Patna High Court
Kapil Yadav vs State Of Bihar on 7 November, 2007
Bench: Shiva Kirti Singh, Dharnidhar Jha
JUDGMENT
Shiva Kirti Singh and Dharnidhar Jha, JJ.
1. The sole appellant has been convicted for the offence under Section 302 read with 34 of the Indian Penal Code and awarded life imprisonment by the judgment and order dated 10.1.2002/11.1.2002 passed by the learned Additional Sessions Judge in Sessions Trial No. 218 of 1997/129 of 2001 arising out of Pakribarawan P.S.Case No. 120 of 1996.
2. The fardbayan of Janaki Devi, P.W.3 was recorded on 13.10.2007 at 12.20 P.M. at State dispensary, Pakribarawan by officer-in-charge of the said P.S, S.I.B.K. Singh, P.W.10. The prosecution case as appearing for the fardbayan, in brief, is to the effect that on 13.10.1996 in the morning hours the husband of the informant, Keshar Yadav (the deceased) went to attend the call of nature and the informant accompanied him because of fear to the life of the deceased from the appellant. On the east of the village there was a river and further east, there was field of one Hari Yadav. When they had reached near that paddy field then suddenly they were surrounded by co-villager Kapil Yadav (the appellant), his father Prasadi Yadav and one unknown person who all came from behind. This happened at about 7.30 A.M. The appellant and his father had FARSAS in their hand and one unknown person was armed with a lathi. After surrounding the deceased, the appellant (Kapil Yadav) assaulted with farsa on head while uttering that the deceased should be done to death. The blow caused injury on the head and as a result, the deceased fell down. The second blow was also given by the appellant on head which struck on the back portion and the deceased became unconscious. Prasadi Yadav, father of the appellant gave a farsa blow to the decease on the left leg above the ankle causing a cut injury. The unknown person assaulted the informant with lathi which caused injuries on her left hand as well as left leg. Seeing the occurrence, her son Ram Bilash Yadav (P.W 2) came from the village and on his nulla, the three accused persons fled away towards east. The occurrence was seen by several persons from her village Hasanganj and from the neighbouring village, Kachana and those persons reached the place of occurrence later on. The reason of the occurrence was said to be kidnapping of her son by Kapil Yadav, the appellant and in connection with that case, he had gone to jail custody and after coming out, he had been threatening. The unconscious husband of the informant was taken to government hospital Pakariwaran on a Thela Rickshaw and there the doctor declared him dead. On arrival of the officer-in-charge of the police station at the hospital, the informant gave her fardbayan (Ext-4). The formal FIR was lodged on the same date at 13.00 hours.
3. After recording the fardbayan the investigating officer, P.W.10 prepared the inquest report, (Ext-5) and sent the dead body to Nawada Sadar hospital for postmortem examination. On the same date, he went to the place of occurrence and inspected the same. It was a paddy field of Hari Yadav of village Hasanganj. In that field, he found trampling of field plants in a circular area of 7-8 feet and also found blood in copious quantity. He seized blood stained earth from that place and prepared a seizure list, Ext-6. In course of investigation, he recorded the statement of witnesses, arrested the appellant and submitted chargesheet. From the judgment under appeal, it appears that chargesheet was submitted against the appellant as well as co-accused Prasadi Yadav and after cognizance, the case was committed to the court of Sessions by the learned Chief Judicial Magistrate, Nawada on 25.7.1997. The case remained pending for appearance of accused Prasadi Yadav for a long time but when he remained absconding, the trial of the appellant was started and, thereafter, charge under Section 302/34 was framed against the appellant on 19.12.2000. The appellant pleaded not guilty to the charge and therefore he was put on trial and ultimately, convicted and sentenced by the judgment under appeal.
4. The defence of the appellant as appearing from the trend of cross-examination is that he has falsely been implicated on account of enmity and that the deceased was a man with criminal background and he was killed by some enemy on account of some dispute and not by the appellant.
5. The prosecution has examined altogether ten witnesses to prove the charge against the appellant. P.W.1 Nanhku Yadav and P.W.4 Manoj Kumar have not supported the prosecution case and have been declared hostile. P.W.7 Rameshwasr Yadav is a formal witness having signed on the inquest report as a witness. P.W.8 Dr. Mahendra Pd. Gupta has proved injuries on the person of the informant. That injury report prepared by him has been marked as Ext-2. P.W.9 Dr. Bimal Kumar held autopsy of the dead body of the deceased and he has proved the postmortem report prepared by him as Ext-3. P.W.10, as noticed earlier is S.I. Basant Kumar who investigated the case as its investigating officer. He has proved the fardbayan, the inquest report as well as the seizure list showing the seizure of blood stained earth from the place of occurrence.
6. The material witnesses who have claimed to be eye witnesses of the occurrence are P.W.2 Rambilash Yadav and the informant Janak Devi, P.W.3 who is also an injured whose injury has been proved by P.W.8. P.W. 5 Ram Dular Yadav and P.W.6 Ram Balak Yadav are from neighbouring village Kachana who have also claimed to be eye witnesses P.W.2, Rambilash Yadav is son of the deceased. He was also going to attend the call of nature towards the river when he heard the cries of his mother and on that he ran towards the field of Hari Yadav and he could see the actual assault being made upon the deceased. He has supported the prosecution case as given in the fardbayan and has been supported by the informant P.W.3 in court regarding assault by the appellant with farsa on the head of the deceased through two different blows at two different places on the head. He has also disclosed that co-accused Prasadi Yadav assaulted with farsa on the left leg of the deceased and the unknown accused assaulted his mother on the left hand and left leg with lathi. He has corroborated the alleged motive by deposing that his brother Nawal Yadav was subjected to kidnapping and in connection with that case the appellant had gone to jail and came out after about eight months and since then he had been continuously issuing threats. According to him, on account of that enmity his father was assaulted and killed. He has identified the appellant in dock as has been done by other witnesses and the identification has not been challenged.
7. P.W.3 Janaki Devi, happens to be the wife of the deceased. In court, she has supported the prosecution case as disclosed by her in the fardbayan in all material particulars such as time and place of the occurrence as well as two blows given by the appellant with farsa on the head of her husband. She has also supported the allegation that a blow was given on the left leg of her husband by Prasadi, the absconding accused, father of this appellant. She has also supported the case that the unknown accused assaulted her with lathi causing injuries on her left hand and left leg. According to her, the deceased fell down after receiving injuries and became unconscious. She has disclosed that she had raised Hulla and on that her son Rambilash Yadav (P.W.2), Rambalak Yadav (P.W.6) and Ram Dular Yadav (P.W.5) came to the place of occurrence. She has also supported her case in the fardbayan that her injured husband was taken on a Thela Rickshaw to the hospital and there, the doctors declared him dead and, thereafter, the police officer came and recorded her fardbayan on which she gave her thumb impression. About this witness a criticism has been made that she has stated in court that the case of kidnapping of her son had occurred eight years earlier whereas in the fardbayan recorded about five years prior to her deposition in court, she had disclosed that the said occurrence of kidnapping had taken place one year earlier. She is clearly an illiterate rustic villager and at the time of giving her fardbayan when her husband had been just declared dead, she was not expected to recollect such facts clearly because she could not be accepted to be in very clear and stable mental condition. Such discrepancy, according to us, is of no consequence. It has further been submitted in respect of this witness that in cross examination, she has admitted at one place that she gave the account of the occurrence to the police officer and also gave her thumb impression but in the succeeding line, she has replied that she had given her thumb impression on plain paper. On that basis, it has been submitted that the fardbayan alleged to be of this witness is not a genuine record of her statement.
8. On a careful analysis, of all the relevant facts we find no substance in the aforesaid submissions. There is no doubt regarding her presence at the place of occurrence in view of her injuries. They were examined and found by a doctor P.W.8 on the date of occurrence itself just one hour after the occurrence. In chronogical order of facts, she has deposed in court that the police officer recorded the description of the occurrence given by her which was read to her and finding the same correct, she put her thumb impression on the same. We have already noticed that she is an illiterate rustic lady from rural area. It appears that in cross-examination, she failed to apprehend the difference between plain paper and a blank paper. The original fardbayan is on a plain paper and not on a lined paper and that appears to have led her to the aforesaid answer that she had put her thumb impression on a plain paper. That statement of this witness cannot be construed to mean that she had given her thumb impression on a blank paper. Further there is no such a clear suggestion given to this witness and it has only been suggested to her that she has implicated the accused on account of enmity. Further the I.O. who proved the fardbayan as Ext-4 has not been given any suggestion that he has obtained thumb impression of the informant on a blank paper. In view of such facts, we find no significance in the aforesaid statement of this witness in course of cross examination.
P.W.5 Ram Dular Yadav and P.W.6 Ram Balak Yadav are residents of the neighbouring village. Although in the FIR, their names have not appeared specifically but it is indicated in the fardbayan that the residents of village Kachana also witnessed the occurrence. These witnesses were examined by the investigating officer in course of investigation and their names appear as witnesses in the charge sheet. They have fully supported the prosecution case in all material particulars and nothing has been elicited from them in course of examination to show that they are related to prosecution party or inimical to the accused persons. Some suggestions were made to P.W.5 to show that he is related to the informant but those suggestions were denied and thereafter no effort was made to substantiate those suggestions. Suggestion was given to P.W.6 that he is related to P.W.5 to which he has replied that he is a nephew of P.W.5 by a village relationship which means there is no blood relationship between P.W.5 and P.W.6.
9. On a careful perusal of the evidence of P.W.3 (the informant) which has been corroborated by her son P.W.2 Rambilash Yadav as well as P.W.5 and P.W.6, we find that the prosecution has succeeded in proving the time, place as well as manner of occurrence which is further corroborated by evidence of the doctor P.W.9 as well as the evidence of the I.O. P.W.10. We have no hesitation in holding that the charge against the appellant has been proved by the prosecution beyond all reasonable doubts. The defence has not examined any witness nor has filed any documentary evidence. The mere suggestions as noticed earlier by the defence do not help the defence in any manner as those suggestions have not been supported by any evidence. The defence has failed to bring any material on record to show that the deceased had criminal background and had enemies on account of his association with criminals.
10. Learned Counsel for the appellant has placed reliance upon a judgment of this Court in the case of Shivnath Chaudhary v. State of Bihar reported in 2007(2)BBCJ 39 to submit that since the blood stained earth seized by the I.O. was not sent for chemical examination, the prosecution case should be doubted and it should also be doubted in view of the fact that no resistance was made by the deceased or the informant to the assault upon the deceased. We have carefully gone through the aforesaid judgment of this Court and we find that the said case has been decided on the peculiar facts of that case where the material witnesses P.W.1 and 2 were disbelieved to be eye witness of the occurrence and it was accumulative effect of several facts including the fact that the I.O. had neither seized nor sent any blood stained earth for chemical examination that the prosecution case was rejected as doubtful. On the other hand, in the present case it is apparent that the informant was the only person near the deceased at the time of actual assault and she has received injuries on account of raising cries. Her injuries clearly show that some kind of resistance was made by her and therefore she was disabled by the infliction of lathi blows on her hand as well as leg. The other witnesses had clearly seen the occurrence from some distance when their attention was attracted by the cries of the informant P.W.3. Further in the present case the seizure list as well as the evidence of the I.O. shows that he had found copious blood at the place of occurrence and had seized the same. He had also found paddy crops trampled in a circular area of 7-8 feets. In fact the cross-examination of the witnesses clearly shows that in the present case the defence has not challenged the place of occurrence and has challenged only the implication of the accused to be false.
11. Thus, having considered all the facts and circumstances as well as the arguments raised on behalf of the appellant, we find no good reason to take a different view than what has been taken by the trial court in the judgment and order under appeal. There is no good reason to interfere with the findings of the trial court. Hence, the conviction and sentence awarded to the appellant by the trial court is maintained. The appeal is dismissed as one without merit.