CRIMINAL APPEAL (DB) NO. 478 OF 1989 Against the judgment and order dated 30.09.1989, passed by 9th Additional Sessions Judge, Arrah in Sessions Trial No. 487 of 1987 arising out of Tarari P.S. case no.09 of 1987. ***** 1. Lollun Yadav @ Lallan Yadav 2. Sharawan Yadav Both sons of Bhorik Yadav. 3. Ram Ashish Yadav, 4. Gunja @ Jai Ram Yadav. Both sons of Lorij Yadav. 5. Lorik Yadav, son of Sukhlal Yadav. All residents of Village Behata (English), P.S.-Tarari, District- Bhojpur. . . . . . . .Appellants. Versus The State of Bihar . . . . .Respondent. For the Appellants : Mr. Dharnidhar Mishra, Advocate For the State : Ms. Shashi Bala Verma, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S. P. Singh, J. The instant appeal is directed against the judgment and order dated 30.09.1989, passed by the learned 9th Additional Sessions Judge, Arrah, in Sessions Trial No. 487 of 1987, whereby appellant no.1 has been convicted under Sections 302 and 147 of I.P.C., and sentenced to imprisonment for life and two years under each count respectively. Appellant nos. 3 to 5 have been convicted under Sections 323 and 147 of the I.P.C., and sentenced to undergo imprisonment for 2 one year and two years under each count respectively; and appellant Sharawan Yadav has been convicted only under Section 147 of the I.P.C. and sentenced to undergo imprisonment for two years. However, all the sentences have been ordered to run concurrently. 2. The prosecution case in short as made out in the fardbeyan of Ram Naresh Yadav, son of Sukh Lal Yadav, resident of village Bihta, P.S. Tarari, District-Bhojpur, recorded on 14.03.1987, at 1.30 P.M., in Tarari Hospital, is as follows: The informant, Ram Naresh Yadav, stated that on 14.03.1987, at about 10.00 A.M., he along with his son Baliram Yadav and wife Gangia Devi were chopping Gram in their field. One Nagina Yadav and his son Deep Narayan Yadav were also chopping Gram in the nearby field. Around that time, Lorik Yadav, son of Sukhlal Yadav, Gunga Yadav @ Jai Ram Yadav, Ram Ashish Yadav, both sons of Lorik Yadav; Lolun Yadav, Shrawan Yadav, and Ghura Yadav both sons of Bhorik Yadav, all armed with lathi came on the field and prohibited them from chopping Gram, which was resisted by prosecution side. In the meanwhile, Lallan Yadav hurled lathi blow at informant, which caused injury on his head. Lorik Yadav and Gunga Yadav assaulted Deep Narayan Yadav with lathi. Bhura Yadav and Ram Ashish Yadav assaulted Baliram Yadav with lathi. On hearing halla, villagers arrived. The informant accompanied with his son 3 Baliram Yadav and Ram Nagina Yadav came to Tarari police station and made his fardbeyan. 3. On the basis of the fardbeyan of informant Ram Naresh Yadav, Tarari P.S. case no. 09 of 1987, under Sections 307/149, 147 and 323 of the I.P.C., was instituted on 14.03.1987. In course of treatment, the informant Ram Naresh Yadav died on 16.03.1987 at about 1.00 P.M. in Sadar Hospital, Arrah, and Section 302 of I.P.C. was added to the F.I.R. on 19.03.1987. The police after investigation submitted charge-sheet under Sections 302, 307/149, 147 and 323 of I.P.C. The learned Magistrate took cognizance of offence and committed the case to the Court of Sessions on 17.10.1987, giving rise to Sessions Trial No. 487 of 1987. The charge was framed against appellant no.1, Lallan Yadav @ Lollan Yadav, under Sections 302, 147 of the I.P.C., whereas charge under Sections 302/149, 147 and 323 of the I.P.C. were framed against other accused persons. 4. The prosecution in support of the charges examined 8 witnesses, namely, P.W.1 (Bali Ram Yadav), son of informant/deceased Ram Naresh Yadav, P.W.2 (Gangia Devi), wife of the informant/ deceased Ram Naresh Yadav, P.W.3 (Lok Nath Singh), P.W.4 (Deep Narayan Yadav, injured), P.W.5 (Ram Nagina Yadav), P.W.6 (B.D. Pandey), was the doctor, who conducted post-mortem of the deceased. P.W.7 (Kedar Nath Sharma) is the Medical Officer of 4 Tarari State Dispensary who examined the injured, and P.W.8 is Murat Ram, who proved formal F.I.R. (Ext.3), and inquest report (Ext.4). 5. The defence examined three witnesses, namely, D.W.1 Tarkeshwar Prasad, D.W.2 Dr. B.P. Yadav, Civil Assistant Surgeon, Ara, and D.W.3 (Munmun Lal). 6. The case of the defence is total denial of the manner of occurrence, and false implication in the case on account of land dispute. 7. On consideration of materials on record, the learned trial court found that the charge under Section 302 of I.P.C. has been duly proved against Lollun Yadav @ Lallan Yadav and convicted him accordingly. The learned trial court convicted appellant nos. 3 to 5 under Sections 323 and 147 of the I.P.C. Appellant no. 2 has been convicted under Section 147 of the I.P.C. However, the learned trial court acquitted Bhorik Yadav and Ghura @ Dwarika Yadav of the charges in the absence of adequate materials to pass an order of conviction. 8. The appellants have challenged the conviction and sentence in this appeal and submit that there is no adequate material to record order of conviction. It has further been submitted that at best 5 only a case under Section 326 of I.P.C. could be made out against Lollun Yadav @ Lallan Yadav. 9. Before we advert to the rival submissions made by the learned counsel for the appellants as well as learned counsel for the State, it would be necessary to notice the depositions of witnesses in short. P.W.1 (Baliram Yadav) is son of the informant/deceased, Ram Naresh Yadav. He stated that he along with his father, Naresh Yadav (the deceased), and mother, were chopping Gram in Rajpur Badhar. One Ram Nagina Yadav (P.W.5), and Deep Narayan Yadav (P.W.4), were also chopping gram in the nearby field. At about 10 A.M. on the fateful day, all the seven accused persons, namely, Lorik Yadav, Sharawan Yadav, Bhorik Yadav, Dwarka Yadav @ Ghura Yadav, Ramashish Yadav, Gunga Yadav @ Jairam Yadav and Lallan Yadav @ Lolun Yadav armed with Lathi came to the filed and asked them not to chop Gram. As his father did not relent, Lollun Yadav @ Lallan Yadav hurled two lathi blows on the head and one lathi blow on the forehead (lilat). Ghura Yadav and Ramashish Yadav assaulted him with Lathi, whereas Gunga Yadav and Lorik Yadav assaulted his cousin Deep Narayan with lathi. He stated that one Godhan Yadav, who was own brother of his grand-father Sukhlal Yadav, died issueless. He stated that Lallan Yadav by playing fraud got registered a sale deed of five Bighas and odd from Dhanrajo Kuer and Ramrajo 6 Kuer showing them to be daughters of Godhan Yadav, though the latter did not have any issue. Both Danrajo Kuer and Ramrajo Kuer were daughter of Sukhlal Yadav and were own sister of his father. He stated that a title suit has been filed by his uncle Ram Nagina Yadav against Lallan Yadav challenging the genuineness of sale deed, in which his father was willing to depose against the latter (Lallan Yadav). Being aggrieved, the accused persons forming common intention killed his father and injured others. We find that the defence has not been able to elicit any material which would make his statement doubtful. 10. P.W.2 (Gangiya Devi) is the mother of Baliram Yadav and wife of the deceased Ram Naresh Yadav. In her evidence, she too supported the prosecution case and stated that on the relevant date, she along with her husband and others were chopping Gram in their field. At about 10.00 A.M., all the accused persons came armed with lathi on the field and asked them not to chop Gram. An altercation ensued and Lallan Yadav hurled two lathi blows on the head of her husband and one lathi blow on the forehead, whereas other accused persons assaulted her son Baliram, Ram Nagina, and Deep Narayan, with lathi. She stated that the accused Lallan Yadav and others got registered a sale deed from Dhanrajo Kuer and Ramrajo Kuer falsely showing them to be daughter of Godhan Yadav in order to usurp land, 7 falling in the share of her husband. A title suit, bearing Title Suit no.60 of 1984, was filed by Ram Nagina Yadav, own cousin of her husband, in which her husband was willing to depose against Lallan Yadav. The accused wanted her husband to vacate the land to which he did not agree. 11. P.W.3 (Lok Nath Singh) is also an eye witness and supported the prosecution case in his deposition. 12. P.W.4 is Deep Narayan Singh, nephew of the informant. He like the other witnesses stated that he was chopping gram alongwith his father Ram Nagina Yadav. At about 10.00 A.M., accused persons came and started altercation with Ram Naresh Yadav over chopping of gram. He stated that Lallan Yadav gave three blows on the head of Ram Naresh Yadav. He stated that Lorik Yadav and Gunga Yadav assaulted him with lathi, whereas Bhura assaulted Baliram Yadav. He stated that Lallan had obtained a fraudulent sale deed to usurp their land to which they had protested. One of his cousins, Ram Nagina Yadav, had filed Title Suit against Lallan Yadav. As the prosecution side were not ready to accede to unjust demand of surrendering possession of the land to the accused, they were attacked in a planned manner. 13. P.W.5 Ram Nagina Yadav is a tendered witness. 8 14. P.W.6 Dr. B. D. Pandey conducted post-mortem examination on the dead body of deceased on 17.03.1987, at 10.30 A.M. The post-mortem report is marked as Ext.-1. He found the following injuries around the head of the deceased, which is quoted herein below: (1) Contusion 3”x 2” left temporal region of head. Bluish and swelling. (2) Contusion 1 ½” x ½” on upper surface of the head in middle. Bluish, and (3) Contusion 2”x 1” on right side of the forehead. 15. P.W.7, Kedar Nath Sharma, was Medical Officer incharge of Tarari State Dispensary on the relevant date. On 14.03.1987, he examined Naresh Yadav, Bali Ram Yadav, Deep Narayan Yadav, and Ram Nagina Yadav. He found swelling over right forehead of Ram Naresh Yadav just above eyebrow as well as one swelling over his head. He found injuries on the persons of other injured inflicted by hard and blunt substance. He proved the injury reports, which has been marked as Ext.2 to 2/3. 16. P.W. 8, Murat Ram, is a formal witness, who proved inquest report (Ext.-4), and F.I.R. (Ext.3). 9 17. The defence examined three witnesses to show that a counter case was instituted and two members on the accused side including Bhorik Yadav sustained injuries. 18. Mr. Dharnidhar Mishra, learned counsel appearing for the appellants submits that medical reports do not support prosecution case. He submits that from the F.I.R. it would appear that the deceased sustained only one lathi blow, whereas the injury report prepared by P.W.7 shows two injuries on his person. Furthermore, the inquest report and post-mortem report show that Naresh Yadav sustained three injuries. He next submits that eye witnesses are interested persons, being related to each other and as such the learned trial court ought not to have given weightage to their evidence. He further submits that Naresh Yadav died on account of shock and haemorrhage and not on account of injuries inflicted upon him. He submits that no case under Section 302 of the I.P.C. would be made out against Lallan Yadav, and at best a case under Section 325 and 326 of the I.P.C. is made out, as there was no intention to kill the deceased Naresh Yadav. 19. Ms. Shashi Bala Verma, learned counsel for the State, submits that there are sufficient materials to convict appellant no.1 Lollan Yadav @ Lallan Yadav under Section 302 and 147 of I.P.C. She submits that charge under Section 323 and 147 of I.P.C. have been fully established against appellant nos. 3 to 5. She submits that 10 charge under Section 147 I.P.C. is duly proved against Shrawan Yadav. She states that witnesses have consistently supported the prosecution case. She states that post-mortem report or the inquest report are not at variance with allegations of assault made in the F.I.R. 20. We have heard the learned counsel for the parties. We find that there is no substance in the submission of the learned counsel for the appellants that the trial court erred in passing the order of conviction against the appellants. Ram Naresh Yadav (informant) in the F.I.R. stated that he along with his son Baliram Yadav, his wife Gangia Devi, Ram Nagina Yadav and Deep Narayan Yadav were chopping gram in their fields. In the meantime, on the fateful day at 10.00 A.M., all the appellants along with two others came and restrained them from chopping grams. As the informant protested, Lallan Yadav hurled lathi blow on his head causing serious injuries. Thereafter Lorik Yadav and Gunga Yadav assaulted Deep Narayan Yadav and Ghura Yadav. Ramashish Yadav assaulted Deep Narayan Yadav with Lathi. P.W.1 (Baliram Yadav) in his deposition vide paragraph 3 stated that Lallan Yadav inflicted three lathi blows on his father, two of which struck the head and one hit the forehead. Similarly P.W.2 Gangia Devi in paragraph 4 also stated that Lallan Yadav struck three lathi blows on Naresh Yadav. Two lathi blows hit her husband’s head and one lathi blow hit the forehead. P.W.3 and 11 P.W.4 also supported the version of P.W.1 and P.W.2. It would also appear from the F.I.R. that the informant specifically stated that Lallan Yadav hurled lathi blows on the head of Naresh Yadav. The doctor, P.W.7, who examined Naresh Yadav, found two injuries on his head, whereas inquest report and post-mortem report showed that the deceased sustained two injuries on his head and one on his forehead. It is not in dispute that Naresh Yadav died within two days of the assault on his head. It would appear that all the accused persons armed with lathis in a planned manner came to the field of the informant and immediately began to perpetrate assault on the informant and his other cousins, who were too chopping gram from their field. The prosecution has also succeeded in proving the motive part of the occurrence. The witnesses consistently stated that in order to usurp their land, Lallan Yadav fraudulently got a sale deed registered from deceased’s own sisters showing them to be the daughter of Godhan Yadav, uncle of the deceased. The witnesses consistently stated that a title suit was filed by Ram Nagina Yadav, cousin of the informant against Lallan Yadav against the fraudulent sale deed. The witnesses consistently stated that the informant was willing to depose from the side of Ram Nagina Yadav against Lallan Yadav and as such the latter with the aid of his other associates assaulted him with intention to cause death. The witnesses stated that 12 the deceased was having a feeble health and could not sustain the impact of heavy lathi blow. Thus we find that the prosecution has succeeded in proving the charge under Section 302 of I.P.C. against Lallan Yadav. We thus reject the contention of the appellant that at the most a case under Section 325 or 326 of I.P.C. is made out against Lallan Yadav. 21. We further find that the witnesses consistently stated that all the accused persons armed with Lathi came to the field of the informant. Accused/appellant Lorik Yadav and Gunga Yadav assaulted Deep Narayan Yadav with lathi and Ramashish Yadav and Ghura Yadav (since acquitted) assaulted Baliram Yadav with Lathi. P.W.7 (Kedar Nath Sharma), incharge Medical officer, has found injuries caused by hard and blunt substance on the persons of Deep Narayan Yadav and Baliram Yadav. The defence has not been able to elicit any material contradictions in cross-examinations of witnesses to make their evidence unreliable. Thus, we find and hold that charge under Section 147 and 323 I.P.C. are duly proved against appellant nos.3 to 5. Though the witnesses have stated that Sharwan Yadav had come with lathi but have not consistently stated that he assaulted any of the injured, namely, Baliram Yadav, Deep Narayan Yadav, and Ramashish Yadav. Nonetheless witnesses have stated that he too came on the field armed with lathi along with other accused persons, who 13 assaulted and killed Ram Naresh Yadav and injured others. Thus, we find that charge under Section 147 of I.P.C. is duly proved against Sharwan Yadav. 22. It has come in evidence that the informant was a weak and feeble person. The appellant Lallan Yadav gave three lathi blows on his head. The informant died within two days of his assault. In the aforesaid circumstances, we find that the injuries inflicted were sufficient in ordinary course to cause death of the deceased 23. The defence has argued that all the witnesses are interested witnesses. According to the learned counsel for the appellants, P.W.1 (Baliram Yadav), P.W.2 (Gangia Devi) and P.W.4 (Deep Narayan Yadav), are closely related to each other, in as much as Baliram Yadav (P.W.1) is son of Gangia Devi (P.W.2.), P.W.4 (Deep Narayan Yadav) is own cousin of Baliram Yadav (P.W.1). P.W.3 Lok Nath Sah also nourished a grievance against the accused persons. He stated that appellant Lallan Yadav was a witness in a case against him. 24. The testimonies of a witness cannot be thrown out or disbelieved only on the ground that he is an interested person, if his evidence is otherwise worthy of reliance. In the instant case, though all the witnesses are close relatives, they have consistently supported the prosecution case. Nothing contradictory had come in the evidence 14 of these witnesses which could discredit their evidences. Furthermore, the ocular evidence is in consonance with post-mortem as well as medical reports, wherein the doctors found injuries on the person of the deceased as well as on the persons of Baliram Yadav, Deep Narayan Yadav, and Ramashish Yadav. It would be also relevant to state that the accused persons are also close agnates of the prosecution side. In the backdrop of the foregoing discussion, we hold that merely because the prosecution witnesses were related to each other, their testimonies cannot be brushed aside. 25. Thus, we find that prosecution has been able to prove the charges under Sections 302 and 147 of I.P.C. against appellant no.1 Lollun Yadav @ Lallan Yadav as well as charge under Sections 323 and 147 of the I.P.C. against appellant nos. 3 to 5, and charge under Section 147 of I.P.C. against appellant no.2, as such we uphold the order of convictions under the relevant sections. As ordered by the learned trial court, appellant no.1 Lollun Yadav @ Lallan Yadav will undergo imprisonment for life under Section 302 of I.P.C. and imprisonment for two years under Section 147 of I.P.C. However, in the facts and circumstances, both the sentences would run concurrently, as ordered by the learned trial court. 26. Though we uphold the conviction of appellant no.2 under Section 147 of I.P.C., and appellant nos. 3 to 5 under Sections 323 and 15 147 of I.P.C., but we are not inclined to affirm the sentence of imprisonment for two reasons. Firstly they have been convicted under Section 323 and 147 of I.P.C. which are in nature of minor offences. Secondly, more than 24 years have elapsed since the date of the occurrence, as such we alter the sentences of imprisonment of two years and one year passed under the aforesaid offence to one of fine of Rs.2,000/- (Two thousand), which is to be paid by each of the four appellants to the deceased wife Gangia Devi / son Balram Yadav. The aforesaid fine should be paid within four months from today, failing which they would undergo simple imprisonment of one month each. With the aforesaid modification in the sentences of appellants no.2 to 5, we dismiss this appeal and affirm the order of the learned trial court. The bail bond of appellant no1 is cancelled, and he is directed to surrender in the trial court without delay. (S. P. Singh, J.) I agree S. K. Katriar, J: (S. K. Katriar, J.) Patna High Court, Dated 25th April, 2011. Uday/NAFR