CRIMINAL APPEAL No.515 OF 1988 --------- Against the judgment and order of conviction and sentence dated 6th August, 1988 passed in Sessions Case No. 367 of 1986 by Shri John Dhan, 8th Additional District & Sessions Judge, Munger. --------- 1. Hirdi Yadav alias Hirday Yadav, son of Bchchi Yadav, 2. Kishor Yadav, son of Hirdi Yadav alias Hriyaday Yadav, 3. Jaiba alias Jai Prakash Yadav, son of Hirdi Yadav alias Hirday Yadav, all residents of village – Saidpur, P.S. – Mansi, District – Khagaria ………….. Appellants Versus The State of Bihar ……… Respondent --------- For the Appellants : Shri Vijay Kumar Sinha No. I, Advocate For the State : Sushri Shashi Bala Verma, A.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH -------- Dharnidhar Jha & Dinesh Kumar Singh, JJ. The three appellants have challenged the judgment and order of conviction and sentence dated 6.8.1988 passed by the learned 8th Additional District and Sessions Judge, Munger whereby appellant Kishor Yadav has been convicted under section 302 IPC and sentenced to undergo R.I. for life whereas the other two appellants Hirdi Yadav alias Hirday Yadav and Jaiba alias Jai Prakash Yadav were convicted under sections 302/34 of IPC and sentenced to undergo R.I. for life. 2 2. The prosecution case, as per the fardbeyan of Jagat Narayan Yadav, P.W. 6, recorded by S.I. R.P. Singh (not examined), Officer- in-Cahrge of Mansi Police station, on 4.8.1985 at 9 A.M. at the Basa (out house) of deceased Tejo Yadav at village Dhubauli Boria Bahiyar, is to the effect that at 7 A.M. in the morning, the deceased’s brother Tejo Yadav, Rajo Yadav, (P.W. 3) and Jai Prakash Yadav (P.W. 1) were sitting at the Basa of the deceased. In the meantime, Hirdi Yadav, Kishore Yadav and Jaiba alias Jai Prakash Yadav came with their cattle for grazing of the Parainta grass grown on the land of the deceased, upon which the deceased Tejo Yadav ran to forbade them, on which Hirdi Yadav instigated to kill, and then Jaiba alias Jai Prakash and Kishore Yadav caught hold of Tejo Yadav and Hirdi Yadav started slitting the neck of Tejo Yadav by a grass cutting sickle. Then, the deceased raised alarm, then Hirday Yadav left causing injury to Tejo Yadav and then along with Jaiba Yadav caught hold of the victim and thereupon Kishore Yadav fired from country made pistol causing injury at the neck of Tejo Yadav, as a result of which he fell down and thereafter, the accused persons fled away. When the informant reached near the deceased, then he found the victim struggling for life but, ultimately, he died on the spot. On alarm, Harivansh Yadav (P.W. 2), Jagdeo Yadav (P.W. 4) and others came and saw the accused fleeing away from the place of occurrence. The animals of the accused were grazing in the field of the deceased even after the occurrence, which were handed over by the informant to the Police 3 Officer who recorded the fardbeyan. On the basis of the aforementioned fardbeyan, Chautham Police Station case no. 112 of 1985 was registered on 4.8.1985 at 5.30 P.M. under sections 302/34 of the IPC. 3. The prosecuting agency, after investigation, submitted charge sheet under sections 302/34 of the IPC and section 27 of the Arms Act. 4. Subsequently, Judicial Magistrate, Khagaria took cognizance of the offences punishable under section 302/34 of IPC. Thereafter, the case was committed to the Court of Sessions. The charges were framed under section 302/34 IPC against all the three accused persons whereas against Hirday Yadav the charges were also framed under section 302/114 of IPC. 5. The prosecution, in order to substantiate the charge, examined nine witnesses, of which P.W. 1 is Jai Prakash Yadav, the FIR named witness, P.W. 2 is Haribansh Prasad Yadav, P.W. 3 is Rajo Yadav, P.W. 4 Jagdeo Yadav is also FIR named witness, P.W. 5 is Gulabi Yadav, P.W. 6 is Jagat Narayan Yadav, informant of the case and he has been declared hostile, P.W. 7 is Ghoghal Yadav, son of the appellant Hirdi Yadav who has also been declared hostile, P.W. 8 is Dr. Jagdish Sinha who conducted the postmortem (Ext 2) of the deceased. P.W. 9 S.I. Nand Sharma is the I.O. who investigated the case and submitted charge sheet. 6. Out of nine prosecution witnesses, P.W. 4, Jagdeo Yadav, P.W. 7 Ghoghal Yadav have also been declared hostile along with 4 the informant P.W. 6. P.W. 1 and P.W. 3 have given eye witness account of the occurrence whereas P.W. 2 and P.W. 5 have claimed to have reached on the spot immediately after the occurrence and saw the accused persons fleeing away with their respective arms. 7. P.W. 1 in paragraph 1 of his evidence, stated that at the time of the occurrence he was in his field which is situated at the distance of one and half rassi from the Basa of the deceased (1 Rassi = 12 cubits) and from there this witness saw that Jaiba alias Jai Prakash Yadav and Kishore Yadav catching hold of the deceased and Hirdi Yadav trying to slit the neck of the deceased by grass cutting sickle and, thereafter, when the deceased raised alarm, then Kishore Yadav fired a shot at the neck of the deceased, as a result of which the deceased fell down and died. In paragraph 2, this witness has also identified Hirdi Yadav in dock and claims to identify the other accused persons. This witness has also supported the genesis of the occurrence as the three appellants brought their cattle and left them to graze the field of the deceased, hence, from scanning of the evidence of P.W. 1, it appears that he supports the prosecution version as initially recorded through the fardbeyan. The evidence of P.W. 1 appears to unfold the fact that the appellants were sitting with the deceased prior to the occurrence. 8. P.W. 3, the other eye witness, in paragraph 1 of his evidence, has stated that he was sitting at the basa of the deceased along with Jagat Yadav, Jagdeo Yadav and Tejo Yadav, in the meantime the appellants came and allowed their cattle to graze the field of the 5 deceased and when the deceased forbade the accused persons, then Jaiba Yadav caught hold of the deceased and Hirdi Yadav started slitting the neck of the deceased but when the victim raised alarm for help, then Kishore Yadav fired at the deceased on temporal region, as a result of which the victim fell down. In paragraph 2, P.W. 3 has also identified Hirdi Yadav and claims to identify the two other accused. This witness, in paragraph 3, very fairly admits that he, his father, brother and others were accused in the murder case of the son of Ghoghal Yadav, P.W. 7, which shows the bonafide and genuineness of this witness. Hence, the presence of this witness at the place of occurrence is also corroborated from the fardbeyan which speaks that this witness was along with the deceased at the Basa of the deceased, hence, his giving the account of the occurrence as an eye witness, cannot be doubted. 9. P.W. 2 and P.W. 5 have deposed that they reached immediately at the place of occurrence on hearing the sound of gun shot and both the witnesses saw the three accused persons fleeing away from the place of occurrence along with their respective weapons. Their evidence to this extent gets corroborated from the fardbeyan also which stipulates that when the accused persons were fleeing away Harvansh Yadav, P.W. 2, Jagdeo Yadav, P.W. 4 and other villagers came at the place of occurrence and saw the accused persons fleeing. From the cross examinations of these witnesses it appears that they have not deposed on account of enmity or ill will against the appellants. 6 10. P.W. 6, Jagat Narayan Yadav, is the informant. Though he has been declared hostile, but in paragraph 3 of his evidence he has admitted that his statement was recorded by the police, it was read over to him but he was not allowed to read the same though he admits his signature on the fardbeyan which has been marked as Ext. 3. Hence, the very existence of the fardbeyan is admitted by the informant. In paragraph 2 of his evidence, the informant admits that he was present at the Basa of the deceased and accused persons allowed their animals to graze the field of the deceased, then Hirday Yadav assaulted with sickle and, thereafter Kishore Yadav fired from country made pistol at the deceased. Hence, though the informant has been declared hostile subsequently, but from his evidence it appears that he has supported the genesis and specific allegations against the two appellants Hirdi Yadav and Kishore Yadav. 11. It is well settled that the FIR cannot be treated as a substantive piece of evidence but for the corroboration and contradiction purposes it can be used and from the evidence (para 2 and 3) of the informant, it appears that he has corroborated the main allegations made in the FIR. From perusal of the paragraphs 8 and 9 of P.W. 6, it appears that no cross examination has been made to the effect that the informant got recorded a false fardbeyan initially or he was deposing falsely as a witness during the trial which makes the evidence of the informant with regard to the genesis and the 7 specific allegation absolutely admissible and corroborative to the initial version as was recorded by the informant (P.W. 6). 12. The prosecution case further gets corroborated and proved by the evidence of the doctor P.W. 8 who found altogether four injuries of which injury no. (i) and (ii) are caused by fire arm which are wound of entry and wound of exit communicating to each other which are lacerated oval wound ¼” with inverted margin 1 ½” below and behind the right ear. The blackening has also been found around the surrounding margin of injury no.(i) which corroborates the allegation that the firing by Kishore Yadav was made by putting the pistol at the temporal region of the deceased. Injury no. (iii) has been recorded as incised wound 2” x ½” x skin deep on the back of the neck and with regard to this injury the doctor has opined that this injury was caused by sharp cutting substance, may be Kachia (sickle). Hence, this injury also corroborates the prosecution allegation particularly, the charge against appellant Hirdi Yadav of slitting the neck of the deceased. Hence, the medical evidence absolutely proves the manner of the occurrence. 13. P.W. 9 is the I.O. who, in paragraph 5 of his evidence, has found the land and Basa of the deceased and grown grass (Parainta) and on the south western part he found a hutment and fifteen yards east from the said hutment the dead body was lying into the pool of blood from where the blood was also recovered. I.O. has also stated in paragraph 5 that the fresh grass for grazing was found by him at the place of occurrence which proves that the place of occurrence as 8 given by the prosecution in the Fardbeyan and supported by P.W. 1 and P.W. 3 has been found exactly the same by the I.O. during investigation. Hence, the place of occurrence is proved beyond reasonable doubt. 14. From perusal of the evidence in paragraph 7 of the evidence of I.O., it appears that the animals of the accused persons were found by the I.O. from the place of occurrence, i.e., the land of the deceased and this fact was stated by the informant in fardbeyan also which corroborates the manner of occurrence and the genuineness and bonafide of the prosecution case. 15. Hence, from the scanning the evidence on record, it appears that P.W. 1 and P.W. 3 have given the eye witness account of the entire occurrence whereas P.Ws 2 and 5 have supported the prosecution case by deposing that they saw the accused persons fleeing away from the place of occurrence with their respective weapons. The objective finding of the I.O. and the documents on record and the evidence of the doctor support the prosecution charges, particularly, the genesis, manner of the occurrence and the place of occurrence. Hence, we come to the conclusion that the prosecution has proved the case against the appellants beyond the shadow of reasonable doubt and they have rightly been convicted by the learned trial court. Hence, the judgment and order of conviction and sentence passed by the learned trial court need not be interfered with and the same is confirmed. The appeal stands dismissed. 9 16. Since the appellants are on bail, they should surrender forthwith before the learned trial court for serving out the sentences. (Dharnidhar Jha, J.) (Dinesh Kumar Singh, J.) Patna High Court, The 20th July, 2010, N.A.F.R./Anil/