Patna High Court
Umesh Yadav vs The State Of Bihar on 10 August, 2018
Author: Rakesh Kumar
Bench: Rakesh Kumar, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 340 of 2013
Arising Out of PS. Case No.-22 Year-2008 Thana- Bathani District- Gaya
======================================================
1. Lallu Yadav @ Sanjay Yadav, Son of Deonandan Yadav,
Resident of Village- Nadra, P.S.- Khijar Saray, District- Gaya.
2. Bablu Kumar @ Bablu Yadav, Son of Ramashish Yadav, resident
of Village- Rangpur, P.S.- Atari, District- Gaya.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
Criminal Appeal (DB) No. 645 of 2011
======================================================
Sunil Yadav, S/o Prameshwar Yadav, resident of Village - Soveran Bigha, P.S.
- Nimchak Bathani, Distt. - Gaya.
... ... Appellant
Versus
The State of Bihar.
... ... Respondent
======================================================
with
Criminal Appeal (DB) No. 837 of 2011
======================================================
Umesh Yadav, S/o Prameshwar Yadav, resident of Village -Soveran Bigha,
P.S. - Nimchak Bathani, District - Gaya.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In Criminal Appeal (DB) No. 340 of 2013)
(In Criminal Appeal (DB) No. 645 of 2011)
(In Criminal Appeal (DB) No. 837 of 2011)
For the Appellant(s) : Mr. Rajendra Narayan, Sr.Adv.
Mr. Ashok Kumar Choudhary, Adv.
Mr. Sheo Kumar Prasad, Adv.
Mr. Akshansh Ankit, Adv.
For the State : Mr. Ajay Mishra (APP)
For the Informant : Mr. Durgesh Nandan, Adv.
======================================================
Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018
2/35
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 10-08-2018
In all the aforesaid three appeals, appellants were
arrayed as accused during investigation in Neem Chak Bathani
P.S. Case No. 22 of 2008 registered for offence under Section
396 of the Indian Penal Code, however; appellants in Cr.Appeal
(DB) No. 340 of 2013 were tried in Sessions Trial No. 61 of
2010/471 of 2010(S.J.) (for short "S.Tr.No. 61/10") and other
two appellants i.e. Sunil Yadav (in Cr.App.DB No. 645 of 2011)
and Umesh Yadav (in Cr.App.DB No. 837 of 2011) were tried
together in Sessions Trial No. 322 of 2009. Since occurrence in
aforesaid trials was same, all the three appeals were heard
together and are being disposed of by this common judgment.
2. Two appellants in Cr. Appeal (DB) No. 340 of 2013,
namely Lallu Yadav @ Sanjay Yadav and Bablu Kumar @
Bablu Yadav by judgment dated 12-02-2013 were convicted in
Sessions Trial No. 61 of 2010 for commission of offence under
Section 396 of the Indian Penal Code and by order dated
19-02-2013, they were sentenced to undergo imprisonment for life and also they were directed to pay a fine of Rs. 1,000/- (one Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 3/35 thousand) each. Appellant Sunil Yadav {in Cr. Appeal (DB) No. 645 of 2011} and appellant Umesh Yadav {in Cr. Appeal (DB) No. 837 of 2011} by judgment dated 03-05-2011 were convicted in Sessions Trial No. 322 of 2009 for commission of offence under Section 396 of the Indian Penal Code and by order dated 11-05-2011, they were sentenced to undergo imprisonment for life, however; they were not imposed any fine. The judgment of conviction and sentence has been passed by Sri Krishna Kumar Agrawal, learned Adhoc Additional District & Sessions Judge, F.T.C.-III, Gaya (hereinafter referred to as 'Trial Judge').
3. In Sessions Trial No. 322 of 2009, after conviction, firstly, convict Sunil Yadav filed an appeal, vide Cr. Appeal (DB) No. 645 of 2011, which was admitted on 15-07-2011 and on 20-09-2011, his prayer for bail was rejected by a coordinate Bench of this Court. Subsequently, on 11-10-2012, after filing of interlocutory application, he was directed to be released on bail. Convict Umesh Yadav filed his appeal after his conviction on 23-08-2011, which was admitted for hearing on 13-09-2011 and finally, by order dated 17-09-2012, he was directed to be released on bail by a coordinate Bench of this Court. In second trial i.e. Sessions Trial No. 61 of 2010, co-convicts Lallu Yadav Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 4/35 @ Sanjay Yadav and Bablu Kumar @ Bablu Yadav, after their conviction and sentence, preferred the appeal i.e. Cr. Appeal (DB) No. 340 of 2013, which was filed on 22-04-2013. In the said appeal i.e. Cr. Appeal (DB) No. 340 of 2013, repeatedly petitions were filed for granting bail, however, it was never considered and rejected and both the appellants are in jail. Since all the three appeals were pertaining to the same occurrence, the office placed the record of all the appeals and thereafter, all the aforesaid three appeals were listed together and heard on number of dates.
4. Initial version of prosecution case as per first information report is that on 07-05-2008 at 09:00 hrs (morning) one Assistant Sub-Inspector of Police Sri B.N. Singh of Pirbahore Police Station, Patna recorded fardbeyan of Anil Kumar (P.W. 5 in S.Tr. No. 61/2010 and P.W.7 in S.Tr. No. 322/2009). The said fardbeyan was recorded in emergency ward, Bed No. 45, ERPL 661 at Patna Medical College and Hospital, Patna. In the fardbeyan, the informant in his full consciousness made statement before the Assistant Sub- Inspector of Police that on 06-05-2008 he on his motorcycle, bearing registration No. BR- 21B -2365 Hero Honda, with Madhesh Kumar (deceased) son of Gopal Prasad (P.W. 3 in Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 5/35 S.Tr. No. 61/2010 and P.W.4 in S.Tr. No. 322/09) resident of village Malishadh, P.S.- Chhabilapur, District Nalanda was moving. The informant was pillion rider. Both informant and Madhesh (deceased) at about 06:15 PM from their own brick- kiln situated in village - Kewali, P.S. Khudaganj moved for their residence on the said motorcycle and while at about 06:30 PM they reached near a banyan tree situated in village Oranpura, which was 20 feet away from the main road, three accused persons from north east side came, two accused persons from eastern side and one accused from western side came and forcibly stopped motorcycle and pushed the motorcycle, whereupon, both with motorcycle fell down. After rising, both inquired as to why they were doing this. Thereafter, one accused gave one shot of firing on informant. He tried to save him, however; the bullet hit just below his right eye. Subsequently, another accused gave shot of firing on the stomach of Madhesh (deceased) and they also forcibly took Rs. 54, 000/- (Rupees fifty four thousand) from the informant and from the pocket of Madhesh (deceased), they took Nokia - 1100 model mobile, having SIM No. 9905018277 and mobile of the informant, having SIM No. 9798217077 and one more mobile with certain papers. Three accused persons, riding on motorcycle, fled away. Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 6/35 The informant disclosed that all the three accused persons were in the age group of 25-30 years. They were wearing full pant- shirt and using local language. He gave the description of the accused persons with their color. The informant further stated that after hearing sound of firing, labourers from brick-kiln arrived on tractor and both injured were lifted and carried to Ankuri Bazar and from there, they were put on a Bolero vehicle and they were carried to P.M.C.H., Patna. On 06-05-2008 at about 10:30 PM, they were brought, where the doctor, after seeing Madhesh, declared him dead and informant was being provided medical treatment. He stated that the place of occurrence was within the jurisdiction of Bathani police station, which is in the district of Gaya. The informant further stated that when he and Madhesh (deceased) fell down, 3-4 more accused persons had arrived. The informant claimed that the accused persons in course of committing loot had killed Madhesh by giving shot of firing and injured the informant and looted motorcycle, cash, mobile and other papers. The said fardbeyan was read over to him and after finding it true, in presence of Manohar Prasad Singh, a resident of Bakhtiyarpur, Patna, he put his signature on the bottom. The fardbeyan was also got signed by Manohar Prasad Singh (not examined). Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 7/35
5. On the basis of said fardbeyan, formal F.I.R. was recorded on 07-05-2008 at 21:00 hrs (9:00 PM) for offence under Section 396 of the Indian Penal Code against 6-7 unknown accused persons. Thereafter, investigation commenced. During investigation, one of the appellant Umesh Yadav (in Cr. Appeal DB No. 837 of 2011) was arrested and thereafter, on 31-08-2008 first chargesheet was submitted against Umesh Yadav and on 10-11-2008, learned Magistrate took cognizance of the offence. Subsequently, on 22-11-2008, the case of Umesh Yadav was committed to the Court of Sessions. In the said case, on 20-04-2009, supplementary chargesheet was submitted against Sunil Yadav (appellant in Cr. Appeal (DB) No. 645 of 2011) and his case was committed to the court of sessions on 06-07-2009. Against appellant Umesh Yadav (in Cr. Appeal DB No. 837 of 2011) charge under Section 396 of the Indian Penal Code was framed on 18-06-2009, whereas against appellant Sunil Yadav (in Cr. Appeal DB No. 645/2011) charge was framed under Section 396 of the Indian Penal Code on 20 th August, 2009 and thereafter, trial proceeded jointly against both appellants i.e. Sunil Yadav (in Cr. Appeal DB No. 645 of 2011) and Umesh Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 8/35 Yadav (in Cr. Appeal DB No. 837 of 2011), vide Sessions Trial No. 322 of 2009.
6. After further investigation, second supplementary chargesheet was submitted on 03-05-2010 against Lallu Yadav @ Sanjay Yadav and Bablu Kumar @ Bablu Yadav (both appellants in Cr. Appeal (DB) No. 340 of 2013). The case of both these appellants was committed to the court of sessions on 08-07-2010 and it was numbered as Sessions Trial No. 61 of 2010. On 23-08-2010, charge under Section 396 of the Indian Penal Code was jointly framed against both the appellants of Cr. Appeal (DB) No. 340 of 2013.
7. In Sessions Trial No. 322 of 2009, which commenced earlier from prosecution side, altogether seven witnesses were examined to establish its case, however two witnesses were further examined as court witnesses. Out of seven witnesses, P.W. 2 Ashok Kumar (brother of the informant), P.W. 3 Dharmendra Kumar (brother of the deceased) and P.W. 4 Gopal Prasad (father of the deceased) were examined as hearsay witnesses. P.W. 1 Rajendra Prasad @ Rajendra Prasad Yadav, a co-villager and P.W. 6 Surendra Prasad were examined as chance witnesses. P.W. 7 Anil Kumar is the injured and informant of the case and after their evidence, Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 9/35 Dr. Pankaj Kumar, who conducted post-mortem, and S.I. Nand Kishore Singh, the investigation officer were examined as court witness no. 1 and court witness no. 2 respectively.
8. After conclusion of the prosecution evidence, circumstances and evidences collected during the trial were explained to the appellants Sunil Yadav (in Cr.App.DB No. 645/11) and Umesh Yadav (in Cr.App.DB No. 837/11) and their statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was recorded on 02-11-2010, in which, they claimed to be innocent. Appellant Umesh Yadav (in Cr.App.DB No. 837/11), besides claiming to be innocent, stated that he was remaining in the brick kiln and the deceased had consumed his Rs. 45,000/- (rupees forty five thousand) and this was the reason for his implication.
9. In Sessions Trial No. 61 of 2010, from the prosecution side, altogether seven witnesses were examined. Out of seven prosecution witnesses, P.W. 1 Ashok Kumar (brother of the informant) P.W. 2 Dharmendra Kumar (brother of the deceased) and P.W. 3 Gopal Prasad (father of the deceased) were examined as hearsay witnesses. P.W. 4 Rajendra Prasad a co-villager has been examined as chance witness. P.W. 5 Anil Kumar is the injured & informant and so-called eye Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 10/35 witness to the occurrence. Dr. Pankaj Kumar, who conducted post-mortem on the dead body, was examined as P.W. 7 and Sri Nand Kishore Singh, the officer-in-charge of Neem Chak Bathani Police Station, who conducted investigation, was examined as P.W. 6. After completion of the prosecution evidence, statement of both the appellants, namely, Lallu Yadav @ Sanjay Yadav and Bablu Kumar @ Bablu Yadav under Section 313 of the Cr. P.C. was recorded on 23-07-2012, in which, they denied charges. In both the trials, no defence witness was examined.
10. In aforesaid appeals, after referring entire evidence, learned counsel for the appellants have argued that it was case of 'no evidence', however, learned Trial Judge has incorrectly passed judgment of conviction and sentence.
11. Sri Rajendra Narayan, learned senior counsel assisted by Sri Sheo Kumar Prasad in Cr. Appeal (DB) No. 340 of 2013 relating to Sessions Trial No. 61 of 2010, at the very outset by way of referring to formal F.I.R. i.e. Ext. 2 vis-a-vis post-mortem examination report as well as evidence of P.W.-7 Dr. Pankaj Kumar, has argued that it appears that in the murder of Madhesh Kumar, the informant himself was involved. He submits that in evidence, it has come that deceased Madhesh Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 11/35 and informant Anil Kumar were running a brick kiln in a partnership. He submits that in the case, only eye witness is none else but the informant, who has claimed to receive injuries in the occurrence. According to fardbeyan of the informant (P.W. 5), it is specific case that firstly, he received fire-arm injury and thereafter, in his presence, shot of firing was made on stomach of the deceased Madhesh Kumar, however; at the time of post-mortem examination, entirely different story has come out and entry wound was noticed on the back of the chest of the deceased and exit wound was just below the nipple of the deceased. He tried to develop a case that it appears that while the deceased was driving motorcycle and informant was pillion rider, with his eye to usurp the entire business of the brick kiln, from the back side, he fired on the deceased and thereafter, he along with deceased and motorcycle fell down. Sri Narayan, learned senior counsel further submits that injury further corroborates the story of firing from close range, since on the entry wound, blackening was noticed, which pertains to shot given from a very close range. He further submits that of course P.W. 5 (informant) had developed a story that he was given shot of firing and he received injury and he along with the injured- deceased were carried to P.M.C.H and fardbeyan of the Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 12/35 informant was got recorded in P.M.C.H., purposely documentary evidence relating to injury on the person of the informant has not been brought on record during the trial. His re-statement was also shown to be recorded after more than 20 days from the date of occurrence. According to learned senior counsel, it appears that in a pre-planned manner, the informant has removed his main hurdle in respect of business of brick kiln finding the deceased in a lonely place and this was the reason that the informant had stated that number of accused persons had stopped their motorcycle and thereafter, firing was done, he had not named anyone as accused in his fardbeyan. According to Sri Narayan, it also appears to be not believable that the informant, while moving on motorcycle, can describe each and every fact that how many accused came from which direction i.e. eastern side or western side etc. However, fact remains that during evidence, witnesses have said that Umesh Yadav (appellant in Cr. Appeal DB No. 837 of 2011), since earlier was demanding ransom from the informant & deceased and on his pressure, his brother Sunil Yadav, who is appellant in Cr. Appeal (DB) No. 645 of 2011, was engaged as watchman in the brick kiln of the informant and as such, had the appellants were involved in the case, the informant would have categorically Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 13/35 disclosed their name in his fardbeyan, but he kept mum on this issue. The conduct of the informant has also been noticed by learned Trial Judge as 'Avoiding'. By way of referring to paragraph - 14 of the cross-examination (P.W. 5) Anil Kumar informant, it has been argued that learned Trial Judge has recorded "xokg iz"u dk avoiding answer ns jgs gSa Li'V ugha A vr:
prosecutors yk, xokg dks le; ls e/;karj ds ckn izLrqr djsa A". He has also drawn our attention to the court question, which is in paragraph -18 of the cross-examination. The question was "pwafd vki dsoy ogka Fks vU; yksx ckn esa vk, Fks vr: fLFkfr Li'V djsa ?" (since you were alone there and others had arrived subsequently please clarify the situation). However, it was not answered and this was the reason that learned Trial Judge recorded "xokg pqi jgrs gSaA" (the witness kept mum). He further submits that ofcourse during trial, Rajendra Prasad (P.W.4 in S.Tr. No. 61/10 and P.W.1 in S.Tr. No. 322/09) was introduced as chance witness to the occurrence and he tried to develop a case that after the occurrence, while he reached the place of occurrence, he saw accused persons by name fleeing away, however, in paragraph
-11 of his cross-examination, he categorically stated that since earlier, he was not knowing accused persons, the name, which was given by the Anil (informant), he simply disclosed the Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 14/35 name of those persons. He further stated in paragraph -11 that Anil (informant) had only given the name. This suggests that even one of the witness, who was introduced as chance witness on the point of identifying accused persons while fleeing away itself, was not truthful, which fact has already been noticed by the learned Trial Judge in his cross-examination. Accordingly, it has been argued that in absence of any eye-witness to the main occurrence as well as doubtful evidence of the chance witness, nothing remains to approve the judgment of conviction and sentence.
12. Sri Ashok Choudhary, learned counsel assisted by Sri Sheo Kumar Prasad, learned counsel for the appellants in Cr. Appeal (DB) No. 645 of 2011 and Cr.Appeal (DB) No. 837 of 2011, has argued that after examining entire evidence, it is established that the occurrence was seen by none, save and except the informant, who since did not identify any of the accused persons at the time of occurrence, candidly did not disclose the name of any of the accused in his fardbeyan, which was recorded while he was in state of full consciousness, ofcourse, his fardebayan was recorded in P.M.C.H at 9:00 AM on 07-05-2008. Sri Choudhary has argued that the true fact was disclosed by the informant in his fardbeyan, however after Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 15/35 much belated stage, it appears that since the investigating officer was not in a position to lay hand on actual culprit, with a view to save his own skin, has fabricated a false case and put certain words into the mouth of the informant, as if, the appellants were seen by the informant and he also disclosed the name of all the appellants in his re-statement, which was recorded much belatedly after about 20 days from the date of occurrence. He submits that if for the time being, the developed evidence of informant is over-looked, there is no other evidence on record to hold the appellants guilty.
13. Sri Ajay Mishra, learned Addl. Public Prosecutor opposing the appeals has firstly argued that submission advanced by learned counsel for the appellants that case is of the 'no evidence' appears to have got no substance. He submits that the informant, who was injured, though had narrated regarding the occurrence in his fardbeyan, but since he was injured at the time of his fardbeyan, there is possibility that he failed to describe the name of the accused persons.
14. Sri Durgesh Nandan, learned counsel for the informant submits that it is true that F.I.R. was lodged against unknown, but the F.I.R. against unknown was lodged due to the reason that at the time of recording fardbeyan, the informant Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 16/35 was in the condition of gun shot injury and as such, there was every possibility for not disclosing entire fact. According to Sri Durgesh Nandan, learned counsel for the informant, it is settled that F.I.R. is not considered as 'encyclopedia', rather F.I.R. is composition of fact disclosing cognizable offence. He submits that in the fardbeyan, the informant had disclosed regarding cognizable offence in a state of injured condition and immediately after, he was finally treated and discharged from the hospital, he gave entire truthful statement to the investigating officer in his re-statement and disclosed as to how the appellants have participated in the occurrence, in which, while committing dacoity, one of the partner of the informant was done to death in fire-arm injury and informant had also received serious injury. According to learned counsel for the informant, the injury was so serious that from the place of occurrence, he was directly carried to Patna Medical College & Hospital and his fardbeyan was recorded in emergency ward of P.M.C.H. at bed no. 45, which is substantiated from the formal F.I.R. itself. Learned counsel for the informant further submits that it appears that in a pre-planned manner, the appellants had intercepted the informant and his partner knowing well that he was returning from his brick kiln after collecting sale proceed Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 17/35 and with a view to loot the sale proceed, the appellants had committed the crime. According to learned counsel for the informant, the prosecution has substantially established the case and this was the reason that learned Trial Judge by assigning detailed reason has passed the judgment of conviction and sentence, which requires no interference.
15. Besides hearing learned counsel for the parties, we have also minutely examined the evidence on record both documentary as well as oral evidence. In both the trials, most of the witnesses are common and except negligible variations, almost there is consistency in the evidence of those witnesses in both the trials i.e. Sessions Trial No. 61 of 2010 corresponding to Cr. Appeal (DB) No. 340 of 2013 and Sessions Trial No. 322 of 2009 corresponding to Cr. Appeal (DB) No. 645 of 2011 and Cr. Appeal (DB) No. 837 of 2011. The position of common witnesses in both the trials are as follows:
Ashok Kumar, who is P.W. 1 in S.Tr. No. 61/2010, is P.W. 2 in S.Tr. No. 322/2009.
Dharmendra Kumar, who is P.W. 2 in S.Tr. No. 61/2010, is P.W. 3 in S.Tr. No. 322/2009 .
Gopal Prasad, who is P.W. 3 in S.Tr. No. 61/2010, is P.W. 4 in S.Tr. No. 322/2009.
Rajendra Prasad, who is P.W. 4 in S.Tr. No. 61/2010, is P.W. 1 in S.Tr. No. 322/2009.
Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 18/35 Anil Kumar, who is P.W. 5 in S.Tr. No. 61/2010, is P.W. 7 in S.Tr. No. 322/2009 as informant.
Nand Kishore Singh, the investigating officer and Dr. Pankaj Kumar, who conducted post-mortem on the dead body are P.W. 6 and P.W. 7 respectively in S.Tr. No. 61/2010, however they were examined as court witness no. 2 and 1 respectively in S.Tr. No. 322/2009.
Two witnesses, namely, Arun Yadav and Surendra Prasad were examined as P.W. 5 and P.W. 6 in S.Tr. No. 322/2009, however they were not examined as prosecution witness in S.Tr. No. 61/2010.
Since there were minor inconsistencies in their evidence, we may refer to evidence of those witnesses as common witnesses.
16. Anil Kumar, (P.W. 5 in S.Tr. No. 61/2010 and P.W.7 in S.Tr. No. 322/09) is injured and informant of the case and as such, it would be necessary to firstly examine his evidence. Anil Kumar in his evidence has stated that on 06-05-2008 at about 06:15 P.M., occurrence had taken place while he was returning to his residence from brick kiln on a motorcycle, which was being driven by Madhesh Ji (deceased) and he was pillion rider. He reached near Bagulwa Mor, which was about 20 feet from metal road. His motorcycle was moving slowly, in the meanwhile, from front eastern side, two persons and one person from western side caught hold of the handle of the motorcycle, whereby motorcycle stopped there and they asked him to give Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 19/35 valuables. He got down from the motorcycle, however motorcycle fell down. Thereafter, Sanjay (app. 1 in Cr. App. DB No. 340/13) took motorcycle in his possession and Bablu (app. 2 in Cr. App. DB No. 340/13) gave one shot of firing. After receiving fire-arm injury, he fell down. After some time, he saw that Madhesh Ji (deceased) came and stood in the side, thereafter, he saw Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bhim Yadav (not appellant) in the side of one toddy tree. Umesh Yadav (app. in Cr. App. DB No. 837/11) thereafter told that "whoever is alive, he may be shoot down". Umesh Yadav thereafter gave shot of firing on Madhesh Ji and accused Bhim (not appellant), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13) took out Rs. 54,000/- and mobile from the pocket of Anil (informant) and from the pocket of Madhesh (deceased), they took mobile & money and fled away. After the accused fled away, he (informant) raised alarm and thereafter, labourers from brick kiln and Rajendra Yadav (P.W. 4 in S.Tr. No. 61/10 and P.W. 1 in S.Tr. No. 322/09) arrived there. He explained about the occurrence to all of them and thereafter, they were loaded on a tractor and carried to Ankuri Bazar and thereafter, on a Bolero vehicle, they were carried to Patna Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 20/35 Medical College & Hospital (hereinafter referred to as 'P.M.C.H.'). On way, one Surendra Ji of Islampur also met and he explained about the occurrence to him and Surendra Ji also followed him. In P.M.C.H. in the night, father of Madhesh Ji (deceased) also met and he and entire family member of P.W.5 were informed regarding entire occurrence. He stated that in the morning, police arrived and since profuse bleeding had taken place, he was not in a position to correctly speak. His fardbeyan was recorded. In paragraph-6, he states that it was not read over to him, however he put his signature. He proved his signature on substituted F.I.R., which was marked as Ext. 1. In paragraph- 7 of his examination-in-chief, he stated that Umesh Yadav (app. in Cr. App. DB No. 837/11) was regularly demanding jaxnkjh (ransom) and he had engaged Sunil Yadav (app. in Cr. App. DB No. 645/11) as watchman. Since appellant Sunil Yadav was not honest, he was subsequently removed from there. This witness further stated that during last Holy festival, Umesh had misbehaved with Adivasi labour. He further deposed that after some time, Umesh Yadav (app. in Cr. App. DB No. 837/11) had laid his ox on under prepared bricks, in which occurrence, Madhesh Ji (deceased) had assaulted Umesh (app. in Cr. App. DB No. 837/11) by pieces of bricks and on the next date, Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 21/35 appellant Umesh Yadav on the plea of ailment of ox, had demanded Rs. 10,000/- (rupees ten thousand). He had also threatened that since demand was not fulfilled, he would take revenge and after some time, the present occurrence had taken place. In paragraph-11 of his evidence, this witness stated that bullet had hit in the side of his nose, which went out from his cheek. He stated that Rajendra was the first person, who arrived. In paragraph-16 of his cross-examination, this witness stated that for one month he was under treatment. In paragraph- 18, Court had asked a question "One witness stated that all the four accused fled away on foot then what happened in respect of motorcycle ?", however this witness replied that "motorcycle was taken into possession by Sanjay (app. 1 in Cr. App. DB No. 340/13) and thereafter, what happened he was not aware". Again, one another question was put by learned Trial Judge i.e. "To clarify the position regarding the fact that he was only person present there and others have come subsequently?", however this answer was not given by the witness and the learned Trial Judge had noted down "xokg pwi jgrs gSa A" (the witness was mum). He further stated that Madhesh was fired by touching him i.e. from close range. On examination of evidence of this witness as well as his fardbeyan, it is evident that there is Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 22/35 serious development by the witness during trial to the case of prosecution, as disclosed in the fardbeyan. On examination of the fardbeyan, it is evident that occurrence was committed by accused persons, who were not at all known to the informant, otherwise there was no reason for him to not disclose name of any of the accused person in his fardbeyan. Accordingly, the evidence of the informant itself appears to be doubtful. Moreover during trial not a chit of paper regarding his injury or doctor who examined him has come forward.
17. Ashok Kumar (P.W. 1 in S.Tr. No. 61/10 and P.W. 2 in S.Tr. No. 322/09) is none else but brother of the informant. In his evidence, he stated that in the morning, he came to Patna where he met his brother Anil (injured and informant) whereas Madhesh had already died. This witness further deposed that he was informed by Anil (informant) that Bablu (app. 2 in Cr. App. DB No. 340/13) had given shot of firing on him and Madhesh was killed by Umesh (app. in Cr. App. DB No. 837/11). Sanjay (app. 1 in Cr. App. DB No. 340/13), Sunil (app. in Cr. App. DB No. 645/11) and Bhim (not appellant) had taken motorcycle, Rs. 54,000/- (Rupees fifty four thousand) and three mobiles and fled away, however in paragraph-6, he stated that he had not seen the occurrence. Since this witness is hearsay witness and Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 23/35 he has stated that on the basis of information given by Anil (informant) and evidence of Anil itself has been noticed as doubtful, there is no reason to place any reliance on the evidence of this witness.
18. Gopal Prasad (P.W. 3 in S.Tr. No. 61/10 and P.W. 4 in S.Tr. No. 322/09) is father of the deceased Madhesh and in his evidence, he stated that his son was doing business of brick kiln and Anil Kumar (informant) was his partner. He stated that one Dinesh of village Nimthu had informed him that Madhesh (deceased) and Anil (informant) were given fired-arm injury by Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13) and thereafter, they looted motorcycle, cash and mobile. Before the court below, in none of the trial, Dinesh of village Nimthu was examined and in absence of the person, who gave information to this witness, there is no reason to place further any reliance. This witness in his evidence further tried to make out a case, as if, in his presence, Anil (informant) had given his statement by way of pointing out his finger, as if, in the occurrence Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13) all the three had fired and fled away. He further Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 24/35 stated that in P.M.C.H., Anil (informant) was in the state of unconsciousness and he was not talking with anyone. While he returned from P.M.C.H. at 2:00 PM with the dead body of his son, Anil (informant) was unconscious. His attention was drawn to his previous statement recorded under Section 161 of the Cr.P.C. while the investigating officer Nand Kishore Singh was examined as court witness no. 2 contradiction was drawn to the statement of this witness (Gopal Prasad) during investigation. The investigating officer in paragraph-21 of his cross- examination stated that Gopal Prasad in his statement had not taken name of any of the accused. In paragraph-24, the investigating officer further stated that witness Gopal Prasad in his statement under Section 161 of the Cr.P.C had not stated that Dinesh after coming to his house had disclosed that Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13) had shot down Madhesh. He had also not stated that motorcycle, mobile and cash was looted. This investigating officer clarified that witness Gopal Prasad had not named Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13). This witness Gopal Prasad before the investigating officer had also not stated Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 25/35 that Anil (informant) by pointing out his finger had stated that Umesh (app. in Cr. App. DB No. 837/11), Sunil (app. in Cr. App. DB No. 645/11) and Bablu (app. 2 in Cr. App. DB No. 340/13) had gunned down. Meaning thereby, that this witness is not giving truthful picture of the case.
19. Dharmendra Kumar (brother of the deceased) was examined as P.W. 2 in S.Tr No. 61/10 and P.W. 3 in S.Tr. No. 322/09 and his evidence is also almost similar to the evidence of his father Gopal Prasad and he stated that he was informed by the same person i.e. Dinesh, who has not been examined as prosecution witness.
20. Rajendra Prasad @ Rajendra Prasad Yadav has been examined as P.W. 4 in S.Tr. No. 61/10 and P.W. 1 in S.Tr. No. 322/09. This witness has come forward to depose that at the time of occurrence, he was at the brick kiln of the informant and the deceased. After hearing sound of firing, he rushed to the place of occurrence and he saw the appellants fleeing away. He gave the name of appellants in his evidence, as if, he had seen them fleeing away after the occurrence. He further stated that in injured condition, Anil (informant) was telling that Madhesh was shot by Umesh (app. in Cr. App. DB No. 837/11) and he was given fire-arm injury by Bablu (app. 2 in Cr. App. DB No. Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 26/35 340/13). In paragraph-8 of his cross-examination, he stated that after hearing sound of firing, he took about two minutes in reaching Bagulwa mor. Ofcourse, in his examination-in-chief, this witness stated that at the place of occurrence itself, Anil (informant) informed about the occurrence, but in paragraph-14 of his cross-examination, he stated that he did not find any occasion to meet Anil (informant) and he met him after about three months. This witness (i.e. Rajendra Prasad) in his evidence in S.Tr No. 61/10 in paragraph-11 of his cross- examination had stated that since prior to the occurrence, he was not knowing the accused persons and he stated that he gave the name of those persons, whose name was disclosed by Anil (informant).
21. In S.Tr. No. 322/09, P.W. 5 Arun Yadav, who was not examined in S.Tr. No. 61/10 did not support the prosecution case and he was declared hostile, however Surendra Prasad was examined as P.W. 6 in S.Tr. No. 322/09, he was not witness in S.Tr. No. 61/10. This witness Surendra Prasad was introduced as hearsay and chance witness. His evidence also not appears to be completely truthful.
22. Dr. Pankaj Kumar, who was examined as P.W.7 in S.Tr. No. 61/10, was examined as court witness no.1 in S.Tr. Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 27/35 No. 322/09. Dr. Pankaj Kumar on 07-05-2008 was posted as Lecturer in Forensic Medicine Department, P.M.C.H. and on the same date, he conducted post-mortem examination on the dead body of Madhesh Kumar and found following injuries:-
"One entry wound 1/4" x 1/4" right side back of chest, scapular region 6" below shoulder tip, 6" R' from midline (posterior) with blackening 2 ½" x 2 ½" around the entry wound. The entry wound was with everted margin and lacerated and forms a tract, piercing, 6th rib (posterior) right side, right side of lungs diaphragm, liver, measentry of small intestine, greater omentum of stomach and made on exit wound 1/4" x 1/4" size on left side of abdominal wall (anterior), 4 ½" left from midline, 8 ½" below left nipple, margin everted and lacerated. Blood & blood clot was found in the right side of chest cavity and abdominal cavity. Heard-empty viscera failed, bladder-empty stomach pesti food line material about 100-150 gm.
Opinion:- 1. Time since death - 6 to 24 hours approx.
2. Cause of death - Haemorrhage & Shock.
3. Nature of violence- Fire Arm."
He proved the post-mortem report, which was marked as Ext. 2 in S.Tr. No. 322/09 and the photocopy of post-mortem report was marked as Ext. 3 in S.Tr. No. 61/10 by the same doctor.
23. On examination of evidence of doctor, who conducted post-mortem examination as well as on examination of post-mortem report, it is evident that gun shot injury was given from the backside of the deceased Madhesh and this was Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 28/35 the reason that entry injury is on the backside of the chest and exit is near nipple of the deceased.
24. The investigating officer was examined in S.Tr. No. 322/09 as court witness no. 2 and P.W. 6 in S.Tr. No. 61/10. In S.Tr. No. 322/09, he proved the fardbeyan, which was marked as Ext. 1/1. He proved signature on formal F.I.R., which was marked as Ext. 3. He stated that in the night of 06/07 of May, 2008 he was officer-in-charge of Bathani Police Station in the district of Gaya and in the same night, he was given information by officer incharge of Khudaganj Police Station that near Bagulwa mor, accused persons have given fire-arm injury to two persons and injured were carried to P.M.C.H., Patna for treatment. Occurrence had taken place at 06:30 PM. With a view to verify the information, he went to Bagulwa mor and tried to inquire about the occurrence, however since there was no population near the Bagulwa mor, he could not gather any information and at 02:30 hrs in the night, he returned back to the police station. Again in the morning at 09:00, he went to place of occurrence, but he could not get any information, then he went to the village of Madhesh i.e. Malishadh, where he noticed that female members of the family were crying and they told that accused persons had given shot of firing on Anil Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 29/35 Kumar and Madhesh Yadav and both were carried to P.M.C.H., where during treatment Madhesh died and condition of Anil Kumar was well. At that place itself, he got information that in the house of Anil Kumar, there were none. Thereafter, he rushed to P.M.C.H. for recording statement of injured Anil Yadav, who was on Bed No. 45 in emergency ward of P.M.C.H., with his father-in-law Manohar Prasad (not examined). Manohar Prasad informed him that at 09:00 in the morning, Pirbahore Police had recorded statement of Anil Ji (informant) thereafter, from Pirbahore Police Station, he collected fardbeyan of Anil Kumar, which was recorded by A.S.I. Brij Nandan Singh (not examined). He proved the fardbeyan, which was marked as Ext. 1/1. In paragraph -12, he stated that on 12-06-2008, Umesh (app. in Cr. App. DB. No. 837/11) was arrested. He further proved formal F.I.R. which was marked as Ext. 3. In paragraph- 18 of his cross-examination, he stated that in the case diary, noticing blood at Bagulwa mor was not recorded. In the night nothing could be ascertained and he had gone to the place of occurrence in the night with a torch. In paragraph-19, he stated that in the case diary, the fact regarding finding of blood at the place of occurrence was not recorded. He stated in paragraph-20 of his evidence that in the case, only eye witness was the Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 30/35 informant. In paragraph 21 of his cross-examination, his attention was also drawn to the previous statement of witness to extract as to whether any of the witnesses except informant had named any of the appellants in their previous statement. However, this fact has come that re-statement of informant was recorded after about 20 days from the date of occurrence that too while the informant was at his residence. This fact has been gathered on examination of record including case diary.
25. On examination of entire evidence, we are of the opinion that there is no reason to place much reliance on the evidence of the informant, particularly on the point of identification of either of the appellants. In the evidence of the investigating officer, who was examined as P.W. 6 in S.Tr. No. 61/10, it has come that the place of occurrence was a lonely place. In paragraph - 8 of his evidence, he stated on 26-05-2008, when the injured/informant returned back to his home, his re- statement was recorded.
26. On examination of entire evidence, it is evident that prosecution witnesses have stated that all the appellants were known to the informant, since much prior to the occurrence. Even evidence has come that there was some dispute between Umesh Yadav (app. in Cr. App. DB. No. 837/11) and informant Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 31/35 and Sunil Yadav (app. in Cr. App. DB. No. 645/11) was engaged as watchman by the informant in brick kiln. In normal course, had they committed the offence, the informant in his fardbeyan would have categorically disclosed their name, but he stated in his fardbeyan, as if, unknown accused persons had committed crime and it appears that there is possibility that subsequently, due to old animosity, the prosecution developed a story, as if, appellants had committed the crime. At this juncture, the submission advanced by Sri Rajendra Narayan, learned senior counsel for the appellants (in Cr.Appeal DB No. 340/13) that it appears that informant himself had murdered Madhesh with his eye on the business of brick kiln, which was in the partnership of the informant and the deceased, may not be outrightly rejected. The reason is that in the fardbeyan, the informant has made categorical statement that in his presence accused Umesh (app. in Cr. App. DB. No. 837/11) gave one shot of firing, which hit on the stomach of Madhesh (deceased) and he fell down, however post-mortem report depicts that firing was made from the backside of the deceased. It is case of the informant that he was pillion rider on a motorcycle, which was being driven by the deceased. Both informant and his partner (deceased) from brick kiln had moved for their Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 32/35 residence and while they reached in a lonely place, alleged occurrence had taken place. Accordingly, the argument of Sri Narayan, learned senior counsel on this point has got some substance, however at the stage of appeal, it would not be appropriate for us to record any definite finding on this very issue. However, the prosecution during trial has miserably failed to establish even place of occurrence, since nothing was indicated by the investigating officer regarding finding of blood mark at the place of occurrence. After recording of the fardbeyan, it appears that much belatedly a case was developed, as if, the informant while giving his fardbeyan was not in complete conscious condition to make statement, however during the trial, the scribe on the fardbeyan i.e. Assistant Sub- Inspector of Pirbahore Police Station, to reasons best known to the prosecution, was withheld and not examined as prosecution witness. Then the witness to the fardbeyan Manohar Prasad, who was none else but the father-in-law of deceased, has not come forward to support the developed story of the prosecution that the informant was not in a position to make statement before the police clearly. Though other witnesses have come forward with a story that the informant was not in a state of complete consciousness for making statement, the informant Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 33/35 himself in paragraph-21 of his cross-examination has categorically stated that in P.M.C.H. on 07-05-2008 at 09:00 AM while Daroga Ji of Pirabahore Police Station was recording fardbeyan, he was in full conscious state of mind. On examination of paragraph-19 of evidence of Anil Kumar, who was examined as P.W. 7 in S.Tr. No. 322/09, it is evident that the informant had stated that while accused persons had shot him and Madhesh, none was present there, only Madhesh and other accused persons were there. This clarifies that at the time of occurrence, except the informant, none was present to witness the occurrence. The informant's deviation from his fardbeyan creates serious doubts on the entire prosecution case. The prosecution has not brought any chit of paper regarding injury of informant nor doctor has come forward.
27. In view of aforesaid facts and circumstances, particularly the fact that informant in his fardbeyan, though had stated regarding the offence committed by accused persons, had not whispered regarding involvement of either of the appellants, whereas, appellants were well-known to the informant creates serious doubt on the prosecution case. The evidence of the informant appears to be doubtful and contrary to the fardbeyan and as such, much reliance may not be placed on such evidence, Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 34/35 otherwise, there is no corroborative evidence on record to approve the judgment of conviction and sentence. Accordingly, in view of facts and circumstances, we are of the opinion that it is a fit case, in which, judgment of conviction and sentence is required to be interfered with.
28. Accordingly, the judgment of conviction and sentence dated 12.02.2013 and 19.02.2013 respectively passed in Sessions Trial No. 61 of 2010/471 of 2010 (S.J.), arising out of Neem Chak Bathani P.S. Case No. 22 of 2008, in Cr.Appeal (DB) No. 340 of 2013 by Sri Krishna Kumar Agrawal, learned Adhoc Additional District & Sessions Judge - III, Gaya as well as the judgment of conviction and sentence dated 03.05.2011 and 11.05.2011 respectively passed in Sessions Trial No. 322 of 2009 (arising out of Neem Chak Bathani P.S. Case No. 22 of 2008) in Cr.Appeal (DB) No. 645 of 2011 and Cr.Appeal (DB) No. 837 of 2011 by Sri Krishna Kumar Agrawal, learned Additional District & Sessions Judge, F.T.C. - III, Gaya are hereby set aside and all the aforesaid three appeals i.e. Cr.Appeal (DB) No. 340 of 2013, Cr.Appeal (DB) No. 645 of 2011 and Cr.Appeal (DB) No. 837 of 2011 are allowed.
29. Both appellants in Cr. Appeal (DB) No. 340 of 2013 i.e. Lallu Yadav @ Sanjay Yadav and Bablu Kumar @ Patna High Court CR. APP (DB) No.340 of 2013 dt.10-08-2018 35/35 Bablu Yadav are in custody and since their conviction and sentence has been set aside, they are directed to be released forthwith, if not required in any other case.
30. The appellant Sunil Yadav (in Cr.Appeal (DB) No. 645 of 2011) and appellant Umesh Yadav (in Cr.Appeal (DB) No. 837 of 2011) are on bail and as such, they are discharged from the liability of their bail-bond.
(Rakesh Kumar, J.)
( Arvind Srivastava, J.)
Anay
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 14.08.2018
Transmission Date 14.08.2018