Patna High Court
Lallan Yadav And Ors vs State Of Bihar on 22 August, 2019
Equivalent citations: AIRONLINE 2019 PAT 1728
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.411 of 1994
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1. Lallan Yadav, son of Jagarnath Yadav
2. Bagar Yadav, son of Motor Yadav
3. Nanak Yadav, son of Motor Yadav
4. Ramadhar Yadav, son of Nanhak Yadav
5. Nagendra Yadav, son of Bagar Yadav
6. Chotelal Yadav @ Chhote Yadav, son of Bagar Yadav
7. Jagarnath Yadav, son of Jhakar Yadav
8. Kashi Yadav, son of Jhakar Yadav
9. Madan Yadav, son of Jagarnath Yadav
10. Baban Yadav, son of Jagarnath Yadav
11. Budhram Yadav, son of Jhakar Yadav
12. Prem Yadav, son of Bangali Yadav
All are resident of village-Sikatiya Machhargawan, P.S. Bagaha,
District-West Champaran
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellants : Mr. Avinash Chandra, Adv. (Amicus Curiae)
For the State : Mr. Shiwesh Chandra Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA)
Date : 22-08-2019
1. All the above stated appellants have been convicted
for the offences punishable under Sections 147 and 302/149 of the
I.P.C. and have been sentenced to undergo rigorous imprisonment
for life for the offence punishable under Section 302/149 of the
Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019
2/24
I.P.C. and to undergo a separate sentence of rigorous imprisonment
for a period of one year for the offence punishable under Section
147 of the I.P.C. by the impugned judgment of conviction and
sentence order dated 16.08.1994 and 17.08.1994 respectively
passed in Sessions Trial No. 63 of 1984 by the learned 2 nd
Additional Sessions Judge, West Champaran, Bettiah (hereinafter
referred to as "trial court"). However, the above stated appellants
have been acquitted from the charge framed under Section 307 of
the I.P.C. The above stated impugned judgment of conviction and
sentence order dated 16.08.1994 and 17.08.1994 respectively are
under challenge in this criminal appeal.
2. Briefly stated fact of the prosecution case is that one
Baldeo Yadav gave his ferdbeyan to A.S.I. of Bagaha police station
on 07.02.1983 at 10:00 P.M. in presence of his sons Ramprit Yadav
(deceased), Bandhu Yadav (PW-3) and Jita Yadav (PW-2) in
injured condition at Sub-divisional Hospital, Bagaha to this effect
that his wheat field was situated towards south of his house and in
the aforesaid field, crop of wheat was standing. He, further, stated
that on the same day at about 6:00 P.M., cow of his co-villager,
namely, Lallan Yadav was grazing his wheat crop on account of
which hot exchange of words took place between his son Ramprit
Yadav and Lallan Yadav and in that course, an scuffle took place
Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019
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between them. He, further, claimed that Lalan Yadav called his
father Jagarnath Yadav and having heard the noise, he (informant)
as well as his sons Bandhu Yadav and Jita Yadav also reached
there. He, further, claimed that seeing them, Bagar Yadav, Nanhak
Yadav, Ramadhar Yadav, Nagendra Yadav, Chhotelal Yadav,
Jagarnath Yadav, Kashi Yadav, Madan Yadav, Baban Yadav, Prem
Yadav and Budhram Yadav also came running there having lathies
in their respective hands and the aforesaid persons started raining
lathies on his son Ramprit Yadav. He, further, stated that he as well
as his sons tried to save Ramprit Yadav but they were also
assaulted by the aforesaid persons by means of lathi as a result
whereof he as well as his sons sustained injury. He, further, stated
that Ramprit Yadav became unconscious. He disclosed the reason
of aforesaid occurrence as the cow of Lalan Yadav was damaging
his wheat crop as a result whereof the above stated occurrence
took place. He, further, claimed that on his noise, Doma Yadav
(PW-1), Patru Yadav and several other persons came running there
and save their life. After the occurrence, all the injureds including
Ramprit Yadav were taken to Bagha Hospital where their treatment
was done.
3. On the basis of aforesaid ferdbeyan of Baldeo Yadav,
Bagaha P.S. Case No. 16 of 1983 for the offences punishable under
Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019
4/24
Sections 147, 307, 323, 325 of the I.P.C. was registered on
07.02.1983and on the same day at about 11:30 P.M. formal FIR was drawn up against the FIR named accused for the above stated offences. The formal FIR as well as ferdbeyan of Baldeo Yadav was dispatched to the court on 08.02.1983 and was put up before the court on 12.02.1983. However, during course of investigation, injured Ramprit Yadav died and accordingly, Section 302 of the I.P.C. was also added.
4. PW-8 Birendra Tiwary took charge of investigation and in course of investigation, he recorded the statements of prosecution witnesses, obtained the injury reports of injureds, prepared inquest report of deceased Ramprit Yadav and sent the dead body for postmortem examination. He also inspected the place of occurrence and obtained the postmortem report of the deceased. He got recorded the statements of Patru Yadav, Bandhu Yadav (PW-3), Doma Yadav (PW-1) and Jeeta Yadav (PW-2) under Section 164 of the Cr.P.C. After completion of investigation, PW-8 submitted charge sheet against the appellants. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.
5. The appellants stood charged for the offences punishable under Sections 302/149, 307 and 147 of the I.P.C. The Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 5/24 charges were read over and explained to the appellants to which they denied and claimed to be tried.
6. In order to prove the charges, prosecution examined, altogether, eight prosecution witnesses and also got exhibited postmortem report, inquest report etc. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they denied the claim of prosecution witnesses. No evidence was adduced by the appellants in support of their defence but from perusal of statements recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, I find that defence of the appellants was denial of prosecution story.
7. The learned trial court after evaluating the evidences available on the record, particularly, having relied upon testimonies of PW-1 and PW-2 passed the judgment of conviction.
8. Mr. Avinash Chandra, learned Amicus Curiae appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that the learned trial court failed to appreciate the evidences available on the record in right perspective. He submitted that learned trial court also failed to take note of contradictions occurred in depositions of prosecution witnesses. He, further, submitted that the learned trial court also did not take note of this fact that PW-1 and PW-2 are interested Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 6/24 witnesses and moreover, PW-3, who allegedly sustained injury in the occurrence, did not support the prosecution case.
9. Learned Amicus Curiae, next, submitted that according to prosecution case itself, a sudden fight took place between the parties on petty issue and in that course, deceased sustained injury. Continuing his submission, he submitted that claim of informant reflects that prosecution party was aggressor because according to claim of the informant, when scuffle was going on between Lallan Yadav and Ramprit Yadav, informant as well as his two sons went near the place of occurrence and after that remaining appellants reached at the place of occurrence and, therefore, the aforesaid fact goes to show that prosecution party was aggressor. He, further, submitted that there is nothing in the entire evidence of the prosecution that the appellants had common object to commit the murder of the deceased Ramprit Yadav and there is also no evidence that the appellants were premeditated for commission of the offence and, therefore, the learned trial court committed error in convicting the appellants for the offence punishable under Section 302/149 of the I.P.C. He, further, submitted that prosecution could not succeed to prove as to which of the appellants had given fatal blow to the deceased because the witnesses have made vague and general allegation of assault Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 7/24 against all the appellants which is not corroborated by the postmortem report of the deceased. He submitted that learned trial court has also committed error in convicting the appellants for the offence punishable under Section 147 of the I.P.C. because the prosecution evidence goes to show that appellants had not gone to the place of occurrence together rather the appellants, except Lallan Yadav, went on the place of occurrence having heard the noise and, therefore, conviction of the appellants under Section 147 of the I.P.C. is also not in accordance with law.
10. Learned Amicus Curiae, next, submitted that moreover, the so-called eye witnesses improved their statements before the trial court and due to the aforesaid reason, no reliance can safely be placed upon the testimonies of so-called eye witnesses.
11. Learned Amicus Curiae, next, submitted that even if the evidence adduced on behalf of the prosecution is accepted, then also, no case under Section 302 of the I.P.C. is made out and at best, it is a case of Section 304 Part 2 of the I.P.C. as it is obvious from the claim of so-called eye witnesses that the alleged occurrence took place on account of sudden fight. He, next, submitted that admittedly, the alleged occurrence took place in the year 1983 and more than 36 years have already been elapsed and, Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 8/24 therefore, this court should take lenient view in sentencing the appellants, if this court finds that the appellants are guilty for committing the offence punishable under Section 304 Part 2 read with Section 149 of the I.P.C.
12. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that prosecution has clearly established its case beyond all shadow of reasonable doubts. He, further, submitted that eye witnesses claimed that it were appellants who mercilessly assaulted the deceased as well as injureds. He, further, submitted that postmortem report as well as injury reports support the claim of eye witnesses. He, further, submitted that deceased sustained several injuries which corroborate the manner of occurrence and, therefore, it cannot be said that the occurrence falls under the category of Section 304 Part 2 of the I.P.C. He, further, submitted that this appeal has no merit and is liable to be dismissed.
13. As I have already stated that prosecution examined, altogether, eight prosecution witnesses and out of them only PW-1 Doma Yadav and PW-2 Jeeta Yadav supported the alleged occurrence. So far as PW-3 Bandhu Yadav (one of the injureds of this case) is concerned, he has been declared hostile. Although, Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 9/24 this witness admitted the factum of quarrel but stated that he could not remember who assaulted him. PW-4 Dr. A.K. Mishra claimed that he did postmortem examination on the corpus of the deceased Ramprit Yadav whereas PW-5 Sahdeo Singh claimed that he had examined deceased Ramprit Yadav, injured Bandhu Yadav (PW-3), injured Baldeo Yadav and injured Jeeta Yadav (PW-2) on 07.02.1983 at about 7:30 P.M. PW-6 and PW-7 are formal witnesses and PW-8 is investigating officer. Therefore, it is obvious that there are only two witnesses on the point of assault.
14. PW-4 Dr. A.K. Mishra deposed that he did postmortem examination on the dead body of deceased Ramprit Yadav on 09.02.1983 at 8:00 A.M. and found following antemortem injuries:-
1. Haemotoma of the size 1-3/2" x 1¼" on the occipital region of the scalp mostly on right side.
2. Bruise 3" x ½" on the lower portion of the back on right side.
3. Bruise 2 ¾" x ½" on the back in its middle
4. Bruise 2 ½" x ½" on the front of chest wall on its right side.
He further, claimed that on dissection of the wounds, there was echymosis in the occipital region of the scalp and the occipital bone was cracked in a distance about 2" long and there was clot formation on the right side of the occipital lobe in its anterior portion and also on the temporal lobe of the brain on right Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 10/24 side. He, further, claimed that right third rib was cracked anteriorly and the upper lobe of the right lung was echymosed slightly. He, further, claimed that time elapsed since death was within 24 hours approximately. He opined that death was due to head injury mostly, as well as other associated injuries in the chest. He, further, opined that all the above stated injuries were caused by hard and blunt substance and the aforesaid injuries were sufficient in ordinary course of nature to produce death. This witness proved the postmortem report of the deceased Ramprit Yadav as Ext. 1.
The death of deceased Ramprit Yadav is not in dispute and the postmortem report (Ext. 1) of the deceased Ramprit Yadav establishes that deceased died of the injuries as mentioned in Ext.
1.
15. PW-5 Dr. Sahdeo Singh claimed that on 07.02.1983 at 7:30 P.M., he examined Ramprit Yadav before his death and claimed that injured came in unconscious state and the left pupil was fully dilated and not reacting to light whereas right pupil was sluggish. This witness further claimed that he found left side hemiplegia, neck soft, bruise and echymosis on the right of temporal region, bruise and echymosis on back of the neck. He opined that aforesaid injuries were caused by hard and blunt substance and the aforesaid injuries were dangerous to life of Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 11/24 injured. He also opined that the aforesaid injuries were within three hours. This witness proved the injury report of deceased Ramprit Yadav as Ext. 2.
He, further, claimed that on the same date and time, he examined Bandhu Yadav (PW-3) and found lacerated wound on head on left side 2" below the hairline of the size 4" x ½" x ½", swelling of echymosis on the left lower arm. He opined that lacerated wound found on the head was dangerous to life and caused by hard and blunt substance whereas the swelling found on the injured was simple and caused by hard and blunt substance. This witness proved the injury report of Bandhu Yadav as Ext. 2/1.
He, further, claimed that on the same date and time, he examined Baldeo Yadav and found following injuries on his person:-
1. Swelling left lower arm 2" below elbow of the size 4" x 2" and x-ray needed.
2. Swelling left leg of calf muscle of the size 4" x 2".
He opined that both the aforesaid injuries were grievous in nature and caused by hard and blunt substance such as lathi and sipaha. He also opined that aforesaid injuries were within three hours. This witness proved injury report of Baldeo Yadav as Ext. 2/2.
Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 12/24 He, further, claimed that on the same date and time, he examined Jeeta Yadav (PW-2) and found following injuries on his person:-
1. Lacerated wound on head in the middle of the size 6" x 2" x ½" two inches behind the hairline direction.
2. Swelling and echymosis of the left hand on the wrist of the size 4" x 2".
He opined that injury no. 1 was dangerous to life whereas injury no. 2 was simple in nature. However, both the injuries were caused by hard and blunt substance such as lathi and sipaha and the aforesaid injuries were within three hours. He expressed his ignorance as to whether x ray of the aforesaid injuries of the injureds was done or not. He frankly accepted that he did not see the x ray report of the injureds.
16. As I have already stated that there are only two prosecution witnesses i.e. PW-1 and PW-2 who claimed before the trial court to have seen the alleged occurrence and out of them PW-2 claimed himself to be injured witness. The testimony of PW- 5 supports this fact that PW-2 had sustained injury on the alleged date of occurrence.
17. PW-1 Doma Yadav claimed that he was grazing his buffalo in a field and saw that cow of Bagar Yadav was grazing the wheat field of deceased Ramprit Yadav. This witness, further, claimed that Ramprit Yadav wanted to take cow of Bagad Yadav to Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 13/24 PHATAK. The appellants Lallan Yadav and Babban Yadav having lohbandha lathi came there and Babban Yadav caught hold waist of Ramprit Yadav whereas Lallan Yadav gave blow of lohbandha lathi to Ramprit Yadav as a result whereof Ramprit Yadav fell down on the ground and after that the other appellants also assaulted him. This witness further claimed that Baldeo Yadav went there to save Ramprit Yadav but appellants Budhram Yadav, Madan Yadav, Nagendra Yadav and Ramadhar Yadav assaulted Baldeo Yadav. He, further, claimed that Bandhu Yadav (PW-3) and Jeeta Yadav (PW-2) also went there to save Ramprit Yadav and Baldeo Yadav but they were assaulted by the appellants Jagarnath Yadav and Parma by means of lohbandha. He claimed that he identified Lallan Yadav, Bagar Yadav, Jagarnath Yadav, Kashi Yadav, Budhram Yadav, Chhotan Yadav, Nagendra Yadav, Ramadhar Yadav, Parma Yadav and Jagarnath Yadav. He, further, claimed that having sustained injury Ramprit Yadav became unconscious and in next morning he died. He, further, claimed that Baldeo Yadav, too, died after 7 to 8 days of the alleged occurrence. On being cross-examined by the defence, this witness admitted that field, on which he was grazing his buffalo, was at the distance of 4 kattha from the wheat field of Ramprit Yadav. He also admitted that while he was grazing his buffalo he heard the noise. Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 14/24 He also admitted that when he reached over the place of occurrence, he found deceased Ramprit Yadav in unconscious state. He also noticed that Jeeta Yadav (PW-2), Bandhu Yadav (PW-3) and Baldeo Yadav had sustained injuries. This witness also claimed that he had made statement before the police but he could not remember as to whether he had disclosed before the police that at the time of alleged occurrence he was grazing his buffalo. However, this witness admitted that he had not disclosed the aforesaid fact before the Magistrate when his statement was recorded. He also admitted that he had not disclosed before the police that Parma Yadav and Jagarnath Yadav had assaulted Jeeta Yadav (PW-2) and Bandhu Yadav (PW-3). He also failed to remember as to whether he had disclosed that Madan Yadav, Budhram Yadav, Ramadhar Yadav and Nagendra Yadav had assaulted Baldeo Yadav. He also failed to remember as to whether he had made statement before the police to this effect that Lallan Yadav had assaulted Ramprit Yadav by means of lobanda and he also could not remember as to whether he had made statement before the police to this effect that Babban had caught hold waist of the Ramprit Yadav. He denied the suggestion of the defence that being relative of Baldeo Yadav he had made false statement. Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 15/24
18. PW-2 Jeeta Yadav is brother of deceased Ramprit Yadav and this witness claimed himself to be injured. This witness further claimed that on the alleged date of occurrence, he along with his father Baldeo Yadav, his brother Ramprit Yadav (deceased) and Bandhu Yadav (PW-3) was working in his paddy field and in the meantime, cow of Bagar Yadav started grazing his wheat field. He further claimed that his brother Ramprit Yadav (deceased) went there and made attempt to take the cow of Bagar Yadav to PHATAK upon which Bagar Yadav raised alarm and also uttered to kill Ramprit Yadav. He, further, stated that in the meantime, Babban Yadav, Lallan Yadav, Bagar Yadav, Chhotak Yadav, Nagendra Yadav, Ramadhar Yadav, Madan Yadav, Jagarnath Yadav, Budhram Yadav, Kashi Yadav and Prem Yadav also reached there and all the aforesaid persons were armed with lathi. This witness further claimed that Babban Yadav caught hold of waist of deceased Ramprit Yadav whereas Lallan Yadav gave lathi blow on the head of the deceased Ramprit Yadav as a result whereof Ramprit Yadav fell down and thereafter, other persons started assaulting him by means of lathi. He, further, claimed that his father Baldeo Yadav went there to save Ramprit Yadav but he was assaulted by Madan Yadav, Budhram Yadav, Chhotak, Nagendra Yadav, Ramadhar Yadav, Kashi Yadav and others. He, Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 16/24 further, claimed that he as well as his brother (PW-3), too, went there to save the deceased Ramprit Yadav as well as his father Baldeo Yadav but they were also assaulted by all the appellants. This witness, specifically, claimed that Parma and Jagarnath assaulted him on the head by means of lathi. This witness claimed that PW-1 and Patru came there and seeing them the appellants fled away from there. This witness claimed that all the injureds were taken to hospital whereas his brother died and his father died after eight days. This witness admitted that postmortem examination on the corpus of the dead body of his father was not done. This witness further stated that as soon as the appellants reached in the field, they started assaulting Ramprit Yadav and after that he as well as others went to save Ramprit Yadav. He, further, admitted that when he reached near the place of occurrence, his brother Ramprit Yadav as well as his father Baldeo Yadav had already fallen on the ground having sustained injury. This witness claimed that he had made statement before the police to this effect that at the time of alleged occurrence cow of Bagar Yadav was grazing in his field but failed to remember as to whether he stated before the police that Bagar Yadav raised alarm and also uttered to kill Ramprit Yadav. He also could not remember as to whether he had made statement before the police Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 17/24 that Babban Yadav caught hold the waist of the deceased Ramprit Yadav. However, this witness stated that he had made statement before the police that Lallan Yadav had given lathi blow on the head of the deceased Ramprit Yadav. This witness also admitted that appellants had no inimical terms from before the alleged occurrence.
19. PW-8 Birendra Tiwari is the investigating officer. This witness stated that in course of investigation, he inspected the place of occurrence and found that the occurrence took place near the sahan and khalihan of the informant. This witness also admitted that wheat field of informant was at the distance of 50 yards from the place of occurrence. He also found that some portion of wheat field was grazed by the cattle. This witness also admitted that PW-1 Doma Yadav had not made statement before him that at the time of alleged occurrence he was grazing buffalo and PW-1 had also not disclosed before him that Madan Yadav, Budhram Yadav, Ramadhar Yadav, Chhote Yadav and Nagendra Yadav had assaulted Baldeo Yadav and furthermore, PW-1 had not claimed before him that Babban Yadav caught hold of waist of the deceased Ramprit Yadav. Similarly, PW-8 deposed that PW-2 had not claimed before him that at the time of alleged occurrence, cow of Bagar Yadav was grazing and furthermore, PW-2 had not Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 18/24 deposed before him that Bagar Yadav raised alarm and also uttered to kill Ramprit Yadav. Furthermore, PW-2 had also not deposed before him that Babban Yadav caught hold of waist of the deceased Ramprit Yadav and also had not claimed that Lallan Yadav assaulted deceased Ramprit Yadav by means of lathi.
20. It is an admitted position that postmortem examination on the dead body of deceased Baldeo Yadav was not done and the prosecution could not succeed to prove this fact that Baldeo Yadav died of the injuries sustained by him in the alleged occurrence and, therefore, I am of the view that prosecution failed to prove this fact that deceased Baldeo Yadav died of the injuries sustained by him in the alleged occurrence. It is also obvious from the comparative reading of deposition of PW-1 and PW-8 that PW- 1 improved his statements in course of trial and there are several omissions and contradictions in the deposition of PW-1. PW-1 claimed that at the time of alleged occurrence, he was grazing his buffalo in a field situated near the place of occurrence but he did not claim before the investigating officer that he was grazing his buffalo near the place of occurrence. Furthermore, I find that ferdbeyan of deceased Baldeo Yadav goes to show that deceased Baldeo Yadav had claimed in his ferdbeyan that appellants assaulted him and others by means of lathi but PW-1 improved his Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 19/24 statement before the trial court and submitted that deceased and others were assaulted by the appellants by means of lobandha lathi. Therefore, the above stated omissions and contradictions go to the root of prosecution case and the very presence of PW-1 over the place of occurrence at the time of alleged occurrence appears to be doubtful. Therefore, in my opinion, it would not be safe to place reliance upon the testimony of PW-1.
21. PW-2 is an injured and this witness claimed that he sustained injury in the alleged occurrence. The injury of this witness has been proved by the PW-5 and, therefore, the presence of PW-2 over the place of occurrence cannot be disputed. It is well settled principle of law that status of an injured witness is on better footing to the status of an ordinary witness. PW-2 claimed that alleged occurrence took place in his wheat field when deceased went there and made attempt to stop the cow of appellant Bagar Yadav from grazing his field and the deceased made attempt to take cow of Bagar Yadav to PHATAK but the appellants came there and assaulted deceased Ramprit Yadav as well as others. The deposition of this witness goes to show that occurrence took place on account of grazing of cow in the field of this witness. It is an admitted position that ferdbeyan of deceased Baldeo Yadav is admissible in evidence though Baldeo Yadav died in course of Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 20/24 investigation and the aforesaid ferdbeyan was proved by PW-8. The ferdbeyan of deceased Baldeo Yadav goes to show that when cow of Lallan Yadav, who happens to be nephew of Bagar Yadav, was grazing in wheat field of the deceased and deceased Ramprit Yadav went there to stop the cow from grazing wheat field, an scuffle took place between deceased and Lallan Yadav and in that course, Lallan Yadav called his father Jagarnath Yadav. Furthermore, the ferdbeyan of Baldeo Yadav goes to show that having heard the noise he as well as his sons Bandhu Yadav (PW-
3) and Jeeta Yadav (PW-2) also went there and seeing them the other appellants, too, came there and thereafter, the alleged occurrence took place. Therefore, the aforesaid fact goes to show that a sudden fight took place between the parties and there was no premeditation amongst the appellants. Furthermore, I find that ferdbeyan of Baldeo Yadav discloses that the alleged occurrence took place in the wheat field and the same statement has been made by the PW-2 but PW-8 claimed that place of occurrence was sahan and khalihan of the deceased Baldeo Yadav and from the sahan and khalihan the wheat field was at the distance of 50 Gaj. Therefore, the aforesaid fact also corroborates that a free fight took place between the parties. It is also obvious from the evidence available on the record that appellant Lallan Yadav was alone Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 21/24 when the scuffle took place and after that all the appellants went there. It has come in the evidence of the prosecution that it was Lallan Yadav who gave lathi blow on the head of the deceased Ramprit Yadav and, therefore, the remaining appellants cannot be held responsible for causing the death of deceased Ramprit Yadav because the PW-4, specifically, stated that head injury of the deceased Ramprit Yadav became fatal for him.
22. In Arjun vs. State of Maharashtra reported in (2012) 5 SCC, 530, the Hon'ble Apex Court of this country has held that "if there is no premeditation and the act is committed in heat of passion and that no undue advantage has been taken or the act has not been done in cruel manner and furthermore, if there is a fight between the parties, the 4th exception to Section 300 of the I.P.C. shall be applied." In the present case, it is obvious that the alleged occurrence took place in the heat of passion and only head injury found on the person of the deceased was fatal whereas remaining injuries were not fatal for the deceased and the aforesaid fatal injury was caused by the appellant Lallan Yadav. I have already discussed that there was no premeditation and the alleged occurrence took place due to sudden fight. Therefore, I am of the view that except appellant Lallan Yadav, all the remaining appellants are entitled to get acquittal from the charge framed Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 22/24 under Section 302/149 of the I.P.C. and so far as appellant Lallan Yadav is concerned, he can only be convicted for the offence punishable under Section 304 Part 1 of the I.P.C.
23. The appellants have already been acquitted from the charge framed under Section 307 of the I.P.C. as the prosecution failed to establish as to who assaulted PW-2 and PW-3. So far as Section 147 of I.P.C. is concerned, I am of the view that prosecution could not succeed to prove that the appellants were member of unlawful assembly.
24. On the basis of aforesaid discussions, the conviction of appellant Lallan Yadav is altered from Section 302/149 to Section 304 Part 1 of the I.P.C. and accordingly, he is convicted for the offence punishable under Section 304 Part 1 of the I.P.C. but he is acquitted from the charge framed under Section 147 of the I.P.C.
25. Admittedly, the alleged occurrence took place in the year 1983 and the impugned judgment was pronounced on 16.08.1994 and furthermore, it has come in the evidence that appellant Lallan Yadav had given single lathi blow on the head of the deceased Ramprit Yadav and, therefore, in my view, the ends of justice would meet, if appellant Lallan Yadav is sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 304 Part 1 of the I.P.C. However, the Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 23/24 period already spent by the appellant Lallan Yadav in jail custody during course of trial as well as during pendency of this appeal shall be set off.
26. So far as remaining appellants are concerned, in my view, they are entitled to get benefit of doubt and accordingly, the remaining appellants are acquitted from the charges framed against them. They are on bail. They are discharged from the liabilities of their respective bail bonds.
27. In the aforesaid manner, this criminal appeal stands partly allowed and impugned judgment of conviction and sentence order is modified to the extent as stated above. The appellant no. 1, namely, Lallan Yadav is directed to surrender before the trial court within eight weeks from today to serve his sentences as imposed by this court. However, it is made clear that if he fails to surrender before the trial court within the above stated stipulated period, the learned trial court shall take effective steps in accordance with law to procure the attendance and remand of appellant no. 1, namely, Lallan Yadav so that appellant no. 1, namely, Lallan Yadav could serve his sentences.
28. Copy of first and last page of this judgment be handed over to learned Amicus Curiae Mr. Avinash Chandra so Patna High Court CR. APP (DB) No.411 of 1994 dt. 22-08-2019 24/24 that he could make claim for his remuneration before the competent authority.
(Hemant Kumar Srivastava, J)
Partha Sarthy, J:- I agree
( Partha Sarthy, J)
shahzad/-
AFR/NAFR A.F.R.
CAV DATE 08.05.2019
Uploading Date 26.08.2019
Transmission Date 26.08.2019