CRIMINAL APPEAL (DB) No.124 OF 1988 WITH CRIMINAL APPEAL (DB) No.166 OF 1988 ****** Against the judgment and order dated 17.2.1988, passed by Sri N.C. Lala, learned Additional Sessions Judge-II, Patna, in Sessions Trial No.111 of 1985. ****** IN CRIMINAL APPEAL (DB) NO.124 OF 1988: 1. Sri Chandra Deo Yadav 2. Sri Nathun Yadav 3. Sri Sukhari Yadav 4. Sri Deo Narain Yadav @ Sri Deep Narain Yâdav: ... ... Appellants Versus The State of Bihar: ... ... ... Respondent ****** IN CRIMINAL APPEAL(DB) No.166 OF 1988: 1. Ram Dayal Yadav 2. Jita Yadav 3. Lalan Yadav: ... .... ... Appellants Versus The State of Bihar: ... ... ... Respondent ****** For the Appellants: Mr. Arun Kumar Tripathi, Amicus Curiae For the S t a t e: Mr. Lala Kailash Bihari Prasad, Public Prosecutor. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SYED MD.MAHFOOZ ALAM ****** S K Katriar & S.M.M. Alam, JJ. The seven appellants in the two appeals are aggrieved by a common judgment dated 17.2.1988, passed by the learned 2nd Additional Sessions Judge, 2 Patna, in Sessions Trial No.111 of 1985 (The State of Bihar Vs. Ram Dayal Yadav and others), whereby they have been convicted under section 302 read with section 149 of the Indian Penal Code in prosecution of common object of murder of Mewa Lal Yadav. The learned trial court has further held accused Nathun Yadav, Jita Yadav, and Lalan Yadav guilty under section 148 IPC, and the remaining accused persons guilty under section 147, IPC. He has further found and held accused Ram Dayal Yadav and Sukhari Yadav guilty under section 323, IPC and accused Lalan Yadav guilty under section 324, IPC and convicted accordingly. All the accused persons have been sentenced to undergo imprisonment for life for the offence under section 302 read with section 149 of the IPC. Nathun Yadav, Jita Yadav, and Lalan Yadav have further been sentenced to undergo rigorous imprisonment for one year for the offence under section 148 IPC. Sukhari Yadav, Chandradeo Yadav, Deo Narayan Yadav alias Deep Narayan Yadav, and Ram Dayal Yadav have been sentenced to undergo rigorous imprisonment for six months each for the offence under section 147, IPC. Lalan Yadav has also been sentenced to undergo rigorous imprisonment for one year for the offence punishable under section 324, IPC. Sukhari Yadav and Ram Dayal Yadav have been 3 sentenced to undergo rigorous imprisonment for six months each for the offence punishable under section 323, IPC. All the sentences have been ordered to run concurrently. 2. It may incidentally be mentioned that one Preman Yadav, a minor, was also sent up for trial, but was not tried along with the present appellants. The impugned judgment makes no reference of Preman Yadav and, therefore, his case does not arise for our consideration. 3. The prosecution case, as disclosed in the Fardbeyan (Ext.3), is that informant Suresh Yadav was Chaukidar no.5/2 of Bikram P.S.. In the night between 29.4.1984 and 30.4.1984, he had gone to Kanpa Pul to do his duty. On 30.4.1984, early in the morning at 6 A.M., after he had returned from Kanpa Pul, he saw to the south of his house accused Ram Dayal Yadav, Chandradeo Yadav, Sukhari Yadav, Preman Yadav, and Deo Narain Yadav, all armed with lathis, accused Lalan Yadav armed with garasa, and accused Nathuni Yadav and Jita Yadav armed with bhalas, were throwing brick-bats towards the dalan in front of his (informant’s) house, and were hurling abuses. It is said that Mohan Yadav protested, whereupon accused Deo Narain Yadav ordered for assault. Accused Ram Dayal Yadav threw a brick-bat on Mohan Yadav, the 4 other accused also moved forward to assault Mohan Yadav, and accused Jita Yadav and Nathun Yadav with bhala, and Sukhari Yadav with lathi, assaulted Mohan Yadav. It is further said that Mewa Lala Yadav, the brother of the informant in the meantime came from the side of his house to save his father, when accused Jita Yadav gave a bhala blow on his chest, and accused Lalan Yadav with garasa and accused Ram Dayal Yadav with lathi assaulted Mewa Lal Yadav, on the instigation of accused Deo Narayan Yadav. After receiving the injuries, Mewa Lal Yadav fell down on the ground. The informant, Ram Pravesh yadav (brother of the informant) and Naresh Yadav (cousin of the informant) rushed to save the above injured, when accused Lalan Yadav gave a garasa blow on the head of the informant, and accused Sukhari Yadav gave a lathi blow on the leg of the informant; accused Lalan Yadav with garasa, accused Chandradeo Yadav with lathi, and accused Preman Yadav with brick-bat, assaulted Naresh Yadav, and accused Preman Yadav assaulted Ram Pravesh Yadav with lathi. It is further alleged that, on hulla the villagers started arriving, and the accused persons ran away. The informant then found that his brother Mewa Lal Yadav had succumbed to the injuries received by him. The reason behind the occurrence as 5 mentioned in the fardbeyan is that there was an old land dispute between the parties. 4. The Fardbeyan was recorded by Kumar Amar Singh, Officer in-Charge of Bikram Police Station (P.W.8), and has been marked Exhibit-3. On these allegations, a formal first information report was drawn up on 30.4.1984, under sections 302, 147, 148, 149, 307, 324, 323 and 337 of the IPC. The same was marked Exhibit-4. The present appellants and Preman Yadav were named as accused. P.W.8 undertook investigation of the case and ultimately submitted charge-sheet against the seven appellants herein. Cognizance was taken and charges were framed against these appellants under section 302 read with section 149 and 307 of the IPC, as well as section 149, 147 and 148 of the IPC. 5. The prosecution examined eight witnesses in support of its case. P.W.1 (Ram Pravesh Yadav) is a cultivator by avocation, and full brother of deceased Mewa Lal Yadav. He has deposed to the effect that at about two years ago at about 6.00 A.M., he was standing at his Darwaja. Ram Dayal Yadav, Jita Yadav, Nathun Yadav, Lalan Yadav, Chandradeo Yadav, Preman Yadav, Sukhari Yadav and Deo Narain Yadav came to his Darwaja. Jita Yadav and Nathun Yadav were armed with bhala, Lalan yadav armed with garasa, and 6 the remaining persons were armed with lathis. Ram Dayal yadav started pelting stones at his Darwaja. The father of P.W.1 requested to them with folded hands to stop it, upon which Deo Naraian Yadav gave a call to assault. Ram Dayal Yadav pelted stones at his father (Mohan Yadav), Nathun Yadav assaulted with bhala, Lalan yadav with garasa. His brother (Mewa Lal Yadav) attempted to protect his father, whereupon Jita Yadav assaulted him (Mewa Lal Yadav) with a bhala at his chest, Lalan Yadav attacked with garasa, and Ram Dayal Yadav with a lathi, as a result of which Mewa Lal fell down. His brother Suresh Yadav had just returned from his duty and attempted to lift Mewa Lal Yadav, then Lalan Yadav gave a garasa blow on his head. Sukhari Yadav delivered a lathi blow on his leg. P.W.1 and others proceeded forward asking them to stop it, and received a lathi blow by Preman Yadav and Lalan Yadav delivered a garasa blow on Naresh Yadav. Chandradeo Yadav also delivered a lathi blow on Naresh Yadav. The resultant commotion brought the co-villagers and the accused persons took to their heels. They found Mewa Lala Yadav dead. He has further deposed to the effect that the accused persons had on the previous day disconnected the ridge for supply of water for irrigation of lands. P.W.1 had, therefore, lodged a Sanaha in the local 7 police station. The Jamadar had come to that place of occurrence for local inspection. He has stated in his cross-examination that disconnection of the ridge by the accused persons on the previous day was the immediate cause for the quarrel. The occurrence had taken place at the road- side and not in the Dalan. He was on the road when the accused persons were pelting stones at the prosecution party. 5-6 persons were continuously pelting stones. They did not run away when stones were being pelted and instead were trying to save themselves from the attack. At the time stones were being pelted, women were inside the house and male members including Bheem Yadav and Ram Pravesh Yadav (P.W.1) were at the Darwaja. Their father and younger brother were at the road side. Their father had with folded hands requested the accused persons to desist from pelting stones. On this, Lalan Yadav had delivered a garasa blow in the middle of his father’s head. Nathun Yadav tried to give bhala blow which struck his hand. His brother Mewa Lal Yadav died on the spot, who was his full brother. Thereafter P.W.1 had asked the Chaukidar to go to the police station to inform the police. P.W.1 is himself a Dalpati and the family is engaged in the job of Chaukidari for 4- 5 generations. He had otherwise no land dispute with 8 the accused persons. The sole reason for the enmity with the accused persons was that they had disconnected the water supply through the ridge. The accused persons were also speaking to them in abusive language. He has fully supported the prosecution case during the course of cross-examination. The defence has not been able to elicit any contradiction in his evidence. 6. P.W.2 is Suresh Yadav. He is Chaukidar by avocation and full brother of the deceased. He has deposed to the effect that about two and half years ago at about 6.00 A.M., he had returned after his duty. He found Ram Dayal Yadav, Chandradeo Yadav and Narain Yadav armed with lathis. Narain Yadav is the Samadhi of Chandradeo Yadav. Sukhari Yadav and Preman Yadav were armed with lathis, Lalan Yadav armed with garasa, and Nathun Yadav and Jita Yadav were armed with bhalas. They were pelting stones at the house of the prosecution party. Their father had requested the accused to desist from pelting stones, upon which Deo Narain Yadav gave a call to assault. Then Ram Dayal Yadav pelted stones on Mohan Yadav. Thereafter Lalan Yadav gave a garasa blow to Mohan Yadav and Nathun Yadav delivered a bhala blow to Mohan Yadav. His younger brother Mewa Lal Yadav stepped forward to protect his father, whereupon Deo Narain Yadav gave a 9 call to kill him. Jita Yadav delivered a bhala blow, Lalan Yadav delivered a garasa blow, and Ram Dayal Yadav delivered a lathi blow, on Mewa Lal who fell down. P.W.2 stepped forwards to protect Mewa Lal Yadav, whereupon Lalan Yadav delivered a garasa blow on the head of P.W.2, and Sukhari Yadav delivered a lathi blow on his left leg. Naresh Yadav attempted to protect Suresh Yadav (P.W.2) and he received a garasa blow from Lalan Yadav, and a lathi blow from Chandradeo Yadav. Preman Yadav had delivered a lathi blow on Pravesh Yadav. The occurrence was witnessed by Dheena Yadav, Samachar Yadav, Munni Yadav. On hulla, the accused persons fled away. The police had arrived at about half an hour of the occurrence. The Fardbeyan of P.W.2 was recorded by the Sub-Inspector of Police in the presence of Ram Sakal Yadav, Mukhiya who has also put his signature and has been marked Exhibits-1 and 1/1. He has, inter alia, stated in his cross-examination that they have no land dispute with the accused persons. Both sides are agnates, and formal partition between them has not taken place. They have more lands than the accused persons because of accretions on account of purchase. P.W.2 has denied the suggestion that Mewa Lal Yadav had died during the course of dacoity. P.W.2 has deposed 10 consistently and the defence has not been able to elicit any contradiction in his evidence. 7. P.W.3 (Mohan Yadav) is a cultivator, and is the father of Mewa Lal Yadav (the deceased). He has deposed to the effect that about two years ago, at about 6.00 A.M., he was standing at his Darwaja. Ram Dayal, Jita Yadav, Lalan Yadav, Sukhari Yadav, Chandradeo Yadav, Deo Narain Yadav, and Nathun Yadav came in a group and started pelting stones on them. Jita and Nathuni Yadav were armed with bhalas, Lalan Yadav was armed with a garasa, and the remaining persons were armed with lathis. P.W.3 had requested them to desist from pelting stones, upon which Deo Narain Yadav gave a call to other accused persons to assault, whereupon Ram Dayal Yadav had pelted a stone on him which hit his right leg. Thereafter Jita Yadav delivered a bhala blow which had hit the palm of the left hand. Lalan Yadav had delivered a garasa blow which hit his head. Mewa Lal Yadav came to his rescue and Jita Yadav had delivered a bhala blow on the left side of his chest. This was followed by a garasa blow by Lalan Yadav on Mewa Lal Yadav who fell down on the ground. Suresh reached there immediately and received a garasa blow on his head from Lalan Yadav. Thereafter Lalan yadav also delivered a garasa blow to Naresh which hit his wrist. Preman assaulted 11 Pravesh by lathi. All the injured were referred to Gona Hospital for treatment. The Sub-Inspector of Police had come to the place of occurrence. The genesis of the occurrence was that the accused persons had disconnected the supply of irrigation water to their lands and the prosecution party has registered a Sanaha with the local police. Jamadar had come upon the lands and had restored the ridge. Both sides are agnates. They have been given about two and half bighas of lands in partition each but the lands are scattered. The occurrence had taken place at the road side. The co-villagers had arrived at the scene of the occurrence soon after the occurrence but nobody has tried to intervene in the matter. Samachar, Adhin, and Munni had come at the place of occurrence after the accused persons had taken to their heels. The Sub-Inspector of Police had arrived at the place of occurrence at about 7.00 A.M., had sat down and recorded the Fardbeyan. He has further stated in his cross-examination that disconnection of water supply to the lands was the reason for the occurrence. The disconnection was preceded by a proceeding under section 107 Cr.P.C. P.W.3 has consistently deposed and the defence has not been able to elicit any contradiction in his evidence. 12 8. P.W.4 is Sita Devi, and is the wife of Ram Pravesh Yadav (P.W.1). She has deposed to the effect that about three years ago at about 6.00 A.M., she was in the house and came out of the house after hearing hulla, and found the dead body of Mewa Lal Yadav on the ground. She noticed Mohan Bhagat, Suresh, her husband, and Naresh in injured condition. She had noticed the accused Jita Yadav and Nathun Yadav with bhala in their hands, and Lalan Yadav with a garasa in his hand. She had noticed Ram Dayal, Sukhari, Preman, Deep Narain with lathis in their hands. She has, inter alia, stated during the course of her cross-examination that they have no land dispute with the accused persons. She has consistently deposed and the defence has not been able to elicit any contradiction in her deposition. 9. P.W.5 (Samachar Yadav) is an agriculturist and is uncle of Mewa Lal Yadav (deceased). He has stated to the effect that about three years ago at about 6.00 A.M., he was herding his cattle and had reached the place of occurrence. He has given a description of the occurrence and claims to be an eye witness. During the course of his cross-examination, he has stated (particularly in paragraph 8) that he had reached the place of occurrence after Mewa Lal Yadav was dead. It appears to us that he is not a reliable 13 witness and has during the course of his examination- in-chief has supported the prosecution case, and during the course of cross-examination supported the defence. He perhaps wanted to please both sides because he is closely related to both sides. 10. P.W.6 is Naresh Yadav, is a cultivator, and is a co-villager and claims to be related to both sides. He has deposed to the effect that about three and half years ago at about 6.00 A.M., he was at his residence and on hearing hulla he came to his Darwaja and found that Mohan Yadav and accused Ram Dayal Yadav were exchanging hot words. Ram Dayal Yadav delivered a lathi blow on Mohan Yadav. Mewa Lal Yadav stepped forward to protect him, whereupon Jita Yadav delivered a bhala blow to Mewa Lal Yadav. Lalan Yadav delivered a garasa blow on Mewa Lal. P.W. 6 stepped forward to protect Mewa Lal and received a lathi blow on his head. Ram Pravesh Yadav and Suresh Yadav had also received injury. Mewa Lal Yadav died after being assaulted. The police had arrived at the place of occurrence at about 7.00 A.M.. He has further stated that Nathun Yadav and Jita Yadav were armed with bhalas, Ram Dayal Yadav, Sukhari Yadav, Chandradeo Yadav were armed with lathis, and Lalan Yadav was armed with a garasa. He has stated in his cross- examination that he has by and large supported the 14 prosecution case. The occurrence had taken place at the road side. The defence has not been able to elicit any contradiction in his deposition. 11. P.W.7 is Dr. Jawahar Lal and was then Medical Officer posted in Sub-Divisional Hospital, Danapur. He has deposed to the effect that he was on 30.4.1984, posted as Medical Officer, Sub-divisional Hospital, Danapur, on which date at about 5.00 P.M., he had performed the post-mortem on the dead body of Mewa Lal, son of Mohan Yadav. The dead body was taken to the hospital by Constable No.2004, Harinandan Paswan and Ram Pravesh Yadav, brother of the deceased, and Chaukidar Ram Nihit Yadav. P.W.7 found as follows after post-mortem of Mewa Lal: Rigor mortis was present- Mouth closed, eyes partially opened. 2. The following ante-mortem injuries were found: (1) One incised wound on front of left side of chest- 11/2”x3/4”x chest cavity deep. (2) One incised wound 2”x1/2”x skin deep on lateral side of right elbow. (3) The distal phalanx of right index finger was cut. (4) One incised wound 2”x1/2”X upto bone deep on dorsum of right middle finger. (5) One incised wound 1/2”x1/6”x skin deep on right shoulder. (6) One incised wound 1/2”x1/6”x1/6” on dorsum of left middle finger. (7) One incised wound 11/2”x1/2x1/4” on dorsum of left wrist. (8) One incised wound 1/2”x1/6”x1/6” on inter- digital space between left index and middle finger. (9) One incised wound 1”x1/2”x1/4” on left lateral side of chest. . 15 (10) One incised wound 1”x1/2”x1/4”on lateral side of left buttock. 3. On internal examination, injury no.1 had passed through 4th inter-costal space cutting the muscle, pericardial sack and right ventricle. Left side of heart was empty. There was pool of blood in both chest cavity. Lungs, liver, spleen and kidney were pale. Bladder was full. Stomach contains 3 ounces of semi-digested food. 4. All the injuries were caused by sharp weapons such as Bhala, Falsa, Gandasa. Death was due to haemorrage and shock. Time elapsed since death was within 24 hours but more than six hours. He has proved the post-mortem report and has been marked Exhibit.2. He has further stated in his deposition that injury no.1 was possible by a bhala. Injury nos.2, 5, 6 and 8 were possible by friendly hand. Except injury nos.1 and 3, all other injuries were simple. He has finally opined that injury no.1 was the main reason for the death. The other injuries accelerated the death. 12. P.W.8 is Kumar Amar Singh and posted as Thana in-Charge on 30.4.1984. On that date about 9.00 A.M., he had recorded the Fardbeyan of Suresh Yadav. The Fardbeyan has been marked Exhibit-3. He had on that date at about 8.00 A.M., received the information of the occurrence at the police station. On receiving the information, he had recorded the Sanaha at the police station and proceeded to the 16 place of occurrence. He had again taken the statement of the informant on the basis of which formal F.I.R. was drawn at the police station and has been marked Exhibit-4.He had prepared the inquest report with carbon copy which has been marked Exhibit-5. He has inspected the place of occurrence. There is a public passage about 30 yards towards the east of the house. He has stated the description of the house at the road side. He had found grass at the place of occurrence and had also found paddy husks. Blood had dropped on the grass and paddy husks. He had obtained the blood-stained grass and paddy husks and prepared the seizure-list which has been marked Exhibit-6. He had found brick-bats at the place of occurrence, had collected eight of them and the seizure-list has been marked Exhibit-6/1. He had forwarded the dead body for post-mortem to Danapur hospital. He had inspected the place of occurrence on 30.4.1984. He had prepared the injury slips of Mohan Yadav, Ram Pravesh Yadav, Ram Naresh Yadav, Suresh Yadav which has been marked Exhibits- 7 series. The same are in the hand-writing and signature of Shri Niwas Tiwary. He has recognised his hand-writing and signature. The same was prepared at his behest. He had then recorded the statements of all the witnesses, namely, Suresh Yadav, Mohan Yadav, Ram Pravesh Yadav, Munni Yadav, Samachar Yadav, Heena 17 Yadav, Sita Devi, Ram Sakal Prasad (Mukhiya). The informant’s statement was recorded later on. Post- mortem report and injury-reports were also received in due course. After completing the investigation, charge-sheet was submitted. He was subjected to detailed cross-examination but the defence has not been able to elicit any contradiction in his deposition. 13. It appears to us on a perusal of the depositions of the prosecution witnesses that P.Ws.1, 2, 3 and 6 are eye witnesses of the occurrence which had taken place on 30.4.1984. They were at their Darwaja at about 6.00 A.M.. They have fully corroborated the prosecution case that the accused persons variously armed with had appeared in front of the house of the prosecution party and started pelting stones on them. P.W.3 (Mohan Yadav) then requested them not to pelt stones but they did not listen. Then they started assaulting P.W.3. Mewa Lal Yadav stepped forward to protect P.W.3, and the accused persons attacked him. They have further supported the prosecution case that a bhala blow by Jita Yadav was thrust at the left side of Mewa Lal’s chest, followed by garasa blow from Lalan Yadav. Others had also delivered lathi blows on Mewa Lal Yadav as well as other members of the prosecution 18 party present there, as a result of which Mewa Lal Yadav fell down dead on the ground. The prosecution case is fully supported by the medical evidence. P.W.7, who had conducted the post-mortem on the dead body of Mewa Lal Yadav, has found as many as ten injuries on the person of deceased Mewal Lal Yadav and is of the opinion that all injuries were caused by sharp-cutting weapons like bhala or garasa. He has further opined that injury no.1 was the main reason for the death, and the remaining injuries had accelerated the death. 14. P.W.4 is not precisely an eye witness to the occurrence. She was, however, inside the house when the occurrence was taking place on the road just out side her house and the Dalan, had come out on hearing hulla and noticed that Mewa Lal Ydav lying dead on the ground. She has fully supported the prosecution case. 15. P.W.8, the I.O., had visited the place of occurrence soon after he had received the information at the police station. After recording the requisite Sanaha in the police records,