CRIMINAL APPEAL No.423 OF 2003. - - - - - - - Against judgment and order respectively dated 18th August 2003 and 22nd August 2003 of Sri Paras Nath Sinha, Presiding officer cum -Addl. Court (Fast Track), Munger in Sessions case no. 60 of 1986. - - - - - SAHDEO YADAV-----------------------------Appellant. Versus STATE OF BIHAR ---------------------RESPONDENT. - - - - -- - For the Appellant: Mr. Uma Kant Shukla, Adv. Mr. Rajesh Ranjan No.2,Adv. For the State : Mr. Ashwini Kumar Sinha, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. THE HON'BLE MR. JUSTICE DHARNIDHAR JHA. C.M.Prasad,J This appeal is directed against the judgment of conviction and order of sentence respectively dated 18th August 2003 and 22nd August 2003 of the Additional Sessions Judge cum-Fast Track Court, Munger passed in Sessions Trial No. 60 of 1986, Tr. No. 206 of 2002, G.R.No. 1089 of 1984 (arising out of Sikandra P.S.Case No. 194 of 1984 whereby the appellant Sahdeo Yadav has been convicted under sections 302 and 148 of the Indian Penal Code and respectively sentenced to R.I. for life and a fine of Rs.2,000/- (Two thousand) and in default of payment of fine, he has been further sentenced to undergo S.I. for six months’ and R.I. for 2 years. Both the sentences are to run concurrently. 2. At the very out set it is relevant to mention here that one Bhunna Yadav had also been convicted under Sections 2 323 and 147 of the Indian Penal Code, but regarding the sentence, he was released after admonition under section 360 (3) of the Code of Criminal Procedure. He does not appear to have filed any appeal. It has also to be mentioned here that besides Bhunna Yadav, two other accused, namely Prayag Yadav and Rajeshwar Yadav have been tried for the charges under sections 147 and 302 read with Section 149 and 449 of the Indian Penal Code, but due to lack of exact and specific evidence, they were acquitted of the charges by the trial court. 3. The prosecution commenced with the fard-beyan (Ext-4) of the informant Swarath Singh (P.W.5) which was recorded by S.I. R.B. Das of Jamui Police Station in Sub- divisional Hospital, Jamui on 14th December 1984 at 2:20 P.M. where the informant was treated and the deceased Harkhu Singh had also been brought for treatment. The informant stated in his fard-beyan that yesterday (13th December 1984) in the night, the appellant Sahdeo Yadav along with some others was stealing away the paddy bundles from the Khalihan of Parmeshwar Singh and his (informant’s) nephew had protested to it as a result of which Sahdeo Yadav had threatened him of dire consequences. Further it is stated that on that day (14th December 1984), at about 8:00 A.M., while he (informant) and his old father Harkhu Singh (deceased) had been sitting at their 3 Darwaja, suddenly Sahdeo Yadav, carrying a Saif and Prayag Yadav, Bhunna Yadav, Rajeshwar Yadav, Bulak Yadav, Raghu Yadav and Janki Yadav carrying Lathi came there and they asked as to where Lakshman Singh was and that making this enquiry, they proceeded towards the Angan of the house. The deceased replied that Lakshman Singh was not there and thereafter, the informant and the deceased tried to prohibit the accused persons in entering into the house whereupon Bulak exhorted to kill as a result of which Bhunna Yadav assaulted the informant with Lathi. The informant, receiving Lathi blow fled towards west and stood apart at a distance. The deceased being an old man was not able to flee away from there as a result of which the accused persons surrounded him and started beating him (deceased) and the appellant, assaulted on his (deceased’s) head with Saif (‘Saif’ is a heavy weapon like sword pointed at one end and sharp blade on both sides). On receiving injuries, the deceased fell down and thereafter one of the accused stated that he (deceased) had been killed and then they went away saying that Lakshman Singh had to be searched for settling the scores with him. The informant stated that witnesses Murari Singh (P.W.2), Bhola Singh (P.W.3), Ravindra Singh (P.W.1) and others had seen the occurrence. The informant also stated that with the help of villagers he had brought the deceased to 4 Jamui Hospital where he was being treated, but the deceased was unconscious and his condition was precarious. It is said that the deceased died in Jamui Hospital. The informant identified his signature on the fard-beyan which was marked Ext-1. The writings containing assertion in the fard-beyan was marked Ext-4. On the basis of the fard-beyan, formal F.I.R. (Ext-5) was registered. The inquest report (Ext-6) of the dead body was prepared and the investigation commenced. On completion of investigation, charge-sheet was submitted against four accused persons who were put on trial and out of them, the appellant has been convicted and sentenced, as stated above. 4. As many as seven witnesses were examined by the prosecution. P.W.1 Ravindra Singh, P.W.2 Murari Singh, P.W.3 Bhola Singh and P.W.4 Rudra Narayan Singh were examined as eye witness to the occurrence. P.W.5 Swarath Prasad Singh was the informant, who was also injured receiving injuries in the occurrence. P.W.6 Dr. Satya Narayan Singh was the doctor who had examined the injuries on the injured informant and he had also conducted the Post Mortem on the deceased and P.W.7 Bagela Dubey is the I.O. of the case. The accused also examined one witness, D.W.1 Chandra Shekhar Yadav and proved the fard-beyan and the F.I.R. marked Ext-A and B of 5 the counter case. 5. The doctor (P.W.6) deposed that on 15th February 1984 at 11: 30 A.M. he had conducted the Post Mortem on the dead body of deceased Harkhu Singh and found the following ante mortem injuries: i) Multiple parallel bruise with different sizes over back of chest and trunk. ii) There was a swelling on the back of the top of head 3”x2”x1/2”. iii) Incised wound on the back of head on occiput 3.1/2” x1” x bone deep cutting the bone through and through. On dissection, there was haematoma in a massive area of scalp and blood in between the membrane and on the brain surface with injury to brain ½”x1/4”x1/4”. All the injuries were ante mortem in nature and were caused by hard blunt substance, except the injury on the back of the head which was caused by a heavy weapon. Death was caused due to shock and haemorrhage and injury to brain. Time elapsed since death was within 18 hrs. 6 The Doctor also stated that the incised injury on the scalp may be caused by Saif and other injuries may be caused by Lathi. The Doctor also proved the P.M. report (Ext-2) which was in his pen and signature. 6. The Doctor also deposed that on 14th December 1984 he had examined Ram Swarath Singh (informant) and had found the following injuries on him: Swelling on back of chest in between scapula 2.1/2”x1/2”. Swelling and tenderness on the right forearm 3”x1”. All the injuries were simple in nature and caused by hard blunt substance, may be Lathi. The age of the injuries was within 12 hours. The Doctor had deposed on the basis of the attested copy of the injury report, attestation having been done under his signature. This injury report was marked Ext-3. The cross-examination of the Doctor was declined by the accused persons. 7. The I.O. (P.W.7) deposed that on 14th December 1984 when he was the Officer In-charge of Sikandra Police Station, he had received the fard-beyan of the informant and on the basis of the fard-beyan, had registered a formal F.I.R. at the Police Station. The fard-beyan and the F.IR. have been 7 respectively proved as Ext-4 and Ext-5. He further deposed that along with the fard-beyan he had also received the inquest report prepared in the writing and signature of R.B. Das. The inquest report has been marked as Ext-6. The I.O. further deposed that on recording the F.I.R., he set out that day (14th December 1984) at 2:30 P.M. for the P.O. and he reached there at 3:00 P.M. On inspection, he described the P.O. as the verandah of informant’s Khapraposh house. The main gate of the house was west facing. He also stated that 30-35 yards north of the P.O. the houses of the Yadav caste people situated. He further deposed that the informant was not available that day at the P.O. and that he subsequently recorded his statement on 28th January 1985. He also deposed that on 9th January 1985, he had searched for the appellant and they were not traceable in the village. He further deposed that on 29th January 1985, he received the P.M. and on recording statement of witnesses, he submitted the charge-sheet. He denied the defence suggestion that the P.O. was the Angan of the house. There was nothing important in the statement of this witness to discredit his testimony. 8. The informant (P.W.5) deposed that on 14th December 1984, at about 8:00 A.M. while he, along with his father (deceased) was at his Darwaja, the appellant carrying 8 Saif and other accused carrying Lathi came there and they asked about the whereabouts of Lakshman Singh. The deceased told that Lakshman Singh was not in the house. Listening to his reply, the accused persons tried to enter into the Angan of the house, but the deceased prohibited them whereupon they gave filthy abuses. Accused Bulak Yadav exhorted to kill. On this exhortation, Bhunna Yadav assaulted him (informant) with Lathi, hitting on his back. Receiving Lathi blow he moved away and kept standing at a distance of 8-10 steps apart. The appellant assaulted the deceased by means of Saif on his head. The other accused also assaulted the deceased with Lathi. Receiving the Saif and Lathi blows, the deceased fell down and thereafter, the accused persons saying that they had finished one person, they went away further saying that they should then search for Lakshman Singh. The informant further stated that Murari Singh (P.W.2), Bhola Singh (P.W.3), Rudra Narayan Singh (P.W.4) and Ravindra Singh (not examined) had seen the occurrence. 9. About the motive for the occurrence, the informant says that in the night of 13th December 1984, appellant Sahdeo and others were stealing away paddy crop bundles from the Khalihan of Parmeshwar Singh and Lakshman Singh had protested to it whereupon they had threatened him of 9 dire consequences. The informant also deposed further that he took his father (deceased) to Jamui Hospital where Police had come and recorded his fard-beyan on which he had put his signature (Ext-5). He has further deposed that his father died in the Hospital that day (14th December 1984). He also stated that his injuries were examined by the Doctor and the P.M. on the dead body of the deceased was also done. He identified the appellant and other accused in the dock before the trial court. 10. At Para-7 of his cross-examination, the informant admitted that one Biro Yadav had filed a case on him but he was not in know of the allegations leveled in that case. He denied the defence story put through suggestion that the prosecution party had assaulted Bulak Yadav near the house of Mitho Singh and that in course of that occurrence, Harkhu Singh (deceased) had received injury. He also deposed that the Police had seen 10 drops of blood on his Darwaja, but the blood had not been seized. At Para-9, he deposed that Harkhu Singh (deceased) was aged about 85 years. At Para-10 of his cross-examination, he (informant) gave a genealogy of his family according to which, P.Ws. 1, 2, 3 and 4 are his Gotias. 11. At Para-14 of his evidence, the informant stated that he and his father (deceased) were sitting in the northern side of the Verandah of their house. He further deposed that all 10 on a sudden, he was assaulted and then assault was caused on the deceased. He further deposed that assault was caused when he and the deceased had protested to accused on the Verandah in entering into the Angan. He further deposed that the deceased was assaulted while he was standing. He also deposed that the appellant had caused a Saif blow while standing in front of the deceased. On perusal of evidence of the informant, it appears that he is quite a natural and probable witness to have seen the occurrence. His testimony becomes reliable the more in the circumstance that he, too, had received injuries at the hands of the accused in course of the occurrence in which the deceased was assaulted by the appellant. The informant has stated that after receiving the Lathi blow first, he moved apart from the P.O. and kept standing at a distance of 8-10 steps away and, thus, it was quite possible for him to have seen the occurrence of assault on the deceased at the Darwaja of his house. Thus, the evidence of the informant is cogent and reliable and there is nothing to discredit his testimony. 12. P.W.1 claims to have seen the occurrence when he was in the Gali close to the Darwaja of the informant. He also mentioned the date and time of occurrence as 14th December 1984 at 8:00 A.M. He also deposed that the appellant carrying Saif and the other accused carrying Lathi came to the 11 informant’s Darwaja and they tried to enter into the Angan of the informant in a bid to search out Lakshman Singh whereupon the informant and his father (deceased) prohibited them from entering into the Angan then accused Bhunna Yadav gave a Lathi blow to the informant. Bulak Yadav ordered to assault whereupon the appellant gave a Saif blow on the head of the deceased as a result of which the deceased fell down. Then other accused persons assaulted the deceased with Lathi. This witness had identified the appellant and other accused in dock in the trial court. At Para-4 of his cross-examination, he admitted that he is accused in counter case lodged by the accused persons. He also admitted that in the counter case allegation was put that Bulak Yadav had been assaulted near the house of Mitho Singh but this witness also expressed that he had no knowledge as to how the defence party had received injuries as alleged under the counter case. 13. At Para-6 of his cross-examination, P.W.1 stated that the deceased had been assaulted from his back and blood had fallen on deceased’s clothes, but he did not remember whether any blood had fallen on the ground or not. He further deposed that after receiving Saif blow, the deceased had fallen on the ground in the Verandah of the house. Thus, this witness is resident of the locality and he had seen the occurrence from a 12 very close distance, while he was in the Gali close to the Verandah of the informant’s house where the occurrence took place. He is a natural and probable witness and he fully corroborates the informant. 14. P.W. 1 mentions the date and time of occurrence as 14th December 1984 at 7:00 A.M. He states that his (P.W2’s) Darwaja situates to the north of informant’s Darwaja and there is some vacant land in between. This witness claims to have seen the occurrence from his Darwaja. It was possible for this witness to have seen the occurrence from his Darwaja. This witness has named the appellant and the other accused persons. He further stated that the appellant was carrying Saif and other accused persons were carrying Lathi. He further deposed that the accused persons had enquired about Lakshman Singh and in order to search him out they wanted to enter into the informant’s Angan, but they were prohibited by the informant and the deceased whereupon Bulak Yadav ordered to assault. Then Bhunna Yadav gave a Lathi blow to the informant. Receiving the Lathi blow, the informant moved away and then the informant gave a Saif blow on the head of the deceased. Receiving the Saif blow the deceased fell down and thereafter, the accused persons fled away. This witness had identified the appellant and other accused persons. Thus, this witness fully 13 corroborates the informant with respect to the assault on him (informant) by means of Lathi at the hands of accused Bhunna Yadav and with regard to the assault on the deceased’s head by means of Saif at the hands of appellant. At Para-5 of his evidence, this witness has denied any knowledge about the counter case said to have been lodged by the accused persons. At Para-7 of his cross-examination, he stated that he had seen the occurrence while he was at his (P.Ws.2’s) Darwaja. Since the Darwaja of this witness was close to the Darwaja of the informant and there was vacant land in between, it was possible and probable for this witness to have seen the occurrence. His evidence appears to be reliable and trustworthy. 15. P.W.3 gives the date and time of occurrence as 14th December 1984 at 7:30 A.M. He says that he is a resident of the same locality i.e. Ita Sagar where the informant resides. This witness claims to have seen the occurrence, while he was at his Darwaja. He has stated about the occurrence and the manner of assault in the similar manner, as stated by the informant. He stated that the appellant had assaulted the deceased on his head by means of Saif and that after receiving Saif blow, the deceased had fallen down and he had become unconscious. He also stated that he had rushed to the P.O. and he had seen the deceased fallen there, after receiving Saif blow. 14 He also stated that the deceased was taken to Jamui Hospital, but he succumbed to the injuries there. At Para-1 he has stated that there is a Gali in front of his Darwaja and at Para-5 of his evidence, he further stated that the Darwaja of the deceased situated towards west-north of his Darwaja. Thus, the Darwaja of this witness situates close to the Darwaja of the informant in the same Gali. In the circumstance, it was natural and probable for this witness to have witnessed the occurrence while this witness was sitting at his Darwaja and that seeing the deceased fallen after receiving Saif blow, this witness states to have rushed to the deceased and to have taken him to Hospital. This witness appears to be reliable witness. 16. P.W.4 has mentioned the date and time of occurrence as 12th December 1984 at 8:15 A.M. He is also a resident of the same locality. This witness stated that he heard hue and cry while he was in the Angan of his house and hearing the noise, he came out of Angan and then he saw the informant and other accused on the Darwaja of the informant. He further stated that accused asked as to where Lakshman Singh was and that when the deceased replied that Lakshman Singh was not in the house, Bulak Yadav ordered to assault upon which Bhunna Yadav gave a Lathi blow to the informant. Receiving Lathi blow, the informant moved away and kept 15 standing at a distance towards west. Thereafter, the appellant caused a Saif blow on the head of the deceased and other accused assaulted the deceased with Lathi. This witness also stated that thereafter the accused persons went away saying that the deceased had been finished. He also stated that the deceased had been taken to Jamui Hospital. This witness had identified the appellant and other accused in dock in the trial court. 17. At Para-5 of his cross-examination, he admitted that the accused had filed a case on him. At Para-8 of his cross- examination, he stated that on the day of occurrence, when Police had come to the P.O. he was not present in his house and his statement was recorded 4-5 days after the occurrence. This witness fully corroborates the informant and there is nothing to discredit his testimony. 18. The defence case as suggested in detail by the informant (P.W.5, Para-13) is that one Parmeshwar Singh had taken wine and while he was returning in inebriated condition, he dashed against Sadhu Sharan Yadav and then fell down on a Khunta and received injuries thereby and that on the next morning, while Bulak Yadav was going to graze his buffalo, he was surrounded at that place and was also assaulted there. 19. The defence suggestion was denied by the informant. In support of defence case, the accused proved the 16 fard-beyan and the F.I.R. (Ext-A & B) of the case lodged by them. Learned counsel for the appellant argued that the deceased had received injuries in course of assault, which was caused to said Bulak Yadav, as per the defence case, vide Ext- A & B. But the occurrence as per defence the story does not appear to have been brought on record and also as the defence suggestion is of vague nature. The Ext-A & B, i.e. fard beyan and the F.I.R. of the defence case have been brought on record with a view to probablise the defence story. But no defence witness has come to say about the defence case. Even the informant under the defence case vide Ext-A & B, has not come to say about the defence case and its occurrence. Thus, the defence story is nothing but a suggestion which has been denied by the prosecution witnesses and it does not go to help the appellant in any manner. 20. During argument, in order to assail the veracity of the prosecution case and the testimony of the prosecution witnesses, learned counsel for the appellant pointed out certain discrepancies in the evidence of witnesses and some infirmities in the case of prosecution. 21. Firstly, it was argued that P.Ws. 1, 2, 3 and 4 are the Gotias of the informant and thus, they are interested persons. It was also argued that P.W.4 Rudra Narayan Singh 17 was not named in the F.I.R. But on perusal of evidence of these witnesses, it appears that they are the residents of the same locality having their houses near the house of the informant and the location and topography of their house as appearing in their evidence was of such that it appears quite natural and probable that they saw the occurrence from close distance. P.W.4, though is not named in the F.I.R., but his evidence shows that he is the competent witness to say about the occurrence and there is nothing in his evidence to discredit his testimony. The evidence of these witnesses as examined by the prosecution cannot be discarded simply on the ground that they are the Gotias of the informant. Whatever is required in such a case is that the evidence of such witnesses has to be examined with great care and caution. Applying the reasonable care and caution, the evidence of these witnesses inspire confidence as truthful and reliable witnesses. Thus, these witnesses can be fully relied as competent witnesses to say about the occurrence and they have proved the occurrence of assault on the deceased’s head by means of Saif at the hands of the appellant. 22. With regard to the manner of assault, the learned counsel for the appellant pointed out that the incised injury said to have been caused by means of Saif at the hands of the appellant was on the back of the head. It was argued that 18 P.W.1 at Para-6 stated that the appellant had assaulted on the head of the deceased from the back. It was further pointed out that the informant (P.W.5, Para-14) stated in his cross- examination that the appellant had given the Saif blow from the front of the deceased. He also stated that the accused persons had surrounded the deceased. Pointing to this discrepancy as in the