Patna High Court
Vijay Yadav And Ors vs The State Of Bihar on 17 June, 2014
Author: Anjana Prakash
Bench: Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.234 of 1991
( Against the judgment of conviction dated 10th of May,1991 passed by the learned
3rd Additional Sessions Judge, Katihar in Sessions Trial No.229 of 1989)
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Manoj Kumar Yadav, son of Shiva Narain Yadav, resident of Pothia, Police Station
Falka, District Katihar
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
With
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Criminal Appeal (DB) No. 241 of 1991
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Maharana Pratap Singh @ Maharana Pratap Singh Yadav, son of Sri Jai Narain
Yadav, resident of Village + Post Office Pothia and Police Station Falka, District
Katihar
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
With
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Criminal Appeal (DB) No. 267 of 1991
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Damodar Yadav @ Damodar Prasad Yadav, son of late Bhola Yadav, resident of
Village Pothia, Police Station Falka, District Katihar
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
With
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Criminal Appeal (DB) No. 269 of 1991
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1. Vijay Yadav son of Late Jalo Yadav
2. Dularchand Yadav son of Bijay Yadav, both residents of Village Pothia, Police
Station Falka, District Katihar
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014
2/13
Appearance :
(In CR. APP (DB) No. 234 of 1991, 241 of 1991, 267 of 1991 & 269 of 1991)
For the Appellants : Smt. Madhu Prasun, Advocate
Shri Sudarshan Kumar, Advocate
For the Respondents : Shri Dilip Kumar Sinha, A.P.P.
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
and
HONOURABLE JUSTICE SMT. ANJANA PRAKASH
ORAL JUDGMENT
(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)
Date: 17-06-2014
The present batch of four appeals arise out of judgment
of conviction dated 10th of May, 1991 passed by the learned 3rd
Additional Sessions Judge, Katihar in Sessions Trial No.229 of
1989, by which while acquitting fifteen accused persons, the learned
Judge convicted the five appellants for committing offences under
Sections 148 and 302/34 of the Penal Code and directed each of the
appellants to suffer rigorous imprisonment for two years as also for
life on the above two respective counts. Sentences were directed to
run concurrently.
2. The prosecution case emanated from the fardbeyan of
P.W.1 Satyanarain Yadav, who happened to be the brother of the
deceased. He alleged that he was also going with the deceased to
attend the call of nature early morning on 19.4.1988. It is stated that
when they had reached a particular point on the pitch road, the
accused persons named in the F.I.R. numbering twenty-one came
and surrounded his brother Umakant Yadav and at the orders of Jai
Naraian Yadav (since acquitted) assaulted the deceased with farsa. It
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was specifically alleged that appellant Manoj Kumar Yadav dealt
garasa blow while appellant Damodar Yadav wielded a bhala blow
upon the deceased while the remaining three appellants Vijay
Yadav, Dularchand Yadav and Maharana Pratap Singh @ Yadav
along with acquitted accused Arun Yadav, Jyotish Yadav gave farsa
blows to the deceased, as a result of which Umakant Yadav breathed
his last at the spot. Seeing the occurrence P.W.1 ran towards his
house and villagers started raising alarm which attracted people,
who came and saw the occurrence and on which the accused persons
also made their defence.
3. It was stated by the informant himself that his father
late Harihar Yadav had two wives. The informant and his deceased
brother were the sons of the second wife whereas accused Jainarain
Yadav and Sheonarain Yadav were the sons of Harihar Yadav from
his first wife and that the accused persons had been conspiring to
commit the murder of these brothers.
4. It appears that after recording the fardbeyan (Exhibit-
1) the F.I.R. of the case was drawn up and the investigation was
taken up by P.W.12 S.I. Baidyanath Ram, who held inquest upon the
dead body and forwarded the same for postmortem examination.
The case was also investigated by P.W.13, who inspected the place
of occurrence and recorded statements of different witnesses. After
closure of investigation twenty accused persons were put on trial as
Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014
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pointed out at the very out set of the impugned judgment.
5. The defence of the accused persons was that no one
had seen the occurrence as it was a blind murder which was
committed in the cover of darkness of night and the witnesses out of
their imagination as also due to suspicion had implicated the
accused persons.
6. There may not be any doubt that the deceased was
murdered by being brutally assaulted as P.W.2 Dr. Sharat Kumar
Singh, who held postmortem examination on his dead body, had
found as many as nine wounds on it, out of which a solitary wound
i.e. injury no.9 was a penetrating wound and the remaining eight
were incised wounds. It is better to extract the description of injuries
so as to appreciating as to how brutally the deceased had been
assaulted. The injuries which were found by P.W.2 were as
follows:-
(1) Incised wound 6"x 1 ½" x 1" on the middle of
head extending to back of head, 1" from hairline in
sagital plain.
(2) Incised wound 6" x 2" x 1 ½" on left side of upper
part of neck.
(3) Incised wound 3" x 2" x 1" on lower part of left
side neck.
(4) Incised wound 10" x 4" x 3" on the lower part of
left side of neck and left shoulder.
(5) Incised wound 5" x 3" x 2" on the outer side of
left elbow region extending both to arm and forearm.
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(6) Incised wound 1" x ½" x ¼" on the outer side of
left wrist.
(7) Incised wound 1" x ½" x ½" on right arm.
(8) Incised wound ½" x ½" x ¼" on the middle of
back of chest on spine.
(9) Penetrating wound 1" x ½" penetrating the 4th
right inter costal space in the mid axilliary line.
7. What may, thus, be found is that majority of the
wounds like injury nos.1, 2 and 4 were as dangerous as could be
sufficient individually to cause death in addition to injury no.9
which was a solitary penetrating wound, sufficient to cause death of
the deceased as the penetrating wound had pierced between the 4th
right inter costal space over the mid axilliary line as it may appear
from the further evidence of P.W.2 and had contused and punctured
the pleura. It appears further that the heart was also damaged on
account of injury no.9. However, merely because the doctor was
giving an opinion and also because the injuries could be indicating
that the man was murdered, no person could be convicted on that
account alone. The Court has to scrutinize the judgment of
conviction in the light of the evidence which was adduced by the
prosecution and the probability of the allegations that it were the
accused persons who had committed the murder of Umakant Yadav.
While to examining the evidence what confronted us was that there
were many serious pitfalls in the evidence of the prosecution and it
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could be a case where the present set of appellants were also entitled
to acquittal. In order to buttress this finding of ours we want firstly,
to point out that P.W.1, the informant of the case, who claimed
accompanying or following the deceased so as to going to attend the
call of nature, may not be an eye witness to the occurrence. The
other probability which emerges from his evidence is that he had
indeed not seen the occurrence and had neither been present at the
scene of occurrence as well. We cannot go to any other evidence
than his own for raising the above inference. In his elaborate
evidence P.W.1 had given the blow by blow description of the
manner of occurrence by alleging as to which of the accused had
given blow by which weapon and had struck what part of the body
of the deceased. If one could consider the evidence of P.W.1 in
examination-in-chief then one could really be alarmed that it was a
version coming from the most trustworthy witness but when one had
considered the evidence of P.W.1 in paragraph 13 at page 12 of the
paper book one could simply be forced to change his inference and
note down that P.W.1 could never be an eye witness to the
occurrence. P.W.1 stated in paragraph 13 that when the accused
persons had run away, he reached near his brother and found that he
was dead. Also, that his clothes were soaked in blood and that blood
had spilled over the road quite copiously and further that it remained
there on the road for many more days. P.W.1 further stated in the
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same paragraph that in spite of having seen the occurrence and
having identified, the accused persons, he did not tell the names of
those accused to any of the witnesses or persons who had arrived at
the scene of occurrence and he rushed by a bicycle to Pothia
outpost. But did not find any Police Officer except one R.P. Ram, an
officer in the rank of Assistant Sub-Inspector of Police, who told
him that he was under suspension and as such he could not help him.
P.W.1 further stated in paragraph 24 at page 16 of his deposition
appearing in the paper book that he went to Pothia outpost but did
not lodge any report in spite of having stayed there for 10-15
minutes. He thereafter left Pothia outpost to go to Falka Police
Station and again remained there for half an hour, but neither did he
give his own report nor did he request the Police Officer present
there to record his statement. This indicates that P.W.1 had not
really seen the occurrence and had identified the assailants of his
brother as there was no reason for him not to give his statement
either at Pothia outpost or Falka Police Station. We are very firm in
our view that P.W.1 was not an eye witness to the occurrence and
his evidence in paragraph 13 that he reached and found his brother
lying dead whose clothes were soaked in blood is the only truth that
he had arrived only after the murder had been committed and the
culprits had disappeared from the scene of occurrence.
8. The learned trial judge has held that the F.I.R. was not
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an antedated document. We, after examining the evidence of
witnesses as also a couple of station diary entries which were
brought on record both by the prosecution and the defence, have to
hold that the observations and findings of the learned trial judge
could not be digested by us without a pinch of salt. It is admitted by
P.W.1 that he had gone to Pothia outpost and it was also stated by
him that there was no Police Officer present there. Station diary
entry No.311 dated 18.4.1988, recorded by the Havildar posted at
that outpost indicates that a rumour was received at the outpost
about the murder of Umakant Yadav and the Havildar, namely,
Birendra Kumar Pandey with Contable No.215 Dinanath Jha started
from Pothia outpost to the place of occurrence. It has been clearly
stated in the said station diary entry as Exhibit A that because there
was no Officer available at the outpost he sent information about the
occurrence to Falka Police Station and handed over the charge of the
station diary entry to Constable 347 Islam Khan. Station diary entry
No.313 is not the less relevant a document. It indicates that by the
time Havildar Birendra Kumar Pandey of Pothia outpost had arrived
at the place of occurrence, an Officer of Falka Police Station had
already arrived there. The first station diary entry no.311 was
recorded at 5.45 A.M. while the second station diary entry no.313
was recorded at 7.45 A.M. We find from the F.I.R. (Exhibit 6) and
the fardbeyan (Exhibit 1) that the fardbeyan was recorded at 9.30
Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014
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A.M. on 19.4.1988. If the Officer of Falka Police Station, i.e., S.I.
B.N. Ram had already arrived at the place of occurrence much prior
to 7.45 A.M. and if the informant was there ready to give his
statement to any Police Office then how the fardbeyan was recorded
at 9:30 A.M., i.e., after about two hours of the arrival of the Officer,
remains a mystery for us. Not only that, the formal F.I.R., i.e.,
Exhibit 6 was drawn at 2:00 P.M. and the copy of the F.I.R. was
dispatched to the Chief Judicial Magistrate, Katihar by special
messenger. It appears very curious as to how the special messenger
who was dispatched with the copy of the special report would reach
the nearest Magistrate after two days of the drawal of the special
report.
9. We have already referred to the evidence of P.W.1,
the informant of the case, that in spite of having reached Pothia
outpost just after the occurrence and also having arrived and
approached the Falka Police Station and having remained there for
about half an hour and again, as may appear from the evidence of
the informant himself having accompanied a Police Officer, i.e.,
Baidya Nath Ram up to the place of occurrence, why he was feeling
shy is giving his statement before the police by detailing the
occurrence and naming the real assailants.
10. We have a very curious reasoning coming from the
police itself which emerges from yet another station diary entry
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recorded by S.I. Baidya Nath Ram of Falka Police Station. As per
station diary entry no.391 dated 19.4.1988 this entry was made by
S.I. Baidya Nath Ram at 8:05 A.M. and what appears from the
contents of this station diary entry is that P.W.1 in spite of having
approached the police and met the competent officers had not given
his statement before Pothia outpost as he was suspicious of mala
fide actions on the part of the police at the behest of the Mukhiya of
Pothia panchayat. This remains a serious question and a matter of
serious doubt as to whether S.I. Baidya Nath Ram would be
available at Falka Police Station at 8:05 A.M. if he had already
arrived at the place of occurrence much before 7:45 A.M. on the
same day, as appears from station diary entry no.313 dated
19.4.1988recorded by Havildar Birendra Kumar Pandey of Pothia outpost. In our opinion, there is every chance that station diary entry no.391 dated 19.4.1988 of Falka Police Station was created subsequently to create an alibi as to why P.W.1 had not given his statement before the police and also to satisfy the judicial conscience that there were satisfactory reasons to accept that the F.I.R. was not ante timed. In our opinion, not only the F.I.R. was ante timed but certain documents like station diary entry no.391 dated 19.4.1988 (Exhibit-7) of the prosecution was also fabricated in order to supporting the prosecution explanation as regards belated lodging of the F.I.R. We are of the opinion that the fardbeyan and Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014 11/13 the F.I.R. were fabricated records which were brought in existence after due deliberations and consultations with the Police Officer S.I. Baidya Nath Ram who had seriously indulged into the fabrication of these records. Thus, what we find is that the finding of the learned trial judge that the F.I.R. was not ante dated or ante timed is impossible to be supported by us and we have already pointed out that P.W.2 is the doctor who had held postmortem examination on the dead body.
11. P.W.3 Md. Yasin Ansari was a witness of formal character and P.W.4 Kusumi Devi was the mother of the deceased. She was giving very curious reasons for being present at the scene of occurrence. P.W.4 stated that as soon as her son, deceased Umakant Yadav, had emitted from his house to go outside to attend to the call of nature, she also picked up a Lota to follow him for the same. We doubt that the reason given by P.W.4 is acceptable. During cross examination in paragraph 8 P.W.4 was put certain questions regarding the provisions of any such place where the lady inmates of the house would comfortably ease and urinate. It appears admitted by P.W.4 that there was some provision created in the house hold so as to facilitate the ladies to attend to the calls of nature. If that was so then it is very difficult for us to accept that P.W.4 will not avail of that particular provision on that particular date and shall venture out following her son. In our opinion, it was a Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014 12/13 clever improvement made by the prosecution so as to making P.W.4 a competent witness. This becomes more clear if one had perused the cross examination evidence of P.W.4 in paragraph 9 where it was seriously challenged by suggesting to her that she had not stated to the police that she had gone out to attend the call of nature. Thus, the evidence of P.W.4, to us, appears completely unacceptable.
12. P.W.5 Leela Devi is the wife of deceased Umakant Yadav and on her own evidence she was not an eye witness to the occurrence. P.W.6 Gokhul Kumar Yadav had though given evidence as an eye witness but again what we find is that at the time of occurrence he was aged about 7 years and it appears to us very difficult to accept that a child of seven years would retain the facts of the case in his memory so as to narrating after seven years of the incidence. Child's memory is too fragile to retain such incidence. It might be possible to retain the hazy sketches of the incidence but a child, after seven years of the incidence, in our opinion, could not be producing the details of the occurrence as was stated by P.W.6. P.W.7 is the father of the deceased and he was also not an eye witness to the occurrence. He had also heard from P.W.6 and we have already pointed out that P.W.6 was a child of seven years and that he would be naming the accused at that minor age is not acceptable. P.W.9 and P.W.11 were formal witnesses whereas P.W.10 had been tendered for cross examination. We have already Patna High Court CR. APP (DB) No.234 of 1991 dt.17-06-2014 13/13 noted that P.Ws.12 and 13 were the Investigating Officers of the case.
13. Thus, what we find is that the conviction of the appellants was virtually based on the solitary evidence of P.W.1. We have already pointed out at the very threshold that the evidence of P.W.1 does not appear wholly reliable or even partially reliable. We have already noted that P.W.1 was not present on the scene of occurrence and further he had not identified any of the assailants of his brother because of not being present there at the scene of occurrence.
14. In the result what we find is that conviction of the five appellants for offences under Sections 148 and 302/34 I.P.C. was unwarranted as the same could not be sustained. In the result, the four appeals succeed and they are allowed. The appellants of the four appeals are acquitted of the charges, they had been found guilty and sentenced by the learned trial judge. The appellants are on bail. They shall stand discharged from the liabilities of their respective bonds.
(Dharnidhar Jha, J)
(Anjana Prakash, J)
Narendra/ S.Ali/
NAFR
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