Bhola Yadav, Kailash Yadav and Bulaki Yadav vs The State of Bihar

Honourable Mr. Justice Amaresh Kumar Lal

This appeal is directed against the judgment of conviction and sentence dated 23.8.1989 passed by the 1st Additional Sessions Judge, Bhagalpur in Sessions Case No. 368 of 1983/ T. R. No. 82 of 1987 by which the appellants have been convicted and sentenced to rigorous imprisonment for life u/s 302/34 IPC. According to Fard Beyan (Ext. 1.) the prosecution case, in brief, is that on 27.10.1981 at 8 a.m. the appellants were ploughing the field of the informant Wakil Yadav (P.W. 6). This information was given by someone at the house of the informant. At that time, the informant had gone to co-villager Babulal Yadav (not examined) for arrangement of seeds. After getting this information his mother (deceased) and his wife Mala Devi (P.W. 7) went to the field and they were trying to stop ploughing. In the meantime, Bhola Yadav and Bulaki Yadav, both sons of Mishri Yadav and Kailash Yadav son of Bhola Yadav thrashed the mother of the informant in the field. Bulaki Yadav assaulted his mother with Bharathi on her neck due to assault with Bharathi she got injury in the neck and died on the spot. It is further alleged that the wife of the informant fled away and returned to her house raising alarm. She narrated about the occurrence to the informant. The dead body of his mother was on the place of occurrence. The cause of occurrence is that the informant has been cultivating the land of Arun Singh (not examined) for the last more than 100 years on Batai. In the last August this land was perhaps purchased by Bhola Yadav (Mukhiya) and he has no complete information. The occurrence was witnessed by the neighbour Kamleshwari Yadav (not examined) Biddi Yadav (P.W. 5) Maheshwari Yadav (P.W. 2) Umesh Yadav (P.W. 3) and many other persons. Fard Beyan (Ext. 1) was recorded by S. I. V. D. Singh (not examined), Officer-in-Charge of Naugachhia Police Station on 27.10.1981 at about 10.45 A.M. in the Naugachhia Police Station. On the basis of fard beyan Naugachhia P. S. Case No. 153 dated 27.10.1981 was registered which was sent to the Court on 27.10.1981 at 2 P.M and it was received in the Court of SDJM, Naugachia on 28.10.1981. After investigation charge-sheet was submitted against all the appellants. The case was committed to the court of sessions. All the appellants were charged for the offence punishable u/s 302/34 IPC to which they denied and claimed to be tried.

The defence of the appellants is that they are innocent and they have been falsely implicated in this case by the informant due to enmity. According to the defence the informant (P.W. 6) himself killed his mother and falsely implicated the appellants.

This Court is required to see as to whether the prosecution has been able to substantiate its charge against the appellants beyond reasonable doubts.

The prosecution has examined altogether 10 witnesses in support of its case: P. W. 1 Rajendra Yadav, P. W. 2 Maheshwari Yadav, P. W. 3 Umesh Yadav, P. W. 4 Bhaero Yadav, P. W. 5 Biddi Yadav, P. W. 6 Wakil Yadav, P.W. 7 Mala Devi, P.W. 8 Abul Hasnat Khan, P.W. 9 Indrajeet Singh and P.W. 10 Sujeet Kumar Guha. No evidence has been adduced on behalf of the defence.

P. W. 1, P. W. 3 and P. W. 4 have not supported the prosecution case. They have been declared hostile. P. W. 2 and P. W. 5 have been tendered. P. W. 6 is the informant of this case and P. W. 7 is the wife of the informant. P. W. 8 and P. W. 9 are the investigating officer. P. W. 10 is a formal witness. Doctor has not been examined.

P. W. 6 Wakil Yadav is the informant of this case. He has stated that he has four bigahas of Batai land which belongs to one Arun Singh. The land has been cultivated by the three ascendants of P. W. 6. He has stated that occurrence took place seven years ago in the month of Kartik at 8 a.m. He had gone to take seed to the house of Babu Lal Yadav (not examined). His mother Tetari Devi (deceased) and his wife Mala Devi (P. W.7) were in the house. He got information that his mother has been killed by Bhola, Bulaki and Kailash. He came to his house and his wife (P.W. 7) told him that Bulaki Yadav assaulted his mother with Garasa. Bhola and Kailash assaulted with Chhura and Lathi. She (P.W. 7) told him that Kailash and Bulaki were ploughing the field which was protested by his mother and his wife. Thereafter, his mother was killed. P. W. 6 has further stated that he went to the police and narrated about the occurrence to the officer-in-charge and went to the place of occurrence with the officer-in-charge. He saw that there was cutting on the neck of his mother and blood was oozing out. The officer-in-charge made the inquest report (Ext. 4) and sent the dead body for post-mortem. He has further stated that the land, in question, has been registered in his name as a bataidar. Bhola Yadav is Mukhiya of Gram Panchayat. Bulaki is his brother and Kailash is his son. He has further stated that prior to the occurrence they used to tell him to leave the field and it has been purchased from Arun Singh, failing which he would be killed. The accused have no interest in the cultivation of that land. He has further stated that the accused threatened him as such he lives at Pirpaiti with his wife. He has also stated that his brother Upendra Yadav (not examined) is ploughman of accused Bhola Yadav. It is not a fact that he himself killed his mother. In his cross-examination he has stated that after five months of the occurrence he went to Pirpaiti and lives there. His brother Upendra Yadav lives in the village separately. He has stated that he goes to Kahalgaon by train. He has left the village out of fear but he has not filed any case. Only he has made oral complaint to the police. He has no knowledge as to whether any warrant is against him and he has been absconding. In paragraph 17, he has stated that his wife gave information about the occurrence when he returned to his wife from the house of Babu Lal. No one has given any information in the way. It is further stated that he did not make any statement before the police that when he was at the house of Babu Lal some one informed him about the occurrence. In paragraph 20, he has stated that he did not go to the field prior to going to the Police Station. The place of occurrence is at half kosh (one mile) from his house. He went to the field with the police. Many co-villagers were present there. He does not remember the name of any of them. He has further stated that he has no quarrel with the witnesses of boundary. Prior to the occurrence, the accused used to threaten him. He has denied the suggestion that due to temptation of the land he killed his mother and falsely implicated the accused in the case.

P. W. 7 Mala Devi is the wife of the informant. She has stated that in village Bhawanipur her husband has four bigahas of batai land and he is a khatiyani Sikmidar. She has further stated that it was the day of Diwali her husband had gone to the house of Babulal to take seed. She and her mother-in-law (deceased) had gone to Batai land for scraping the grass. In the southern part of the land Bhola Mukhiya came there Bulaki and Kailash started ploughing the field. Bulaki is the brother and Kailash is the son of Bhola Mukhiya. Her mother-in-law Tetari went to stop ploughing. At the instance of Bhola Yadav, Bulaki Yadav assaulted Tetari Devi (deceased) with Garasa on her neck and Kailash assaulted Tetari with Lathi. Tetari succumbed to the injury on the spot. She went to her house and narrated about the occurrence to her husband (P.W. 6). Her husband went to the police and she went to the place of occurrence where the dead body was lying. After the occurrence she and her husband have been living at Pirpaiti due to threatening given by the accused. She has also stated that Upendra Yadav is the elder brother of her husband. He is a ploughman. He ploughed the field of Bhola Yadav. She does not give any share of crop to Upendra. It is not a fact that her husband has killed his mother and has falsely implicated the accused. In her cross-examination, she has stated that the land in question is at a distance of 6-7 rassi from her house. There are plots of land of 50 to 100 persons between her house and the land. There is land of Siya Ram (not examined), Manger Yadav (not examined) and Maheshwari Yadav (P. W. 2). She has further stated that on the date of occurrence she went to scrap grass alone. Her mother-in-law came behind her. She met her on the land. Prior to reaching her mother-in-law (deceased) on the field no one was ploughing the field. She further states that the land was being ploughed prior to arrival at the field. She has further stated that she has scraped a bundle of grass. Thereafter, the accused came there. In paragraph 12, she has stated that her mother-in-law was old. She stood before plough. Thereafter, the accused surrounded her. Her mother-in-law (deceased) was assaulted with lathi. She fell down and even thereafter, she was assaulted. In paragraph 13, she has stated that where the accused have surrounded the deceased there was no blood. When she was returning to her house she did not tell about the occurrence to any one nor any one asked her as to why she was weeping. In paragraph 15, she has stated that she has told the police officer that at the instance of Bhola, Bulaki cut the throat of the deceased. She has also denied the suggestion of the defence that her husband himself killed his mother and falsely implicated the accused-appellants in this case.

P. W. 8 is the Investigating Officer and has taken over the charge from Yogendra Jha (not examined). He has filed charge-sheet and has arrested Bhola Yadav. He has proved the fard beyan (Ext. 1), formal FIR (Ext. 2), supervision note (Ext. 3). In his cross-examination he has stated that he did not record the statement of any witness.

P. W. 9 has stated that he has taken the charge of the investigation from S. I. Yogendra Jha. He has proved the Inquest Report (Ext. 4). In his cross-examination, he has stated that he did not take the statement of any witness.

P. W. 10 is the formal witness who has proved the part of the case-diary (Ext. 5). He has also proved the post-mortem report (Ext. 6). In his cross-examination, he has stated that none of the above documents were written in his presence.

Learned counsel for the appellants has submitted that there are many contradictions and discrepancies in the evidence of the material witnesses. The doctor and the Investigating Officer have not been examined. Non-examination of the doctor and the Investigating Officer has caused prejudice to the appellants.

After hearing the learned counsel for the parties and on perusal of the material on record it appears that P. W. 6 is the informant and his wife Mala Devi (P.W. 7) have only supported the prosecution case. P. W. 6 is not the eye witness to the occurrence. In the fard-beyan he has stated that some one has given information in his house about the occurrence of ploughing his field by the accused. At that time he had gone to the house of Babu Lal Yadav. After hearing this information his mother (deceased) and his wife (P. W. 7) went to the field, whereas, in his deposition he has stated that he got information in the way to his field that his mother has been killed by the accused. He came to his house and his wife (P.W.7) told him that Bulaki Yadav assaulted his mother with Garasa and Bhola and Kailash assaulted with Chhura and lathi. But in his fardbeyan he has stated that the appellants thrashed his mother in the field and Bulaki Yadav assaulted his mother with Bharathi. P. W. 7 claims to be an eye witness of the occurrence and narrated about the occurrence to P. W. 6. But P.W. 7 in her deposition has stated that the deceased was assaulted by Bulaki Yadav with Garasa at the instance of Bhola Yadav and Kailash assaulted with lathi, whereas, in the post-mortem report (Ext. 6) shows that there was injury by sharp cutting weapon and not by hard and blunt substance. The evidence of P. W. 7 claiming to be the eye witness is not corroborated by the post-mortem report (Ext. 6). The evidence of P. Ws. 6 and 7 does not inspire confidence. P. W. 7 has stated that she did not narrate about the occurrence while she was returning from the place of occurrence to her house. No one had asked her while she was weeping, whereas, there are houses of several persons between the place of occurrence and her house. She has stated that Maheshwari Yadav (P. W.2) was also present at the place of occurrence but he has not supported the prosecution case and he has been tendered. In his cross-examination he has stated that the mother of Wakil Yadav had poor vision. P. W. 1 has stated in his examination-in-chief that when he had gone to plough the field of Manager Yadav, he saw that Wakil Yadav (Informant P. W. 6) and his mother (deceased) and wife (P.W. 7) came there. Wakil Yadav killed his mother with Garasa and fled away. Although he has been declared hostile. In his cross-examination he has stated that Tetari Devi (deceased) was aged about 70 years and she had poor vision and she used to move by the help of lathi and some person. P. W. 3 has also stated that the deceased was aged about 60-70 years and had poor vision. She could move with the help of other and P. W. 4 had stated in his cross-examination that Wakil Yadav (informant) has killed his mother. He heard that Wakil Yadav killed his mother. P.W. 5 Biddi Yadav is cousin brother but he has also not supported the prosecution case. The evidence of P. W. 6 and 7 does not inspire confidence and as such it is not fit to be accepted.

Considering the facts and circumstances stated above, we find and hold that prosecution has failed to substantiate its charge against the appellants beyond reason doubts. The impugned judgment of conviction and sentence is set aside. The appellants are acquitted of the charge and they are discharged from the liabilities of their bail bonds.

In the result, this appeal is allowed. Let a copy of the first and last page of the judgment be handed over to the appointed amicus curiae Mr. Nitya Nand Neeraj, who has assisted the court satisfactorily and he will get the prescribed fees from the High Court Legal Services Committee, Patna.