Patna High Court
Tawahar Yadav & Anr vs The State Of Bihar on 5 January, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.328 of 1989
* * * * *
Against the judgment of conviction
and order of sentence dated
3.7.1989passed by Sri Laxaman Uraon, learned 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 316 of 1983, G. R. Case No. 2337 of 1982 (Rohtas P. S. Case No. 76 of 1982) ==================================================
1. Jawahir Yadava
2. Hira Yadava Both sons of Bal Keshwar Yadav.
Residents of village Ram Dihara P.S.- Rohtas, District- Rohtas.
... Appellants
Versus
The State Of Bihar .... Respondent
=================================================== Appearance:
For the Appellants : Mr. Neeraj Kumar (Amicus Curaie) For the Respondent :Mr. Shashi Bala Verma, A.P.P. ===================================== CORAM: HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA And HON'BLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA) ***** Jawahir Yadava and his brother Hira Yadava have preferred this appeal against the judgment of conviction and order of sentence dated
3.7.1989 passed by the learned 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 316 of 1983, G. R. Case No. 2337 of 1982 Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 2 (Rohtas P. S. Case No. 76 of 1982) by which the appellants have been convicted under Section 302/34 I.P.C. and have been sentenced to rigorous imprisonment for life. The appellant no.1 Jawahir Yadava has further been convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for one month and his sentence has been ordered to run concurrently.
2. The prosecution case relates to an occurrence of 26.10.1982 at 8 P.M.. At that time informant (Gurucharan Yadav) P. W. 8 was sitting at his outhouse along with his family members. Villagers Jawahir Yadava and Hira Yadava, who are appellants here, came abusing and inquired about Rekha Yadav because he has uprooted some crops from the ridge of informant P.W. 8. Informant's bhabhi (P.W. 4) intervened. The accused persons who are appellants here entered inside the house and assaulted by means of lathi. The informant intervened and pacified. Rekha Yadav received injuries and he was taken to Tilauthu Government Hospital in that very night where he was treated but his condition did not improve and in the next morning he was taken to Bose Clinic at Dehari where his treatment started. In course of intervention the informant's bhabhi (P.W. 4) also Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 3 received injuries. The fard beyan was witnessed by Ram Bachan Yadav (P.W. 3) and Mundrika Yadav (not examined). A case was registered under Sections 452 and 307 I.P.C. This fard beyan led to a formal FIR which was sent to the Court where it reached on 5.11.1982 meaning thereby that fard beyan of 27.10.1982 reached the Court after more than one week. Allegations were investigated into. During pendency of the investigation Rekha Yadav died so the charge-sheet was submitted under Section 302 I.P.C.. The case was triable by the Court of Sessions so it was committed after appearance of the accused persons. Charges were explained to them. One Katawaru Yadav was not named in the FIR but he was also charge-sheeted and charged. All the three accused persons were charged under Sections 302/34 and 325/34 I.P.C. The accused persons pleaded innocence so the trial proceeded.
3. The defence of the accused was false implication and also that Rekha Yadav was assaulted by unknown thieves and the appellants have been made accused for pressurizing them to toe the line of prosecution. The trial court after considering the evidence and after hearing the submissions came to the opinion that the prosecution has been able to prove charge under Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 4 Section 302/34 against both the appellants and under Section 323 I.P.C. against Jawahir Yadava. One Katawaru Yadava was not held guilty and he was acquitted. The appellants have preferred this appeal against that judgment of conviction and sentence and this Court is required to see as to whether the prosecution has been able to prove charge against the appellants beyond shadow of all reasonable doubts or not.
4. In order to substantiate the charge the prosecution has examined altogether 8 witnesses. They are P.W. 1 Shiv Balak Ram, P. W. 2 Ram Vyas Prasad, P. W. 3 Ram Bachan Yadav, P.W. 4 Deomati, P.W. 5 Deo Nandan Yadav, P. W. 6 Sheo Bachan Ram, P. W. 7 Jai Ram Yadav and P. W. 8 Gurucharan yadav. P. W. 1 is a formal witness and has proved the formal FIR (Ext. 1), P. W. 2 has proved Fard Beyan (Ext. 2), Lalbahadur Singh Advocate's Clerk has been examined as Court witness who has proved the Post Mortem Report in the pen and signature of Dr. Baneshwar Kumar (Ext.
4), Inquest Report in the pen and signature of S. I. Girja Sharma of Rohtas Police Station (Ext. 5) and the case-diary written by A. S. I. Girja Sharma from page 1 to 44 and from 45 to 55 written by S. I. Sri Arun Kumar Shukala (Ext. 6). P.W. 6 Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 5 Sheo Bachan Ram of village Ramdihra has not supported the prosecution case and has expressed total ignorance about the occurrence and thereafter he was declared hostile, but in cross- examination he had replied that it was a dark night and there was shout of 'Chor-Chor' and when this witness went to the place of occurrence then he found Rekha Yadava in unconscious condition and he was informed by the persons assembled there that unknown thieves have caused such injury on Rekha Yadava.
5. The defence has not examined any witness. Inquest Report (Ext. 5) mentioned that the deceased prior to his death had received injuries which might be caused by hard and blunt substance.
6. The informant (P.W. 8) has deposed that at about 8 p.m. on 26.10.1982 his brother was killed. On that day he was assaulted but death occurred on 27.10.1982. The occurrence was of 8 p.m. and at that time this witness was at his darwaja where Rekha Yadav (deceased) and his wife (P.W. 4) were present. It was moonlit night. The presence of Jai Ram Yadav (P.W. 7) and Sheo Bachan Ram (P.W. 6) has been claimed by the informant. He has described the occurrence that at that very Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 6 time Jawahir Yadava and Hira Yadava came having lathi which had a metal bottom. Soon thereafter they started abusing the informant and Rekha Yadav, upon this informant's bhabhi (P.W. 4) put the informant and Rekha Yadav inside the house but Jawahir Yadava and Hira Yadav entered there and they wanted to assault upon which Rekha Yadav went outside but he was chased and assaulted upon temporal region. On account of impact of assault Rekha Yadav fell down and became unconscious. Informant's bhabhi (P.W. 4) was also assaulted. Villagers came and the injured was taken to Government Hospital Tilauthu. Doctor advised Rekha Yadav to be carried to another hospital for treatment and then Rekha Yadav was brought to Bose Clinic at Dehri where treatment was given. At that very place i.e. at Bose Clinic Dehri the ASI came and recorded Fard Beyan which was witnessed by Mundrika Yadav (not examined) and Ram Bachan Yadav (P.W. 3). The informant's brother died in that clinic and the dead body was sent for post mortem. The evidence of informant is that accused person entered inside the house but Rekha Yadav came out from the house and was assaulted in the lane. The informant's version which has been given in the fard beyan is initial version of the occurrence Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 7 and according to it both the accused, namely, the appellants entered inside the house through darwaja and there indiscriminate assault was made. The place of occurrence according to informant's fard beyan is inside the house but according to his evidence it is Gali. Therefore the informant has described two places of occurrence. The other witness P. W. 4 is a lady witness and she has described the manner of occurrence. Later on the prosecution has developed its case saying that one Katawaru Yadav also participated in the occurrence. Other development has been disbelieved by the Court and so Katawaru Yadav has not been sentenced. Identical allegations have been leveled against these appellants and Katawaru and it has been stated that all the three have assaulted.
7. Informant has named P.W. 6 as a witness of the occurrence. P. W. 6 in his evidence has not supported the case and he has declined that he has seen any part of the occurrence rather he has stated that it was a dark night. Informant has named Jai Ram Yadav also a witness of the occurrence. Jai Ram Yadav has been examined as P. W. 7. He has stated that after hearing commotion he went to the place of occurrence and saw Rekha Yadav unconscious. He has brought the injured to Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 8 the hospital. According to the deposition of informant two persons P. W. 6 and P. W. 7 have been stated to be witness of the occurrence but they have not supported the informant's version that they have witnessed the occurrence. P. W. 1 has supported the prosecution case. Therefore, the informant's version has been contradicted with regard to time or manner of occurrence by the witnesses who have been named by none else but the informant himself. The place of occurrence has become two. According to informant in the Fard Beyan (Ext. 2) the informant (P.W. 8) is specific that it is inside the house but his evidence excludes the version of his fard beyan and it creates another place of occurrence i.e. Gali or lane. Definitely these are two different places and there is no evidence that assault was made at both places. In evidence assault was said to be made inside Gali but in the Fard Beyan assault was made inside the house. Other contradictions have been compounded further on account of non- examination of any independent witness of the vicinity. The occurrence is of Gali which is encircled by the house but not even one person of any neighbouring house has come to the court to depose about any part of the occurrence. These Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 9 contradictions get further complicated when the defence has challenged the manner of occurrence saying that assault was made by unknown thieves. Non-establishment of place of occurrence is itself a ground which casts a grave doubt regarding version of occurrence described by the prosecution. In such circumstances, examination of investigating officer which could have detailed the place of occurrence was essential but non- examination of I. O. without any explanation is a very important fact which has to be taken into account. Non-examination of Investigating Officer in the facts and circumstances is most important aspect of the case and non-examination of I. O. has definitely prejudiced the case of the defence as well as the prosecution that the place of occurrence has not been fixed.
8. The definite case of the prosecution is that Rekha Yadav received injuries at 8 P.M. on 26.10.1982 and he was brought to Government Hospital at Tilauthu. The matter was informed to the police. Surprisingly, there is nothing on the record to show that any statement was taken at Tilauthu Government Hospital by any police officer rather the Fard Beyan was recorded on the next date at Bose Clinic, Dehri. Non-taking of any Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 10 statement at Tilauthu Government Hospital is not explained by the prosecution. The doctor who has given any treatment to P. W. 4 and Rekha Yadav (deceased) has not come to support the prosecution case that even first aid treatment or advice was given to Rekha Yadav. Therefore bringing Rekha Yadav to Tilauthu Government Hospital has not been established.
9. Further prosecution case is that after Rekha Yadav was sent for treatment by Doctor at Government Hospital, Tilauthu then he was taken to Bose Clinic at Dehri meaning thereby that he was given treatment also but the doctor who has treated Rekha Yadav and Deomati have not been examined. Therefore, this version of the prosecution that the injured person was treated at Tilauthu has not been established.
10. Not even one witness has stated about the presence of any drop of blood at the place of occurrence. The case of the prosecution is that there was indiscriminate assault which might have caused bleeding but non-presence of even a drop of blood at the place of occurrence creates another doubt in the prosecution version of manner of assault.
11. The fard beyan has been given at 10 Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 11 A.M. on 27.10.1982 at Bose Clinic, Dehri. Chapter XII of the Code of Criminal Procedure prescribes the manner of information to the police and the investigation of the case. Section 157 Cr. P. C. mandates that if the information regarding the commission of an offence is received under Section 156 Cr.P.C. then such information has to be transmitted to the Magistrate empowered to take cognizance 'forthwith'. Section 157 casts a duty upon the Investigating Officer to 'forthwith' send the report of cognizable offence to the concerned Magistrate. The purpose for forthwith sending the report to the Magistrate is to keep the concerned Magistrate aware of the investigation of a cognizable offence so that he may be able to control the investigation and if required, necessary direction can be issued. Mere delay in sending FIR to the Court itself is not enough to discredit the prosecution version of truthfulness of the occurrence but if the delay is of such magnitude, it may create doubt. Then it becomes imperative for the prosecution to say to what has compelled it of not sending police report to the Court forthwith. If this is not brought on record, then it can be said that the correct picture has been withheld. If this proposition is read and Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 12 applied in this case then it is apparent that FIR was registered on 27.10.1982 under Section 452/307 I.P.C. By that time this Fard Beyan was sent to the Court the injured has died. That fact is not in the Fard Beyan. Therefore, the delay has not been explained in the present case.
12. Post mortem report has been formally brought on record.
13. To sum up, it is apparent that for the occurrence of 26.10.1982 the Fard Beyan recorded on 27.10.1982 has been received by the Court on 5.11.1982, the doctor(s) at Tilauthu Government Hospital and Bose Clinic at Dehri have not been examined, I. O. has not been examined, no blood was found at either of the places of occurrence, no independent witness has been examined, the witnesses cited and named by the informant have not supported the prosecution case and non-examination of Investigating Officer are fatal blow upon the prosecution version of narration of the occurrence. These are enough to discredit the prosecution version.
14. In the result, the judgment of conviction and order of sentence is set aside and the appeal is allowed. The appellants are acquitted and they are discharged from the Patna High Court CR. APP (DB) No.328 of 1989 dt.05-01-2012 13 liability of their respective bail bonds.
15. Let a copy of first and last page of the judgment be given to learned Amicus Curiae for the needful.
(Shyam Kishore Sharma, J.) Patna High Court, Patna Dated the 5th of January, 2012 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)