IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 359 of 1989 ========================================================== 1. Paro Yadav, S/o Late Tilak Yadav, 2. Baso Yadav, S/o Late Jitu Yadav, 3. Jawahar Yadav, S/o Late Deo Yadav, All resident of village-Murlachak, P.S.-Warisaliganj, District-Nawada .... .... Appellants Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 418 of 1989 Suresh Yadav, Son of Late Mohan Yadav, resident of village- Murla chak, P.S.-Warisaliganj, P.O.-Warisaliganj, District- Nawada. .... .... Appellant Versus The State of Bihar .... .... Respondent ========================================================== Appearance : (In CR. APP (DB) No. 359 of 1989) For the Appellants : Mr. Durgesh Nandan, Advocate, Mr. Hirday Pd. Singh, Advocate, Mr. Ram Nath Saran, Advocate, Mrs. Kiran Sinha, Advocate, For the Respondent: Mr. S.C. Mishra, APP. (In CR. APP (DB) No. 418 of 1989) For the Appellants : Mr. Mr. Durgesh Nandan, Advocate, Mr. Hirday Pd. Singh, Advocate, Mr. Ram Nath Saran, Advocate, Mrs. Kiran Sinha, Advocate, For the Respondent : Miss S.B. Verma, APP ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ********* (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ********** 2 In Cr. Appeal (DB) No. 418 of 1989, the appellant is Suresh Yadav whereas in Cr. Appeal (DB) No. 359 of 1989, the appellants are Paro Yadav, Baso Yadav and Jawahar Yadav. Both these appeals have been heard together as they arise from the same Sessions Trial. 2. By judgment and order dated 27 July, 1989 passed in Sessions Trial No. 23/1987 / 101/1980 the learned 3rd Additional Sessions Judge, Nawada, convicted appellant Suresh Yadav under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. The appellant Suresh Yadav has also been held guilty for the offence under Section 148 of the IPC and has been sentenced to undergo R.I. for two years. By the same judgment appellants Paro Yadav, Baso Yadav and Jawahar Yadav have been convicted for the offence under Sections 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life. The appellant Jawahar Yadav has further been held guilty of the charge under Section 148 of the Indian Penal Code and has been sentenced to undergo R.I. for two years. Similarly, appellant Baso Yadav has been held guilty of the charge under Section 323 IPC and has been sentenced to suffer R.I. for six months thereunder. However, all the sentences have been ordered to run concurrently. 3. The prosecution case in short is that on 29.5.1979 at about 6:30 p.m. when Faudi Yadav (deceased) on return from Nawada came on the road facing his house, Paro Yadav, Bhajju Yadav, Adhin Yadav, Baso Yadav, Suresh Yadav holding Garasa and Dev Yadav holding Bhala collectively came and assaulted him indiscriminately. In the meantime, Jawahar Yadav also arrived, being armed with Garasa and he inflicted a Garasa blow on his armpit. Being injured by indiscriminate assault, Faudi Yadav fell on the ground. On alarm being raised by the victim, Janak 3 Yadav, Tulsi Yadav, Mahtab Devi, Sukhdeo Yadav and Teju Yadav arrived at the place of occurrence to rescue him from further assault. The motive behind the occurrence is assigned to be land dispute pending between Bharat Yadav and Latan Yadav and it was Latan Yadav who instigated the accused persons to commit the offence. 4. On the basis of oral statement of victim Faudi Yadav recorded by Sub-Inspector of Police, Ram Sagar Prasad of Warisaliganj police station at Warisaliganj Hospital on 29.5.1979 at 8:00 p.m., initially, a case was registered at Warisaliganj police station on 29.5.1979 at 9:10 p.m., under sections 148, 149, 324, 307 and 109 of the Indian Penal Code, against accused persons, namely, (i) Paro Yadav, (ii) Bhaju Yadav, (iii) Adhin Yadav, (iv) Baso Yadav, (v) Suresh Yadav, (vi) Dev Yadav, (vii) Jawahar Yadav & (viii) Latan Yadav and investigation was taken up. 5. In course of treatment, the victim died in Nawada hospital on 29.5.1979 itself as would appear from exhibit-7, a petition written by the Officer-in-Charge of Warisaliganj police station to the learned Chief Judicial Magistrate, Nawada, on 29.5.1979 itself, informing him that the victim died in Nawada hospital due to injury on his stomach and therefore, a prayer was made to add Section 302 IPC in the F.I.R. of the case. 6. On conclusion of investigation, chargesheet was submitted against the accused persons. The learned Magistrate took cognizance of the offence. Since the offence alleged was exclusively triable by the court of sessions, the case was committed to the court of sessions. The charges were framed against the accused persons to which, they pleaded not guilty and claimed to be tried. The accused persons denied the entire allegation and claimed that they were falsely implicated due to previous enmity. The 4 accused Yugal Yadav, Adhin Yadav and Dev Yadav died during the pendency of trial and the trial proceeded against rest of the accused persons. 7. The prosecution in order to prove its charges examined altogether 15 witnesses in course of trial. They are K.K. Jha (PW-1), Kapildeo Singh (PW-2), Janki Yadav (PW-3), Subhash Yadav (PW-4), Sukhdeo Yadav (PW-5), Shiv Kumar Yadav (PW-6), Teju Yadav (PW-7), Chhotan Yadav (PW-8), Tulsi Yadav (PW-9), Mahtab Devi (PW-10), Rampati Devi (PW-11), Dr. Indrajit Prasad (PW-12), Dr. Sahi Imam (PW- 13), Ram Sharan Mishra (PW-14) and Kapil Kumar (PW-15). Among the prosecution witnesses, K.K. Jha (PW-1) and Kapildeo Singh (PW-2) are formal witnesses, who proved fardbeyan (exhibit-1) and formal F.I.R. (exhibit-2) on the record. Teju Yadav (PW-7), Mahtab Devi (PW-10) and Rampati Devi (PW-11) were tendered by the prosecution for cross- examination. 8. PW-3, Janki Yadav claims to be an eye-witness of the occurrence. He has stated that on the alleged date of occurrence while he was coming from market and when he reached on the bye-pass road near house of Faudi Yadav, he found their Deo Yadav and Suresh Yadav armed with Bhala, Adhin Yadav and Jawahar Yadav armed with Garasa and Latan Yadav, Paro Yadav, Bhaju Yadav and Yugal Yadav and an unknown person armed with Lathi present at the place of occurrence. Then, at the instance of Latan Yadav, Deo Yadav and Suresh Yadav dealt with Bhala blow on Faudi Yadav, as a result of which, he fell on the ground. About rest of the accused persons, his evidence was that they had intercepted the victim when Tulsi Yadav, Sheo Kumar Yadav and Jano Yadav wanted to rescue him. They were also subjected to assault at the hands of accused persons. The 5 witnesses, thereafter, resorted to brick-batting and only thereafter the accused persons fled away. P.W.-3 in his evidence attributed both Deo Yadav and Suresh Yadav to have held Bhala, while Paro Yadav, Bhaju Yadav and Baso Yadav were said to have carried Lathi with them. This witness has stated that it was Latan Yadav, who ordered the associates to assault Faudi Yadav. P.W.-3 in his deposition has attributed Deo Yadav and Suresh Yadav only for assaulting the victim Faudi Yadav with Bhala and about the rest of the accused, this witness has stated that they had simply intercepted the victim. The statement of this witness is completely contrary as has been alleged in the F.I.R. The victim in his fardbeyan has alleged that all the accused persons had assaulted him. In the F.I.R. appellant Suresh Yadav is alleged to have been armed with Garasa and appellant Jawahar Yadav is alleged to have inflicted injured by Garasa on the right armpit of the informant. The defence drew attention of P.W.-3 towards his statement recorded under Section 161 Cr. P.C. by the police, in which he did not attribute against accused Adhin Yadav and Deo Yadav to have held Bhala and Garasa respectively. The trial court has rightly disbelieved this witness. This witness is not a reliable witness for more than one reason. His deposition is totally contrary to what has been alleged in the F.I.R. In cross- examination, he has admitted that when he reached at the place of occurrence, he found that Faudi Yadav was lying on road and a crowd of more than 10-12 persons had assembled. They all were his co-villagers and on the person of Faudi Yadav he found several wounds. Thus, apparently, this witness had not been present when the occurrence of assault took place. 9. P.W.-4, Subhash Yadav is son of deceased. He has stated that on alarm being raised outside his house, he came out and found Latan 6 Yadav standing there, having a Lathi in his hand. He also saw Deo Yadav, Suresh Yadav and Adhin Yadav armed with Bhala, Paro Yadav and Jawahar Yadav armed with Garasa and Baso and Yugal Yadav armed with Lathi. They all were assaulting his father. When Tulsi Yadav, Chhotan Yadav, Sheo Kumar Yadav and Sukhdeo Yadav intervened, they were also assaulted by the accused persons. In the process, Sheo Kumar Yadav and Tulsi Yadav sustained injuries on their persons. When his father fell down, then at the command of Latan Yadav, appellant Suresh Yadav pierced Bhala in the abdomen of his father and rotated it in the abdomen. Thereafter, the witnesses resorted to brick-batting and only then, the accused persons fled away. The injured Faudi Yadav was taken to Warisaliganj Hospital where a Police Officer recorded statement of his father. The I.O. had visited the place of occurrence and had seized blood-stained soil from the place of occurrence. 10. The deposition of this witness is also not in conformity with the statement of the informant on material point. In his evidence, in course of trial, this witness has attributed Deo Yadav, Suresh Yadav and Adhin Yadav to have held Bhala and Paro Yadav and Jawahar Yadav are alleged to be armed with Garasa. He has also stated that Baso Yadav and Yugal Yadav were armed with Lathi. He attributed that all of them assaulted Faudi Yadav and when Faudi Yadav fell on the ground, on the order of Latan Yadav, Suresh Yadav pierced Bhala in his abdomen and rotated the same. The statement of this witness about Deo Yadav holding Bhala in his hand, in deposition, in course of trial, was an improvement from his early version rendered before police where he had attributed Deo Yadav to be armed with Garasa. The ocular statement of this witness is also not in conformity with 7 the medical evidence, as the doctor who examined the informant while he was alive could find only two injuries on the person of Faudi Yadav and even the doctor who conducted post mortem could find only two ante mortem injury on the dead body of Faudi Yadav. Thus, the possibility of indiscriminate assault by the accused persons, who were variously armed with different weapons is completely ruled out from the medical evidence of the doctors, who treated the informant while was alive and while post mortem examination on the dead body of the informant (deceased) was conducted. The presence of this witness at the time of occurrence also becomes doubtful for the reason that informant in his written statement did not mention his name nor he is witness to the F.I.R even though he is the son of the deceased. In his cross-examination, this witness has further admitted that he found blood oozing out from the Panjara of Faudi Yadav immediately after he came out from his house. At that time, Faudi Yadav had fallen on the ground. This fact clearly demonstrates that when Faudi Yadav was assaulted, this witness was inside his house. Further, before the police, he did not make specific assertion about appellant Suresh Yadav piercing Bhala in the abdomen of Faudi Yadav. The I.O. has categorically stated that this witness had simply named Suresh Yadav as one amongst the assailants. For the reason, this witness is also not a reliable witness. 11. P.W.-5, Sukhdeo Yadav, in his deposition has stated that on alarm being raised when he visited the place of occurrence, he found Deo Yadav and Jawahar Yadav armed with Garasa, Suersh Yadav and Adhin Yadav armed with Bhala and Latan Yadav, Yugal Yadav and Paro Yadav armed with Lathi, were present there. Latan Yadav exhorted them and, thereafter, all of them assaulted Faudi Yadav with their respective weapons. 8 About Suresh Yadav, he has stated that he gave Bhala blow in the Panjara of Faudi Yadav. When Tulsi Yadav and Sheo Kumar Yadav came in rescue of the victim, they were also assaulted. The evidence of Sukhdeo Yadav (PW-5) about Deo Yadav holding Garasa was admittedly not in conformity with the fardbeyan of Faudi Yadav wherein it has been alleged that he was holding Bhala with him. Similarly, his written statement that Suresh Yadav and Adhin Yadav were holding Bhala was also not in conformity with fardbeyan of Faudi Yadav, as Faudi Yadav in his written statement has alleged that Suresh Yadav and Adhin Yadav were holding Garasa with them. Similalry, his assertion about Paro Yadav, Bhaju Yadav and Baso Yadav carrying Lathi with them is also not in conformity with the oral statement of Faudi Yadav as in the fardbeyan they are alleged to be armed with Garasa. It is also found that this witness had not stated before the police that Suresh Yadav had pierced Bhala in the abdomen of Faudi Yadav. To the contrary, he had named Suresh Yadav to be one amongst the assailants before the police without making any specific assertion about piercing Bhala blow in the abdomen of Faudi Yadav. For all these reasons, P.W.-5 also does not appear to be a reliable witness. 12. P.W.-6, Sheo Kumar Yadav deposed before the court that he reached at the place of occurrence after hearing hue and cry. At that time, he was carrying brick on a Bullock-cart on the bye-pass road. He has stated that he saw Suresh Yadav and Adhin Yadav armed with Bhala, Baso Yadav, Jawahar Yadav and Deo Yadav armed with Garasa and other persons were armed with Lathi. On the exhortion of Latan Yadav, Suresh Yadav is alleged to have pierced Bhala in the Panjara of Faudi Yadav and when he came in order to rescue the victim, Baso Yadav is alleged to have 9 inflicted a Garasa blow below his left eye. Jawahar Yadav assaulted Tulsi Yadav with Garasa. When they resorted to brick-batting, the accused persons fled away. 13. The deposition of Sheo Kumar Yadav (PW-6) about the appellant Suresh Yadav and accused Adhin Yadav, wherein he has alleged that they were holding Bhala was not in conformity with the statement made in the fardbeyan. Similarly, his evidence about Deo Yadav holding Garasa was also not as per the fardbeyan of Faudi Yadav, who had alleged Deo Yadav to be armed with Bhala. Similarly, statement of this witness about Paro Yadav, Bhaju Yadav and Baso Yadav holding Lathi was also not as per the version of Faudi Yadav, who had alleged in his fardbeyan that they were holding Garasa in their hands. This witness in cross-examination has admitted that when he reached near the place of occurrence, on alarm being raised, he found Faudi Yadav lying on the ground and blood was oozing out from his abdomen. This admission clearly rules out his claim about witnessing the assailants, assaulting Faudi Yadav. This witness has also given a twist to the prosecution case by saying that Faudi Yadav was assaulted by Bhala from front while he was sleeping on a Chowki. The appellant Suresh Yadav had pierced Bhala after bending himself in that position and pulled it out. Neither the informant nor any other witness has stated like this. For the aforesaid reasons, P.W.-6 does not appear to be a reliable witness, much less, a witness to the actual incident of assault. 14. P.W.-8, Chhotan Yadav in his deposition has stated that he reached near the house of Faudi Yadav, on alarm being raised. He found there Adhin Yadav and Suresh Yadav armed with Bhala, Baso Yadav, Deo Yadav and Jawahar Yadav armed with Garasa, Latan Yadav, Paro Yadav 10 and Yugal Yadav armed with Lathi. Latan Yadav exhorted and thereupon Suresh Yadav and Adhin Yadav assaulted Faudi Yadav with Bhala. When Tulsi Yadav and Sheo Kumar Yadav came to rescue the victim, Sheo Kumar Yadav was assaulted with Garasa at the hands of Baso Yadav and Jawahar Yadav assaulted Tulsi Yadav by means of Garasa. The accused persons fled away from the place of occurrence when the witnesses resorted to brick-batting. 15. When, I analyze the evidence of P.W.-8, Chhotan Yadav with the fardbeyan of Faudi yadav, I find that the allegation of Adhin Yadav and Suresh Yadav holding Bhala was not in line with the oral statement of the Faudi Yadav, who has alleged them to be armed with Garasa. His statement about Deo Yadav holding Bhala was also contrary to the fardbeyan, in which, he was shown to be armed with Bhala. Similarly, though, Paro Yadav and Bhaju Yadav were alleged to be armed with Garasa in the oral statement of the informant, this witness has alleged that they were holding Lathi. 16. Regarding the manner of assault also there is huge contradiction between the fardbeyan and deposition of this witness. In the fardbeyan, it is alleged that all accused persons resorted to assault on Faudi Yadav whereas this witness has assigned the role of assault caused to Faudi Yadav only upon Suresh Yadav and Adhin Yadav and that too by means of Bhala only. In course of cross-examination, he further changed his version and confined the role of assault by Bhala only upon Suresh Yadav. When I compare the statement of this witness with his early version, which was recorded by the police, I further find there is material contradiction as before the police he had stated that Jawahar Yadav too had inflicted Bhala 11 blow on Faudi Yadav, but, he has not stated anything regarding assault by Jawahar Yadav on Faudi Yadav in his deposition. These facts taken together make this witness also to be unrealiable. 17. P.W.-9, Tulsi Yadav was carrying bricks on the Bullock-cart on the date of occurrence. While he was passing near bye-pass road, he heard alarm raised near house of Faudi Yadav. There was a crowd and among the members of crowd, he could identify Suresh Yadav and Adhin Yadav armed with Bhala, Paro Yadav, Deo Yadav and Jawahar Yadav armed with Garasa and Latan Yadav and Baso Yadav present there. He has also stated that Faudi Yadav was sitting on a Chowki at his “Dalan”. Latan Yadav ordered to kill Faudi Yadav, upon which, Adhin Yadav dragged him and appellant Suresh Yadav pierced Bhala. When he went for rescue of the victim, appellant Paro Yadav assaulted him by Garasa and Sheo Kumar Yadav sustained injuries at the hands of Baso Yadav. He says that Faudi Yadav was first brought to police station. He was, thereafter, sent to Warisaliganj hospital from where he was referred to Nawada hospital and Faudi Yadav succumbed to the injuries in Nawada hospital. 18. When, I analyze the evidence of Tulsi Yadav (PW-9), I find that the same is not in conformity with the oral statement of the informant. This witness has alleged that Suresh Yadav and Adhin Yadav were holding Bhala whereas in the fardbeyan, it is alleged that they were holding Garasa. Similarly, Deo Yadav is alleged to be armed with Garasa whereas in the fardbeyan, he was alleged to be armed with Bhala. This witness has not attributed any weapon in the hands of Latan Yadav and Baso Yadav, whereas in the F.I.R., Baso Yadav is alleged to be armed with Garasa. This witness has also not taken name of Yugal Yadav and Bhaju Yadav as 12 member of unlawful assembly whereas in the fardbeyan they are specifically stated to be members of unlawful assembly, armed with weapons in their hands. 19. It would emerge from the discussion made hereinabove that the prosecution evidence about the arms held by the accused persons is admittedly in contrast to the version of Faudi Yadav, which was the initial version, on the basis of which, the police had instituted the F.I.R. and investigation was taken up. 20. At this point of time, it would be relevant to discuss the evidence of P.W.-12, Dr. Indrajit Prasad, who not only examined Sheo Kumar Yadav (PW-6) and Tulsi Yadav (P.W.-9) but, also examined Faudi Yadav (deceased) while he was alive. The doctor has found the following injuries on the person of Faudi Yadav:- (i) One incised cut injury in the right renal angle bleeding continued. The size of injury was 2” x 1/2” air coming from the lungs from the cut wounds. (ii) Incised cut injury about 1/2” above the first injury of size of 2” x ½” air coming from wound and bleeding continued. Since the injured was serious struggling for life, he was referred to Nawadah Hospital. Both injury in the opinion of the Doctor was grievous in nature caused by sharp cutting weapon such as Bhala or Garasa.” 21. The doctor has found following injuries on the person of Sheo Kumar Yadav:- “(i) One incised wound on the left of size of 1 ½” x ½” x ¼”. The injury in the opinion of the Doctor was simple caused by sharp edged weapon like Garasa and the injury was about 6 hours old.” 22. The doctor in course of examination of Tulsi Yadav is stated to have found one incised wound 1 ½” x ¼” x ¼” on the right temporal region on his head. The injury in the opinion of the Doctor was 13 simple caused by sharp edged weapon such as Garasa. The age of the injury in the opinion of the Doctor was about 6 hours. 23. After Faudi Yadav succumbed to the injury his dead body was sent for post-mortem examination. The doctor Sahid Imam (PW.-13) who conducted the post-mortem examination found the following ante- mortem injuries on the dead body of Faudi Yadav:- 1. One penetrating wound 2” x 1” into deep up to the lungs on the middle of right side of back. 2. Penetrating wound 3” x 1” deep up to lungs 2” above first injury. The death in the opinion of the Doctor was due to shock and haemorrhage produced due to injury no. 1 & 2. The injuries in the opinion of the Doctor were caused by sharp pointed weapon such as Bhala. 24. The prosecution has also examined Ram Sharan Mishra (PW-14). He happens to be the Police Officer, who took charge of investigation of the case from his predecessor Kapil Kumar on 8.9.1979. He had recorded statement of one witness only. Kapil Kumar (PW-15) happens to be the Police Officer, who was posted as Officer-in-Charge at Warisaliganj police station on the relevant date of occurrence. He had drawn the formal F.I.R. (exhibit-6) at the police station on the basis of fardbeyan of Faudi Yadav recorded by Ram Sagar Prasad, Sub-Inspector of Police, Warisaliganj. He made endorsement and proved his signature (exhibit-5/1) on fardbeyan of Faudi Yadav whereby he had himself taken up the investigation. He sent injured Faudi yadav to Nawada hospital where he was reported to have died on 29.5.1979 itself. He sent requisition (exhibit- 7) to the learned Chief Judicial Magistrate, Nawada on 29.5.1979, requesting to add Section 302 IPC, as the victim had succumbed to the injuries sustained by him. In his deposition, he has stated that he found marks of blood on pucca road and adjacent east at a distance of 16 ft. from 14 “Palani” and seized them. Pieces of bricks were also found at the place of occurrence and were seized by him. 25. Learned counsel for the appellant submits that the entire prosecution case becomes doubtful because of major contradictions on vital issues, like, genesis of occurrence, manner of occurrence and the place of occurrence making entire prosecution case unworthy of reliance. If fardbeyan of Faudi Yadav which was recorded on 29.5.1979 at