matter, if it is the case of prosecution that villagers had assembled immediately after the occurrence and they had chased the appellants and their companions the reasoning given by the Court below that the occurrence took place in the night, therefore, prosecution was not expected to examine any independent witness does not hold good. The evidence of informant is that after hearing hulla he went on the roof of his house and from there he saw 14-15 persons in his Palani and in the light of a torch he identified the appellants and two other coaccused persons amongst those persons. About the location of Palani he has stated that 'Palani' is situated towards north of his house and its length is in the direction of north south and breadth is in the direction of east to west and there are six pillars in two rows, each row has three pillars from east to west and two pillars towards north to south and the 'Palani' is situated about 4-5 cubits from the northern end of his house and length of his house in the direction of north to south is 35-36 cubits and he saw the occurrence from the roof of the room which is situated in south eastern corner of his house. Adjacent north to this room there is another room without roof and thereafter, towards north there is one room which has the roof made of straw. So the position of the roof where the informant at the time of occurrence is said to have been shows that informant at that time was standing on the southern portion of his house and between the northern end of his house and the place where he was standing there was a room of straw roof and there was another room without any roof. From the northern end of his house the 'Palani' is situated towards north. In this view of the matter it is clear that the informant was far away from the 'Palani' and the question of his identifying the appellants and co-accused persons in the light of a torch does not seem to be probable. The informant has not only stated that he identified the appellants and other two co-accused persons in the light of a torch by standing on the roof of his house but he has also stated that he saw co-accused Jang Bahadur assaulting Ravindra Yadav (P.W. 6) and also saw protest raised by the deceased as well as heard co-accused Jang Bahadur Yadav giving order to kill the deceased. The defence has challenged the evidence of informant on the point of his identification of appellants in the light of torch by putting question whether he had shown the torch to the I.O. to which he has replied that he had shown the torch to the I.O. who had returned the torch to him. The prosecution has neither examined the I.O. nor produced the torch in Court. Non-examination of I.O. has definitely caused prejudice to the defence because the defence could not get opportunity to bring on record the contradictions in the evidence of informant on the point of identification of appellants in the light of torch. Besides this, the appellants have been further prejudiced by non-examination of I.O. because attention of P.W. 2 Ram Chandra Yadav was drawn on contradictions in his evidence and his earlier statements on the point that at the time of occurrence his 'Samdhi' Range Singh, who is dead now, his nephew and his brother were also sleeping in the 'Palani' and the appellants Dilkeshwar Yadav and Raghubar Yadav were armed with chhura, appellants Manilal Yadav, Surendra Yadav and Naresh Yadav were armed with lathis and co-accused Jang Bahadur was armed with garasa who had assaulted Ravindra Yadav (P.W. 6) by garasa.
11. The prosecution has not examined the doctor who is said to have 'conducted autopsy on the dead body of the deceased, although he was very much alive at the time of trial which is apparent from the judgment of the Court below, according to which the doctor has retired from the service. The prosecution has simply got the carbon copy of post mortem examination report (Ext. 2) which has been proved by Ram Baleshwar Singh (P.W. 8) who is a Tayeed (Advocate's clerk). He in his cross-examination has said that he had never seen this report before. This report (Ext. 2) which has been proved by an advocate's clerk and which was not written in his presence, cannot be taken into evidence. In absence of any report on the post mortem examination the exact cause of death of deceased has not been established. The Court below has observed that the defence has not challenged the factum of murder of deceased by gun shot injuries and therefore the non-examination of doctor who had conducted autopsy on the dead body of deceased cannot be taken as a ground for holding that cause of death has not been established. The specific case of prosecution is that appellant Ram Pravesh Yadav and coaccused Ram Swaroop Yadav fired from their guns on the deceased causing injuries to the deceased which resulted into his death. The onus was on the prosecution to prove that the deceased died of injuries caused by fire arms and thereafter the prosecution was to prove that appellant Ram Pravesh Yadav and co-accused Ram Swaroop Yadav in prosecution of the common-object of unlawful assembly of which they were the members caused such injuries. As stated above, in the present case the prosecution has not examined the doctor who conducted the autopsy. If the non-examination of doctor who conducted autopsy is not considered against the prosecution in view of defence not challenging the cause of death of deceased by fire arms as observed by the Court below even then the evidence adduced by prosecution against the appellants does not seem to be trustworthy. Besides this, it is the case of prosecution that co-accused Jang Bahadur assaulted Ravindra Yadav (P.W. 6) by garasa and appellants Raghubar Yadav and Dilkeshwar Yadav assaulted Rangu Singh with chhura and appellants Manilal Yadav, Surendra Yadav and Naresh, Yadav assaulted the father of informant with lathis. On this point, we find that the informant in. his evidence has no doubt stated about such assaults by giving specific names of appellants but Ram Chandra Yadav (P.W. 2) has not stated that Rangu Yadav and Deodhari Yadav were assaulted and he has not given the name of any appellant causing such assault. Shiv Dutta Singh (P.W. 4) has not stated about any assault on Rangu Yadav or father of informant and Shiv Ratan Gope (P.W. 5) has simply stated that appellants resorted to assault without giving the name of any person who was assaulted. The informant in para 10 of his evidence has stated that Rangu Yadav who is dead now, Ravindra Yadav (P.W. 6) and his father who has not been examined as a witness were examined at Kurtha Hospital but no doctor has been produced by the prosecution who had examined these injured persons and no injury report in respect of their injuries has been brought on record.
12. The Court below taking into consideration the evidence of Ram Chandra Yadav (P.W. 2) that a case against him and his son under Sections 25A and 26 of the Arms Act and under Section 47 of the Excise Act was instituted in which co-accused Ram Swaroop Yadav was a witness on behalf of prosecution has observed that the family members of deceased will certainly prosecute the actual culprit and not institute a false case against co-accused persons for the reason that one of the accused who is dead now had figured as a witness against the brother of informant in a criminal case. It appears that the Court below failed to observe that prosecution party had enmity not only against co-accused Ram Swaroop Yadav, who is dead now, but with all the appellants on account of some land dispute and on account of assault by appellants to the nephew of informant which has been admitted by the informant in para 25 of his evidence as well as by Shiv Dutta Singh (P.W. 4) in para 12 of his evidence. If the close relations of the deceased, in fact, had not seen the actual culprits responsible for causing death of deceased, the possibility of their falsely implicating their enemies for the murder of deceased cannot be ruled out.
13. Considering the entire evidence on record, we find that admittedly, there was enmity between the prosecution party and the appellants, in spite of admitting the presence of independent witnesses no such witness has been examined by prosecution, all the witnesses who have claimed to be the eye-witnesses to the occurrence are closely related to each other and belong to one family, the I.O. of the case has not been examined by the prosecution and the evidence of prosecution witnesses is not consistent and is full of contradictions. We therefore find that on such type of evidence the conviction and sentence of appellants cannot be upheld.
14. In the result, both the appeals are allowed. The judgment and order of the Court below convicting and sentencing the appellants is hereby set aside. The appellants who are on bail are discharged from the liability of their bail bonds.
Ram Nandan Prasad, J.
15. I agree.