Patna High Court
Ram Saresth @ Bhulla Yadav vs State on 29 August, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.253 of 1991
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Against the judgment of conviction and order of sentence dated
10th and 11th July, 1991 respectively passed by Shri Shri Sardar
Bhagat Singh, Ist Additional Sessions Judge, Darbhanga in
Sessions Trial No. 74 of 1981 / 46 of 1987
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1. RAM SARESTH @ BHULLAR YADAV SON OF BISEKH YADAV
2. RAJENDRA YADAV SON OF BISEKH YADAV
3. BISHESH YADAV @ BISEKH YADAV SON OF LATE FIRANGI
YADAV
4. MOTI YADAV SON OF LATE FIRANGI YADAV
5. BIKAU YADAV SON OF LATE FIRANGI YADAV
6. FAUDI YADAV SON OF LATE JAMADAR YADAV
7. SURESH YADAV SON OF LATE JAMADAR YADAV
8. RAMRAJI YADAV SON OF LATE JAMADAR YADAV
9. RAM BRIKSH YADAV SON OF LATE JAMADAR YADAV
10. RAMSOGARATH YADAV SON OF MOTI YADAV
11. BHARAT YADAV SON OF MOTI YADAV
12. RAM SAKAL YADAV SON OF BIKAU YADAV
13. LAKHAN YADAV SON OF LATE MOHAN YADAV
14. MAHESH YADAV SON OF LAKHAN YADAV
15. BAUYAJI YADAV SON OF LAKHAN YADAV
ALL RESIDENT OF VILLAGE- KETUKA, P.S.- SADAR, DISTRICT-
DARBHANGA.......................................................... .... APPELLANTS
VERSUS
THE STATE OF BIHAR ........................................ .... RESPONDENT
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Rakesh Kumar Sinha, Advocate
For the Respondent/s : Mr. AjayMishra, APP
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 29-08-2014
The present appeal by the 15 appellants has been filed
against the judgment of conviction dated 10.7.1991 and sentenced
dated 11.7.1991 passed by the learned Ist Additional Sessions
Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 2
Judge, Darbhanga in Sessions Trial No. 74 of 1981 / 46 of 1987.
They have all been sentenced to rigorous imprisonment for life.
Appellant Nos. 1 and 8 who are brothers, have been sentenced
under Sections 302/34 of the Indian Penal Code and rest primarily
under Sections 302/149 of the Indian Penal Code.
2. For the sake of record, we may also note that the
incident, which led to the prosecution, is of 10.7.1979 i.e. about 35
years from today. By now all the appellants are senior citizens. The
youngest would be about 58 years and the eldest would be about
88 years. They all are related as well.
3. The prosecution case is based upon the fard-beyan
of Lal Bahadur Rai @ Lal Bahadur Yadav (PW 11) recorded by
Shashi Bhushan Pandey (PW 15) A.S.I. Laheriasarai Police Station
at Darbhanga Medical College Hospital at 10.30 AM on 11.7.1979.
It is alleged in the fard-beyan that when the informant Lal Bahadur
Yadav (PW 11) along with his other brother Ram Bahadur Yadav
(PW 14) and the deceased Chandra Bhushan Yadav were ploughing
their fields, on 10.7.1979 at about 10.00 AM, they found that Ram
Shresth Yadav @ Bhullar Yadav appellant no. 1, let loose his buffalo
and cattles for grazing. This was objected by the informant and his
brothers who, then, beat the cows and chased them away. This
infuriated Ram Shresth Yadav @ Bhullar Yadav who, then,
threatened the informant and his brothers that he would come back
and teach them a lesson. About half an hour, thereafter, the
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Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 3
informant found about 20-25 people come including the appellants.
Except appellant No. 2 Rajendra Yadav who had a Garansa in his
hand, rest were carrying lathies. They came and started assaulting
Chandra Bhushan Yadav who fell down, Lal Bahadur Yadav, the
informant, (PW 11) and his other brothers Ram Bahadur Yadav (PW
14), then, went to the rescue of Chandra Bhushan Yadav and they
were also beaten by lathi. Garansa was also used. All three fell
down, they were later carried to Darbhanga Medical College Hospital
on cot by villagers on the same day i.e. on 10.7.1979. In course of
treatment, on the same day, at about 9.00 PM, Chandra Bhusban
died in the hospital. This being the statement of the informant and
being related to place of occurrence which fell within Singhwara
Police Station, District Darbhanga, this fard-beyan was forwarded to
Singhwara Police Station where it was formally registered as FIR on
12.7.1979at 6.00 PM. Upon investigation, the Police submitted chargesheet against the appellants and upon cognizance being taken, the case was committed to the Court of Sessions. Charges have been framed and appellants having pleaded not guilty, they were tried and convicted. Hence the appeal.
4. Heard Shri Ajay Kumar Thakur, learned counsel, in support of the appeal and Sri Ajay Mishra, learned APP and perused the record.
5. In our view, the appeal has to be allowed for the prosecution has failed to prove its case beyond reasonable doubt. 3 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 4
6. In order to establish its case, the prosecution has examined in all 20 witnesses. It is not insufficiency of witnesses that is persuading us to acquit the appellants but the doubtful nature of events and allegations set up by the prosecution as would be seen. Shri Thakur first points out, without going into the allegations, that as per prosecution itself, the incident took place on 10.7.1979 at about 11.00 AM. As per prosecution's own case, all the three injured were brought immediately to the Darbhanga Medical College Hospital and admitted for treatment that would be on 10.7.1979 itself. One of the brothers Chandra Bhushan Yadav died at 9.00 PM on 10.7.1979 itself. It is curious that no statement was recorded by the Police even though the hospital itself has a Police Out Post. Even though the death in the hospital took place at 9.00 PM on 10.7.1979, for the first time the Police comes at 10.15 AM on 11.7.1979 to prepare the inquest report and send the body for post mortem and it is only thereafter, at 10.30 AM, on 11.7.1979 the fard-beyan is recorded at DMCH. Even though the Singhwara Police Station is the adjacent Police Station to Darbhanga Sadar Police Station, it reaches Singhwara Police Station and register as a formal FIR only at 6.00 PM on 12.7.1979. The informant or for that matter his brother Ram Bahadur Yadav (PW 14) were not injured in such state that they could not make statement, in fact, their injuries were all simple injuries with exception of fracture of ankle. Yet the Police took no steps to record their statements. From further 4 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 5 evidence on record, Shri Thakur points out that when the A.S.I. who recorded the fard-beyan is examined as PW 15, he states that upon the injured being brought to the hospital, he noted their injuries and referred them to the doctor in the hospital for a formal injury report. If this is correct, then, this should have been done on 10.7.1979 but when we look into the records, the forwarding of the A.S.I., Shashi Bhushan Pandey, which is Ext. 6 and 6/1, shows that it was drawn up on 11.7.1979 and not on 10.7.1979. What we found more curious is when we see the evidence of Dr. Diwakar Mishra (PW 1) who prepared the injury report, he deposed that he examined the injured upon requisition from Police on 10.7.1979 at 5.30 PM when they were admitted to the ward of Dr. S.N. Choudhary in DMCH. These injury reports are (Ext. 1 and 1/1) but they are dated 28.7.1979. They are on the reverse of police requisition (Ext. 6 and 6/1) itself. In our view, Shri Thakur rightly questions how could a injury report be prepared by a doctor on 10.7.1979 upon requisition which was itself made by the Police on 11.7.1979. The injury report itself shows the date of signature of the doctor on 28.7.1979 and it states that the persons were examined at 5.30 PM on 10.7.1979 The injury report, thus, lose all sanctity as also the very fard-beyan which appears to be lodged belatedly. The prosecution does not explain any of these highly unusual sequences of events. This creates a doubt upon the very foundation of the prosecution story.
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7. In our view, Shri Thakur, learned counsel for the appellants, rightly submitted that from the prosecution evidence, as noticed above, it is clear that all the three injured persons were duly admitted in DMCH on 10.7.1979 at about 5.30 PM and were examined by the doctor, at the instance of the Police. Yet no statement was given by them or recorded by the Police which is not possible. Surely, statement was recorded but it has been withheld. When one of the injured died at 9.00 PM on the same day, surely, the Police must have been informed but it is not explained as to why no one from Police turned up till about 10.15 AM, next morning, in the hospital when the inquest was prepared. It is, thereafter, i.e. more than 24 hours, after the incident, the fard- beyan is recorded. This clearly shows that the statements given earlier have been withheld and something else has been brought on record after due deliberation.
8. We are, then, taken to the evidence of the informant Lal Bahadur Rai @ Lal Bahadur Yadav (PW 11), who also happens to be the brother of the deceased, Chandra Bhushan Yadav. In his examination in chief, he states that on the date of occurrence at about 11.AM he had seen 20-25 people come in a mob, out of whom, he identified the appellants. Appellant no. 2 Rajendra Yadav was holding Garansa in his hand and rests were with lathies. Appellant no. 1 Ram Saresth @ Bhullar Yadav ordered that all the three should be killed. Thereafter, all started assaulting 6 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 7 Chandra Bhushan Yadav and when the informant and his brother, PW 14, tried to intervene, they were also assaulted. He states that the reason for this, in the morning, while they were ploughing their land, they found Bhullar Yadav grazing his cattles on their land. Chandra Bhushan Yadav, the deceased, then, beat the cattles and fled them away, which infuriated Bhullar Yadav who threatened to teach them a lesson and went away. After the incident large number of villagers came, who are named and, then, carried the informant and his brothers to the hospital. He then, states that it was on the next day the Police took his statement which was then recorded and he put his thumb impression thereon finding it to be correct. In the cross-examination, in the very beginning, he admits that he knew the appellants from before but he did not recall their parentage. This is of some significance because when we referred to fard-beyan, we found most of the miscreants are named with their parentage and village. He states that he knew the appellants because he used to go to the village of the appellants which is across the river which divides the informant's lands and village of the appellants. He denies the suggestions that the appellants have also purchased land in the informant's village adjacent to their lands. He then, admits in paragraph 12 that when he gave his statement to the Police in the hospital, on the day after the incident, he had not disclosed the parentage of the accused persons. He denies the suggestions that between the family of the 7 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 8 appellants and his family there were litigations in relation to lands. He states that first it was Rajendra Yadav (appellant no. 2) who assaulted him on the head holding the Garansa by both hands. He repeated the blow with the Garansa, it is then, the informant fell. He states that Rajendra Yadav was hitting him from behind.
9. The next witness, we would consider, is PW 14, the brother of the informant PW 11, who was also present and was also assaulted. He also states that in the morning they were ploughing their field, later, appellant no.1 Bhullar Yadav came and ordered that all of them must be killed. All of them, then, assaulted. Chandra Bhushan Yadav on being assaulted fell down and became unconscious. In his chief itself he states that in his presence on the day after the incident, at the hospital, Police had taken the statement of his brother Lal Bahadur Rai @ Lal Bahadur Yadav (PW
11). The Police had also taken his statement. He states that in his statement, apart from five of the appellants, he had given names of all the miscreants. He states that the Police had seen the injuries on his body and his bother. Shri Thakur, learned counsel for the appellants has rightly submits that this is a clear admission that the Police had recorded the statement of both the brothers i.e. Lal Bahadur Rai @ Lal Bahadur Yadav and this witness Ram Bahadur Yadav. No statement of Ram Bahadur Yadav (PW 14) has been brought on record by the prosecution, no statement have been sent to the Police Station along with the fard-beyan of the informant PW 8 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 9 11 which raises serious doubts about the prosecution story. In his cross-examination, he maintains that they had no dispute with the appellants with regard to any land. He maintains that there was never any panchayati but maintains that the two groups i.e. the prosecution and the defence were not even on visiting terms. He admits that almost all the accused persons belong to one family. In paragraph 15 of the cross-examination, he states that he had disclosed the parentage of almost of all the accused persons to Police but the Police had not written the same. He again states that he had given an elaborate statement which was recorded by the Police after the statement of his brother Lal Bahadur Yadav. He did not know whether the Police had got the statement recorded though he had seen the Police Officer recording his statement. He had, then, given another statement before the Police of Singhwara where the case was ultimately registered. To the question whether he was aware that at the time when the incident took place, Bishekh Yadav, appellant no. 3 had received injuries by lathi, he feign ignorance. He denied the suggestion that it was the deceased Chandra Bhushan Yadav who tried to assault Bishekh Yadav by Garansa. This is of some relevance because Bishekh Yadav is also examined by the doctor who conducted the post mortem of the deceased Chandra Bhsuahan Yadav though privately on the date when the incident took place which injury report has been brought on record and proved as Ext. A for the defence. Suggestion was also given that 9 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 10 there is a counter case also which was denied. He, then, questioned about the land of the appellants adjacent to their land which he denies having any knowledge.
10. Shri Thakur, learned counsel for the appellants, submits that if we see the statements in court of these two witnesses i.e. PW 11 and his brother PW 14, the first thing is noticed that they had both given separate statements to the Police at the hospital itself which were all recorded. Except for the fard- beyan, no other statements have been brought on record, no other statement was forwarded to Singhwara Police Station. The informant PW 11 states that he did not know the parentage of the accused persons and as such he had not disclosed the same but when we look at the fard-beyan, almost all the accused persons are named with their parentage and residence. The suggestions were clear, the appellants had purchased lands in the village of the informant and adjacent to the lands claimed by them as theirs. This was not well appreciated because in recent survey the lands as were held by the informant and his brothers was shown to be the Government land, this is apparent from the suggestion given in paragraph 14 of the deposition of PW 11. The result is that the informant and his brothers did not have any land there, whereas the accused persons had their land where their cattles were grazing. It is the informant and his brother who tried to assault the accused persons and it is in exercise of right of private defence the three 10 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 11 were beaten up. It is because of this when they were brought to the hospital, the Police sent them for injury report to be prepared. Surely, that would not have been done without recording their statement. That statement has been withheld by the prosecution. It is only after one of the brothers died then, a false story has been built up and 12 hours after the death of Chandra Bhushan Yadav, in DMCH, the fard-beyan has been lodged.
11. We, then, have the evidence of PW 15, the Officer who recorded the fard-beyan of PW 11 the informant. In paragraph 2 of his examination in chief he states that he had seen the injuries on the informant PW 11 and his brother PW 14 and had noted the injuries and forwarded for preparation of injury report. His forwarding, Ext. 6 and 6/1 as we have noted above, is dated 11.7.1979, though they were admitted and allegedly examined by the doctor in the hospital on 10.7.1979 at 5.30 PM itself as per the injury reports, Ext. 1 and 1/1. which is on the reverse of the requisition by the Police Ext. 6 and 6/1. In the cross-examination he states that on receipt of information from the hospital, he had gone to the hospital to record the fard-beyan. He had seen the injured on the pervious day and he forwarded them for formal injury report. Shri Thakur, learned counsel for the appellants points out that this itself creates doubt as to why the Police Officer would conceal and state wrong facts to aid the informant. We are, then, shown the evidence of PWs 16 and 17 who are non-else than the advocate 11 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 12 clerks who were brought in to prove formal FIR and formal seizure list. We are surprised. How can any advocate clerks be brought to prove official documents which were prepared in course of discharge of official duties by a Police Officer. How the court permitted such evidence to be recorded is not understood. Such "Sankatmochan witnesses" cannot be permitted to take stand in the court of law. We are amazed that large number of cases coming before us where either the advocate clerks or advocates are allowed in courts to give evidence on behalf of the prosecution when they have nothing to do with the case. They are used to prove the case diary which is totally impermissible. They are used to prove formal FIRs, they are used to prove formal seizure list when they are not a party to any such documents. Let it be noted this is impermissible.
12. Shri Thakur, then, submits that all the other prosecution witnesses who have merely sung the same story become irrelevant if very foundation is shaken. The prosecution has deliberately concealed the earliest statements and set up a different story. The delay in recording the fard-beyan and the irreconcilable dates in the injury reports clearly demolished the prosecution case. There has been a conscience effort on behalf of the prosecution witnesses to put up that they had only some casual acquaintance with some accused persons whereas this conscience effort was merely because the two were at litigating terms from before which was intended to be concealed. The accused persons had lands 12 Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 13 adjacent to the lands being claimed by the informant and his brothers. Those lands of the informant and his brothers were recorded as Government Lands. Informant and his brothers did not like the presence of the accused persons who were from a different village having purchased the lands there, and that was the real dispute. All this has been concealed by the prosecution.
13. In our view, Shri Thakur is correct in his submission that the manner in which the prosecution set up its case and tried to prove, raises more questions than it answers. It cannot be believed that when injured persons are brought before the Police, he would not take their statement, he would merely refer them to the hospital for injury report to be prepared and forget. Having the injury report prepared, he would not persuade them to make a statement even at this stage. He would not record statement even when one of them dies in the hospital but he waits for 24 hours to record the statement. No effort has been made by the prosecution to explain this. The very authenticity of First Information Report which is the foundation is shaken. The manner in which the prosecution tries to conceal the relationship and acquaintance, which is deliberate also raises serious doubts about the correctness and veracity of the prosecution case.
14. Above all, Shri Thakur rightly points out that the Investigating Officer who investigated the case and filed the chargesheet was not examined. No explanation, at all, for his non- 13
Patna High Court CR. APP (DB) No.253 of 1991 dt.29-08-2014 14 examination was given. This deprived the court from its objective finding as to the place of occurrence. The prosecution story is that the informant and his brothers were ploughing their lands whereas the defence, as apparent from the suggestions, was that the cattles were grazing in the lands of the accused persons and it is the prosecution party that came and assaulted which resulted in the altercation and in private defence, the defence party assaulted the prosecution.
15. We are of the view that all these controversies could have been cleared if the Investigating Officer was made to depose in the court but for some unexplained reason, the prosecution withheld. This has caused serious prejudice to the appellants.
16. Thus, in our view, we have no option but to hold that the prosecution has failed to establish its case beyond all reasonable doubts. Accordingly, this appeal is allowed and the judgment of conviction and sentence is set aside. The appellants are relieved from their bail bonds.
(Navaniti Prasad Singh, J)
(Jitendra Mohan Sharma, J)
avin/-AFR
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