Jharkhand High Court
Claiming That The Iand In Khata No. 3 At ... vs Nat Ai Ox Fes Oo on 18 December, 2020
IN THE BEGH COURT OF JTLARKUAND AT RANCHES (Criminal Appellate Jurisdiction} Criminal Appeal (DM) No. S66 of 2009 en? of copniclon ¢ fated 20. G4 2009 and ihe ? onde r Of kentence daivd . - . Additional Sessions Statze. Aadernig if . Tulsi Yac Hay, S/o Late Anup Yadav amdeo Yadav, S/o Late Anup Yaday 4. Prabha Yadav, S/o Laie Bandhan Yadav All residents of Village-Chandrapur, BS.-Iai Nagar, District-Koderma .. Appellants Lor eR bersys State of Jharkhand ... Respondent (Heard through VC on O7" & OS" December, 2020) PRESEN. HON BLE MR. JUSTICE SHREN C HANDR: ASHER TAR HON TBLE MR. PUSTICE RATNARER BHENGRA For the Appellants oo: Mr. Bo. Dubey, Advocate Mr. Shashi Kant Thakur, Advacate Por the State > My. Abhay Kum rar Tiwarl, A.RP Por the Informant : Mr. Sandeep Verma, Advocate Bet Sei CUA.Y an GREER 030 Proncausead an (8/13/2070 Per Shree Chandrashekhar On an megan hat Ovelve persons had unlawdully assembled in the Aelds around Khate No.3 at Mouza-Chandrapur and started sraurpit in whick Sona Mahto was kuled ans six persons of his family wore myured, Jaimagar PS. Case No.5 of 2002 was lodged on 20.04.2002 against Tulsi Yodav, Ramdeo Yadav, Prabhu Yadav, Nunu Yadav, Shatraghan Malito, Kabva Desi, Kann Devi, Dhurwa Devi, KRalawath Devi, Daywarti Devi, Sarig Yadav and Nirpat Mahto under sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code (in short, IPC}. The prosecution case as narrated by Jasiya Devi wie of Sona Mahto in the fardbeyan is that Sona Mahto had purchased 4 piece of land from Diic Mahio who is a resident of Jadutanr, PS.-Telsivya, District-Roaderma, Gin 10.04.2002 when Sona Mahto was not at boame the accused persons who are his egofis Gagnates) had "% ae y which is situated at village-Chandrapur and in the 3 RE betes, s 77 ploughed the bat evenmg the informant gave this information to him when he came hack home. Next day morning Sona Mahto, his twe sons . his daughters-in-law and grandson arrived at the Geld te plant sugarcane and at around OS ¢i) AM his wife and fhe daughter-in-law brought breaklast for them. Ia the meantime the accused persons variously armed with deadly weapons and forming an umlawfil assembly cume there and started assaulling Sona Mabto and his family members. Sona Mahto suffered serious injures by sharp cikting weapon and died on the spot Gm vaisine fala Sari Yadav and other villagers rushed to the place of occurrence and saved them from further assaull by the accused persons. They were treated by Dr. Shiv Prasad Mishra who has rendered an opinion that the wounds on Ray mswarup Yadav RYIQVOUS in nature while Shakh' rya Devi and and Dhrupad Yadav were g 'Urmila Devi had suffered simple Sharp cut infuries. De JB. Rey who conducted the pastmoriem examination has found seven incise ad and one lacerated wounds of various dimensions on the dead body of Sona Mahto, in his opinion the cause of death was hemor; hage and shock due to the inparies stffered by Sona Mahto. 2. Afler the investigation a charge-sheet was laid agaist the above-named accused persons. Shatr ughan Mahio was found j yuvenile and his record was separated and sent to the Juvenile Board. Other accused persons were charged under sections 147, 148, 323 and 302/949 IPC by a common order dated 10.12.2003, tor lorming an unlawful assembly and using death of Sana Mahto. By the same order a coramen chay pe uncer section 307/149 IPC was framed agautst them for altempt to cause death of Shakhtya Devi, Dhrupad Yadav, Rams mwarup Yadav and Urmila Devi in furtherance oof their carimon object. A separate charge under section 324 TPC was also framed against Prabhu Yadav, Ramdeo Yaday, Tulsi Yadav, Nur Yaday and Sari Yaday for volunarily causing hurt to Raniswarup Yaday, Dhrupad Yadav, Shak hiya Devi and Unnila Dewi by Sharp cutting weapons. in the tal the prosecution bas examined [9 witiesses out of whom PW-5, Pp We, PWO8) PW-O PAWL, PALI and PW.13 are the eyewitnesses. PWl and PWo2 @ inquest witnesses: PW.? om the e & ed f "of % lac cs ined s ure of blocul-sta; Bos the x A 6 ci and PAW. EG h ~ LEE. .
H uA *Y © independent i POSS i x 2 e s z HW? a BY S y PW4 ow { the request of U = x a ibe red host s & AVE PYERVE dec! f g ko 2 M ation.
oy ee © i FEVES aes "EY, ?
amd PW we s sabes whic a pa t > aban tO i rel + a the same d i 3x
3. 3g | pe x 2002 w 7H 1G. 46 af zd se ny co aan 3 ag di Eke § 3 ahto Sona Me m at up a defence Q vk ig < agar PSC ig :
yo Et ag tah ent my oben x » ve me, roe foo we bite Soe < 4hnon ot Nae prose land comprised under ad ~ a they & ¢ & he :
O02 1M F 20.044 G uP = srg { mm the om "s :
3.
PONS *
-
> f 3 prertc :
ang there field ome to iy By Hon 4 PORES "yt ch.
{ the + & a a < ar Ge y ¥ the orosecyu hy ° ¢ os SOME por 3 uf SS 8 aides He fe nd oe ww ve ions Judes h eCUHGN pe % and be SOc Me:
ee:
arms & "8 ke sted, the ¢ cS aS TR yownne g eg them.
} AR saul x x tarted ax pean:
R se x i a rcs mt ye REYe i iF & bre R woted th ~ a 2 uF j 5 duc OZ pred eat } ;
i a . the Case aS UTED:
o & cxrunier $ a SUC iS Shar OF s a thi i ea aN a ee x Con ox , i.
& te he eS Cate ee Fats HW OCCUPTEN.
at the ecused pers AOL ' q + 3 oy & Ed ike tf RIC BRE ra ay case by HCCI found ac & 4 ne RCL, ~ oa a an a se.
an.
Soy a ee os a ne en "ead to nt ad wae =~ fey x evi Ese the 2 Es SEPP PES, on POREPE RCE fs fe e frese fs f eyerperm ast o£ aer tie fee Brees GePGTER, FO 7G fhe FRG FAAS CCCUPFERCE and bis evidence i "PMS Se for cee wrobera CHEE, fhe estden og Ee Bah gS ph et at see Seer ferve meyer ble, oP yr LB a ae oe CoONCeP HE a AE Bas eeeyey Ghee ERE SECEN REE SERBE GOCNIAT PYENORS.
Char gesheet ihe statement OF GRP WHRES x tr -. .
igen 9 ffemee in pay formed in nature 3 Sessions Judge has referred to a judgement in tk o ewe, aan Fa ee % fs Amit Lakra y State of Bihar' and held that the evidence of PW-14 and PW-1S as well as the postmortem report vide Bxhibit-2 are not substantive evidence, bul this rrach is established that Sona Mahto has died dus to injuries caused by sharp culling weapon. The learned Sessions Judge has observed thal PW-5, PW.G, PAW-8, P WB, PWT, PAW-12 and PW-19 are interested witnesses and long standing land dispute between the parties has provided a motive for falsely implicating other lamily members including the female folks. No evidence was produced. against Numu Yadav, Nirpa RMaht penne Mo and Sarpa Yadav and the prosecution has failed to establish complicity of Kaliya Devi who was aged about 60 years and resent of a yt ows different village. 'The learned Sessions , fudge has held that except Tulsi oo Yadav, Rarmdeo Yadav and Prabhu Yadav the other accused persons were impheated in the case merely because they are the family members of Sona Mahto, and that against Nirpat Mahto, Sarju Yadav, Nunu Yaday, Kaliya Devi, Kumti Devi, Dharwa Devi, Kalmwaii Devi and Daywantl Dewi the prosecution witnesses have given tutored version and the in fary reports vide Eshibu-? series make presence of those accused persons at the place of occurrence doubtful, Tulsi Yadav, Ramdeo Yadav and Prabhu Yaday were eld guilty and sentenced to RY for life and a Sine af Rs. 20,000/- each uncer section 302 IPC, Ra for 1G years and a Aine of Rs. S,000/- each under See S07 TPO and RU far 3 years under section 304 iPC, but the ey ASS charges under sections 147, 148, 149 and 323 (PC were' not fodnd proved against thom, bb. The charges under sections 147, 148, 323, 324, 307/149 and 302/149 DAC were held not proved against Nunu Yadav, Sarju Yadav, Nirpat Mahbto, Kunth Devi, Dhurwa Devi, Kalawath Devi, Daywanti Devi and Kaliya Devi and, accordingly, they were acquitted.
~y 2 ie Mr. BUR. Dubey, the learned counsel for the appellants has fol lowing grounds > G@) there is senous inconsistency between ocular evidence and medical evidence and therefore the manner of occurrence is fot proved by the prosecution, (3) prosecuti on evidences is tainted because all material witnesses are related to a t Makto and there was a long standing land dispute between the partie es, ard GH) conviction of the appellants under sections 302, 307 and 324 IPC simplictter particularly when eight persons were acquitted of the criminal charges on the same set of evidence is bad in law a, Adispule over a piece of land comprised within Khata No. 3 at Mauza-Chandrapur has triggered a fight between both sides in the morning af 20.04.2002. The prosecution party is clahning a right aver the land comprised in Rhata No. 3 by virtue of two sale-deeds one executed im favour of Smt. Jasiyva Devi vide Sale-deed No. 6192 dated 66.12.2000 and another in faveur of Dhrupad Yadav, Jageshwar Yadav and Ramswarup Yadav vide Sale-deed No. 299) dated 19.06.1995 [vide Exhibit-6 and 6/ Vay both executed by Dilo Mahto with others. On the other hand the accused persons have claimed that the land in question is their ancestral land and in x, support thereof they have Aled certified copy of khativan of Khata No. 3 at s v Mauza-Chandrapur vide Exhibit-C. To establish that in the past the accused persons were trying to capture the land in Khata No. 3, certified copy of the pidgement dated 27.05.2006 in TLR. No. 270 of 2006 corresponding to Jainagar BS. Case No. 73 of 1999 and copy of the fudgement dated 12.01.2004 Io TLR. No. 179 of 2004 corresponding to Jainagar PS. ase No. 88 af 1998 were laid in evidence. GIR Case Na. 593 of [998 was fued under sections 379 and i44 [PC in which the accused persons were convicted and their appeal in Criminal! Appeal No. O] af 2004 was dismissed vide judgement dated 05.12.2008.
9. in the aforesaid backdrop of the his tory of [igation and animosity between the parties, we would now see what the witnesses have Stated In the Court.
1a. PW-5, the informant who is wife of the de ceased has stated that ihe mourning at about 08-30 AM she alor ong with her daughter-in-law went to Dhuba field with breakfast for her hushand and others whe were slanting sugarcane, In the feld Dhrupad Yaday, Ramswarup Yadav, Shakhiya Devi, Uramila Devi and Kishori Yadg vy were with ber husband. The secused persons, namely, Tulsi Yadav, Ramueo Yadav, Shatrughan Yadav, Prabhu Yadav, Nunu Yeday, Nirpat Mahto, Sara Maka, Sunt Devi, Raliva Devi, Dhurwa Devi, Bala Devi, Deyawanti Devi and | Barvativa Devi varic usly armed with Jethal weapons came there and started assauiting them. Prabha Yadav and Ramden Yadav were armed with farsa, Tulsi Yadav, Numa ¥ 'ada, Nirpat Mahin, Sarju Yadav and Shatrughan Yadav were ¢ carrying farsa an sword and the female folks have assaulted them with favre? The accused ROESONS assaulted with furse on the head af her Husband due io which he fell down and died. ona Yadav was assaulted on his head and his Ise Was ot "
fractured while Ramswarup Yadav received blow on his head and hack, a shakhiva Devi and Urmila Devi were also | inpured ia the occurrence and aller the police came there the injured persons were taken to Jainagar hospital and the dead body of her husband was sent for o posimertem. In the crass-examination she has stated that first they assaulted her husband and then tured to Dhrupad Yadav and Ramew arup Yadav. PW-S, Dhrunad Yadav is an injured witness. He has deposed in the Court that about 2 YOars back the accused had conmmnitted moar around 08-00-0830 AM in Plt Na.60 within Khata No.3. At tha: ime his father, brothe » Wife, Mother, san and sister-in-law were with hina in the Sugarcane Geld. He has corroborated wos mus mother on the manner of cecurrence. He has stated about twelve accused amriving in the fleld and com: nitling maurpit. Inthe melee his father suffered several infuses on his head, chest, cecimial region and legs and he died an the spol. His brother, wife and sister-in-law had suffered head injuries and wh His leg was broken. In bis cross-cxamination he has stated that he had shown 2 mark of injuries to the police afer about Sve and half months when his Statement was recorded by the police. He has flether Stated that Sari Yadav had assaulted him with sword on bis head, PW8&, Rarmdulad Devi is daughter-in-law of the deceased. She is the ene who along with the informant bad gone to the field With breakfast. Her father-in-law was slanting sugareane in the Held and at thai time Ramswarup Yadav, Dyhn inad He , Yadav and other family members were with him. The accused persons came to the fleld and started maw rp. She has named all the accused and « lated that they have started assaultn ig them together, PW-9 wha js another Jaughier-in-law of the deceased has Siated that 9 at about 08:00 AM she was Planting sugarcane in the Seld and at that time Ramewara p Yadav, , Pramia Devi, Rashori Yadav, DYnranad Yadav and sona Mahto were with her, Prabhu Yadav, Ramdeo Yadav and Tulsi Yadav gave sword blows on Sona Manto as a result of which he died on the spot. She has father stated that she was assaulted on her head In her cross-examination she has stated that the lund Cin Khata No.3} is a khatiyani land and the accused persons and prosecution party are not descendents af GRC CORTON ancestor PYW.1T has Stated that the incident took place around 08:00-08:30 PM and at that time she was in the Dhuba feld. Her tes slmony is not different from the other yewitnesses and she has deposed | in the Court that the aocused persons all logether atiacked Sena Mahto and &iffed hin. She has further stated thai she was assaulted by reae? and loth and in the oscurrence Shakhiva Devi, Dhrupad Yadav and her hushand RKamswarup Yaday reeelved several infunies by forse and fang, PAWWI2 whe is grandson of the deceased had alse gone is plint sugarcane in the Dhuba Seld and he has also affirmed in the Court that at that time Sona Manto, Ramawarup Yada ', Dhropad Yadav, Shakhia Devi and Urmila Devi were wilh Bim in the field and around 08:30 AM Jasia Devi and Ramdulant Devi brought breakfast for them. In his cross examination he siated thar he was eight vears old at the time of oecurrence and was studying in olass-1V¥ PAW 13 who is another son of the deceased fas deposed in the Court that the land comprised under Kohala No.3, Plot Nos. 560 and $5 belongs to him and in crass-examunation he bus admitted that a tile suit with respect to the same land was pending between (he parties and both the parties were raiyats of Khata Nod. He has claimed that the land under Plot No.559 is his ancestral land whereas Plot No.$60 was purchased by his father. He has further stated that all the accused PeESONS swooped together at his father on exhortation of Tulsi Yaday, whereafler Ramdeo Yadav first assaulted his father with furve and Tulsi Yadaw with sword, and then all of them have assaulted his father, ul. From the above, if is evident that the eyewitnesses have given evidence in almost similar manner insofar as presence of the appellants and weapon held by them are concemed, the only inconsistency being in the "
rumiber of assaults. They have made a ¢ gonora allegation that the accused persons started assault upon them simultaneously, but except against Tulsi Yadav specific allegation of assault by the others on each of them is not feand in their testimony. There is a reference of assault on Sana Mahto by Ramdeo Yadav and assault oy Prabhe Yadav on Ramswarup Yadav in the lestimony of Shakhiya Devi and Ramsw arup Yadav, but their evidence is in sharp contradiction to the testimony of other witnesses on this point. We would keep in mind this aspect of the prosecution evider ce while CHSCHASENE the rival conientions, id. The appellants have raised a plea of right to self defence, Tidsi Yadav has filed a counter case vide Jai nagar PS. Case Na. d6 of 260 Claiming that the iand in Khata No. 3 at Mauza-Chandra: pur was his ancestral land. In the morning of 20.04.2002 when they ablected to the prosecution party for damagin ig heir Aeld, Sona Mahto and others started macrpd and in the securrence both sides have suflered injuries. section 96 IPC provides that noth ing is an offence which is done in the exereise of the right of private defence and Section O7 IPC gives right to a person to defond his persen and the property, We are inclined to accept submission of Mr. BLUE, Dubey, the learned counsel for the appellants, that a person who is attacked would natural ly resist and bis resistance would not be unlawlul, but the materials on reeard do act suggest that it was a mere resisiance by the appellants to wand off - ny allack upon them by Sona A Malhto and company. The right of private defince cannot be claimed where 2 the aecused were aggressors and the members of the prosecution party were oN "yy ust Information Report in reed unarmed, Except producing a copy of the Jainagar B.S. Case No.d6 af 2002, the appellants have net led any evidence rete to suggest thal in the occurrence anyone of them has suffered any injury much less grievous injury which had compelled them to exercise aight of self defence to the extent of causing grievous hurt ar murder. The materials om record suggest that the appellants were carrying sharp cutting weapons and the fight which had ensued was not in the nature ofa fee § ght, rather i was an unequal fight and the appellants were aggressors, Notwithstanding institution of Jainagar PS. Case No.dé of 2602 by Tulsi Yadav, the materials an record de not suggest that the appellants had any occasion to exercise their right of self defence, either af dy er persen or the p ropert ay The aunmber of injuries on Sena Mahto and other four persarnis, 1G in sumber, completely n ules out any possibility af the defeace sot up by the appellards, is. Dr FB. Rey who had conducted the postmortem examination on the dead body of Sona Mahia passed away before he could be examined in the trial and PW-id who is a dresser has identified his Signature on the postmorlent reporl, PW-1S who is a doctor has read out the vontentis of ihe posimoriem repert in the Court. Both PW-14 and FW. iS have not claimed that at the time of the postmortem examination they were with Dr TB. Roy and they have alse aot claimed that the 'Y are acquainted with the facts of the case. SUH, in wor opinion, the postmortem report can be read in evidence to hind out the nature and number of ijanies on Sona Mahto. Under section 293 of the Code of Criminal Procedure exarrunation of the doctor who has conducted the pasimoriem js not necess sary Unugh the Coart has a discretion to call the expert as a witness and section 294. of the Code of Criminal Procedure provides that where genuineness of any decument is not disputed, such document p uly be reac in evidence in any cngquiry, trial or other proceeding without proof of the Signatore of the person to whom it purports to be signed. In a criminal trial what is Important is to peove the cause of death and for that purpose examination of the doctor who has conducted the postmortem rm lay be nevessary. Under sub-section 2 to section 293 of the Code of Criminal Procedure if the Court is of the apinion that the expert should be called for evidence the person who has prepared the report ar amy other person authorized on his behalf who is well-conversant with the procedures may be examined by the prosecution [refer, "Rajest Niewnar and dann State Government of NCT of Delhi}, Sub-section (3) to section 293 of the Code of Crinunal Procedure provides that if the expert Js unable to atiend summons by a Court personally he may depute any resporisible officer working with him, if such officer is conversant with the facts of the case and can salisfactarily depose in the Court on his behalf In view of these Statutory provisions, we would act approve some of the re asonings of ine learned Sessions Judge and simply say that the postmortem report which was duly proved during the trial is admissible evidence and except the cause afdeath iis contents can be read in evidence id, PAW-6 is the wife of Sona Mahto: PW-8, PW-9 and PW.11 are his daughters-in-law: PW-12 is bis grandson and: PW-5S and PW .13 are his sens. They are intimately related to him and their testimeny has been enucised on the ground of relationship and past: enguty, tS, There is no cule of faw or practice that the testiniony of a related witness who may sometimes be interested in prosecution of the accused cannot be believed on the ground of relatis nship. The law on the paint is well-setiled that merely because a witness is a close relative is not enough fo reject his lestimony, if i is otherwise co mgent and credible. This is a common perception that relatives would not conceal identity of the real oulprit and make false alle: gations agaist an innocent person, but if is not uncommen that arclated witness with a motive an account of past anunosity of may be partisan. In "Adesafti » State of OF" the Hon'ble Su upreme Court has observed that to appreciate the evidence of a partisan and interested Witness the Court has to be very carefid in wel. ghing such evidence and mechanical rejection of his testimony on the sole pround thal i was partisan is nat warranted. In "Suehe Stee ef vy State of Puad"* the Hon'ble § SUOLPEITE wo Court has observed that wherever a plea of false implication is made first a oundation has to be Jaid and the Court has to adopt a careful approach to firid out whether evidence of the related witness is cogent and credible » From the judgements of the Hon'ble Supreme Court, we gather that there ed Witness cannot be a general assumption that evidence of an interest sufiers fram any talirmity as such, but the Court may require as a rule of e prudence that evidence of such a witness should be scrutinized with 4 Hie cars. We would also keep in mind that the maxim fafsus iy aero falsns de onmious apphed by the English Courts was net approved by the Hon'ble supreme Court in "Uleur 4fir » Stete af Biber'. ft is well-settled that on the same set of evidence one or more persons can be canvicted while others are acquitted. A decision an complicity or innocence of the accused depends entirely on the fsets and circumstances of) of the CASS, particularly what the witnesses have stated abou! his involve 'ment in the occurrence. A kind of corollary to this is thet there are always discrepancies in the deposition witnesses, and to reproduce the words af the Hon'ble Supreme Court ia State of Rajasthan wv Kaiki howsoever honest and wuthful they may be. as?
In "Sand Kumar Sambhudeve!d Gupte (Dr) « State it has been observed that while appreciating the evidence the Court has to take into consideration whether the contradictions/omissions were of such magnitude that (hase ma of Naryana'® the Hon'ble 5 Sispreme ¢ Court has held as under -
"O. Pere are baund fa he between (he x SERIE ai isc <P RAGICN CHPRE NAOH Se ES See yee to jetiiscn: the CORP aber: ee LeH?
embed fisiupe therefore % evewhesses unbelleoniah The learned Sessions Judge has discussed the prosecution evidence in considerable details and held that on the pent of assault on Sona Mahto the evidence of material witesses is not cans aistent with each other, feed He has further held that the material witnesses have net earroboraiod each RA other on weapon and assault on Sana Mahio and others, and on that basis a evidence does not support the ooufsr ane LO % s 3 he prosecu ad t} ES fence We.
+ qT x evid the death, ;
X homicida! re ra Pa mad ene 3 ced 2X zR hio h 3 § g "
a M4 THe Hw SO fois not in di Ben S eal Ve spute that ort re Pp Rm OFe t © postmarte a Th No:
a aM 'ak HA
-2
A * SPATS PIGRE 2K Sd ul a 2 xh £03 PeELES Ee he pes To cioyy, y ithe fol! "nd on, et ~n See rene, er odaepee.
Pedi eye okt Coe Be 3f verre SF FECUNL ET Store Pee roe Metis~ Abs P20} i Os k ide.
¢ cs te aos .
18. ren ire ® oS aC iafury ie x fey its S Ped OG es 2 r & fe ye ° s .
aay g .
DECREE.
ap ¥ ¢ Calan Gfeupad Padap Raa wey 3 Shakila Seri:
oe z.
i) A sharp cur frantal areal, Urmila Devic UA sharp ¢ He wourud wiht Af + RABE LS, Dhrupad Yadav g epart records four injuries occipital areca, (1) fracture and Gv} bruise with swell rg (4) were grievous in nature Sarin Yadav have inflicted s say about injuries on bead. arms an stated that right leg of Dirup oy the accused persons. PW that the accused persons have ¢ about injuries to Dhrupad Ya assault PW-13 on the back of hi 3 has spoken about fract of Shakhiya Devi wife of DB injuries, one sharp cut wound on he Exinble7/2. She has herself infary on her head but in word blows ad Yadav was fractured and his
-.
& q a] her croass-
et is wore SiN, Over file inf ee ¥ fromad ure Gg --~ i de ey, rest ford dlwes oe if t # is an infured witness. Exhibie/1. the nuury or his persan; G} sharp cut sieeding injury over © i t of {ible and fibula. ¢ (i) abrasion over lef ec calf, % over left dorsum of jaw ~ a nos, (1) and . Dhrupad Yadav has stated that Tuls! Yadav and s on his head and PW-6 | stated PY-S would as x Hicted head and ise Pimuries while d legs of Dhrupad Yadav, She has further lef lee was cut ~ pad Yadav | PW the wife of Dhru assauited her hushand, dav oa his lee and head and PW-12 has § added ather besides head uHuries, whereas and leg cs lure of bead and low x The injury reper rupad Yadav records has suffered two % her yr head and one bruise on back, vide xsed in the Court that she eived only ane exainnation she has she was hat g assaulted by all the accused persons. PWS, PW-6 and PW-8 have simply said that Shathiya Devi was assaulied whereas PW- Li, PMS LT? and PW-13 have stated about fracture ayury on her head. About the i muries an Urniils Devi, the doctor has neted one sharp cut wound over her Frontal area and in the Court Urmila Devi has tendered evidence which corroborates the modical evidence. While PW-5 and PW-9 have not stated about any injury on Urmila Devi, PW-12 and PW-13 have said that head of Unmila Devi Was ractured. Accarding to PW-19, the doctor who has proved the infury reports, Ramswarup Yadav has received four inunes: G) one bone deep sharp cut bleeding injury over occipital x fagion, G1) one sharp cut wound over leit scapular region, (10) one sharp cut skin deep injury over left elbow, and UV} six bruises on back and one abrasion on the right lee. All three Sharp cul wounds were grievous in nature and the doctor has noted that when Ramswarup Yadav was brought before him he was in a state of shack. The learned Sessions Judge has minutely discussed evidence of the prosecution Witnesses regarding assault on Bamswarup Yadav and held that there are some variations in thei 'testimony bat over all their evidence corroborates the medical evidence, auh. itis trite that ocular evidence if found credible takes precedence aver medical evidence and a plea of * discrepancy behween the beth must essentially be founded on such fundamental defect in the praseculon case which completely rules out any possibility of the marmer ef occurrence as x portrayed by the eyewitnesses. In "Ade Ban we Stare of LF FP" ihe Hon'ble Supreme Court has held thai the prosecution evidence would be wanlinig in the most material part of the case if the direct evidence is not supported by expert eviderice and totally inconsistent with medical evidence, If imconsistency between ocular evidence and me dical evidence is not explained satisfactorily by the prosecution and is af such magnitude that cannot be reconciled, it would creaie substantial doukt on veracity of the prosecution case warranting aequilttal of the accused, Gre such decisian is oo. . eon y ~~ | - © ¥ . x endo o chal ane found in ""Medavir Sinel vo State af Madiva Pradesh' tx which the 3, 90g ¢ up 20) 1g, CMSs dence was fh eet a . the medical « 4 { j ver leve lox a rom f red ad § we Hury WE y APES iPe-d 6 he eld wien ow os e Court has & * t el 7 r leve gn is i $ LPwe THN A ¢ x ad firing b X & os + four O07 ae * es one oad tH 3 ad APCD AR "3 f t POU PEP BEY iS Ea 4 x ey A FURY OMiON LAO 18 evidens .
moe unnatural Aftoret} re Hon'ble Suprerm are SELES v ;
t e O. peer the present one the £ ex ae 3} cadence Me ¥ es < ned z ue oy PeStny § vy 13 Were Inve OeYSOHS y y & x wi Ne ved ' 3 ¥ x perso:
red by the ay ote:7 2
TS ACOR RB ANY t he ef HQ WHS * :
Sona M a { ed arc * s were injur in ev each fe i a » ah mk 3 L iSO ¥ 2 } ADRK &.
t + y AX nd that che x RPCHE Rees "yaTLe £0 ~ iy, a ave been & t t a Op ere we wre oa ' A blow. Da ou * K 4 be } % ' PH ~ g PES ay * x of oe ey z mn t ae the « dea we Not PRLS cle edd isyprobat 8 8 is y ont fe we a ta fat mS "o
- red, oe as oes aR no of iifeniio > and commen x y O of SOA * x ad oul corre to di oat ley e a ay be re « Be ok.
NY} J a AX * ® & R ecuLion "3
Vaday ¥ vidual roles a 1eo ce ~ x on of the oras Rarric 3a ad ihe | at < x ne Ma nat e CHE ake f | % :
a ner s} * watld he Se ay Ps ed Song} ct Xe ult eed o Sone ao ay who w st ¥adh % £ rent ered pos oe FER REE Pad HW ACOH eee nee ites SEEM, DR Mace € } af x.
ree he :
ge a a 'h, ay ey Doe GRE Sey Pe a.
fie 3 we oo srh0K, spe aan a th me ee eee, "re on = i Sons as rome toe Oo va me Pi ro) B ws bron ern a, es y eet aed, ane on we cheat eo fm, re Cy we ~ " eng nen = * aD a, nant re ey ey vent aa a x 3 = Me ~ fi at head Dales vs nat ai ox Fes oo y 4 oo rt 5 Fete, % te vey fans m a GA : we ~ Mey ye sane --t td ny & Be ped ? 3 Hee, oe Le z, Nw sre we oo ¢ ee by te sesh Ne Net my we eet were, ae "ab sent -- -, Find Ke pane dane ' ne B oe "mega = 3 B ny oe 8 g we ce % = wip poe o~ z von "eed coro : pee wie bak pend ores Ser z peas . 'vail any fe ve i S : a "ip * a -- sina ce + mae vers mS a > oS ae .S ~ pa : ms oA fet oe notes . then * Se hese a . "3 x oe m 4 oy oS Lae ree A> pares eer "ad ae ont . i eG = 2 oT yg ine . " "wy Ses a, on nee, £3 Daal oo veined ot 63 = Fi: ; i me 5 = a eo Be se aa *, we Taw on = : A Em sg peas ~ 2 wy bed a é wn view enc ta nad ef im ' eed ty we a ve, Pd oa) Ah, noe aS Sat Nn 4, o =e $ bei oe no eres ND &3 see. tp ¥ 3 "Aas ° .
= Sm Se ES 'se! ~ S -
"ss weep aa rf Aa Ww . a;
Se yy bo bond "3 LA wenn noon "ast syed:
, oF % $3 oy ae 'pets span + pod, z * A Not to a chet * fee, * ey oo wm ey oon a as a G8 ound tadividaal crime under section 302 IPC js based on a premise that more than She person carmeat be convicted u ection 302 IRC for causing murder of Gac man. There is ro doubt on the powers of the superior Courts te convict AO or more accused for nvurder with the ald of se ction 34 IPC even they eh a charge was framed ander section 3 OA/1SO IPC. fk is ales possible tes convict an accused under section 3602/3 4 IPC where a charge was framed under section 302 (PC simphiciter. But in both the situations there must he specific evidence for establish ing Comicon intention, This issue has heen sei at rest by a decision of the Hon'ble Supreme Court in "Nofledory Ferkaiah os » Mate of Andhra Pradesh?" fp paragraph no. 24 of the re: 'ported judgement, the Hon'ble Su: preme Court has observed that the COMVICTRON under section 302 < simpliciter witheut aid of section 149 Is permissible if overt avt is atiributuble to the accused resulting in the fatal inary which is independently sufficient jn the ordinary course of nature to cause death of the deceased. In a recent Judgement dofivered fon TO.12.2020) iy "Rolttas and Another v State of Harvana''® it has been held that IP i is established that the fatal ipary whieh was sufficient in the ordinary course of nalure to cause the death was iniiicted by the accused independent of other assaults by co-aceused on the deceased, he can be convicted under section 302 IPC. On appraisal of the prosecution evidence and statement under section 313 CrPC whereunder the aceused persons were put to thelr apectic roles, the Hon'ble Sy ipreme Court has held that convietion of three persons holding then indivi dually puilly under section 307 IPC without aid of section 149 IPC was clearly made out against cach of them --~ sever persons were charged under seetien 307/140 IPC. Phe issue whether an accused can be convicted for an offence simpliciter afer the conviction with the aid of section 34 or section 149 IPC has failed is thas ne longer res-infeere. The decision in "Rektas" bas laid down that even where there are more than one accused each af them can be individu: ally convicted uncer a simpliciter provision after the greup conviction with the ald af section 14 [PC has failed ~ fate would be the same if the EYOOp CoMmviciion Poriaica da npeal? Wo. OS GP ONEE EY a5, The acquittal of eight co-accused who were pul on trial in Sessions Trial Ne, 462 of 2003 is not on account of any technical defect in the ee case nor have the accused persons been exonerated by extending } ¢ benefits of doubt, rather their acquittal ig on the ground that there was no evidence against them. In the judgerment under appeal the learned Sessions Judge has made if more thar: clear that there was complete lack of evidence against those cigh! accused persons; the prosecution witnesses have tendered parrot-like evidence against them, and; they were falsely fmplicated in this case only for the reason that ihey are the family members of the appellants. "The effect of the aforesaid findings recorded by x x ihe learned Sessions Judge would be that only three persons, the appellants, would be deemed to have parlicipated in the occurrence and the other co-accused were efiher not present at the place of eccurrence or did not participate in the occurrence. Therefore, applicability of section 149 LEC in the present case is ruled aut. We would now examine whether the apncllanis are Hable to be comvicted under section $02/34 TPC. oh. The prosecution evidence against Tulsi Yadav is cogent and consistent. The prosecution witnesses have ened specific aliributions an him in intlicting head injury on Sona Mahte. Ex cept Jasts ya Devi, all other wittiesses Rave deposed in the Court that Tulsi Yadav has struck a sword blow on the head of Sona Mahto ~ fasiva Devi has stated that Tulsi Yadav was carrying farsa sad sword. The crime weapons were nol recovered: many independent witnesses were acl examined and those whe had Hwee, Supported the FIR allegations before the police turned hostile in the Court:
three injured witnesses were examined by the police more than two manths pee afier the occurrence, and: the investigating officers have commrified mistakes during vestigation ~ stil, the quality of evidence against Tulsi Yadav is such that he must be held guilty for causing death of Sona Mahia. Thougt the defence was handicapped to cross-examine and elicit response of the dectoer who had canducted the postmortem, keeping in mind the consistent evidence against Puls: Yadav in causing head injuries to Sona Mahto, we are inclined to accept opinion of Dr JU8. Roy (dead) recorded in the postmortem aye report that Sona Mahto had died due ta head mpury and, therefore, Tulsi trees "py ie te es fs ~ ta "
wees is tightly convicted under sectian 302 PPC. However, the prosecution evidence on the role played by Ramdoo Yadav and Prabhu Yadav is vague Keeping in mind the rural set up and lie understanding of the prosecution wed Witnesses about complexity of a criminal trial coupled with the findings recorded by the learned Sessions Judge which are not challenged before, we are of the definite opinion that Ramdeo Yadav and Prabhu Yadav cannot be convicted under section 302/34 [PC for commilling murder of Sona Maht The prosecution evidence is bereft of necessary details how and in what manner Ramdceo Yadav and Prabln: Yadav can be said to have s common uftention with Fulsi Yadav to cause death of Sena Mahim. To support our conclusions, we would give a bird's eye view of the prosecution evicience ota tabular chart:
Pp Puls! Reaav Ramdeo Beales Probaa Fader Ww Appeflant No. Appellant No.2 Appellant No.3 WEAPON: Porse WEAPON? far:
ae ASSAULT: speaks about aN, val by dim, but LAPGON: Forse and s ASS. ADE sped ie CEN are ust by Bist Fe zat x an nothing specie _ PoedERS about bug ee beaut i SPEC EES PQUHIEPES P OWEAPON:
ASSAULT:
echerd spedky adend ae be int but wa ed ee SEES Pp 13 Bis 44 ys a rule of evidences and does not create a substantive offence by self. it embodies the principle of joint criminal > atilty in doing a criminal aet the essence of which js existence of a sggmon intention. Section 34 provides that when a criminal act is donc by several persons in furtherance of the common intention of all each of such persons is Hable for that act in the same manner as If if were done yy Rim alone, A study of the case law on the Subject would reveal that judicial apimion on the applivalion of section 34 TENT was sh iarply divided before the judgement in "Barerdra Kienar Ghosh v King Emperor'? came. Twe notable judgements during that period require special mention to elaborate upon the subject. "Aymeror x Aina! Nunta Rov' was a case in which two men acting in concert both fired at a policeman, one hit and killed him an cd the other failed to hit him at all. Ste phon, J. directed sequittal of the latter who was also charged under section - S024 TPC with murder A contrary view was taken in "C Auwhononad vy Kune RA ARS Pa "which held that the mearitng of section 34 is that if ive or more persons join in the commission ofan act, which amounts to an offence and they have a common intention to do that act, they would all be equall y Hable for the consequences. Finally, the law on the subject was authoritative ly decided by the Privy Council in > os Petey, i?
we MP EY dea Kumar Ghoxh'. Lord Sumner has written that - "even if the appellant did nothing as he stood outside the doar, if is to be remembered that in erimes as in other things 'they alse serve who only stand and wait!' Gul, merely because it is shown that afl the accused persons carried the sare Intention, independently of each other, section 34 [PC would not be alivacted, In x a State af 2 PP? the Non ble Supreme Court z Sechion 34, Be if BPEGFPORL Ed ce On fhe Syhe oy fee 5 4 2 fe a f Y "
' S he ¢ a en a oy pte Ae Oat Shao PAHO RE fol if pry Here sye gy if FO 88 Gefore fhe 4 CRUST oP Aue Crimi] oo, ae. Applying the above settled princ iples on section 34 te the facts Wa, AIR 1955 PO 4 4, COM ELR 4f cal Lor?
BS, AYR 1924 Mad. 229 i, (2604).3 SOC 793 of the present case, we would s say that Ramedeo Yadav and Prabhu Vadew cannot be convicted with the aid of section 34 EPC for murder, The prosecution evidence is not consistent whether both sides were related to each other. The informant has said that the appellanis were agnates fee of her husband but her daughter-inaw has deposed in the Court that both parties were not descendents from ans COMM ancestor, Nowever, iH is admitted by PW-9 and PW-13 that the appellants were also ralyats in Khata No.3. Sill firther, evidence of PW-13 is to the effect that Sona Matto belore the purchase was ploughing the land in Plot No.S60 on lease, The appellants came armed with dead! ¥ Weapons and started aicereit, but there IS positive evidence that Tulsi Vadav has struck the Srst Slow on head of Sona Mahto. The postnortem report would reveal four injuries on parictal and scapular region and the other infuries were on ar m, forearm, clbow and teg of Sona Mahto. There is general al! egation that afler the first sirike by Vulsi Yadav others have also asseulied him and on the basis of the namber of mjuries on him it can be argued that Tulsi Yadav was not the ony ane who has smacked Sona Mahto, but this cannot be aver icoked that except PW-9 who has named Ramdeo Vaday ao one has spoken about these two assaulling Sona Mahto. fe is not necessary that every witness must give a wo .
graphic deseription of the occurrence but in the facts of this case which do not exhib intention of these appellants to commit murder it is difficult to hold that they shared cammeon intention io murder Sona Mahia. Ther obviously, they cannot be convicted also under section 302 IPC for CAUSE death of Sona Mahto.
23) Accordingly, conviction af Bamdea Yadav and Prabhu Yadav under section 307 IPC js set-aside, 3, The presence and participation ef Ramdeo Yaday aod Prabhu Yadav in the occurrence are established and in the mat toriais laid during the trial it has surfaced that they shared common intention to beat the PrOSCCULLGN witnesses. They were holdiy 4g dangerous weapons and In view ofacittal of other eight accused persons and specific role assiened to Tulsi Yadav for causing Injuries to Sona Mahto and Tf Abrupad Yadav if can be safely inferred that besides caush: ag burt one of them or both have caused 4 alleast one grigvous Injury to the other prosecution witnesses andowhile St, they are hable to be convicted under section 326 [PC. Before arriving at this a conclusion that Ramdec Yadav and Prabhu Yadav are Hable to be corvicted and sentenced under section 325/34 IPC, we have gone through few we rs judgments including the one in "Parnsaramad alias Felludural & Ors. y State of Tamil Nadu' 2982 Supp (1) SCC 428, ands "GS. Walia v State op Punjab & Ors." (1998) 8 SCC 150. In \Parusuraman" seven persons were charged separaisly under section 302 IPC with the aid of sections 109 and i493 UNC, They were armed with spear sticks, bill-hooks and sticks, Qut of + thirteen external injuries found on the body of Jawahar, eleven were on his legs and arms. The Hon'ble Supreme Court has held that intention of the accused wus fo cause grievous hurt coming within the purview af section 325 IPC. In "GS. Wadia" five assailants attacked Balwant Sigh with iron rods, axe and tyre lever. Thirteen uyuries Including prievous injuries on head and legs of Balwant Singh had cumulatively caused his death. The accused were convicted under section 302/140 IPC. Observing that the medical evidence does nol show that the imjuries were sufficient to cause death or even likely to cause death, the Hon'ble Supreme Court has held that the only inference that can : reasonably be drawn is thai the olfect of the accused was io beat Balwant Singh. They were convicted under section 325/149 IPC. Except the unc xpeoted overt act of Tulsi Yadav who has assaulted Sona Mahto on head with knowled ge as envisaged under clause Fourthly to section 300 IPC, the factual scenario in the present Case 15 to difierent ~ 4 Injuries are on nen-vital parts of the body of Sona Mahto. OSE We are also of the opinion that now the charge framed agairist both these appellants under section 324 IPC for voluntarily causing hurt by « ANBSPOUS WESPON Cannot sustain ~ in this case there cannot be conviction under sections 324 IPC and 32S TPC both, Phe conviction mnaYrfulst Yadav under section 324 TPC is also liable to he set-aside ana similar ground,
32. Accordingly, conviction of the appellant, namely. Ramdes wv?
Yadav and Prabhu Yadav under sections 304 HC arc S07 iPC are set-aside. They are convicied and semenced to Ru for S$ years under section 3958/94 1pe.
eed VER, IPE ¢ i i UT RAP G Oh TOUTE :
ITY fer ne HOWE 3
4.
SS UNC Ju Py USER IPO xy ove ott £ ~ é Q "
a d Ww i CHI rr 3 fr * AVE ES ae Bye ear vo Be rR ?.
ay h Re a é ek as ot as = af 2 pe ok a aoe é ea ~ et rn 2 Se 2 ox a re HODGE GOMOD! Dv fhe presecution. > 28
33. The gist of the offence under sep tion 307 IPC is that 4 Ea on te Vietin Hinally survives. A Person can oe held gaily for attem pli murder if it is established that the act done by Him, with such intention op Knowledge, under such circumstances if a accomplished would have resulted in death. The doctor who has examined the Imjured witnesses has age rendered an opinion that the injuries on the proscculion witnesses would have proved fatal or, to say, was Hi kely to cause death so as '© altract the offence under section 326 [PC. 'The learned Sessions Judee has held that the Injury no. GE caused to Dhrupad Yaday which fas lractured his tibia and fibula af the right leg, a arevous iury, was pot fife threatening and ather grievous injuries caused to the Prosecution witnesses were also not af such nature as iG attract offence under section 307 IPC. The isarned Sessions Judge fas at rrane, further held that the prosecution witnesses have tailed to assign specific role ta the appellants so as to identify who has infticted which particular injury to the prosecution witne esses. AS regards Rarmdes Yadav and Prabhu Yadav, this finding is correct because Uhe injured witnesses have not depased in the Court that they intended to CeUse a@ particular injuey which would have its resulted in their death, but since they responded SwHy or warded oifthe attack In the process have suffered just miner injuries and/or REIVOUS nyury. The evidence s igainst Tulsi Yadav is hawey er specific, Dhrapad Yadiew has stated that Tulsi Yadav and Sariu Yadav struck Lwo sword blows on his head and his Sigg was broken, Other win Resses have not made specific allegation against aby one of the appellants and have said that Dhrupad Yadav has suffered head and leg injuries, The doctor has found head and "
injuries on him and as nod ced abeve Sariu Yadav has b ce acquitted by tal Court and while 86, the head injury to Dhrupad Yadav must he attributed to Tulsi Yadav. iy the aforesaid state of allairs, we are of the opinion that Ramdca Yaday and Prabha Vadaw cannot be convicted under sootion 307 IPC) with ar without aid of section 24. However, conviction and sentence OF Tulsi Yadav under sect jon S07 IPC is affirmed.
38. in the result, Criminal Appeal (DB) No, sé6g of 2000 js Wismissed ya the appellant not, namely, Tulsi Vaday and if is partly allowed gua the appellant nos.2 and 3 >, namely, Ramdeo Yadav. and Prabhu Yadav, in the above terms.
a ;
wee . Mr. Abhay Kumar Tiwarl, the learned APP states that the appellants are in custody.
a8. Accordingly, the appellant nas.2 and 3, namely, Ramdeo Yaday and Prabhu Vaday, shall be pele asec forthwith, if not wanted jn commectt=aon fo any other case.
38, Let the lower Court records be sent to the Court concerned forthwith, 2 40, Let a capy of the Judgement be transmitted to the Court concemed and concerned Jail Superintendent through FAX, Ween NE ee ase le slecenytinee Matinee citeea cect EET BEE te TA eee Te