Jagdish Yadav vs State of Jharkhand

Heard learned counsels for the appellants and learned counsel for the State.

The appellants are aggrieved by the impugned Judgment of conviction dated 13th July, 2009 and Order of sentence dated 15th July, 2009, passed by

the learned Additional Sessions Judge, F.T.C. No.1, Palamu at Daltonganj, in S.T. No. 146 of 2006, whereby, the appellants have been found guilty

and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants were sentenced

to undergo R.I. for life with fine of Rs.3000/- each, for the said offence.

The prosecution case was instituted on the basis of the written report submitted at the Police Station on 16.09.2005, by the informant Mukhdeo

Yadav, the brother of the deceased Basudeo Yadav, in which he has stated that on 15.09.2005, at about 3.00 P.M., he along with his deceased

brother Basudeo Yadav was going for his own treatment from village Basantpur (also stated as village Bataspur by some witnesses) to village Ledgai.

When they reached near Shiv Sthan, in the Dumarkhol forest, all the four accused persons came and surrounded his brother and assaulted him by

tangi and katari. It is stated that accused Jagdish was armed with tangi and Faguni Chamar was armed with katari. Upon seeing the occurrence, the

informant ran away towards Kolhua Dam and raised the alarm, whereupon some cattlemen came there, and he also send information to the villages

Ledgai and Naudiha. The villagers came and the dead body of the deceased was brought to his house in village Ledgai. The Chowkidar was also

informed, and on the next day, the informant along with the dead body came to the Police Station. He has stated in the written-report that few days

ago the cattle of Jagdish had destroyed the crop of the informant, due to which, and also due to practicing witchcraft, there was enmity between the

parties, for which the accused persons had committed the murder of his brother. On the basis of the written report of the informant, Patan P.S. Case

No. 117 of 2005 corresponding to G.R. No. 1444 of 2005, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against all

the four accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case.

After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offence under Sections 302 / 34

of the Indian Penal Code, and upon the accuseds’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, fourteen

witnesses were examined by the prosecution. The Doctor who had conducted the post-mortem examination on the dead body of the deceased has

been examined, but the I.O. has not been examined in the case, and the formal F.I.R. was proved by a formal witness P.W.-14 Faujdar Singh, which

was marked Exhibit 4.

Out of the material witnesses examined, P.W.-3 Kali Giri, P.W.-7 Krishna Manjhi, P.W.-9 Vinay Yadav, P.W.-10 Antu Mistri, P.W.-12 Bujhi

Yadav and P.W.-13 Indradeo Yadav have turned hostile and have not supported the prosecution case. P.W.-4 Surendra Yadav is the brother of the

deceased, and he has not stated anything about the occurrence.

P.W.-1 Kalawati Devi, the wife of the deceased, is only a hearsay witness to the occurrence. She has stated that she was informed about the

occurrence by her brother-in-law that these accused persons had committed his murder. She has stated that her husband was ill and he had gone with

her brother-in-law for his treatment to village Bataspur, but he did not return back alive. She has identified the accused persons in the Court.

P.W.-6 Mukhdeo Yadav is the informant of the case and the brother of the deceased. He has supported the prosecution case as an eye-witness to

the occurrence, stating that the occurrence had taken place at about 3.00 P.M. At the time of occurrence, Basudeo Yadav was going ahead of him

when Jagdish Yadav, Faguni Chamar, Rajnath Yadav and Jugeshwar Yadav assaulted him, due to which his brother fell down. Jagdish Yadav was

armed with tangi, Faguni Chamar was armed with katari and other two accused were armed with lathi. He has stated that when Basudeo Yadav fell

down, Jagdish assaulted him by tangi twice and Faguni gave several assaults on head and face of the deceased, while the other two co-accused were

apprehending the deceased. He has stated that on seeing the occurrence, he fled away, called some cattlemen and he also raised the alarm but by that

time, the accused persons fled away. His brother had died and with the help of the villagers he brought the dead body to the village. He informed the

Chowkidar and thereafter the Chowkidar and Bharat Yadav apprehended Faguni Chamar and Jagdish Yadav. On the next day, they went to the

Police Station along with Bharat Yadav, where Bharat Yadav scribed his statement, upon which he had put his thumb impression. He has stated that

about one month prior to the occurrence the cattle of Jagdish Yadav had destroyed his crops, due to which there was enmity between them, for which

the accused persons had committed the murder of his brother. He has identified the accused persons in the Court. In his cross-examination, he has

denied the suggestion that he had not given the statement before the police that Rajnath and Yugeshwar were armed with lathi, and they had

apprehended the deceased at the time of occurrence. He has also stated in his cross-examination that on the date of occurrence, he himself was ill

and for getting him treated, his brother was bringing him to village Ledgai, but he could not name the Doctor with whom he was to be treated and he

had no paper about the treatment. He has stated that there were blood stains on the place of occurrence. He has denied the suggestion of giving false

evidence.

P.W.-2 Suneshwar Yadav has stated that he was going for his own treatment, and when he reached near the forest, had seen the accused Jagdish

Yadav and Faguni Chamar washing their blood stained clothes in the water of a drain, he asked them as to what they were doing, whereupon, they

said that they had fallen down due to which they had sustained injuries. He has also stated that he had seen both the accused persons armed with

blood stained weapons. He proceeded forward, where he met Mukhdeo Yadav, who was crying and he informed him that all the four accused

persons had committed the murder of his brother. He has also stated about the enmity due to the destroying of crop of the informant. In his cross-

examination, this witness has stated that he had given the statement before the police that he had seen the accused persons washing the blood stained

clothes and weapons.

P.W.-5 is Bharat Yadav, who is the scribe of the written-report, and he has identified the written-report to be in his pen, which was marked Ext.1.

He has also stated that he had seen the dead body with the injuries and he was informed about the occurrence by Mukhdeo Yadav, and on that

information, he, with the help of the other villagers, had apprehended Jagdish Yadav and Faguni Chamar, and they were also taken to the Police

Station along with the dead body.

P.W.-11 is Rajesh Yadav, who has stated that upon hearing the noise, he went to the place of occurrence, and saw the dead body of the deceased

and thereafter he came to village Bataspur and informed the informant about the occurrence. He has identified only one accused Faguni Ram in the

Court. In his cross-examination he has stated that when he had seen the dead body, no one was present there, and he along with other persons had

gone to the village and informed the informant about the death of his brother, whereupon, the informant Mukhdeo Yadav came to the place of

occurrence, along with him and the other villagers and the dead body was brought to the village. It may be stated that this witness has not been

declared hostile by the prosecution.

P.W.-8 is Dr. Abhay Kumar, who had conducted the post-mortem examination on the dead body of the deceased Basudeo Yadav, on 16.09.2005,

and had found the following ante-mortem injuries on the dead body :-

(i) One incised wound 2 ½â€​ x ¼â€​ bone deep on left frontal region of skull with fracture of frontal bone.

(ii) One incised wound 3â€​ x ¼â€​ x bone deep with fracture of right frontal bone.

(iii) One lacerated wound 3â€​ x 1â€​ x bone deep with fracture of left zygomatic bone below the left eye on cheak.

(iv) One incised wound 1 ½â€​ x ¼â€​ on upper lip on left side of face.

(v) Three incised wounds each of size about ½â€​ x ¼â€​ x skin deep on right side of neck side by side.

On dissection of skull, there was haematoma of size ½â€​ x 1 ½â€​ x 1â€​ in anterior skull with torn meninges.

This witness has stated that injury Nos. (i), (ii) and (v) were caused by sharp cutting weapon, whereas injury No.(iii) was caused by hard blunt object.

The injuries were sufficient to cause death in ordinary course of nature. He has identified the post-mortem report to be in his pen and signature, which

was marked Ext. 2.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No

evidence was adduced by the defence.

Learned counsels for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below

cannot be sustained in the eyes of law. It is submitted by learned counsels that there is only one eye witness to the occurrence, i.e., P.W.-6 Mukhdeo

Yadav, the brother of the deceased, but his being the eye witness to the occurrence is absolutely doubtful, in view of the evidence of P.W.-11 Rajesh

Yadav, who has stated that it was he who had gone to the village and informed him about the dead body in the forest, whereupon the informant also

came there along with the villagers and brought the dead body. It is submitted by learned counsel that though the occurrence had taken place on

15.09.2005 at about 3.00 P.M., but the information at the Police Station was given on 16.09.2005 at about 12.15 hours, though the distance between

his village and the Police Station is only about 10 kms., as mentioned in the FIR. As such, there is delay in lodging the F.I.R. also. Learned counsels

submitted that all the independent witnesses have turned hostile in the case and in view of the admitted enmity between the parties, the false

implication of the accused cannot be ruled out. Learned counsels accordingly, submitted that it is a fit case in which the appellants ought to have been

given the benefits of doubt.

Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-6 Mukhdeo Yadav is the brother of the deceased

and he has fully supported the case as eye witness to the occurrence, stating that all the four accused persons had assaulted the deceased to death.

Jagdish Yadav and Faguni Chamar were armed with sharp cutting weapons, by which they had assaulted the deceased repeatedly, whereas the

others were armed with lathi, and when the deceased fell down, he was again assaulted by sharp cutting weapons causing his death at the spot. The

occurrence had taken place in a forest, and it was the informant only, who was present with the deceased at the time of occurrence, and as such, he

is the only eyewitness to the occurrence, and naturally so. The ocular evidence of this witness is fully corroborated by the medical evidence of P.W.-8

Dr. Abhay Kumar, and the post-mortem report proved by him as Ext.2. Learned counsel accordingly, submitted that the prosecution has been able to

bring home the charge against all the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction

and Order of sentence passed by the Trial Court below, worth any interference by this Court.

Having heard learned counsels for both the sides and upon going through the record, we find that there is admitted enmity between the parties.

Most of the witnesses examined in the case have turned hostile and have not supported the prosecution case at all. The case is supported as eye

witness to the occurrence only by P.W.-6 Mukhdeo Yadav, the informant and the brother of the deceased, and there is no other eye witness to the

occurrence. He is a highly interested witness, and the enmity with the accused persons is admitted by him. The evidence of P.W.-11 Rajesh Yadav

clearly shows that it was this witness, who had reached the place of occurrence first, and seen the dead body, when no one was there and thereafter

he went to the village, informed the informant and thereafter the informant came to the place of occurrence with this witness and the villagers and

they brought the dead body to the village. Thus, as per the evidence of P.W.-11 Rajesh Yadav, P.W.-6 Mukhdeo Yadav’s becoming eye witness

to the occurrence, becomes absolutely doubtful, particularly in view of the fact that P.W.-11 Rajesh Yadav has not been declared hostile by the

prosecution. This apart, we find from the evidence on record that P.W.-2 Suneshwar Yadav has claimed to have seen the accused Jagdish Yadav and

Faguni Chamar washing their cloths and weapons in a drain, and according to the evidence of P.W.-5 Bharat Yadav, both these accused persons

were apprehended at their village on the same day, but there was no recovery of any weapon from the accused persons. Even the I.O. has not been

examined in the case. The attention of some witnesses, including of the informant, had been drawn towards their statements given before the police.

Since the evidence of P.W.-11 Rajesh Yadav shows that the informant was not actually the eye witness to the occurrence, and since the F.I.R. was

lodged on the next day of occurrence, in view of the admitted enmity between the parties, and the informant being the highly interested person, we are

of the considered view that the false implication of the accused cannot be ruled out completely. In any case, the prosecution case is full of doubts and

the benefits of doubt always go to the accused persons. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial

Court below, cannot be sustained in the eyes of law.

For the foregoing reasons, the impugned Judgment of conviction dated 13.07.2009 and Order of sentence dated 15.07.2009, passed by learned

Additional Sessions Judge, F.T.C. No.1, Palamau at Daltonganj, in S.T. No.146 of 2006, convicting and sentencing the appellants Jagdish Yadav,

Jugeshwar Yadav, Rajnath Yadav and Faguni Chamar, for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside.

Consequently, all these appellants are given the benefits of doubt and they are acquitted of the charge. The appellants Jagdish Yadav and Faguni

Chamar are still in custody undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in

any other case. Appellants Jugeshwar Yadav and Rajnath Yadav are on bail, and they are discharged from the liabilities of their respective bail bonds.

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this

Judgment.