Jharkhand High Court
Kedar Yadav And Anr. vs State Of Jharkhand on 15 September, 2005
Equivalent citations: [2006(3)JCR195(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, Amareshwar Sahay
ORDER S.J. Mukhopadhaya, A.C.J. 1. Both the appellants, named above, have preferred this appeal against the judgment and order of conviction and sentence both dated 31st January, 2001, passed by the learned Session Judge, Dumka (Santhal Parganas), in Sessions Case No. 215 of 1995, arising out of Jamtara (Mihijam) P.S. Case No. 106 of 1993, corresponding to G.R. No. 210 of 1993, whereby and whereunder, both of them have been convicted for the offence under Section 302/34 of the Indian Penal Code as also 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and rigorous imprisonment for five years for the offence under Section 27 of the Arms Act. However, both the sentences have been directed to run concurrently. 2. The case of the prosecution, which is based on the fardbeyon (Ext. 6) of the informant Hira Lal Yadav (PW 6), lodged on 17th May, 1993 at 15.25 hours, is that on the same date in the after-noon at about 1.00 p.m. he (informant) returned from Jamtara Court and met his elder brother Sita Ram Yadav (deceased) at Janta Dal Office, Mihijam, and started talking with him. While talking, his brother (deceased) slept on the bench of the Party Office, having his head of the eastern side. At that time, the informant started reading newspaper, sitting on a chair inside the party Office. After sometime, Sir Shankar Yadav of Krishna Nagar Mohalla reached the Party Office, came near him and started talking. After the talk was over, he again started reading newspaper and said Shankar Yadav was sitting near him. At about 3.10 p.m. one Rajdoot Motorcycle came from Jamtara side, on which accused Naresh Yadav and Kedar Yadav were sitting and Kameshwar Yadav was driving the motorcycle. They stopped the motorcycle and Naresh Yadav and Kedar Yadav came in the Party Office and Kedar Yadav shot at his elder brother Sita Ram Yadav, followed by Naresh Yadav, who also shot at him, but the informant could not seen whether the said bulled actually hit or not. According to the informant, be and other person became stunt. The accused immediately fled away towards Chitranjan Station on the Motorcycle, which was in running condition. Immediately, he rushed towards his brother and saw the blood oozing out of his left ear and he was dead. It was further informed that though the market was closed because of Monday Closure, immediately on hearing the sound of firing, Babloo Kundu (PW-8), Nageshwar Prasad (PW-5), Basudeo Sharma (PW 3) and others rushed there from nearby. According to the informant, there is an old enmity in between Suresh Yadav and Bideshl Yadav, which further aggravated as the evidence were given against Suresh 'Yadav, who is an accused in Mihijam P.S. Case No. 56 of 1992. The informant has further stated that the accused are full brother and relative of said Suresh Yadav and that the accused persons had earlier threatened him (informant) that they will eliminate his family. He has further stated that some criminal from outside were roaming around his house for last two days with some ulterior motive and were staying in the house of Ganesh Yadav and they have killed his brother due to old enmity. On the basis of the aforesaid fardbeyan (Ext. 6) formal First Information Report was drawn up on 17th May, 1993 at 3.25 p.m. and Jamtara (Mihijam) P.S. Case No. 106 of 1993 was registered for the offence under Section 302/34 of the Indian Penal Code as also 27 of the Arms Act against the named accused persons. After investigation, charge-sheet was submitted against the appellants and others for the offence under Section 302/34 of the Indian penal Code and 27 of the Arms Act. Thereafter, charges were framed, which were read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution has produced altogether eleven witnesses. PW-1 Shankar Yadav, PW-2 Karu Yadav and PW-8 Bablu Kundu have been declared hostile at the instance of the prosecution. PW-3 Basudeo Sharma, PW-5 Nageshwar Prasad and PW-6 Hira Lal Yadav (informant and brother of the deceased) are the eye witnesses, who have supported the case of the prosecution. PW 4 Dr. Lalit Kumar Lal has held post-mortem examination on the person of the deceased, PW-9 Balram Prasad is the first Investigating Officer, who has recorded the fardbeyan (Ext. 6), while posted during the period of occurrence at Mihijam Police Station. PW-7 Girindra Prasad Mishra is the another Investigating Officer, who took charge of investigation on 21th April, 1994, PW-10 Ramdeo Prasad, Sub- Inspector of Police, is a formal witness whereas PW-11 Atul Kumar Srivastava, Judicial Magistrate, is the witness, who has recorded the statement under Section 164 of the Code of Criminal Procedure of Basudeo Sharma (PW-3), Nageshwar Prasad (PW5) and hostile witness Bablu Kundu (PW-8). 4. PW-4 Dr. Lalit Kumar Lal, Medical Officer, has conducted the post-mortem examination on the dead body of deceased Sitaram Yadav in the evening of 17th May, 1993 and found the following ante-mortem injuries on his person: (i) An oblique lacerated wound with inverted margin measuring 1-1/2" x 1/2" x bone deep on left temporal area of the, skull near upper part of the left ear pinna with scorching and tattooing around the margin. This is wound of entry. (ii) Upper half of the left ear pinna lacerated. On opening skull fracture of left temporal bone with abscess of bona pieces was found measuring 1-1/4" x 1/2" with corresponding laceration of overlying scalp. Extensive lacerations of brain on left temporal area and right temporo-occipital area. One 1-1/4" long bullet was found in right temporo-occipital brain matter. There was no wound of exit. 5. PW-4 has stated that 1-1/4" long bullet was recovered from injury No. 1, which was duly sealed and signed by him. The time elapsed since death was, within six hours. The cause of death, in his opinion, was shock and hemorrhage, due to intra-cranial injury as a result of fire arm bullet Injury. He has also informed that the bullet which was taken out of the body of the deceased, was sealed and handed over along with the Post Mortem Report to the dealing clerk of the office of the Hospital. In his cross-examination, this witness has stated that the side from where the bullet was recovered and the side of injury No. (ii) were horizontal i.e. on the same level. In his opinion, the bullet, causing injury No. 1, had been fired from horizontal direction. But if the body is lying, the direction would be at the vertical level. It was further opined that the bullet had been fired from a close range of 3 feet. 6. PW-3 Basudeo Sharma is a retired Railway employee. According to him, on the day of occurrence when he was going from his house to get his bicycle repaired. The moment he reached near the office of Janta Dal, he saw that one Rajdoot Motorcycle arrived near the office and. thereafter, accused Kedar and Naresh got down. Kedar Yadav went near the bench on which Sitaram Yadav was sleeping and fired at his left kanpattt (temporal region) from a close range. In his deposition, he has further stated that accused Kameshwar was sitting on the bike and when he reached near the motorcycle, two accused persons, namely, Kedar and Naresh, threatened him not to move forward otherwise he would be killed and thereafter, fled away towards Station. When he reached near the deceased Sitaram Yadav, he found the blood oozing out of his left kanpatti (temporal region) and was dead. He has further stated that on 15th May, 1993 when he had gone to Janta Dal Office, he was informed by the deceased Sitaram Yadav that some miscreants are behind his life and are staying with accused Ganesh Yadav and PW-3 had informed the matter to the police. He (PW-3) has proved the petition, which was in the hand-writing of one Md. Aslam but was signed by the deceased Sitaram Yadav (Ext. 1) PW-3 has identified all the accused persons, but admitted that he was not in a position to recognize the 4th accused Ganesh Yadav. In the lengthy cross-examination, while he stood to the test, stated that although he is not a member of Janta Dal, he knows Sitaram as well as Naresh. According to him, the place of occurrence was verandah of Janta Dal office, having an area of 25' in length and 10' in width, where kutti (fodder), kutti cutting machine were kept. In his deposition, he has described the place of occurrence as the office of Janta Dal, including the verandah on which the dead body was lying. Back portion inside the office was used for residential purposes by the deceased Sitaram Yadav. He has further stated that the informant Hiralal Yadav used to live at khatal whereas deceased Sitaram Yadav used to live in the Janta Dal Office. He has further stated that when heard the sound of firing, he went near the deceased and by that time the informant and PW-1 had already reached there. 7. According to the learned Counsel for the appellants, PW-3 is an interested witness, as he was working with the brother of the deceased and, as such, he can at best be stated to be a chance witness and thereby, requested not to use his evidence against the defence. However, such submission cannot be accepted, there being corroborative evidence, both ocular and medical, on the record. 8. PW-5 Nageshwar Prasad is also an independent witness. He is also a witness on the inquest report (Ext. 3), signed by him. He has stated that on the day of occurrence he was going to meet Hiralal Yadav at Janta Dal Office, when he saw that one black motorcycle, driven by Kameshwar Yadav, stopped near the office. Naresh Yadav and Kedar Yadav were sitting on the pillion seat. He has further stated that when he reached the office, he saw Kedar Yadav firing at Sitaram Yadav and then fled away on the motorcycle. He was also threatened by the accused and was told that he will be killed if he discloses their names to any person. He has further stated that the inquest report (Ext. 3) was prepared in his presence on which he put his signature. He has further stated that one sheet of paper, having photograph of Mr. Ram Bilas Paswan on the back, was recovered by the police in his presence on which he signed as a witness, which has been marked as Ext. 4. 9. This witness PW-5 has been cross-examined at length. In his cross-examination, he has admitted that the informant was known to him since 1993 and deceased Sitaram Yadav was also known to him. He has further admitted that his brother was murdered, in which Suresh Yadav was made an accused. He has further admitted that he along with Hiralal Yadav, Bablu Kundu etc. were made accused in a murder case. But he asserted that he was falsely implicated in two/three cases. He has also stated that he was not a member of Janta Dal but he used to visit the office. He has further stated that no blood was found on the ground. 10. Learned Counsel for the appellants has raised serious doubt with regard to presence of PW-5 at the time of occurrence. He also raised doubt with regard to the place of occurrence. But mere raising a doubt can not be a ground to discard the statement of this eye witness, who has given details of the accused persons about their reaching at the place of occurrence, the manner in which murder was committed and the manner in which the accused persons fled away, which is also corroborated by the fardbeyan (Ext. 6) of the informant (PW-6) as also the statement of other witness, namely, Basudeo Sharma (PW-3). 11. PW-6 Hira Lal Yadav, informant of the case, is the other eye witness of the alleged occurrence. In his farddeyan (Ext. 6) he has taken names of Nageshwar Prasad (PW-5) and Basudeo Sharma (PW-3) as eye witnesses of the incident. He has reiterated the statement, as was made in the fardbeyan (Ext. 6). He has stated that in the afternoon of 17th May, 1993, he returned from Jamtara Court and met his brother deceased Sitaram Yadav at Janta Dal Office, situated at Jamtara-Mihijam main Road. Both of them talked for some time and thereafter, his brother Sitaram Yadav (deceased) slept on a bench of the office in the verandah, having his head towards eastern side. The informant went inside the office room where he started reading newspaper. After sometime, Shankar Yadav came there and sat along with him. At about 3.10 p.m. accused Naresh Yadav came there and sat along with him. At about 3.10 p.m. accused Naresh Yadav and Kedar Yadav reached on a Rajdoot Motorcycle, driven by Kameshwar Yadav, Naresh Yadav and Kedar Yadav got down from the motorcycle while Kameshwar Yadav remained on the motorcycle, which was kept in starting position. The informant has further alleged that both Naresh Yadav and Kedar Yadav went to the verandah, where Sitaram Yadav was sleeping and fired upon him with country made pistol. Kedar Yadav brought the pistol near temporal region and fired, resulting his instantaneous death. He has further stated that Naresh Yedav also fired at Sitaram Yadav. but it did not hit him. The accused persons, thereafter, fled away on the said motorcycle, which was in starting condition, driven by Kameshwar Yadav. 12. PW-9 Balram Prasad, Investigating Officer, who has recorded the fardbeyan (Ext. 6) of the informant, has proved it (Ext. 6), supported the case of the prosecution and made an endorsement for registration of the case (Ext. 7). He has proved the formal First Information Report. He has stated that he visited the place of occurrence, as described vide paragraph No. 1 of his statement. He prepared the inquest report (Ext. 3) in presence of PW-5 and PW-8 and proved the poster, bearing photograph of Mr. Ram Bilas Paswan, on the back of which the name of the deceased was written. He has stated that some non- cognizable case were pending between the parties, such as, Non-FIR No. 43 of 1993, Non-FIR No. 16 of 1993 and Non-FIR No. 6 of 1993 and Non-FIR No. 19 of 1993. He was cross-examined at length by the defence in which he has admitted that when he reached at the place of occurrence, he found the dead body lying on the verandah, which had no door. He has further admitted that no person, sitting inside the office, beyond the door, can see outside. He has admitted that he had not collected any blood from Chowki but has stated that he collected the blood stained pillow. The said blood stained pillow and sealed bullet were returned back to him from the Hospital but were not sent to the Forensic Science Laboratory for further examination. 13. PW-11 Atul Srivastava, Judicial Magistrate, has state that he recorded the statement of Basudeo Sharma (PW-3) and Nageshwar Prasad (PW-5) under Section 164 of the Code of Criminal Procedure, besides the hostile witness Bablu Kundu (PW-8). Nageshwar Prasad (PW 5) is an independent eye witness, whose statement is being corroborated by the fardbeyan (Ext. 6) as also from the medical evidence. PW-6 Hira Lal Yadav (informant) may be the brother of the deceased, but no ground has been shown to discard his evidence, who is an eye witness and whose version is being corroborated by the statements of other witnesses and the fardbeyan Even if it is accepted that Ext. 1 can not be relied upon, there being some contradictory statement, made by PW-6 (informant) and the other witnesses, the medical evidence, if read along with the evidence of PW-3 Basudeo Sharma and PW-5 Nageshwar prasad, there is no scope to discard such statement. The suggestion made by the learned Counsel for the appellants that there is a dispute with regard to the place of occurrence can not be accepted, as apart from the informant Hira Lal Yadav (PW-6), PW-5 Nageshwar Prasad has also given the details, relating to place of occurrence, which is also being corroborated by the description, as made by the Investigating Officer Balram Prasad (PW-9). Though no blood was found on the ground, as was accepted by the Investigating Officer, evidence has come on record that the blood stained pillow was recovered. The eye witnesses i.e. PW-3. PW-5 and PW-6 have given vivid description of only one shot of bullet, which also stands corroborated by the medical evidence of PW-4 Dr. Lalit Kumar Lal. 14. Having appreciated the aforesaid evidence on record, the learned Trial Court came to a definite conclusion that the prosecution has been able to prove the charges under Section 302/34 of the Indian penal Code as also 27 of the Arms Act regarding the murder of Sitaram Yadav against accused the appellants beyond all reasonable doubts. On appreciation of the evidence, I also find no ground to be made out to differ with the findings, recorded by the learned Trial Court and being fully in agreement with the aforesaid finding, I hold the appellants guilty of the offence under Section 302/34 of the Indian Penal Code as also 27 of the Arms Act for committing murder of the deceased Sitaram Yadav, which has been proved beyond all shadow of reasonable doubts. In the result, there being no merit, the appeal is hereby dismissed. The bail bond of appellant No. 2, namely, Naresh Yadav, who is on bail, stands cancelled and he is directed to be taken into custody forthwith for serving the sentence. Amareshwar Sahay, J.
15. I agree.