Jharkhand High Court
Lakhan Yadav & Anr vs State Of Jharkhand on 19 July, 2017
Author: H.C. Mishra
Bench: Ananda Sen, H.C. Mishra
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
CRIMINAL APPEAL (D.B.) No. 1661 of 2004
WITH
CRIMINAL APPEAL (D.B.) No. 1015 of 2004
--------
[Arising out of the Judgment of conviction dated 23 rd June 2004 and order of
sentence dated 25th June, 2004, passed by 6th Additional Sessions Judge,
F.T. C. No.-3, Godda, in Sessions Case No.119 of 1997 / 57 of 2002]
-----
1. Biru Yadav
2. Prabhu Yadav
3. Bundeli Yadav ... ... Appellants
(In Cr. App. No.1661 / 2004)
1. Lakhan Yadav
2. Kuldeep Yadav ... ... Appellants
(In Cr. App. No.1015 / 2004)
WITH
CRIMINAL APPEAL (D.B.) No. 838 of 2014
--------
[Arising out of the Judgment of conviction dated 28 th July, 2014 and order of
sentence dated 31st July, 2014, passed by 1st Additional Sessions Judge,
Godda, in S.T. No.119A of 1997]
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Shiv Prasad Yadav
@ Shivjee Pd. Yadav ... ... Appellant
-versus-
State of Jharkhand ... Respondent
(In all cases)
----
PRESENT :HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
----
For the Appellants : Mr. Kailash Prasad Deo, Advocate
[in Cr. Appeal (DB) No.1661 of 2004
& Cr. Appeal (DB) No.1015 of 2004]
Mr. Mahadeo Thakur, Advocate
[in Cr. Appeal (DB) No.838 of 2014]
For the Respondent : Mr. Shekhar Sinha, A.P.P.
[in Cr. Appeal (DB) No.1661 of 2004
& Cr. Appeal (DB) No.1015 of 2004]
Mr. Asif Khan, A.P.P.
[in Cr. Appeal (DB) No.838 of 2014]
------
By Court.:- Since all these three appeals arise out of the same case, they
have been heard together and are being disposed of by this common
Judgment.
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2. Heard learned counsels for the appellants and learned counsels
appearing for the State in all the three appeals.
3. The appellants in Criminal Appeal (DB) No. 1661 of 2004 and
Criminal Appeal (DB) No. 1015 of 2004 are aggrieved by the Judgment of
conviction dated 23rd June 2004 and Order of sentence dated 25 th June,
2004, passed by the learned 6th Additional Sessions Judge, F.T.C.-3, Godda,
in Sessions Case No.119 of 1997 / 57 of 2002, whereby these appellants
have been found guilty and convicted for the offence under Sections
302 / 34 of the Indian Penal Code, and upon hearing on the point of
sentence, the appellants have been sentenced to undergo rigorous
imprisonment for life for the aforesaid offence.
4. The appellant in Criminal Appeal (DB) No. 838 of 2014 is
aggrieved by the Judgment of conviction dated 28 th July, 2014 and Order of
sentence dated 31st July, 2014, passed by the learned 1 st Additional
Sessions Judge, Godda, in S.T. No.119A of 1997, whereby this appellant
has also been convicted for the offence under Section 302 / 34 of the Indian
Penal Code and sentenced to undergo rigorous imprisonment for life.
5. It may be stated that the appellant Shiv Prasad Yadav (in
Criminal Appeal (DB) No. 838 of 2014) had also faced the trial along with
other appellants in Sessions Trial No.119 of 1997, but after concluding the
evidence in the said trial, at the stage of recording of the statements of the
accused under Section 313 of the Code of Criminal Procedure, he
absconded and accordingly, his trial was split up and permanent warrant
was issued against him. Subsequently, he was arrested and again put to trial
in S.T. No.119A of 1997, in which, on the basis of the evidence already
recorded in his presence in the original trial, the trial proceeded from the
stage of recording his statement under Section 313 of the Code of Criminal
Procedure, and culminated in the Judgment of conviction dated 28 th July,
2014 and Order of sentence dated 31st July, 2014 passed therein.
6. The prosecution case was instituted on the basis of the
fardbeyan of one Murti Devi, who is the wife of deceased Chhatish Yadav.
The occurrence had taken place on 01.01.1997, and it is stated in her
fardbeyan that at about 12.00 noon, the informant was sitting with her
husband at the door of her house, when the accused persons, namely,
Bundeli Yadav, Shivjee Yadav, Sudin Yadav, Prabhu Yadav, Kuldeep Yadav,
Beero Yadav, Hero Yadav, Ramphal Yadav and Lakhan Yadav came
variously armed with lathi, farsa and sword and they demanded share in the
paddy, which was objected to by her husband, stating that it was the first day
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of the year and why should he share the paddy of his own field. All the
accused persons started assaulting the husband of the informant,
whereupon he started fleeing away and was chased by the accused
persons. He was pushed in a ditch near the house of one Chopan Singh and
all the accused persons assaulted him with lathi, farsa and sword and
committed his murder. It is also stated that the accused persons also
chopped the neck of the deceased. The informant tried to save her husband
and she was also assaulted by the accused persons injuring her in her both
legs and other parts of the body. Upon the alarm raised, several persons
came there, whereupon accused persons fled away. As to the cause of the
occurrence, she has stated that there was land dispute between these
appellants for six bighas of land and due to the said land dispute earlier also,
there was a criminal case between Kuldeep Yadav and her deceased
husband. On the basis of the fardbeyan of the informant, Meharama
(Thakurgangti) P.S. Case No.1 of 1997 corresponding to G.R. No.6 of 1997
was instituted for the offence under Sections 302 / 34 of the Indian Penal
Code, and investigation was taken up. After investigation, the police
submitted charge-sheet against the accused persons. It may be stated that
though in all nine accused persons were named in the FIR, but only six
accused persons, who are the appellants before us, were sent up for trial.
7. Upon commitment of the case to the Court of Session, charge
was framed against all the accused for the offence under Sections 302 / 34
of the Indian Penal Code, and upon the accused persons' pleading not guilty
and claiming to be tried, they were put to trial. In course of trial, eight
witnesses were examined on behalf of the prosecution, including the Doctor,
who had conducted the post-mortem examination on the dead body of the
deceased and the Investigating Officer of the case. Out of these witnesses,
two witnesses, namely, P.W.-1 Balram Yadav and P.W.-3 Rupan Yadav have
turned hostile and have not supported the prosecution case.
8. P.W.-2 Murti Devi is the informant and the wife of the deceased.
This witness has stated that the occurrence had taken place about three
years ago. It was Wednesday at about 10-11 A.M. It was the first day of the
year and she was with her husband in the house. Bundeli Yadav,
Lakhan Yadav, Kuldeep Yadav, Ramfal Yadav, Birbal Yadav, Hero Yadav,
Prabhu Yadav, Shivjee Yadav, Shahdeo Yadav and Dewari Yadav, in all, nine
persons (though she has named ten persons) came armed with lathi, bhala,
farsa, sword, garasa, arrow and they started demanding share in the paddy
from her husband. Her husband denied to share the paddy, where after they
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started assaulting her husband. Her husband started fleeing away, who was
chased by the accused persons and near the house of Chopan, they
apprehended her husband and chopped his neck, due to which her husband
died at the spot. She has stated that all the named accused persons had
assaulted her husband. This witness has also stated that her husband had
got six bighas of land from his mother and for that land there was enmity
with the accused persons. At about 03.00 P.M. on the same day, the police
visited the place of occurrence and recorded her statement, and upon
finding the same true, she and her father-in-law had put their thumb
impressions. This witness had identified the accused persons in the Court.
This witness was put to extensive cross examination by the defence, in
which she has denied the suggestion that her husband had earlier assaulted
Kuldeep Yadav, damaging his eye, she has rather stated that the eye of
Kuldeep Yadav was damaged in course of a dacoity. She has also denied
the knowledge that there was a criminal case for that upon her husband.
She has also denied the knowledge that her brother-in-law Potish Yadav
also assaulted Kuldeep Yadav by firearm for which also a separate case was
going on. This witness has admitted that Shivji Yadav and Sudin Yadav are
own brothers. She has stated that occurrence with her husband took place
at about 11.00 A.M. She has denied the suggestion that at about 9.00 A.M.
on the same day, her husband had assaulted Sudin Yadav by firearm, in his
abdomen, due to which he had died. She has also stated in her cross
examination that at the time of occurrence, she was sitting with her husband
at the door and when they saw the accused persons coming, her husband
entered the house, whereupon the accused persons also entered the house
and assaulted the husband in the house. She has also stated that she was
also assaulted by the accused persons in her house. She has denied the
suggestion that for committing the murder of Sudin Yadav a criminal case
was instituted against her husband on the same day for the offence under
Section 302 of the Indian Penal Code. She has also denied the suggestion
that when her husband committed the murder of Sudin Yadav, several
persons of the village chased her husband and assaulted him to death. She
had denied the suggestion to have given false evidence.
9. P.W.-4 Potish Yadav is the brother of the deceased. Though this
witness has also supported the prosecution case as stated by the informant,
as an eye witness, also claiming that he was also assaulted and injured by
sword, in the occurrence, but the fact remains that in his cross examination,
he has denied the suggestion to have given the statement before the police
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that on the date of occurrence, he was not present in the village and when
he returned back to the village, he was informed about the occurrence. The
evidence of the Investigating Officer Syed Md. Ali Rizvi, who was examined
as P.W.-6, shows that in his cross examination, the I.O. has stated that
Potish Yadav was not present in the village and he had not given the
statement before him that he had seen the occurrence, rather, he had stated
that when he returned back to the village, he was informed about the
occurrence. Even the alleged injury on this witness is not supported by any
medical evidence, or by the evidence of I.O. As such, we are of the
considered view that the evidence of P.W.-4 Potish Yadav is not at all
trustworthy and cannot be taken into consideration.
10. P.W.-5 Badri Yadav is the father of the deceased and he is also
an eye witness to the occurrence. This witness has stated that the
occurrence had taken place about 5 years ago at about 12.00 P.M. He was
at his house. His son Chhatish Yadav and daughter-in-law Murti Devi were
also at the house. He has named all the accused persons stating that they
came and demanded the share in paddy from Chhatish Yadav, which was
denied. Thereafter, the accused persons started assaulting Chhatish Yadav,
who started fleeing away and he fell down in the ditch of Chopan Singh,
whereupon Shivjee cut his neck by sword and thereafter the accused
persons fled away. He has stated that the police had come at the place of
occurrence, had recorded the fardbeyan and instituted the case. The police
had also prepared the inquest report of the dead body on which he had put
his thumb impression. In his cross-examination, this witness has admitted
that Sudin Yadav, who is the brother of the accused Shivjee, had died due to
firearm injury on the same day, for which a criminal case was instituted on
Chhatish Yadav. Accused persons had chased Chhatish Yadav for
assaulting Sudin by firearm. He has, however, denied the suggestion that he
was concealing this fact.
11. P.W.-7 Asha Devi is the married sister of the deceased, who has
claimed to be present on the date of occurrence at her parents' place. She
has also supported the prosecution case as eye witness to the occurrence
stating that all the accused persons, who were variously armed, in which
Shivjee was armed with sword, chased Chhatish Yadav, who fell in the ditch
of Chopi Singh, and they assaulted him to death in the ditch. In her
cross-examination, this witness has also admitted that Sudin Yadav was shot
in his stomach on the same day and all the accused persons were chasing
Chhatish Yadav, shouting that he had shot Sudin Yadav.
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12. P.W.-8 Dr. Ajay Kumar Jha is the Medical Officer, who had
conducted the post-mortem examination on the dead body of the deceased
on 2nd January 1997 at 12.30 P.M., and had found the following ante-mortem
injuries on the deceased: -
(I) Incised injury 6" x 1" x 1/2" on the right side of head
extending from lateral angle of right eye transversely with
incised injury of underline bones.
(ii) Incised injury 1" x 1 1/4" transversely placed on middle
of right pinna
(iii) Incised injury on back of neck transversely placed with
diversion of muscles and vasseles incision extending between
4th and 5th cervical vertebra.
(iv) three incised injuries on outer aspect of right thigh - 4" x
1" x 1" in size.
(v) Incised injury on back of head with incision on occipital
bone 4" x 1" x 1" in size
(vi) Incised injury 1" x 1" on inner aspect of left knee.
(vii) Bruise on right hand 2" x 2" over a swelling.
He has stated that death was caused due to hemorrhage and shock
due to above mentioned injuries. He has identified the post-mortem report to
be in his pen and signature, which was marked as Exhibit-2.
13. P.W.-6 Syed Md. Ali Rizvi is the Investigating Officer of the case,
who has stated that on 01.01.1997, he was posted at Thakurgangti Police
Station as Officer-in-Charge, when he got an information at about 2.10 P.M.
that there was quarrel between two groups in the village in which one person
had been murdered. Thereafter, he made a sanha entry of the information
and went to Village Baraiya Chak, and found the dead body of
Chhatish Yadav in the ditch besides the house of Chopan Singh. The wife of
the deceased, Murti Devi was also there in injured condition. He recorded
the fardbeyan of Murti Devi, which was read over to her, whereupon she put
her thumb impression. He has identified the fardbeyan, which was marked
as Exhibit-1. He has also stated that inquest report of the dead body was
prepared and he sent Murti Devi for her treatment. He has given the details
of the place of occurrence and has stated that there was no water in the
ditch. He recorded the statements of witnesses and the case was also
supervised by the Superintendent of Police. In his cross-examination, he has
admitted that he had also instituted a case for murder of Sudin Yadav on the
same day, which was Police Station Case No.2 of 1997. He has admitted
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that Sudin Yadav was murdered by Chhatish Yadav and since
Chhatish Yadav had died, he submitted final form in the said Police Station
Case No.2 of 1997. He also stated that accused Chhatish Yadav was in jail
custody in a criminal case and he had come out of the jail only on
19.12.1996. This witness has also stated in his cross examination that Potish Yadav (P.W.4) was not present in the village on that day and he had not seen the occurrence. He had learnt about the occurrence after he had returned to his village.
14. Learned counsel for the appellants have submitted that conviction and sentence of the appellants are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charge against the appellants beyond all reasonable doubts. It is submitted by the learned counsels that the prosecution case is supported only by the highly interested witnesses, who are the close relatives of the deceased. It is also submitted by the learned counsels that the prosecution has not come with the true story in this case and has concealed the fact that the deceased Chhatish Yadav was murdered by the villagers soon after he had committed the murder of Sudin Yadav, the brother of the accused Shivjee Yadav. It is submitted that since the correct story has been concealed by the prosecution and the prosecution has come out with a false story that the occurrence had taken place due to demand of share in paddy by the accused persons, the manner and genesis of the occurrence has been concealed by the prosecution and the benefit thereof must go to the accused persons. It is also submitted by the learned counsel for the appellant Shivjee Yadav that in the FIR, there is no specific allegation against the accused Shivjee Yadav. There is only general and omnibus allegation against all the accused persons named in the FIR, to have assaulted the deceased, but in course of trial, the prosecution has developed the story through P.W.-5 Badri Yadav, the father of the deceased, that Shivjee Yadav had chopped off the neck of the deceased by sword. It is submitted that this allegation has been attributed to appellant Shivjee Yadav in course of trial, for the reason that brother of Shivjee Yadav was murdered by the deceased Chhatish Yadav, soon before the occurrence. Learned counsels accordingly, submitted that since the prosecution has not come out with the clean hands in the present case, it is a fit case for acquittal of the accused appellants, and in any case, the appellants are entitled at least to the benefits of doubt.
815. Learned counsels for the State, on the other hand, have opposed the prayer and submitted that the prosecution has been able to bring home the charge against all the accused persons beyond all reasonable doubts. It is submitted that the occurrence had taken place due to dispute of share in paddy between the parties and it is specifically alleged that when the share was denied by the deceased Chhatish Yadav, he was assaulted by all the accused persons. He was again chased and assaulted to death in a ditch of Chopan Singh. Learned counsels submitted that in the evidence it has also come that it was the accused Shivjee Yadav, who was armed with sword, had assaulted the deceased on his neck. It is submitted by the learned counsels that though the prosecution case is supported only by the witnesses, who are the relatives of the deceased, but their ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Ajay Kumar Jha, and the post-mortem report proved by him as Exhibit-2, and accordingly, no doubt can be casted on the evidence of the prosecution witnesses, on the basis of which, prosecution has been able to prove the charge against all the accused beyond all reasonable doubts and there is no illegality in the impugned Judgments of conviction and Orders of sentence, convicting and sentencing the appellants for the offence under Sections 302 / 34 of the Indian Penal Code.
16. Having heard learned counsels for both the sides and upon going through the records, we find that the prosecution case is supported only by P.W.-2 Murti Devi, who is the informant and wife of the deceased, P.W.-5 Badri Yadav, who is the father of the deceased, P.W.-7 Asha Devi, the sister of the deceased, and all these witness are highly interested witnesses, being closely related to the deceased. P.W.-4 Potish Yadav, the brother of the deceased has also tried to become the eye witness, but his evidence does not inspire confidence for the reason already stated above, as actually he was not present in the village on the date of occurrence and he was informed about the occurrence when he returned back to village. Not a single independent witness has come forward to support the prosecution case, even though the occurrence had taken place in the broad day light in the middle of a village. The fact also remains that in the FIR, there is only omnibus allegation against all the accused appellants and three other persons to have come to the place of occurrence, variously armed with deadly weapons and to have assaulted the deceased, but, there is no specific allegation against any of the accused persons, nor there is any specific details as to which accused was armed with which weapon. It is only 9 during the trial that the interested prosecution witnesses have tried to develop the story stating that the accused Shivjee Yadav was armed with sword and it was he who assaulted the deceased on his neck. We find force in the submission of learned counsels for the appellants that this allegation has been subsequently attributed to appellant Shivjee Yadav in view of the fact that on the same day his brother was murdered, and it is apparent from the evidence on record that he was murdered by deceased Chhatish Yadav, after which he was chased and killed by the villagers. All the prosecution witnesses, who are the close relatives of the deceased, in their cross examination, have admitted that on the same day Sudin Yadav was murdered in the village and the deceased Chhatish Yadav was chased by the accused persons for committing the murder of Sudin Yadav and he was assaulted, though this suggestion has been denied by P.W.-2 Murti Devi. We find from the record that apart from these witnesses, P.W.-1 Balram Yadav, who has turned hostile, has specifically stated in his evidence that Chhatish Yadav had assaulted Sudin Yadav by firearm and he was chased by about 100-150 persons of the village, was assaulted by them and killed. The fact that Sudin Yadav was murdered on the same day by the deceased Chhatish Yadav, is also admitted by P.W.-6 Syed Md. Ali Rizvi, the Investigating Officer of the case, who has stated that for the murder of Sudin Yadav on the same day Police Station Case No.2 of 1997 was instituted in which Chhatish Yadav was made accused and final form was submitted due to the fact that Chhatish Yadav had died. To cap all, amongst the nine accused persons, who are named in the FIR, Sudin Yadav is also named as one of the accused, who was murdered on the same day by Chhatish Yadav.
17. The evidence on record clearly show that the prosecution has suppressed the true origin and genesis of the occurrence that Chhatish Yadav was murdered by the village mob due to the fact that soon before this occurrence, he had committed the murder of Sudin Yadav. The prosecution, suppressing the true story, has come out with the false story that the occurrence had taken place due to demand of share in paddy. Law is well settled in this regard by the Apex Court in Bhagwan Sahai and Anr., Vs. State of Rajasthan, reported in (2016) 13 SCC 171, as follows:-
"8. ----------------. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of 10 doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. ----------- ."
(Emphasis supplied).
18. In view of the law laid down by the Hon'ble Apex Court, we are of the considered view, that since the prosecution has suppressed the genesis and origin of the occurrence, the only possible and probable course left for us is to grant benefits of doubt to the appellants.
19. For the foregoing discussions, the impugned Judgment of conviction dated 23rd June 2004 and Order of sentence dated 25 th June, 2004, passed by the learned 6th Additional Sessions Judge, F.T.C.-3, Godda, in Sessions Case No.119 of 1997 / 57 of 2002, as also the impugned Judgment of conviction dated 28th July, 2014 and Order of sentence dated 31st July, 2014, passed by the learned 1 st Additional Sessions Judge, Godda, in S.T. No.119A of 1997, are hereby, set aside. The appellants are given the benefits of doubt and they are acquitted of the charge. The appellants Lakhan Yadav and Kuldeep Yadav are on bail, and they are discharged from the liabilities of their respective bail bonds. Appellants Biru Yadav, Prabhu Yadav, Bundeli Yadav and Shiv Prasad Yadav @ Shivjee Pd. Yadav are in custody. Let them be released and set at liberty forthwith, if their detention is not required in any other case.
20. All these three appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith along with a copy of this Judgment.
(H.C. Mishra, J.) (Ananda Sen, J.) High Court of Jharkhand, Ranchi The, 19th July, 2017 Kumar/AFR