Patna High Court
Parmeshwar Yadav And Ors. vs State Of Bihar on 15 April, 1986
Equivalent citations: 1986CRILJ1968
JUDGMENT
1. Both these two appeals arise out of the same judgment and same facts are involved in both of them. Therefore, with the consent of the parties and for their convenience, they have been heard together and are being disposed of by this common judgment.
2. All the nine appellants (seven in Cr. A. 246 of 1982 and two in Cr. A. 311 of 1982) have been convicted under Section 302/149 of the Penal Code (hereinafter referred to as 'the Code') and each of them has been sentenced to undergo rigorous imprisonment for life. They have been further convicted under Section 148 of the Code but no separate sentence has been awarded under this count. Appellants Raghuni Yadav and Surajdeo Yadav have been further convicted under Section 324 of the Code for causing hurt to Rambachan Yadav and each of them has been sentenced to undergo rigorous imprisonment for one year under this count. Appellant Ramdahin Yadav has also been convicted under Section 324 of the Code for causing hurt to Binda Yadav and has been sentenced to undergo rigorous imprisonment for one year under this count. Appellant Bulkan Yadav has also been convicted under Section 324 of the Code for causing hurt to Ramnandan Yadav and has been sentenced to undergo rigorous imprisonment for one year. Appellant Bachan Yadav has been convicted under Section 323 of the Code for causing hurt to Ramnandan Yadav with a Lohbanda and has been sentenced to undergo rigorous imprisonment for six months. All the sentences have been directed to run concurrently.
3. The prosecution story, as unfolded by P. W. 9, the informant Ramnandan Yadav, is that on 2nd Sept., 1976, at about 6.30 to 7 p. m. he was sitting in the Sahan in front of his house along with his brothers Inder Yadav (the deceased), Binda Yadav (P. W. 3), Rambachan Yadav (P. W. 1) and they were gossiping among themselves. At that very time these appellants came there from north, variously armed. Appellant Parmeshwar Yadav is alleged to have asked them as to why they have tied buffaloes on his darwaja. The informant and his brothers replied that they have tied their cattle on their own land. Parmeshwar Yadav then gave order to kill and saying this, he himself gave a garasa blow on the head of the deceased Inder Yadav. Appellant Sheonandan Yadav gave another garasa blow on the head of Inder Yadav but while warding off that blow his fingers were cut. Appellant Ramji Yadav gave a bhala blow on the head of the deceased Inder Yadav and appellant Bachan Yadav gave a Lohbanda blow on him. The informant and the other two brothers tried to save Inder Yadav. Thereupon appellant Bulkan Yadav assaulted the informant with garasa on his head, accused Sita also assaulted him with garasa and Bachan Yadav assaulted him with Lohbanda. Appellants Raghuni Yadav and Surajdeo Yadav assaulted Rambachan Yadav with garasa while appellants Ramdahin Yadav and Bhagirath Yadav assaulted Binda Yadav with garasa. Inder Yadav, after receiving the injuries, fell down there and died. Thereafter the appellants went away.
4. After the occurrence the informant (P.W. 9) along with Binda Yadav and Rambachan Yadav went to the police station and he (P.W. 9) gave his statement before the Sub-Inspector of police which is Exhibit 1. From the police station, they were forwarded to the Government hospital for treatment. P.W. 13, after registering a case on the basis of Exhibit 1, took up investigation. He went and inspected the place of occurrence and, subsequently, P.W. 10 took charge of this case from him on 3rd Sept. 1976 and after completing investigation, he submitted chargesheet against these appellants and two other accused persons who were acquitted by the trial court.
5. In course of trial, thirteen witnesses were examined on behalf of the prosecution. The appellants denied the allegation. From the trend of cross-examination of the witnesses, the further case of the appellants appears to be that on the date of the occurrence the prosecution party had cut some earth from the field of the appellants in which chilli and vegetables were grown and due to that there was scuffle between the parties. However, no witness was examined on their behalf in support of the defence case.
6. Learned Counsel appearing for the appellants has very strenuously argued that the prosecution has not come up with a true picture of the case and, therefore, no reliance should be placed on the prosecution version of the occurrence. Secondly, it has been argued that no independent witness has come forward to support the prosecution case.
7. The fact that Inderdeo Yadav alias Inder Yadav died of injuries inflicted on him admits of no doubt. Ur. K P. Sharma P.W. I conducted the post-mortem examination on the dead body of deceased Inderdeo Yadav on 3rd|Sept. 1976, at 10 a.m. and found the following injuries on his person :
(1) Incised wound 5 1/4 " X 1 1/4 7' X 1 1/4 " deep across the back of the head cutting the scalp, the occipital bone and brain matter. (2) Penetrating injury 1/2 " X 1/3" puncturing the scalp above injury No. 1 and to the right. (3) Incised wound 1/2 " X 1/6 " X skin deep on the left middle finger on the palmer surface. (4) Lacerated wound 1 1/4 7' X 2/3 " skin deep in the left arm above the back of the elbow.
According to the doctor, the injuries were ante-mortem, caused within 15 hours of the post-mortem examination, and injury No. 1 was sufficient to cause death in ordinary course. In his opinion injury Nos. 1 and 3 were caused by sharp cutting weapon like garasa, injury No. 2 was caused by sharp pointed weapon like bhala and injury No. 4 was caused by hard blunt substance like lathi. Besides the medical evidence, there is also other oral evidence on the record to indicate that Inderdeo Yadav died of injuries. Therefore, we find and hold that there is sufficient evidence to come to the conclusion that Inderdeo Yadav died of injuries received by him.
8. The question which now remains to be considered is as to whether the deceased received injuries in the manner as alleged by the prosecution. The consistent evidence of the prosecution witnesses is that the appellants came variously armed and asked the informant and his brothers including the deceased as to why they have tied buffaloes on their land which the informant and his brothers refused saying that they have tied their cattle on their own land and this led to the unfortunate occurrence according to the prosecution version. According to the learned Counsel appearing for the appellants, the land on which the prosecution party had tied their cattle was never claimed nor is being claimed by the appellants and there has never been any dispute in respect of that land or for tying the cattle. Therefore, according to the learned Counsel for the appellants, this motive is purely a concoction and not a real fact. After perusing the entire evidence, we find some force in the argument of the learned Counsel for the appellants on this point. There is no evidence on the record to show that there has been any dispute in respect of the land where the cattle were tied. No witness has said that the said land was ever claimed by the appellants nor is there anything to show that ever before the appellants had objected the tying of cattle on that piece of land. In that circumstance, it looks somewhat surprising as to why all of a sudden, on the day of the occurrence, the appellants would go variously armed and would oppose the tying of cattle by the prosecution party on the land which was never claimed by them. Here it may be mentioned that according to the defence version the trouble started for digging earth from the land belonging to the appellants and which led to this occurrence. In this connection learned Counsel for the appellants has drawn our attention to the statements of the informant made in para 19 of his evidence. Here the informant has admitted that in the south of Hulasganj road there is an orchard belonging to him, having an area of 10 kathas and to the contiguous west of that orchard is a village pathway and just on the west of this pathway are the lands of appellants Ragh-uni Yadav and Parmeshwar Yadav. Appellant Parmeshwar Yadav stores Ganaura (heap of refuse) in his land to be used as manure and just by the side of the heap of refuses, he had grown chilli plants on his land. The informant further admitted that on the day,of occurrence he had put new earth on the ridge of his aforesaid orchard and he had taken out earth from the fields of aforesaid appellants Raghuni Yadav and Parmeshwar Yadav to fill up the ridge of his orchard and while he was cutting earth from the field of these appellants he had some scuffle with Parmeshwar Yadav. The investigating officer (P.W. 13) has said that at a distance of 250 feet towards north from the place of occurrence is Ghosi Sahubigha kachcha road. On the south of this kacha road is the orchard of the informant and there is a village rasta in the west of that orchard. On the west of this rasta there was a field belonging to appellant Raghuni Yadav which contained brinjal plants on the day of the occurrence. In the field of appellant Parmeshwar Yadav he found a heap of refuse and chilli plants. The western ridge of the orchard was made too thick by putting new earth. He further found that from the eastern portion of the fields of appellants Raghuni Yadav and Parmeshwar Yadav earth had been cut and removed at three places. At one place earth of seven feet had been cut and removed, at the second place the earth was cut and removed from 18 feet and at the third place earth was cut and removed from six feet. Exhibit 3 is the sketch map of the scene of occurrence prepared by the investigating officer. From a perusal of Exhibit 3 it is quite clear that earth was cut and removed from the fields of appellants Raghuni Yadav and Parmeshwar Yadav and new earth was placed on the western ridge of the orchard of the informant. It also appears from the aforesaid sketch map that the houses of the parties and the places from where the earth was cut are not far away from each other.
9. P.W. 6 Jageshwari Devi is the wife of P.W. 3 Binda Yadav. It was suggested to her that she had stated before the investigating officer that at about 6 p.m. on the day of occurrence, there was a scuffle and exchange of hot words in between Ram Nandan Yadav and appellant Raghuni Yadav in respect of earth cutting. She denied this suggestion. P.W. 10, the second investigating officer, has stated in para 8 that P.W. Jageshwari Devi had stated before him that due to cutting, of Aal (earth) there was scuffle in between the appellants and the prosecution party. In view of the aforesaid objective findings of the investigating officer, coupled with the admission of the informant and P.W. 6 Jageshwari Devi before the investigating officer, we find some force in the argument of learned Counsel for the appellants that the trouble started over the cutting of earth from the fields of appellants Raghuni Yadav and Parmeshwar Yadav, as found by the investigating officer. From the aforesaid facts it also appears that the occurrence took place for that earth cutting. It has also to be remembered that the investigating officer did not find anything at the place where the cattle were tied to indicate that the appellants had gone there to protest about the tying of cattle there. In that situation, the appellants would have tried to uproot the pegs and demolish the Nad etc. but nothing of the sort was done. This also lends support to the fact that the occurrence did not take place for tying the cattle rather it took place for cutting the earth.
10. Learned Counsel appearing for the appellants has argued that once the motive alleged by the prosecution is found to be false, the entire case of the prosecution should be disbelieved. We are sorry, we cannot persuade ourselves to agree with this submission. From the facts stated above, it is quite clear that the assault took place in respect of the cutting of earth.
11. Now the question arises as to whether the appellants were entitled to go to the extent of assaulting the deceased, which resulted in his death, even if it be held that the occurrence took place over cutting of earth. There is no case of the appellants that any of them was assaulted or received any injury at the hands of the prosecution party. True it is that when the prosecution party was cutting earth from their fields which contained brinjal and chilli crops, they had a right to go and protest. They had also a right to make them out from the fields but that would not empower them to go to the extent of killing the deceased especially when there is nothing to show that any of the appellants had any danger of life. There is also nothing to show that the prosecution party continued the digging of earth in spite of the protest. In such circumstances, we are unable to hold that the appellants were justified in assaulting the deceased to the extent which took his life.
12. Learned Counsel for the State has submitted that the investigating officer found blood on the sahan and not at the place where the earth was dug and, therefore, it suggests that the occurrence took place at the sahan and not at the field where earth was dug. True it is that no blood was found by the investigating officer near the orchard or the fields where the earth was found to have been cut. But we cannot lose sight of the fact that from the sketch map (Exhibit 3) as well as from the oral evidence it is established that these two places are not far off from each other. Therefore, it cannot be said that the trouble did not start there. As said above, it is the prosecution admission that there was scuffle between them over the cutting of Aal at about 6 p.m. in the evening on the day of the occurrence. This admission in the prosecution evidence lends assurance to the fact that the occurrence started there.
13. The injuries found on the person of the deceased cannot be said to have been self-inflicted or concocted. There is no version anywhere in the record to show that somebody else assaulted the deceased. Rather there is consistent evidence of the prosecution witnesses throughout that the deceased was assaulted by the appellants mentioned above. Therefore, we find and hold that the deceased was assaulted by those appellants. Of course, there are some discrepancies in respect of the assault also but that will not go to prove that there was no assault. It may be mentioned here that the doctor who examined the injured witnesses has not been examined in this case and therefore, we are unable to say as to what was the nature of injuries on their persons. But there is consistent evidence of the prosecution witnesses, namely, Binda Yadav, Ram Bachan Yadav and the informant, that they received injuries in course of the occurrence.
14. Now, in view of the aforesaid findings, we have to consider as to what offence these appellants have committed. From the evidence and circumstances, discussed above, it is clear that the prosecution party went to the lands of the appellants and they cut the earth from their fields which contained vegetable plants including chilli and put the earth on their own ridge and this led to the altercation. Therefore, till then the prosecution party was the aggressor and this cutting of earth caused provocation to the appellants side which resulted in the Marpit. In that view of the matter, it cannot be said that the appellants had gone with the common object to kill the deceased. Accordingly, we find and hold that the conviction of the appellants under Section 302/149 of the Code cannot be maintained in the circumstances appearing in the case. But, as stated above, in the circumstances of the case, the appellants had also no right to go to the extent of causing such injuries which resulted in the death of the deceased. We, therefore, find and hold that the appellants are guilty of an offence under Section 304, Part II read with Section 149 of the Code. Accordingly, the conviction of the