Patna High Court
Sudama Yadav vs State Of Bihar on 13 September, 2019
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.113 of 1995
======================================================
Sudama Yadav son of Late Balkeshwar Yadav, resident of village-
Hussainabad, P.S- Obra, Dist- Aurangabad
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Surya Nilambary, Amicus Curaie
For the Respondent/s : Mr. Scheta Yadav
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA)
Date : 13 -09-2019
The above stated sole appellant has been convicted for the
offence punishable under Section 302 of the Indian Penal Code and
Section 27 of the Arms Act and, accordingly, he has been sentenced to
undergo life imprisonment for the offence punishable under Section 302
of the Indian Penal Code and to undergo rigorous imprisonment for seven
years for the offence punishable under Section 27 of the Arms Act. Both
the above stated sentences were ordered to run concurrently.
2. However, the appellant was acquitted from the charge framed
under Section 148 of the Indian Penal Code and so far as the charge
framed against the appellant for the offence punishable under Section 302
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019
2/31
read with Section 149 of the Indian Penal Code is concerned, the same
was treated by the trial court as redundant.
3. It is pertinent to note here that, altogether, 16 persons
including appellant Sudama Yadav faced trial before the learned 1 st
Additional Sessions Judge, Aurangabad (hereinafter referred to as trial
court) in Sessions Trial No. 68/89/04/94 and by the impugned judgment of
conviction dated 07.04.1995 and sentence order dated 10.04.1995, the
appellant was convicted and sentenced in the manner as stated above.
However, the other accused were acquitted from the charges framed
against them under various heads.
4. Briefly stated prosecution case is that on 12.09.1988 at 9.30
hours, informant Harihar Yadav (now dead) gave his fardbeyan before the
officer in-charge of Obra Police Station in presence of Ramswaroop
Yadav (PW-2), Maharaj Yadav (PW-9) at Obra Police Station to this effect
that on the same day at about 6.00 a.m., his son Rajendra Yadav along
with villagers Maharaj Yadav (PW-9), Ramraj Singh (PW-6), Prabodh
Yadav (PW-7) and Munarik Yadav (not examined) went to the bank of
Adri Canal towards west of the village Husainabad to graze their she-
buffaloes. The above stated Harihar Yadav, further stated, that he had gone
near the aforesaid canal to attend the call of nature and saw that Sehdev
Yadav having armed with lathi came there and asked Rajendera Yadav and
others not to graze their she- buffaloes near the said canal. Informant
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019
3/31
further claimed that other FIR named accused including appellant having
armed with various weapons also came there following Sahdeo Yadav
along with deceased Rajender Yadav. He further claimed that Sahdeo
Yadav ordered the others to assault Rajendra Yadav and others and on the
instigation of Sahdeo Yadav, appellant Sudama Yadav fired of his gun
which hit at right eye of Rajendra Yadav and, thereafter, Ramashish Yadav
fired of his gun which hit on left side of the back of Ramswroop Yadav
(PW-2). Informant further claimed that FIR named accused Rameshwar
Yadav, too, fired causing injury on the left hand of Maharaj Yadav (PW-9).
He further claimed that FIR named accused Sheoshran Yadav gave lathi
below causing injury on the head of Maharaj Yadav (PW-9) whereas
above stated Sheoshran Yadav and Ramprasad Yadav assaulted him by
means of lathi. Informant further claimed that the FIR named accused
persons including appellant pressed the body of Rajendra Yadav by their
feet when he fell down after sustaining firearm injury. The informant
further claimed that he as well as others retreated and when the FIR
named accused persons including appellant left the place of occurrence, he
as well as others went near Rajendra Yadav and took him for treatment but
while he was being carried to Obra for treatment, deceased Rajendra
Yadav died on his way.
5. On the basis of fardbeyan of Harihar Yadav, Obra P. S. Case
No. 123 of 1988 was registered on the same day and, accordingly, formal
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019
4/31
FIR was drawn up against the appellant and others for the offences
punishable under Section 302 and other minor sections of the Indian Penal
Code as well as Section 27 of the Arms Act.
6. PW-15 Hriday Narayan Singh, the then, officer in charge of
Obra police station, took charge of investigation and in course of
investigation, he recorded the statement of Harihar Yadav and statement of
other witnesses. He sent the injureds for medical examination. He
prepared inquest report, inspected the place of occurrence, seized blood
stained earth but before completion of investigation, he was transferred to
another place and, accordingly, he handed over the charge of investigation
to other police official who, subsequently, submitted charge-sheet against
the appellant and others.
7. The cognizance of the offence was taken and the appellant
along with 15 others was put on trial before the learned trial court. The
appellant stood separately charged for the offences punishable under
Section 302 of the Indian Penal Code and 27 of the Arms Act and jointly
with others for the offence punishable under Section 148, 302/149 of the
Indian Penal Code. The appellant denied the charges and claimed to be
tried.
8. In course of trial, prosecution examined, altogether, 15
prosecution witnesses and also got exhibited certain documents including
postmortem report as documentary evidence. The statements of appellant
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019
5/31
and others were recorded under Section 313 of the Cr. P. C and a specific
question was asked from the appellant that he had opened fire of his
country made gun causing injury on the right eye of deceased Rajendra
Yadav with intention to commit his murder when she- buffaloes of
deceased Rajendra Yadav and others damaged the paddy crop of Sahdeo
Yadav and Sahdeo Yadav raised objection which resulted into scuffle and
in that course firing was made resulting death of Rajendra Yadav. The
appellant denied and claimed his false implication.
9. The defence also examined four defence witnesses and got
exhibited Exhibit A series, the requisitions issued by PW-15 in respect of
injuries of Sahdeo Yadav, Ram Prasad Yadav, Mukhdeo Yadav, Exhibit B
series, the injury reports of Sahdeo Yadav, Ram Prasad Yadav and
Mukhdeo Yadav, Exhibit C series, the fardbeyan and formal FIR of Obera
P. S. Case No. 124 of 1989.
10. From perusal of documents adduced on behalf of the
defence as well as statements of the appellant and other accused persons
recorded under Section 313 of the Cr. P. C, it appears that the defence of
the appellant and others was that the prosecution party had attacked them
and in that course, the appellant while exercising his right of private
defence with an object to save his property as well as life of Sahdeo
Yadav opened fire, which, unfortunately, caused the death of deceased
Rajendera Yadav.
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019
6/31
11. The learned trial court after evaluating the evidences
available on the record came to the conclusion that the appellant had
exceeded his right of private defence causing death of the deceased and,
accordingly, convicted and sentenced the appellant whereas acquitted the
other accused persons passing impugned judgment which is under
challenge in this criminal appeal.
12. Learned amicus curiae, Miss Suriya Nilambari, advocate
appearing for the appellant, challenged the impugned judgment of
conviction and sentence order dated 07.04.1995, and order dated
10.4.1993respectively arguing that the learned trial court misconstrued Section 96 and other relevant provisions of Indian Penal Code and committed error in holding that the appellant exceeded his right of private defence. She, further, submitted that the defence brought Exhibit - B series to show that on the alleged date of occurrence, it was members of prosecution party, who were aggressor and assaulted Sahdeo Yadav, Ram Prasad Yadav and Mukhdeo Yadav when Sahdeo Yadav tried to stop the members of prosecution party from grazing their cattles in field of Sahdeo Yadav as well as appellant. She further submitted that the members of prosecution party badly assaulted the aforesaid Sahdeo Yadav, Ram Prasad Yadav and Mukhdeo Yadav and to save the life of aforesaid injured persons as well as their property, the appellant opened fire and, therefore, the appellant was entitled to get the benefit of right of private Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 7/31 defence. She further submitted that, moreover, the prosecution could not succeed to prove its case beyond all shadow of reasonable doubt because the so called eye witnesses are interested witnesses and they have not come with clean hands as they tried to suppress the real facts and, that is why, they expressed their ignorance regarding the injuries received by Sahdeo Yadav and two others. She further submitted that the learned trial court failed to appreciate the evidences available on the record in right perspective and without any sound reasoning disbelieved the evidences adduced on behalf of the defence, especially, in the circumstance, when Shadeo Yadav sustained grievous injury and lodged Obra P.S.Case No. 124 of 1988 against the informant of the present case as well as others.
13. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that the learned trial court passed a well discussed and well thought judgment. He further submitted that eye witnesses including injureds supported the prosecution story and the medical evidence also corroborated the statements of eye witnesses and, therefore, there is no need to interfere into the impugned judgment of conviction and sentence order.
14. Having heard the contentions of both the parties, I went through the record along with lower court record. As I have already stated that, altogether, 15 prosecution witnesses were examined by the Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 8/31 prosecution in course of trial, out of them PW-2, Ramswaroop Yadav, PW- 3, Chanardhan Yadav, PW-5, Ram Prit Yadav, PW-6, Ram Raj Yadav PW- 7, Prabodh Yadav, PW-8,Balindar Yadav and PW-9, Mahraj Yadav claimed themselves to be eye witness of the alleged occurrence. PW-1, Vishwanath Prasad, PW-4, Sita Ram Yadav, PW-11,Ansar Ahmad, PW-13, Giriraj Yadav and PW-14, Mohan Pathak are formal witnesses and they had proved some documents. PW-10, Dr. Vijay Kumar Gupta claimed to have examined PW-2 Ram Swaroop Yadav, PW-9,Maharaj Yadav and Harihar Yadav( Informant) on 12.09.1988 and proved their respective injury reports. Similarly, Vijay Kumar Gupta (PW-10) claimed that on 12.09.1988 he conducted postmortem examination on the dead body of the deceased Rajendra Yadav and this witness proved the postmortem report of the deceased Rajendra Yadav. PW-15 Hirdya Narayan Singh is Investigating Officer of the present case.
15. PW-2, Ramswaroop Yadav claims himself to be injured witness and further claims that on the alleged date of occurrence, he had gone towards canal to attend the call of nature. This witness, further, claims that PW-6 Ram Raj Yadav, PW-9 Maharaj Yadav, PW-7, Prabodh Yadav and Munarik Yadav( not examined) as well as Rajendra Yadav(deceased) were going towards west side of canal with their she- buffaloes. He ,further, claims that the appellant Sudama Yadav and Ramashish Yadav armed with gun and Rameshwar Yadav and Sheosharan Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 9/31 Yadav armed with pistol as well as Sahdeo Yadav, Chitan Yadav, Ramshishun Yadav, Hriday Yadav, Radhunandan Yadav, Mukhdev Yadav, Shital Yadav, Ram Vilas Yadav, Budhan Yadav, Devnandan Yadav Krishna Yadav armed with lathi came there and started stopping she-buffaloes of the aforesaid persons are seing them, Rajendra Yadav, Ram Prit Yadav, Giriraj Yadav and Balendra Yadav came near their respective she- buffaloes and deceased Rajendra Yadav raised objection upon which Shadeo Yadav ordered the others to assault him and, thereafter, appellant Sudama Yadav opened fire of his gun on deceased Rajendra Yadav which hit at his right eye, as a result of which deceased Rajendra Yadav having sustained firearm injury fell down there and, thereafter, Shiv Shanker Yadav fired of his pistol causing firearm injury on the right hand of deceased. This witness, further, claims that he as well as others went to pick up the deceased Rajendra Yadav but Ramashish Yadav opened fire of his gun which hit on the left side of his back. He further claims that Rameshwar Yadav fired of his pistol which hit to Maharaj Yadav and Ramsharan Yadav gave lathi blow on the head of Maharaj Yadav, as a result of which, Maharaj Yadav sustained injury on his forehead. Furthermore, Ramsharan Yadav assaulted Harihar Yadav by means of lathi as a result of which Harihar Yadav sustained injury on his right hand. Furthermore, Ram Prasad Yadav assaulted Harihar Yadav by lathi causing injury on his head. Similarly, Shadeo Yadav and all the above Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 10/31 stated F.I.R named accused including appellant started assaulting Rajendra Yadav by means of lathi and also climbed on his body and started pressing his body. This witness further stated that after the occurrence assailants left the place of occurrence and, thereafter, deceased Rajendra Yadav was taken to hospital on a cot but deceased Rajendra Yadav died on his way and, thereafter, his father Harihar Yadav went to police station and lodged the case. This witness further claims that he was referred to hospital where his treatment was done.
16. The perusal of examination -in-chief of this witness goes to show that this witness claims himself to be eye witness as well as injured and, specifically, stated that he sustained firearm injury in the alleged occurrence. This witness was cross-examined by the defence and admitted at Para-5 of his cross-examination that Shadeo Yadav had lodged a criminal case against him, his father as well as others for the occurrence of the same day. This witness admitted that Mukhdev Yadav, Ram Prasad Yadav and Sahdeo Yadav were admitted in the hospital in injured condition on the alleged date of occurrence in the same hospital in which this witness was admitted. However, this witness expressed his ignorance to say, as to how, Sahdeo Yadav, Mukhdev Yadav and Ram Prasad Yadav sustained injury. This witness, further, admitted in his cross examination that deceased Rajendra Yadav was alone while he was taking his she- buffaloes but five members of his family were present at the place of Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 11/31 occurrence where she-buffaloes were going to graze. Furthermore, this witness admitted that near the aforesaid canal the aforesaid persons were grazing their she-buffaloes but they were not stopped by the appellant as well as his associates from grazing the she-buffaloes. The attention of this witness was drawn towards his previous statement recorded under section 161 of the Cr.P.C at Para-9 of his cross-examination. This witness further admitted at Para-11 of his cross examination that the aforesaid canal was situated at the distance of 1.50 Gaj from his house and there were paddy fields on both the banks of the aforesaid canal. This witness also admitted that towards south side of the aforesaid canal, there was paddy field of Sahdeo Yadav adjacent east of Paddy field of Sudama Yadav. This witness further claims that all the she- buffaloes were grazing towards south side of the bridge of the canal. This witness further admitted that accused Sahdeo Yadav asked the shepherd not to take their she-buffaloes on canal. This witness further admitted that Sahdeo Yadav and others tried to stop the she-buffaloes for near about 10 minutes. This witness further admitted that when Sahdeo Yadav and his associates started stopping the she- buffaloes from going towards canal, deceased Rajendra Yadav made protest and shepherd did not take any step to turn their she-buffaloes and, in the meantime, scuffle started between them and firing was made. This witness, further, stated that scuffle took place on the road and there was field near the place of occurrence.
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 12/31
17. PW-3, Chanardhan Yadav also claims himself to be eye witness of the alleged occurrence. This witness states that on the call of nature, he went towards canal and saw the injureds and others taking their respective she- buffaloes towards west side. He further claims that the appellant Sudama Yadav armed with country made gun and others also having gun, lathi and pistol came there and Sahdeo Yadav asked the deceased Rajendra Yadav to move his buffaloes but the deceased Rajendra Yadav made protest, thereafter, Sahdeo Yadav ordered the others and the appellant Sudama Yadav shot fire of his gun which hit on the right eye of the deceased Rajendra Yadav and, thereafter, when Ramswaroop Yadav( PW-2) went to pick up the deceased Rajenda Yadav, Ramashish Yadav opened fire of his gun which hit on left shoulder of Ramswaroop Yadav. This witness further claims that Shiv Sharan Yadav shot fire on the right shoulder of the deceased Rajendra Yadav. This witness further claims that Ramasharya Yadav shot fire causing firearm injury to Maharaj Yadav and, furthermore, Ramsharan Yadav gave lathi blow causing head injury to the Harihar Yadav and, similarly, Ram Prasad also assaulted Harihar Yadav by means of lathi. This witness also claims that Rajendra Yadav died on his way while he was taking to the hospital and then Harihar Yadav, Mahraj Yadav and Ramswaroop Yadav were went to the hospital.
18. On being cross-examined by the defence, this witness stated that when Rajendra Yadav fell down on the ground, accused persons Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 13/31 assaulted him by their respective weapons. At Para-5 of his cross- examination, this witness admitted that the accused persons lodged counter case, for the offence of the same day and in the said counter case Kamta Yadav, who happens to be brother of deceased Rajendra Yadav, was an accused. This witness stated that there were near about 15 persons , who were grazing their cattles, and all the aforesaid persons were agnates. The attention of this witness was drawn to his previous statement recorded under section 161 of the Cr.P.C and this witness claimed that he had made statement before the police in the manner as he has stated before the trial court. This witness admitted at Para-10 of his cross-examination that the firing was continued for near about 10 to 15 minutes but he remained there along with Shepherd. This witness further admitted at the same paragraph that in spite of having firing none of the Shepherd left the place of occurrence. At Para-11 of his cross-examination again the attention of this witness was drawn towards his previous statement recorded under section 161 of the Cr.P.C and this witness stated that he had not made statement before the police that firing was made from both the sides and having seen the firing, he fled away to his village. This witness also stated that he had not made statement before the police that due to grazing of cattles in paddy field, the scuffle and firing took taken place between the parties. This witness, further, stated that he had not seen any injury on the person of Sahdeo Yadav, Mukhdev Yadav and Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 14/31 Ram Prasad Yadav. He denied the suggestion of the defence that he had claimed before the police to have seen the injury on the person of both the sides. However, PW-15 at Para-21 of his cross-examination stated that PW-3, Chanardhan Yadav, had stated before him that scuffle and firing had taken place between the parties due to grazing of the cattles in paddy fields and persons from both the sides had sustained injuries. This witness further claimed at Para-14 of his cross-examination that firing was made from the distance of near about 20 Gaj.
19. PW-5, Ram Prit Yadav also claims that he had gone towards canal to attend the call of nature and saw the occurrence. He repeated almost similar statement as stated by PW-3 and PW-4. This witness at Para-6 of his cross-examination stated that he had not made statement before the police that scuffle had taken place between both the parties and persons from both the sides sustained injuries. This witness expressed his ignorance regarding the injuries of Sahdeo Yadav and others. However, at Para-9 of his cross-examination, this witness states that the accused persons were assaulting the she-buffaloes by means of lathi. He also admitted that there were 15 she- buffaloes and the accused persons were chasing the she-buffaloes by assaulting with lathi. This witness also stated that the she-buffaloes were being taken towards west side by the shepherds but the accused persons were pushing the she- buffaloes towards east side. However, this witness further stated that shepherds were Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 15/31 not ready to take their she-buffaloes towards east side. This witness also admitted that the shepherds were carrying lathi and Danda. This witness, further, admitted that the accused persons were pushing the she-buffaloes towards east side whereas shepherds were stopping the she- buffaloes from going towards east side and they were pushing she-buffaloes by their lathi towards west side and in the meantime, firing started. This witness stated at Para-11 of his cross-examination that he heard the sound of three firing. This witness further admitted that persons , who were carrying lathi, were brandishing their lathi whereas persons , who were carrying pistol and gun, were making firing of their respective weapons. This witness further admitted that the firing was made from the distance of 50 feet. This witness, further, admitted that persons of both the sides were carrying near about 23 lathis. This witness, too, expressed his ignorance of this fact that Sahdeo Yadav and Mukhdev Yadav had also sustained injuries and were taken to hospital. However, this witness admitted that Sahdeo Yadav had lodged case against him and others for making murderous attack on him. This witness further admitted at Para-15 of his cross-examination that his statement before the police was not recorded. Moreover, this witness denied to have made statement before the police under section 161 of the Cr.P.C.
20. PW-6, Ram Raj Yadav also claims himself to be an eye witness of the alleged occurrence and states that on the alleged date of Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 16/31 occurrence, he was going to see his paddy field and reached near the canal where he saw Rajendra Yadav, Pramod Yadav, Munarik Yadav and Kamta, who were taking their she- buffaloes for grazing towards the canal. He also noticed that the appellant and others came there and at that time appellant was carrying gun in his hand and others were also carrying gun, pistol and lathi in their hands. He further claims that the appellant and his associates started stopping their she-buffaloes which was protested by the deceased Rajendra Yadav but on the instigation of accused Sahdeo Yadav, appellant Sudama Yadav opened fire of his gun which hit to the deceased Rajendra Yadav and, thereafter, Ramashish Yadav opened fire of his gun which hit on the back of PW-2 Ramswaroop Yadav and, similarly, Ramswaroop Yadav opened fire of his gun which hit on the back of Rajendra Yadav. He further claimed that accused Rameshwar Yadav opened fire of his pistol which hit to PW-9, Maharaj Yadav, whereas accused Ram Prasad Yadav assaulted Harihar Yadav by means of lathi and Sheosharan Yadav assaulted PW-9, Maharaj Yadav, by lathi as a result whereof he sustained injury on his head. This witness also claims that the appellant and others climbed on the chest of deceased Rajendra Yadav and pressed his chest. Furthermore, this witness claims that the deceased Rajendra Yadav was being taken to hospital but he died on his way. On being cross-examined by the defence, this witness claimed that he had given statement before the police that at the time of alleged occurrence, he Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 17/31 was going to see his paddy field but PW-15, Investigating Officer at Para- 23 of his cross-examination admitted that PW-6 had not made statement before him that at the time of alleged occurrence, he was going to see his paddy field and had seen the deceased and others who were going towards canal to graze their respective she-buffaloes. Furthermore, this witness denied to have made statement before the police that there was filed of Sahdeo Yadav adjacent to the place where she-buffaloes were grazing but PW-15 admitted at Para-23 of his cross-examination that there was field of Sahdeo Yadav adjacent south where the she-buffaloes were grazing. Again the attention of PW-6 was drawn towards his previous statement and this witness denied to have made statement before the police that Sahdeo Yadav came with lathi and started stopping the she-buffaloes upon which he as well as others made protest and Shadeo Yadav had come alone and when the scuffle started , the others including the appellant came there but PW-15 at Para-23 stated that PW-6 had made statement before him that Shadeo Yadav came with lathi and started pushing the she- buffaloes and after that scuffle took place and, thereafter, the remaining persons including the appellant came there. Furthermore, this witness claimed that he had not made statement before the police that in the alleged occurrence Sahdeo Yadav and his associates had also sustained serious injuries but PW-15 stated that PW-6 had made statement before him that in the occurrence, Shadeo Yadav and his associates had also received serious Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 18/31 injuries. Furthermore, PW-6 claims that he had made statement before the police that Ramswaroop Yadav had sustained firearm injuries on his back but PW-15 stated that PW-6 had not made such statement before him. Again PW-6 claimed that he had made statement that Ramsharan Yadav fired of his pistol which hit on the back of the deceased but PW-15 stated that PW-6 had not made statement before him that Ramsharan Yadav opened fire of his pistol which hit on the back of the deceased Rajendra Yadav. Although PW-6 claimed that he had made statement before PW-15 that Rameshwar Yadav opened fire which hit to Maharaj Yadav but PW- 15 denied the aforesaid claim. PW-6 admitted at Para-9 of his cross- examination that Shadeo Yadav had lodged a criminal case against him and his two brothers as well as others for the occurrence of the same day and in the aforesaid case Sahdeo Yadav claimed that accused of the aforesaid case, had made murderous attack on him and others.
21. PW-7, Prabodh Yadav claims that at the time of alleged occurrence, he along with deceased and others were grazing their she- buffaloes near canal and in the meantime, the appellant being armed with gun and others being armed with various weapons such as gun, pistol, lathi etc came there and Shadeo Yadav stopped him and others from grazing she- buffaloes upon which deceased Rajendra Yadav made protest and, thereafter, on the instigation of Sahdeo Yadav, the appellant opened fire on the deceased, as a result of which, the deceased sustained firearm Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 19/31 injuries at his right eye and, thereafter, others also opened fire on the deceased and the appellant and others climbed on his chest and pressed his chest. He, further claimed that in the occurrence, Ramswaroop and Maharaj Yadav, too, sustained injury either by lathi or by fire. This witness happens to be full brother of PW-6, Ram Raj Yadav, and PW-9, Maharaj Yadav. This witness admitted that his bother had not gone to graze the she- buffaloes rather he had gone alone to graze she- buffaloes. This witness admitted that there was paddy field of Shadeo Yadav where they were grazing their she- buffaloes. This witness admitted at Para-8 of his cross-examination that only Sahdeo Yadav was stopping and pushing the she- buffaloes upon which he as well as others raised objection and started pushing the she- buffaloes towards the place where earlier she- buffaloes were grazing and, in the meantime, appellant Sudama Yadav opened fire which hit on the right eye of the deceased Rajendra Yadav. This witness further stated that Sudama Yadav made fire on the deceased Rajendra Yadav from the distance of 20 feet. This witness further admitted that when Sahdeo Yadav was pushing the she- buffaloes, he as well as others made protest and at that time PW-6 and Pw-9 had not arrived there. This witness, further, claims that he as well as others raised alarm which attracted PW-6, PW-9,PW-4 and others. This witness, further, stated that he had not seen any injury on the person of Sahdeo Yadav, Ram Prasad and Mukhdev Yadav but admitted that Shadeo Yadav lodged a criminal Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 20/31 case against him as well as his brothers for the offence on the same day leveling the allegation of murderous attack on him and others. This witness claimed that he had taken the name of appellant and others before the police but PW-15 admitted in his cross-examination that PW-7 had not taken the name of any person in his statement. PW-7 further claims that he had disclosed before the police as to which weapon was being carried by whom but PW-15 claimed that PW-7 had not made such statement before him.
22. PW-8, Balindra Yadav claims that at the time of alleged occurrence he was sitting on the bridge of the canal and witnessed the occurrence. This witness further claims that deceased and others were grazing their she- buffaloes. In the meantime, the appellant and others came there and Sahdeo Yadav started stopping the she- buffaloes from grazing which was opposed by the deceased and, thereafter, on the instigation of Shadeo Yadav, appellant Sudama Yadav opened fire of his gun which hit at the right eye of the deceased and, thereafter, other accused also opened fire causing injury to the deceased and others and furthermore, they also assaulted the witnesses by means of lathi. On being cross-examined by the defence, this witness stated that when she- buffaloes started turning towards west side near canal, ShadeoYadav asked the shephereds not to take she- buffaloes towards west side but the shephereds did not care the request of Shadeo Yadav and after that scuffle Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 21/31 started between shephereds and Shadeo Yadav. This witness admitted that Shadeo Yadav stopped the she- buffaloes from going towards west side and that was the reason, the occurrence took place . This witness also admitted that there was paddy field of Shadeo Yadav where he was standing . This witness further admitted that Shadeo Yadav was pushing the she- buffaloes but shephereds did not stop the she- buffaloes. This witness although stated that he had not seen any injury on the person of Shadeo Yadav, Ram Prasad, Mukhdev but admitted that for the occurrence of the same day, Shadeo Yadav lodged a criminal case against him and others. The attention of this witness was drawn towards his previous statement and he claimed that he had disclosed before the police as to which weapon was being carried by which person but PW-15 admitted at Para-26 of his cross-examination that PW-7 had not made such statement before him.
23. PW-9, Maharaj Yadav claims that he along with others was grazing the she- buffaloes near canal and in the meantime, the appellant and others came there and on the instigation of Shadeo Yadav, appellant and others started assaulting him and others and in that course appellant Sudama Yadav shot fire on Rajendra Yadav and others. Ramsharan started assaulting him and others with lathi. Ramashish Yadav also opened fire which causing injury to Ramswaroop Yadav. This witness admitted that the she- buffaloes were grazing on the CHAT of the canal. This witness Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 22/31 admitted that Shadeo Yadav had no objection of grazing she- buffaloes at the canal. This witness states that Shadeo Yadav and others came there abusing them and made firing from the distance of 5 Bans. This witness further states that prior to firing made by the appellant, he had heard one sound of firing . This witness admitted in his cross-examination that he had not seen any injury on the person of Shadeo Yadav, Ram Prasad and Mukhdev Yadav and he also expressed his ignorance to know as to whether Shadeo Yadav, Ram Prasad and Mukhdev Yadav had admitted in hospital in unconscious stat but he admitted that Shadeo Yadav lodged a case against him and others for the occurrence of the same day.
24. PW-10 Dr. Binay Kumar Gupta claimed that on 12.09.1988, he had examined Ramswaroop Yadav, Maharaj Yadav and Harihar Yadav and found several injuries on their persons. The injuries found on the above stated person are not disputed by the defence.
25. PW-12, Vijay Kumar Agarwal claimed that on 12.09.1988 he did the post mortem examination on the dead body of Rajendra Yadav and found (i) wound of entry on right orbital cavity crominal cavity deep with complete laceration of the right eye ball and with charring of its margin. (ii) wound of entry on the posterol- lateral aspect of right elbow measuring 1"x ½ "x muscle deep oval in shape, inverted and charred margin. (iii) wound of exist- On lateral aspect of right upper arm at its lower third measuring 1 ½ "x ½ muscle deep with inverted margin on Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 23/31 probing the track was directed obliquely upward between injury no. 2 and
3. On direction on opening the skull the intre-cranial cavity was full of partially clotted blood. On further dissection right frontal and left fronto parietal lobes of brain were found lacerated and one bullet was recovered from left parietal lobes of brain. All the three injuries were caused by fire arms such as gun. Intracranial haemorrhage leading to cardio respiratiratory arrest due to injury no. 1.Moreover, the death of deceased Rajendra Yadav is not in dispute but in cross-examination PW-12 admitted that the injury no. 1 found on the person of deceased Rajendra Yadav can be caused by point blank firing or from close range within 5 or 6 feet. As we have already noted while scrutinizing the evidence of so called eye witnesses that the prosecution witnesses claimed that the firing was made by appellant Sudama Yadav on deceased Rajendra Yadav from the distance of 20 feet but the finding given by PW-12 in respect of injury found on the right eye of deceased makes the claim of prosecution witnesses suspicious.
26. PW- 15, claims that on 12.09.1988 at about 9.30 a.m informant Harihar Yadav along with dead body of his son Rajendra Yadav came at police station and gave his fardbeyan. This witness proved the fardbeyan of informant Harihar Yadav. Admittedly, informant Harihar Yadav was not examined by the prosecution in course of trial as he was not alive at the time of trial. Moreover, the fardbeyan of informant has Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 24/31 been proved by PW-15 and, therefore, none examination of the informant Harihar Yadav does not make any difference in respect of the prosecution case. PW-15 further claims that he recorded the statements of informant as well as statements of PW-9, Maharaj Yadav, PW-2, Ramswaroop Yadav, who had came to the police station along with informant Harihar Yadav. This witness further claimed that he issued requisitions in respect of the injuries of PW-9,PW-2 as well as informant and sent them for treatment. This witness further claimed that he inspected the place of occurrence. This witnesses states that the place of occurrence of the alleged occurrence was situated towards south side of the canal and towards south side, of the canal there was paddy field of accused Shadeo Yadav and towards east side there was paddy field of appellant Sudama Yadav. This witness found that crop of both the fields were crushed by cattles. This witness found copious blood between canal and road. He seized blood from the place of occurrence. In cross-examination, this witness stated that he got information that the accused persons of the case were admitted in private clinic of Dr. Suman Sharma and having got the aforesaid information , he went there and found Mukhdev Yadav, Ram Prasad Yadav and Shadeo Yadav, in injured condition and they were unconscious stat as a result whereof, he could not record the statement of aforesaid persons. This witness also stated that he got the above stated information through D.O letter of concerned doctor. He further admitted that he Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 25/31 prepared injury reports of all the aforesaid three persons had obtained the inury reports of the aforesadi persons. This witness also admitted that on 13.09.1988, he recorded the statement of accused Sahdeo Yadav at State hospital Obera and on the basis of his statement, he registered Obra P.S.Case No. 124 of 1988 and on the same day, he recorded the statement of Ram Prasad Yadav and Mukhdev Yadav but he did not arrest them as the concerned doctor disclosed that they were not in a position to move. This witness further admitted that the informant of counter case claimed that the occurrence took place on account of grazing field by the cattles. This witness, further, admitted that the person from both the sides had sustained injuries. This witness proved requisitions issued by him of the injuries of injured Shadeo Yadav and others as Exhibit -A series as well as injury reports of the aforesaid persons issued by doctor as Exhibit-B series.
27. As I have already stated that the defence also examined four prosecution witness and out of them DW-1, Ram Prasad Yadav and DW-2, Mukhdev Yadav claimed in their respective statements that the members of the of prosecution party were grazing she- buffaloes in the paddy fields of the appellant Sudama Yadav and Shadev Yadav and at that time they were armed with deadly weapons such as lathi, Khanti and when Shadeo Yadav came there and asked them not to damage his crop of the field and started pushing the she- buffaloes from his field, the prosecution Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 26/31 party started scuffling with him and, in the meantime, Harihar Yadav armed with Garasa, Mukhdev Yadav, Ram Prasad Yadav armed with lathi came there and assaulted Shadeo Yadav by means of Garasa and lathi and when they went running to save Shadeo Yadav, they were also assaulted by the aforesaid persons and in the meantime, Balindra Yadav opened fire on them but the aforesaid fire did not hit them rather hit those persons who were assaulting them. Both the aforesaid defence witnesses claimed that having sustained injuries, they became unconscious and after that they were brought to the hospital. DW-3 is a doctor, who proved the injury reports of Sahdeo Yadav And others issued by the doctor Suman Sharma.
28. On perusal of entire evidence of prosecution and defence, it is obvious that the occurrence took place due to grazing she- buffaloes. It is admitted case of the parties that both the parties lodged cases against each others for the occurrence of the same day. It is also obvious that the accused Shadeo Yadav, Mukhdev Yadav and Ram Prasad Yadav had sustained injury in the occurrence of the same day for which Shadeo Yadav had lodged Obera P.S.Case No. 124 of 1988.
29. The minute scrutiny of statements of PW-2, PW-3,PW-5, PW-6,PW-7, PW-8 and PW-9 goes to show that almost all the aforesaid witnesses admitted that accused Shadeo Yadav started stopping the she- buffaloes from grazing near the canal but the deceased as well as his associates were not ready to leave the place which resulted into scuffle. Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 27/31 PW-15 has found that the paddy fields of accused Shadeo Yadav as well as appellant were grazed and crushed by cattles and the blood was found on the above stated paddy fields.
30. Exhibit-B, the certified copy of injury report of accused Shadeo Yadav, goes to show that one sharp cutting injury on the upper part of his scalp which was 3"x ½"x ½ " in external and sharp cutting injury on the right temporal region were found by the doctor and apart from the above stated injuries, swelling on the right shoulder joint and some other injuries were also found on his person by the doctor. Exhibit-B goes to show that, altogether, five injuries were found on the person of the accused Shadeo Yadav and out of the aforesaid five injuries, the injuries found on the scalp and temporal region were caused by sharp cutting weapon and some of the injuries were found grievous in nature. Similarly, Exhibit B/1 goes to show that two sharp cutting injuries on the scalp and one swelling with dislocation of left elbow joint was found on the person of accused Ram swroop Yadav and all the above stated injuries were grievous in nature. Similarly, five injuries were found on the person of Mukhdev Yadav and one of his injuries was found grievous in nature.
31. Section 96 of the Indian Penal Code says that nothing is an offence which is done in the exercise of the right of private defence. Furthermore, section 97 of the Indian Penal Code says that every person has a right, subject to the restrictions contained in section 99, to defend :-
Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 28/31 firstly- His own body, and the body of any other persons, against any offence affecting the human body. Secondly- the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
32. Section 99 of the Indian Penal Code says that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, it done, or attempted to be done, by a public serv ant activity in good faith under colour of his office, though that act, may not be strictly sustainable by law.
33. Section 100 of the Indian Penal Code says that the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-
First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Secondly- such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Thirdly- An assault with the intention of committing rape. Fourthly- An asault with the intention of gratifying unnatural lust. Fifthly- An assault with the Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 29/31 intention of kidnapping or abducting. Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
34. From perusal of the aforesaid provisions of Indian Penal Code it is explicitly clear that every person has a right to defend his own body and property as also body and property of another person and, furthermore, the right cannot be applied as a pretence of justifying aggression for causing harm to another person, nor for causing more harm than is necessary to inflict for the purpose of defence. Furthermore, it is obvious from the above stated provisions that section 100 of the Indian Penal Code justifies the killing of an assailant under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions exercise of the right be of any description enumerated in clauses 1 to 6 of section 100, I.P.C.
35. Admittedly, the learned trial court after scrutinizing the evidence available on the record came to the conclusion that the appellant as well as others done the act in exercise of their right of private defence to protect the paddy crops but the appellant exceeded his right of private defence.
36. In my view, the finding given by the learned trial court in respect of the appellant appears to be erroneous because it has come in evidence that the accused Shadeo Yadav, Ram Swroop Yadav and Mukhdeo Yadav Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 30/31 sustained grievous injury and it has also come in evidence that the accused Shadeo Yadav, was stopping the she- buffaloes of prosecution party from grazing his fields as well as field of appellant but the prosecution party was adamant not to leave the place and, therefore, scuffle took place and in that course, the accused Shadeo Yadav and two other accused sustained grievous injury. The aforesaid fact clearly indicates that the prosecution party was aggressor and in that aggression prosecution party assaulted Shadeo Yadav and others. The aforesaid act of prosecution party might have caused, apprehension in the mind of appellant that accused Shadeo Yadav and two others might be killed and might be received grievous injury at the hands of prosecution party and to protect the life of Shadeo Yadav and two others as well as to protect his as well as paddy crops of Sahdeo Yadav, the appellant opened fire which caused injury to the deceased and, therefore, in the aforesaid circumstance, it cannot be said that the appellant exceeded his right of private defence and in my view, the appellant is also entitled to get the benefit of right of private defence and the learned trial court committed error in convicting the appellant for the offence punishable under section 302 of the Indian Penal Code and 27 of the Arms Act.
37. on the basis of aforesaid discussions, this criminal appeal is allowed and the impugned judgment of conviction and sentence order passed against the appellant are, hereby, set aside and accordingly, the Patna High Court CR. APP (DB) No.113 of 1995 dt.13-09-2019 31/31 appellant is acquitted from the charges, giving benefit of right of private defence to him. The appellant is on bail. He is discharge from the liabilities of his bail bonds.
38. The copy of first and last page of this judgment be handed over to Miss Suriya Nilambari, advocate so that she could make claim for her remuneration before the competent authority.
(Hemant Kumar Srivastava, J) ( Prabhat Kumar Singh, J) N.K/-
AFR/NAFR AFR CAV DATE 04.07.2019 Uploading Date 19.09.2019 Transmission Date 19.09.2019