Patna High Court
Kamlesh Yadav vs The State Of Bihar on 23 May, 2017
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.940 of 2011
Against the judgment of conviction dated 13.7.2011 and order of
sentence dated 21.7.2011, passed by the learned Additional Sessions
Judge- II, Danapur, Patna in Sessions Trial No. 507/2009/ 616/2009,
Bihta Police station Case No. 276 of 2008 dated 19.11.2008
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Kamlesh Yadav Son of Sri Sitaram Yadav Village Bindaul P.S. Bihta District
Patna .... .... Appellant
Versus
The State Of Bihar .... .... Respondent
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Appearance :
For the Appellant : Mr. Gopal Govind Mishra, Advocate
For the Respondent : Mr. SC Mishra, Addl.Public Prosecutor
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CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)
Date: 23-05-2017
The sole appellant has been convicted under sections 302,
447 and 323 of the Indian Penal Code (herein after referred to as
„the IPC‟), and under section 27 of the Arms Act by judgment of
conviction, dated 13.7.2011, passed by the learned Additional
Sessions Judge-II, Danapur, district Patna in Sessions Trial No.
507/2009/ 616/2009, arising out of Bihta Police station Case No. 276 of 2008, dated 19.11.2008. For the offence under section 302 IPC, the appellant has been sentenced to RI for life along with a fine of Rs.10,000/- and in default of payment of fine to undergo further SI for one year. For the offence under section 27 of the Arms Act, the appellant has been sentenced to RI for 3 years. For the offence Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 2/12 under sections 323 and 447 IPC, the appellant has been sentenced to 1 year SI and 3 months SI respectively. All the sentences have been directed to run concurrently.
2. The prosecution case, as set out in the fard beyan of informant Sanjay Yadav s/o Sri Ram Peyare Yadav, village Bindaul Police Station Bhita, District Patna, recorded by S.I. D. Kumar, Station House Officer, Bihta on 19.11.2008 at Referal Hospital, Bihta at 8.30 PM, in short is as follows:-
The informant (deceased) stated that on 19.11.2008 at about 7 PM, he was sitting in his house situated in village Bindaul. In the meantime, the appellant Kameshwar Yadav, aged 30 years, came to his house and started abusing him. He asserted that his field shoud too be ploughed on credit, as being done in case of others. Meanwhile, informant‟s father Sri Ram Peyare Yadav came out of the house and asked the informant as to why Kamlesh Yadav is hurling abuses. At the same time, Ram Peyare Yadav moved towards Kamlesh Yadav who began to assault him (Ram Peyare Yadav) with lathi. When informant tried to catch Kamlesh Yadav, the latter took out pistol from his waist and fired at him, hitting his lower abdomen. Consequently, he slumped on the ground. On hearing sound of firing, his family members including his brother and others arrived there and on seeing them Kamlesh Yadav fled Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 3/12 away.
The informant stated that some days back he bought a tractor and used to do agriculture work of others as well on rent. The appellant wanted to use his tractor free of cost to which he did not accede. Because of refusal to plough his field, Kamlesh Yadav came in drunken state to his house and abused and assaulted his father with lathi, and on protest, fired at him (informant) causing injury on his lower abdomen.
3. On basis of fard beyan, Bihta P.S.case no.376 of 2008 dated 19.11.2008 under sections 447, 323, 326 and 307 IPC and under section 27 of the Arms Act was registered. After death of informant, section 302 IPC was added to the FIR on 28.11.2008.
4. The prosecution, in support of its case, examined altogether 8 witnesses. Out of these 8 witnesses, PW 1 Raj Kishore Yadav and PW 2 Ashok Kumar Yadav, both are brothers of the informant/deceased (Sanjay Yadav). PW 3 Ray Peyare Yadav is the father of the informant/deceased. PW 4 Ram Niwas Yadav and PW 5 Nawal Kishore Yadav, both cousins of the deceased. PW 6 (S.I. Shri Birendra Singh) is the Investigating officer of the case. PW 7 (Dr. Ramesh Prasad Singh) examined the informant/injured at the Referral Hospital, Bihta. PW 8 (Dr Arvind Kumar Singh), conducted post mortem at 11 AM at PMCH and found "one Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 4/12 transverse stitch wound over left lower abdomen 2" away from midline, ¼" long. Time elapsed since death was six to eighteen hours. Cause of death has been stated to be internal haemorrhage and shock.
5. PW 1 Raj Kishore Yadav is the brother of the deceased. He stated that the occurrence took place on 19.11.2008 at about 7 PM. At that time, he was sitting with his father and brother at his Dalan. Meanwhile, appellant Kamlesh Yadav, armed with lathi, reached and started abusing his father. On protest, he assaulted him with lathi and began to flee. When his younger brother (the deceased) tried to catch him, he took out pistol from his waist and fired upon his brother Sanjay Yadav hitting left side of his Naabhi. He further stated that Sanjay was taken to the Referal Hospital, Bihta where the police came and recorded his fard beyan. His brother was referred to the PMCH, Patna, where he died the same day at 10 PM. In the cross-examination, this witness stated that the appellant hurled 4/5 lathi blows at this father. He stated that he did not lodge any separate case for the assault on his father. He stated that his father too was treated at PMCH, Patna but there is no paper or document in this regard on the record. In his further cross examination, he stated that the appellant fired at his brother at the place which was 300 yards north to his house and it was near the Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 5/12 house of Daroga Yadav. He stated that there is house of Durga Yadav in the north, and in the south, a piece of land of Dagi Ram. House of Lakhan Yadav was situated on the east and there is a road on the west of the house. He stated that he heard the firing sound from his house and within 2 minutes he reached at the spot. At that time the accused had fled and 2/3 minutes later other people including Sunil Yadav Durga Yadav, both not examined, reached the spot. According to him, he is not the eye witness to the occurrence and other witnesses too reached there after 2/3 minutes. The house of Kamlesh Yadav, the appellant is situated 400 meters away from his house.
6. PW 2 Ashok Kumar Yadav is another brother of the informant/deceased (Sanjay Yadav). He stated that the occurrence took place on 19.11.2008 at 7 P.M. At the relevant time, he was at the house. On hearing firing sound, he too reached the place from his house and saw Kamlesh running towards north brandishing his pistol. He stated that his brother was lying injured in the field of Lakhan Yadav and he had sustained fire arm injury in his stomach. He further stated that Sanjay Yadav disclosed that Kamlesh Yadav had fired at him with an intention to kill. Thereafter, Sanjay Yadav was taken to the hospital with the help of his father Ram Peyare Yadav (PW 3) and his brother Nawal Kishore Yadav (PW 5) to the Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 6/12 Referal Hospital, Bihta, where the doctor referred him to the PMCH, Patna. He died in the PMCH during treatment. He learnt from his brother and father that Kamlesh Yadav had come to his house and entered into altercation with his brother Sanjay Yadav and on protest he assaulted his father Ram Peyare Yadav. He further learnt that when his brother tried to catch Kamlesh Yadav, the latter ran some distance whereafter he turned and fired at his brother from the vacant field of Lakhan Yadav.
7. From the evidence of this witness, it would appear that he is an eye witness to the occurrence, and was at the house, when the incident took place. He stated that on hearing firing sound, he ran towards the spot and saw Kamlesh Yadav running in east direction. He was having a pistol in his hand. He also saw his brother Sanjay Yadav lying in the vacant field with fire arm injury in his abdomen.
8. PW 3 Ram Peyare Yadav is the father of the deceased. He stated that the occurrence took place on 19.8.2008 and at the relevant time he was sitting in his Dalan with his two sons Nawal Kishore Yadav and Raj Kishore Yadav. In the meantime, Kamlesh Yadav came and started abusing his son Sanjay Yadav and on protest he too was assaulted with lathi on his shoulder. Kamlesh Yadav then began to flee towards north side and Sanjay Yadav ran after him. PW 5 also chased Kamlesh Yadav. However, Kamlesh Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 7/12 Yadav turned around on reaching the vacant field of Lakhan Yadav, and took out a pistol from his waist and fired at his son causing injury in his lower abdomen. He thereafter fled in the east direction brandishing his pistol. PW 5 Nawal Yadav immediately came and saw Sanjay Yadav lying injured in the field. PW 1 Raj Kishore Yadav also reached the spot. PW 3 also arrived at the place of occurrence and with the help of villagers, Sanjay Yadav was taken to the Bihta Hospital. During treatment, police came and took the statement of Sanjay Yadav followed by his signature. PW 5 Nawal Yadav also signed the fard beyan. Thereafter, doctors referred him to the PMCH. However, Sanjay Yadav died during treatment in the PMCH.
9. This witness (PW 3) stated that at the time of occurrence he was sitting at the Dalan of his house along with his son Nawal Yadav (PW 5) and Raj Kishore Yadav (PW 1). In the meantime, Kamlesh Yadav came and started abusing him. On the contrary, I.O. (PW 6 Birendra Singh) in paragraph 6 of the cross- examination, contradicted that the informant made any such statement before him under section 161 Cr.P.C. As such, this witness has made the aforesaid statement for the first time in the court and in that view of the matter we do not hold him fully reliable.
Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 8/12
10. PW 4 Ram Niwash Yadav, is one of the uncles of the deceased. He stated that the occurrence took place on 19.11.2008 at about 7 PM, when he was sitting on the Dalan of PW 3 Ram Peyrae Yadav. In the meantime, Kamlesh Yadav armed with lathi, came and abused PW 3. He also gave him 2/3 lathi blows. Thereafter, informant/deceased Sanjay Yadav came and indulged in fight with Kamlesh Yadav. Appellant Kamlesh Yadav ran towards the field of Lakhan Yadav. This witness further stated that he along with others chased the appellant. Meanwhile, the latter fired from his pistol on Sanjay Yadav, hitting his lower abdomen. He took Sanjay Yadav to the Bihta Referal Hospital along with others, where police took his statement and referred, him to the PMCH for treatment. Informant (Sanjay Yadav) however died in the PMCH the same day at 10 PM.He stated that the place of occurrence was 300 yards away from the Dalan of the deceased, where they were sitting. He further stated that he did not see the person who fired on the deceased at the place of occurrence. He stated that the deceased was not in a position to speak. Thereafter, he was rushed to the Bihta Referal Hospital from where he was carried to the PMCH, where he died.
11. From the evidence of this witness (PW 4), it appears that he too has not seen the occurrence and secondly the victim was not in a position to say anything in the field as well as to make Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 9/12 statement before the police in the Bihta Referal Hospital. Moreover, he was carried to the PMCH, but he died there at 10 PM same night, which creates a doubt, whether he was in a position to record his fard beyan in the Bihta Referal Hospital at 8 PM.
12. PW 5 Nand Kishore Yadav is another cousin of the deceased. He stated that he was present in the house of his uncle. In the meantime, at 7 PM he heard some one hurling abuse. He saw Kamlesh Yadav abusing his uncle Sanjay Yadav, whereupon PW 3 Ram Peyrae Yadav came and protested. This witness also followed him. Kamlesh Yadav hurled 2/3 lathi blows on PW 3. On this, informant/deceased Sanjay Yadav tried to catch Kamlesh Yadav who was fleeing towards north. When Kamlesh Yadav reached the field of Lakhan Yadav, he took out a pistol from his waist and fired at Sanjay Yadav which hit on his lower abdomen. He fell in the field of Lakhan Yadav and Kamlesh Yadav fled away brandishing his pistol. It appears that this witness is also not an eye witness to the actual firing.
13. PW 7 Dr. Ramesh Prasad Singh, who first examined the deceased, was posted at Referal Hospital, Bihta as Medical officer. He stated that at 8.30 PM, he examined Sanjay Yadav and found gun shot injury 2" x 2" on left side of lower abdomen. He further stated that he has not mentioned in the report, whether the Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 10/12 injured was in a position to speak or not.
14. PW 6 Birendra Singh is the IO of the case. He stated that on 19.11.2008, he was posted at Bihta Police Station. He stated that at the relevant day, Dhananjay Kumar, the Officer in charge of the Bihta Police Station recorded the fard beyan of the informant/deceased. He proved the fard beyan as ex 2. he stated that he took over the investigation on 19.11.2008 at 9 PM. he further stated that after taking over the investigation, he went at Referal Hospital, Bihta. However, he was informed that the injured was referred to the PMCH for better treatment. Thereafter, he went to the place of occurrence and recorded the statement of Ashok Kumar Yadav (PW 2), Ramdhari Yadav (not examined), Raj Kumar Yadav (PW 1) and Ram Niwas Yadav (PW 4) and inspected the place of occurrence which is the field of Lakhan Yadav, 300 yards away from the house of the informant. In the cross- examination, he stated that that the FIR was lodged on 19.11.2008, whereas it was sent to the office of the ACJM, Danapur on 25.11.2008.
15. It appears from the evidence of this witness that the fard beyan was recorded by one Dhananjay Kumar, officer-in-charge of the Bihta Police Station , who has not been examined by the prosecution side. Though the FIR was instituted on 19.11.2008 on basis of statement of informant/deceased the same was sent to the Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 11/12 CJM court belatedly after six days on 25.11.2008 for which there is no explanation.
16. From the critical analysis of the witnesses, it is evident that PW 1 Raj Kishore Yadav, PW 2 Ashok Kumar Yadav, PW 4 Ram Niwas Yadav and PW 5 Nawal Kishore Yadav, who all are family members of the informant/deceased, are not the eye witness to the actual commission of the firing alleged to be made by the appellant. Furthermore, Dhananjay Kumar Officer-in-charge of Bihta Police Station who recorded the fard beyan of the informant Sanjay Yadav, has not been examined, which could have thrown some light whether in view of nature of his injury the injured was in a position to make his fard beyan as PW 4 in his deposition stated that the informant was not in a position to speak at all. This creates a doubt about the authenticity of the fard beyan of the informant. Besides this, there is a delay of six days in sending the FIR to the concerned court for which no explanation has been provided by the prosecution, which also creates a serious doubt regarding the authenticity of institution of the fard beyan.
17. Situated thus, and in view of foregoing discussions, we find that the prosecution has not been able to prove the case beyond all reasonable doubt. The judgment of conviction and order of sentence, passed against the appellant, is set aside and he is directed Patna High Court CR. APP (DB) No.940 of 2011 dt.23-05-2017 12/12 to be set at liberty forthwith, if not wanted in any other case.
18. The appeal is allowed.
(Samarendra Pratap Singh, J) (Rajendra Kumar Mishra, J) Shashi.
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