Chamak Lal Yadav & Ors vs The State of Bihar

All the appellants by judgment of conviction dated 8th December, 2006 and order of sentence dated 13th December, 2006, passed by the Additional Sessions Judge, Fast Track Court No.2, Banka, in Sessions Trial No.841 of 1990 arising out of Rajaun P.S. Case No.128 of 1989/G.R.No.1406 of 1989 have been convicted under Section 307/34 Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of rupees five thousand each and in default of payment of fine to further undergo rigorous imprisonment for five months. They have further been convicted under Section 395 Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of rupees five thousand each and in default of payment of fine to further undergo rigorous imprisonment for five months. Appellant, Jiya Lal Yadav, has further been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years with fine of rupees one thousand and in default of payment of fine to undergo further rigorous imprisonment for one month. All the sentences were directed to run concurrently.

Prosecution case, in short, is that on the alleged date of occurrence at 11.30 PM, Ajay Singh, son of Tirath Narayan Singh (PW5) while sleeping in Verandah of the school got awake to go for urine. Ajay Singh saw some persons coming towards his house. He raised objection then all those persons started altercation with the son of informant. Son of the informant lit the torch then the accused persons told to shot the son of the informant. The informant got awake on hearing such conversation. In the meantime, all these accused persons (appellants) arrived near the informant. The informant identified them in the light of bulb. Nathe Yadav was armed with Gandasa, Jiyalal Yadav was armed with gun, Mehilal Yadav was armed with .303, Chamaklal Yadav was carrying Jhola containing explosive substance. Bibhishan Mandal was also carrying bomb in Jhola, Anant Pandey was carrying country made pistol. There were 5-7 unknown persons also with them whom the informant could not identify. Nathe Yadav ordered his son Jiyalal Yadav to kill the informant on which Jiyalal Yadav fired from his pistol in the chest of the informant causing injury in chest after piercing Chaadar wore by the informant. In the meantime, other sons of the informant, Ajay Singh, Sanjay Singh and Ranvijay Singh, raised halla upon which villagers arrived at which Bibhishan Mandal threw bomb from Jhola to terrorise the villagers which exploded. Nathe Yadav told his son, Mehilal Yadav, to capture the gun and loot the properties of the informant. Thereafter, Bibhishan Mandal threw bomb on the Godrej Almirah of the informant, which hit on its glass and the glass had broken. Mehilal Yadav after breaking Almirah took out Attaichi. In the meantime, Anant Pandey broke the door of the room situated at Verandah and started searching gun in that room. It is further alleged that when gun was not found, then Mehilal Yadav along with 5-7 persons took out two boxes and utensils from the room. The boxes contained jewellery, clothes etc. of the son and daughter-in-law of the informant. The accused persons enquired from Tirath Narain Singh about the gun and started searching the same on the bed, but could not find the gun. Thereafter, Nathe Yadav ordered to kill the informant at which Bibhishan Mandal threw bomb which hit on the right leg of the informant. The informant fell down. The accused persons fled away towards south.

It is further alleged in the fard-e-beyan that Nathe Yadav after forming unlawful assembly of men of criminal antecedents attempted to cause murder of Tirath Narain Singh because he had helped Bhubaneshwar Singh and Ghosh Babu in taking illegal possession by Nathe Yadav.

Prosecution has altogether examined seven witnesses during trial. The Court below after perusing the evidence has passed judgment of conviction and sentence as mentioned above.

Defence of the accused-appellants is denial of the occurrence and false implication in the case due to land dispute with the informant.

The point for determination in this appeal is whether the judgment of conviction passed by the learned Court below is in accordance with law.

The informant, Tirath Narain Singh, has been examined as PW 5. He has stated in his evidence that altercation was taking place between his son and the accused persons. He got awake and identified Nathe Yadav, Jiya Lal Yadav, Mehi Lal Yadav, Chamak Lal, Bibhishan Mandal and Anant Pandey. They came near the informant. Nathe Yadav was armed with Gandasa, Jiya Lal Yadav was armed with gun, Mehi Lal Yadav was armed with country made pistol, Bibhishan Mandal and Chamak Lal were having Jhola in their hand and Anant Pandey was having pistol. This witness identified all the accused persons in the electric light. Jiya Lal fired on the order of Nathe Yadav causing injury on the chest of the informant. The informant fell down. Thereafter, accused persons went to his Darwaja. Bibhishan Mandal threw bomb on the Almirah of the informant due to which Almirah got broken. The accused persons started searching gun in the Almirah, but the same was not found. Thereafter, they took articles from the Almirah. Anant Pandey broke the door of another room and took away the boxes and other articles. The villagers arrived on halla. Then, Bibhishan Mandal and Chamak Lal threw bomb on the villagers. They came out of the house and took out the articles from the Almirah. The accused persons enquired from him about the gun. Thereafter, on the order of Nathe Yadav, Bibhishan Mandal threw bomb, which hit on the right leg, left leg and hand of the informant. Thereafter, accused persons fled away from the place of occurrence.

Sanjay Kumar Singh (PW 3) is son of the informant. He has stated that he was sleeping in the school in front of his house along with brother, Ajay Singh, Ran Vijay Singh, Sukhdeo Singh etc. At about 11.30 in the night, his younger brother, Ajay Singh, told this witness that miscreants had surrounded his father. There was electric light where his father was sleeping. This witness saw Nathe Yadav armed with Gandasa, Jiya Lal Yadav armed with gun, Mehi Lal Yadav armed with .303, Chamak Lal and Bibhishan Mandal were having Jhola in their hands. Anant Pandey armed with country made pistol had surrounded his father. Accused Nathe Yadav ordered to kill at which accused Jiya Lal Yadav fired and his father fell flat. Thereafter, Nathe Yadav told to take the licencee gun of the informant. Thereafter, Bibhishan Mandal, Chamak Lal Yadav and Mehi Lal Yadav and 5-7 unknown persons came to Darwaja of the informant. Accused Bibhishan Mandal threw bomb on the Almirah and accused Mehi Lal Yadav started searching gun but could not find the same. Mehi Lal Yadav took away Attaichi from the Almirah. Thereafter, accused Anant Lal Pandey, Chamak Lal Yadav and few unknown miscreants broke the door of another room on the Verandah and took out two boxes from that room. The villagers arrived on halla. Then accused Mehi Lal Yadav fired upon the informant and the villagers and accused Bibhishan Mandal threw bomb. The accused persons started running away on seeing the villagers. Bibhishan Mandal while fleeing away on the order of Nathe Yadav threw bomb on the father of informant. Thereafter accused persons fled away towards east of the house after taking various articles of the house. This witness and other villagers went near the informant and found injuries in his leg. There was hole of cartridges in the blanket of father of this witness. There was black spot on the chest of father of this witness. Thereafter, they took the informant to Rajoun Hospital on Khaat for treatment. Darogajee came in the hospital and recorded fard-e-beyan of the informant. The Doctor referred him to Banka hospital from where he was referred to PMCH, Patna. The accused persons have committed the occurrence because the informant and his family members were eye witnesses in the case pending between Bhubaneshwar Singh and the accused persons. Besides this, accused persons wanted to take illegal possession of land of Ravindra Lal and the informant wanted to purchase the aforesaid land.

Ran Vijay Singh (PW 1) has stated in his evidence that on the date of occurrence he was sleeping in the school in front of house of Tirath Narain Singh along with Ajay Singh and Sanjay Singh. Ajay Singh got this witness awake and told that miscreants have come to his Darwaja. This witness saw Nathe Yadav armed with Gandasa, Jiya Lal Yadav armed with gun, Mehi Lal Yadav armed with .303, Chamak Lal armed with bomb in Jhola and Anant Pandey armed with country made pistol. This witness identified all the accused persons in electric bulb. Besides them, there were other accused persons whom this witness could not identify. Nathe Yadav ordered Jiya Lal Yadav to fire on Tirath Narain Singh on which he fired causing gun shot injury in his chest and he fell down. Accused Mehi Lal Yadav and others fired on this witness also, but he got himself hide behind the school and did not sustain fire arm injury. Accused Bibhishan Mandal threw bomb on Godrej Almirah kept at the Darwaja of Tirath Narain Singh on account of which glass of the Almirah got broken. Mehi Lal Yadav after breaking the handle of Almirah started searching licencee gun of Tirath Narain Singh, but could not find the same. Thereafter, he took away one Attaichi from the Almirah. Anant Pandey damaged the Chaukhat and door of another room and entered in the room to search the gun, but did not find the same. Then, he took away two boxes from the room, which contained jewellery, clothes, utensils etc. The villagers arrived on halla. Co-accused, Bibhishan Mandal and Chamak Lal Yadav threw bomb on the villagers. Accused Nathe Yadav ordered to kill the informant on which Bibhishan Mandal threw bomb on the informant. Thereafter all the accused persons fled away towards east. Tirath Narain Singh sustained injury below his right knee. This witness and other family members of informant went near Tirath Narain Singh. They took him to Rajaun Hospital on Khaat from where he was referred to Banka Hospital for better treatment. The occurrence had been seen by Ajay Singh, Sanjay Singh and other villagers besides this witness.

Anandi Singh (PW 4) has stated in his evidence that on the date of occurrence at about 11.30 PM, he was sleeping in his house. He got awake on the sound of bomb as well as halla of villagers and came out from the house and went towards the house of Tirath Narain Singh. The miscreants had already fled away from the house when he reached the house of Tirath Narain Singh. He saw Tirath Narain Singh injured. He had sustained bomb injury in his right knee and right hand. Bleeding was taking place from right side of chest of Tirath Narain Singh. Tirath Narain Singh had told this witness that 10-12 miscreants had committed this occurrence out of which he has identified 5-6 miscreants. Tirath Narain Singh had told this witness the name of co-accused Bibhishan Mandal, Anant Pandey, Nathe Yadav, Jiya Lal Yadav, Mehi Lal Yadav and Chamak Lal Yadav. Tirath narain Singh also told this witness that accused persons had gone to Darwaja and broke the Godrej Almirah as well as door of the house and took away two bags and one Attaichi which contained cash and jewellery besides other articles. This witness saw that Sanjay Singh, Ajay Singh, Ran Vijay Singh were also present at the place of occurrence. They also identified all the six accused persons. This witness has further said that Tirath Narain Singh had also told him that on the order of Nathe Yadav, Bibhishan Mandal threw bomb and Jiya Lal Yadav had fired shot. Tirath Narain Singh was taken to police station in the night on Khatoli. On the next day, police came to the place of occurrence and inspected the place of occurrence. The police seized pieces of Teen. The police had also seized blood stained clothes found at the place of occurrence. He had put his signature on the seizure list. This witness has identified his signature on the seizure list, which has been marked as Ext.1. Besides this witness, Mahesh Das was another witness, who also put signature over the seizure list, which has been marked- ''X'' for identification.

Mahesh Das (PW 2) has stated in his evidence that he heard some sound either of bomb or pistol. He along with other villagers went towards the house of Tirath Narain Singh. He saw bleeding from right leg of Tirath Narain Singh. He was injured. Tirath Narain Singh told him that accused Nathe Yadav had caused bomb injury to him. Police had not come in his presence in the night. Police has not seized anything in his presence. This witness has identified his signature on the seizure list, which has been marked- ''X'' for identification. This witness has been declared hostile. In the cross-examination, this witness has stated that police never enquired from him. This witness was again cross-examined after adding of Section 395 Indian Penal Code and has stated in his further crossexamination that when he reached at the place of occurrence he did not see any of the accused persons. He did not meet the family members of the house where dacoity is alleged to have been committed. No body told him name of the dacoits at the place of occurrence.

Anandi Singh (PW 4) had been further crossexamined after adding Charge under Section 395 Indian Penal Code. He stated that he reached the place of occurrence after the accused persons fled away. None of the person present at the place of occurrence disclosed him the name of dacoits. Tirath Narain Singh had also not told him about the name of dacoits.

Dr. Md. Mustufa Ansari (PW 6) has proved the Injury Report signed by Dr. Ram Pyarey, Medical Officer on Duty on 13.04.1990 at Sub-Divisional Hospital Banka, which has been marked as Ext.3 without any objection from the side of the defence. The doctor has found total four injures on the person of the injured. I. Lacerated wound 1?" x ?" x 1/3" one inch below and lateral to right nipple. The underlying subcutaneous tissue & muscle giving clean cut morgues.

II. Lacerated wound 3" x 2?" x 2?" over right leg below the right knee joint. The margin of wound was scorched and blackened by smoke for a variable distance of 1/3" to ?".

III. Lacerated wound 2?" x ?" x 1" near right wrist jo int varying from ?" to ?" margin all around was scorched and blackened.

IV. Lacerated wound 3?" x ?" x ?" over left leg 2" below knee joint. Proximal margin of the skin was scorched ?" wide.

The doctor had found injury no. II to IV caused by fire arm (bomb blast) and injury no. I was bullet injury. Nature of injury nos. I, III and IV was simple. Injury no. II required X ray for opinion and the patient was referred to PMCH after first aid.

Arun Kumar (PW 6) is the Investigating Officer of the case. He has stated that fard-e-beyan of the informant was recorded in Rajoun Hospital by the then ASI, R.B.Singh. He has proved the fard-e-beyan of Tirath Narain, which bears signature of this witness. Fard-e-beyan has been marked as Ext.3/1. Case was registered on the basis of fard-e-beyan and he took up investigation of the case. He inspected the place of occurrence. He found one Almirah kept on the Verandah handle of which was broken. He also found sign of assault and scratch on the door of the Almirah. He also found Chaukhat and door of the room damaged and burnt near the room. Accused persons had searched gun after breaking the door of the room. The police found food grains kept inside the room totally scattered. Accused persons had taken away two boxes from the room. Accused persons also took one Attaichi when they did not find the gun. Investigating Officer has found electric pole at the place of occurrence and there was bulb on the pole. The Investigating Officer has also found one Chauki at the place of occurrence on which there was large quantity of blood stain on the Chaadar and other items of the Chauki. Investigating Officer was told that the informant was sleeping on the Chauki at the time of occurrence. The school is adjacent east-north to the place of occurrence. Son of the informant and several other persons were sleeping in the Verandah of that school on the day of occurrence. House of the informant as well as Verandah is clearly visible from the place of occurrence. House of accused persons is about one kilometer north from the place of occurrence. Investigating Officer also found remains of the bomb near Chauki kept at the place of occurrence. Investigating Officer seized blood stained clothes and remains of the bomb from the place of occurrence in front of witnesses and prepared seizure list. This witness has proved the seizure list, which has been marked as Ext.4. Thereafter, Investigating Officer recorded statement of Sanjay Singh, Anandi Singh, Mahesh Das, Sumitra Devi, Sindhu Devi. Thereafter, this witness was transferred and he handed over charge to another Investigating Officer, who submitted charge-sheet after getting order from the higher authorities. ASI had prepared the injury slip on the instruction of this witness and the injured was sent to Rajaun Hospital. This witness has proved the injury slip issued from Rajaun Hospital, which has been marked as Ext.5.

In this manner, from perusal of evidence of prosecution witnesses, as mentioned above, the informant (PW 5), son of informant, Sanjay Singh (PW 3), Ran Vijay Singh (PW 1) have been examined as eye witnesses.

The informant (PW 5) has specifically alleged that Jiya Lal Yadav had fired from the gun on the order of Nathe Yadav causing injury in his chest and he fell down on the earth.

Son of the informant, namely, Sanjay Kumar Singh, (PW 3) has specifically stated that Jiya Lal Yadav fired from his gun on his father on account of which his father fell flat. Holes had taken place in the blanket of his father. There was black spot also on the chest of his father on account of aforesaid injury. He took his father to Rajaun Hospital on Khatt with the help of other villagers where he got treatment. Police arrived at the hospital and recorded fard-e-beyan of his father. Thereafter, his father was taken to Banka Hospital from where he was referred to PMCH. In cross-examination at para 16, this witness has stated that he saw his father immediately falling flat after sustaining gun shot injury. Empty cartridges were later on found near Chauki by the police.

Ran Vijay Singh (PW 1) has also levelled specific allegation against co-accused, Jiya Lal Yadav, of causing fire arm injury in the chest of Tirath narain Singh and he fell down.

Both PW 1 and 3 have stated that they were sleeping on the Verandah of the school in front of house of Tirath Narain Singh. They got awake when Ajay Singh, who was also sleeping, told that miscreants have surrounded his father.

PW 4 (Anandi Singh) has stated that he came to the house of Tirath Narain Singh after hearing sound of bomb and halla of villagers. He found Tirath Narain Singh in injured condition. He was bleeding from right side of his chest. This witness has further stated that Tirath Narain Singh told him that Jiya Lal Yadav had fired on the order of Nathe Yadav. Tirath Narain Singh was taken to Police Station on Khatoli in night. The police seized pieces of Teen from the place of occurrence. The police had also seized blood stained clothes from the place of occurrence. This witness has also put his signature on the seizure list. He has identified his signature as Ext.1. It appears that Mahesh Das (PW 2) had also put his signature on the Seizure list. Signature of this witness has been marked-''X'' for identification.

Mahesh Das, PW 2, has stated in his evidence that on hearing sound of bomb and firing, he went to the house of Tirath Narain Singh. He found bleeding from right leg of Tirath Narain Singh. Tirath Narain Singh had told him that accused Nathe Yadav had caused injury to him. This witness has been declared hostile by the prosecution. He has stated that nothing was seized in his presence although he has proved his signature on the seizure list.

Investigating Officer (PW 7) has stated in his evidence in the description of place of occurrence that he found electric pole with light near the place of occurrence. He also found scratch at the place of occurrence. He further found large amount of blood fallen on the Chaadar and other things kept on the Chauki at the place of occurrence. Investigating Officer has further stated in his evidence that Verandah of the school is just adjacent to the place of occurrence and the house and Verandah of the informant is clearly visible from that school. This witness has stated that he has seized blood stained clothes and remains of the bomb from the place of occurrence in presence of witnesses. This witness has proved the seizure list, which has been marked as Ext.4.

Injury report has been proved by Dr. Md. Mustufa Ansari (PW 6), which has been marked as Ext.3 without any objection from the side of the defence. Doctor has found one lacerated wound on the lateral side of right nipple. Besides this, other injuries were on leg and wrist etc. The doctor has found that injury no. II to IV were caused by fire arm (bomb blast) and injury no. I was bullet injury. One injury report issued by Dr. Birendra Kumar has been marked as Ext.6 under Section 294 Cr. P.C. alleged to have been issued by Dr. Birendra Kumar Singh at PMCH, but from perusal of the aforesaid Injury Report, it appears that there is no mention below the signature of the doctor, on the aforesaid injury report, that the same has been issued from PMCH. It further appears from the aforesaid injury report that there is no mention of time as to when patient was examined on 26.10.1989. In Ext.3, it is mentioned that patient was examined on 26.10.1989 at Banka Hospital at 4.15 AM. Aforesaid Dr. Birendra Kumar Singh was not produced in the Court for his evidence, whereas, the Ext.3 has been proved by Dr. Md. Mustafa Ansari, Medical Officer, Banka. He has stated that the aforesaid injury report was prepared by Dr. Ram Pyare, Medical Officer on duty posted at Sub-Divisional Hospital, Banka.

From the judgment of the Court below, it appears that learned Additional Sessions Judge was himself quite confused in proper appreciation of evidence of the witnesses. He has discussed the evidence of the witnesses as if he is not relying on their evidence and they are not trustworthy, but finally he has convicted the accused persons.

This Court after perusal of evidence of the witnesses finds that there is consistent evidence of the informant (PW 5) along with PW 1 and 3 against accused Jiya Lal Yadav of causing fire arm injury on the chest of the informant, which also gets support from the evidence of the doctor as well as Investigating Officer. PW 4 has supported the evidence of these witnesses and has stated that he found bleeding injury on the chest of the informant. From Injury Report (Ext.3), it appears that Doctor has found only one injury below and lateral to right nipple of injured. There was no repetition of injury on the chest.

In the aforesaid circumstances, conviction of the appellant, Jiya Lal Yadav, (Cr. Appeal (SJ) No.04 of 2007) is modified and he is convicted for the offence under Section 324 Indian Penal Code and Section 27 of the Arms Act.

So far as sentence of the appellant, Jiya Lal Yadav, (Cr. Appeal (SJ) No.04 of 2007) is concerned, this Court is of the view that this case is of the year 1989. He has suffered the rigors of criminal prosecution since then. In such circumstances, the sentence passed against the appellant, Jiya Lal Yadav, is modified as sentence already undergone by him. He will not be required to send to custody any further.

So far allegation against other appellants are concerned, this Court after proper evaluation of the evidence, as stated above, finds no reliable evidence against them for the offence under Section(s) 307/34 Indian Penal Code.

Similarly, this Court does not find any reliable evidence against all appellants for the offence under Section(s) 395 Indian Penal Code. There was, admittedly, no recovery of any incriminating articles from possessions of the appellants. The witnesses have merely made vague allegation that accused persons after breaking Godrej Almirah took Attaichi.

During hearing of the appeals, it has been submitted that appellant no.4, Mehi Lal Yadav, (Cr. Appeal (SJ) No.04 of 2007) has died. In support of such submission, Xerox copy of the Death Certificate has been filed, although no Affidavit has been sworn.

This Court after evaluation of the evidence does not find sufficient evidence against appellant no.4, Mehi Lal Yadav, along with other appellants, namely, Chamak Lal Yadav, Nathe Yadav, (Cr. Appeal (SJ) No.04 of 2007) and Anant Pandey (Cr. Appeal (SJ) No.128 of 2007) for the offence under Section(s) 307/34, 395 Indian Penal Code.

Accordingly, impugned judgment of conviction dated 8th December, 2006 and order of sentence dated 13th December, 2006, passed by the Additional Sessions Judge, Fast Track Court No.2, Banka, in Sessions Trial No.841 of 1990 arising out of Rajaun P.S. Case No.128 of 1989/G.R.No.1406 of 1989, against appellants, namely, Mehi Lal Yadav, Chamak Lal Yadav, Nathe Yadav, and Anant Pandey, are hereby set aside. They are acquitted from the charges levelled against them.

Cr. Appeal (SJ) No.04 of 2007 is allowed in part and Cr. Appeal (SJ) No.128 of 2007 is allowed.