Nageshwar Yadav and Others vs State of Bihar

Mridula Mishra, J.—The appellants have preferred this appeal against judgment and order dated 27.3.2000, passed by the 1st Additional Session Judge, Khagaria in Sessions Case No.84 of 1996 whereby appellants Bhauku Yadav and Shital Yadav have been convicted u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have also been convicted u/s 302/149 of the Indian Penal Code, but no separate sentence was awarded appellants Nageswhar Yadav, Bhumi Yadav, and Hari Yadav have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to imprisonment of life. All five appellants have further been convicted u/s 148 of the Indian Penal Code and sentenced to undergo R.I. for two years. Appellants Nageshwar Yadav and Bhumi Yadav have been convicted u/s 379 of the Indian Penal Code also and have been sentenced for one year.

The case of the prosecution is that on 17.5.1995 at 6 a.m. Jhaksu Yadav and his brother Harvallav Yadav had gone to their filed for plucking Parval, Jitan Yadav armed with Semi-rifle. Bhauku Yadav, Shital Yadav, Nageshwar Yadav, Bhumi Yadav and Hari Yadav armed with country made gun and pistol came there and demanded one bag of Parwal as Rangdari Tax. Harvallav Yadav refused to yield to the demand on which Nageshwar Yadav ordered to kill Harvallav Yadav and throw him in the river. Jitan Yadav fired at Harvallav Yadav, which hit on the right thigh of Harvallav Yadav, Bhauku Yadav fired from his country made gun which hit below the knee of Harvallav Yadav, Shital Yadav opened fire which it at upper part of the knee joint of the right leg of Harvallav Yadav, Harvallav Yadav fell on the ground. Jhaksu wanted to flee away from the place of occurrence. Bhumi Yadav, Nageshwar Yadav and Hari Yadav fired at Jhaksu but it did not hit him due to distance. Pramod Yadav, Palat Yadav, Munilal Yadav came there on hearing the sound of firing and witnesses the occurrence. On seeing the witnesses all the accused persons fled away. Further it has been stated that while decamping Bhumi Yadav took away one bag of Parval and Nageshwar Yadav took away wrist watch from the hand of Harvallav Yadav, Harvallav was brought to Khagaria Hospital on a cot but the doctor refused to treat him as such he was taken to Begusarai Hospital for treatment. Harvallav Yadav died at Begusarai Hospital in course of his treatment.

On the basis of the fardbeyan of Jhaksu Yadav recorded at Begusarai Hospital on 17.5.1995 at 4 p.m. Khagaria P.S.Case No. 129 of 1995 was registered against six names accused persons. Investigation was taken up of ASI Lallan Singh, who inspected the place of occurrence, prepared inquest report in presence of Krishnadeo Yadav and Pramod Yadav, sent the body for post-mortem and recorded statement of witnesses. After completing investigation he submitted charge-sheet and after cognizance the appellants were put on trial. At the end of the trial the trial Court convicted and sentenced the appellants as indicted at the outset.

At the trial the prosecution in order to prove its case, examined altogether ten witnesses. PW 1 Palat Yadav, PW 3 Pramod Yadav, PW8 Nandan Yadav and PW 10 Jhaksu Yadav are eye-witnesses. PW 2, PW 5 and PW 6 have been declared hostile. PW 7 is tendered witness. PW 4 is the son of deceased and inquest witness PW 9 is Dr. A.K. Sharma who has conducted spot-mortem. One Sanjay Kumar has also been examined as Court witness who has proved the formal FIR Ext.4 and fardbeyan Ext.5.

The defence of the appellants was of false implication on account of land dispute and also that no occurrence as alleged has taken place.

Now it has to been seen as to whether the prosecution has been able to prove that the appellants had inflicted injuries to Harvallav Yadav on the date and time of occurrence which resulted into his death.

Argument has been advanced at the bar that all material witnesses are closely related to each other and to the deceased. PW 8 in paragraph 14 of his evidence has admitted that PW 10 is his cousin PW 1 is the father of PW 8. PW 3 has stated in paragraph 6 of his evidence that PW 10 is the son of his cousin. PW 10 the informant has admitted in paragraph 18 of his evidence that the deceased of his co-sharers. It is evidence from this that all witnesses are closely related to each other. It has been submitted by the counsel for the appellants that since the witness are related to each other and there is admitted land dispute so their evidence must be closely scrutinized by other corroborative evidence available on the record. It is well settled that when all witnesses are related their evidence must be strictly scrutinized by other corroborative evidence.

In this background I may now proceed with the evidence of PW 10 who is the maker of fardbeyan. PW 10 has stated in his evidence that on the date and time of occurrence he was plucking Parval in his field along with his cousin. At that time PW 1 was in his field and PW 3 was grazing his buffalo at a distance of one or two field from the place of occurrence. At that time Jiten Yadav, Nageshwar Yadav, Hari, Bhumi and Bhauku Yadav armed with deadly weapons came there. Bhauku Yadav, Shital Yadav, Bhumi Yadav and Hari Yadav were armed with country made gun. Nageshwar Yadav was armed with country made pistol and Jitan Yadav was armed with semi-rifle. All the accused demanded one bag of Parwal as Rangdari Tax but Harvallav refused to give Parwal as Rangdari Tax. Nageshwar Yadav ordered to other appellants to kill Harvallav and throw him in the river. Jitan Yadav on this fired at Harvallav from his semi rifle which hit in the right thigh of Harvallav. Bhauku Yadav also fired which hit in the right thigh of Harvallav. Bhauku Yadav also fired which hit in the right knee of Harvallav. Shital Yadav also fired at Harvallav which hit on the right knee of Harvallav. Harvallav fell down on the ground after receiving these injuries. Jhaksu started running away on this Nageshwar Yadav, Bhumi Yadav and Hari fired at him but the bullet did not hit him. Several people of the village came there. PWs 1 and 3 saw the occurrence. Nageshwar Yadav took wrist watch of injured Harvallav Yadav and Bhumi Yadav took away one bag of Parval. He has further stated that he brought Harvallav Yadav on a cot to Khagaria Hospital, but the doctor at Khagaria Hospital referred Harvallav Yadav to Begusarai Hospital. Harvallav was treated at Begusarai Hospital. Harvallav was treated at Begusarai Hospital but he died on the same day at 4 p.m. His fardbeyan was taken at Begusarai Sadar Hospital and he signed the fardbeyan which was witnessed by PWs 3 and 4. He has also stated that the land where he alongwith his cousin Harvallav was standing is his purchased land. He had purchased this land from one S.K. Shah. He has also stated that he knows the boundary of the place of occurrence and he had given paper of his land to the Investigating Officer.

PW 1 and PW 3 who are also eyewitnesses have deposed in the similar fashion. PW 1 has stated that he was in his field and at that very time Harvallav and Jhaksu were also plucking Parval in their filed. At that very time all the accused persons came and demanded one bag of Parval as Rangdari Tax. They were holding fire arms in their hands since Harvallav Yadav refused. Nageshwar Yadav ordered to kill him. Jitan fired at Harvallav which hit at his thigh. Bhauku also fired at Harvallav which hit below his knee. Shital Yadav fired on Harvallav which it the upper part of femur of Harvallav. He has also stated that Nageshwar Yadav, Bhumi Yadav and Hari also fired at Jhaksu who was fleeing away but bullet did not hit him. PW I has also stated that Nageshwar Yadav took away wrist watch of Harvallav Yadav and Bhumi Yadav took away one bag of Parval. He has stated that Harvallav was taken to Khagaria Hospital on a cot and thereafter to Begusarai Hospital. In this cross-examination he has stated that after the accused persons left the place of occurrence he went near the dead body of Harvallav Yadav. He has also stated that the sons of Harvallav took away the dead body of Harvallav to Khagaria and Begusarai.

PW 3 has stated in his evidence that the occurrence took place at 6 a.m. On the alleged date and time of occurrence he was grazing his buffalo in his field. Jhaksu and Harvallav were plucking Parval from their field. All the appellants armed with gun and pistol came and demanded one bag of Parval a Rangdari Tax. Harvallav refused to give them Rangdari Tax on which Nageshwar ordered to kill him. Jitan opened fire from his semi rifle which hit at the thigh of Harvallav Yadav. Bhauku Yadav fired which hit below the kriee of right leg of Harvallav. Shital Yadav fired at Harvallav which hit at the upper part of the knee of Harvallav, Harvallav fell down in the field and Jhaksu bean to flee away then accused persons started firing at him, but bullet did not hit him. Bhumi Yadav took away one bag of Parval at the time of defaming. He has stated that Harvallav was taken to Khagaria Hospital, but the doctor advised to take him to Begusarai Hospital. Harvallav died during the course of treatment at Begusarai Hospital. He has stated that the statement of PW 10 was taken at Begusarai Hospital and he has also signed on the fardbeyan. PW 3 has stated in his evidence that police visited Begusarai. Hospital-when Harvallav was alive. In his presence statement of Harvallav was taken by the police and Harvallav died in presence of police.

PW 8 is also an eye-Witness, but he has given totally a different story regarding the manner of occurrence. According to him on the date of occurrence at 6 O'' clock in the morning he had gone to attend the call of nature. He was informed by a boy that some altercation has taken place in the field of his cousin Jhaksu Yadav. He went there and saw Bhauku Yadav, Shital Yadav, Bhumi Yadav and Hari Yadav armed with country made gun. Jitan was armed with semi-rifle and Nageshwar armed with pistol. As soon as he reached Bhauku opened file at him. He received fire arm injury in his left hand at four places also on the right thumb. He also received injury on his back. His inquires started bleeding and he fell down in the field. Thereafter he saw that Jitan fired at Harvallav which it on his thigh Bhauku opened fire which hit Harvallav at his knee and Shital Yadav opened fire which caused injury at the knee of the right leg of Harvallav. Harvallav became unconscious and fell down in the filed of Muso Yadav. PW 8 came to the village and thereafter to Sahebpur Kamal Police Station. Subsequently he came to know that Harvallav has died. Bara Babu of Sahebpur Kamal Police Station came at the hospital and recorded his statement. According to this witness initially Bijendra Yadav opened fire and thereafter other appellants opened fire.

PW 9 Dr. A.K. Sharma, has conducted postmortem on the dead body of Harvallav. He has stated in his evidence that 17.5.1995 he was posted, as Civil Assistant Surgeon at Sadar Hospital, Begusarai. On that date at 5.55 p.m. he conducted post mortem on the dead body of Harvallav alongwith one Dr. Mustafa. He found following injuries on the person of the deceased:

(1) Stitched wound 1" long on the medical side of the right thigh.

(2) Stitched wound 2" long on the lateral side of the right thigh. On dissection the was blood Haemotoma soft tissues was lacerated and there was communicated fracture of right femur arteries and sphygmus vein was torn.

(3) Lacerated and stitched wound on right leg 2" Margin was burnt.

In the opinion of the doctor Harvallav died due to shock and haemorrhage caused by hypovolumea and all above injuries caused by fire arm. Time elapsed since death was 3 to 24 hours as rigor mortis was present in upper limbs. P W9 has also stated that oozing of blood from the body and fracture of bone causes shock. Haemorrhage may cause Hypovolumia. Injury Nos. 1 and 2 were communicating. Projectile may pass through bone or may change direction in proportion to the velocity. Projectile used from horizontal angle may not cause fracture of femur. PW 9 proved his signature on post-mortem and the post-mortem report Ext.3 PW 9 has stated in his evidence that the deceased received only two fire arm injuries.

It has been the case of prosecution that Harvallav was fired by three appellants causing injury at three different places, but the post-mortem report did not corroborate this specific evidence of the prosecution witness. The Doctor has found only two fire arm injuries on the person of the deceased making the case of prosecution regarding firing by three appellants, causing three different injuries doubtful. Medical evidence has contradicted the evidence of eye-witness that Harvallav received fire arm injury when he was standing in his field. The evidence of PW 9 is that projectile used from Horizontal angle may not cause fracture of femur. This contradiction clearly indicates that prosecution witnesses have not witnessed the occurrence.

It has been admitted by eye-witnesses PW 1, PW 3, PW 8 and PW 10 that they are agnately related to each other and to the deceased. In this ground contradiction in their evidence is to be seen for appreciating their credibility. PW 1, contradicted the evidence of PW 3 and to that Harvallav was taken in injured condition to Khagaria Hospital and thereafter: to Begusarai Hospital for his treatment. PW 1 has stated that Harvallav after receiving injury fell down in the field and he died. He went-naer the dead body of Harvallav when accused persons left the place. He has further stated that the dead body of Harvallav was taken to Khagaria Hospital and from there to Begusarai Hospital. Evidence of PW 1 totally demolishes the evidence of PWs 3 and 10 that Harvallav was taken to Khagaria Hospital in injured condition for his treatment. Similarly PW 8 has come with a different story regarding the manner of occurrence. According to him it was Bijendra who opened fire. PW 8 also received fire arm injuries at different places. He was treated at Sahebpur Kamal Hospital. This evidence of PW 8 has totally been concealed by other prosecution witnesses which, goes to prove that the prosecution witnesses who are closely related cannot be relied upon. They have tried to conceal the real prosecution story and on their evidence appellants cannot be convicted.

It has also been submitted by the counsel for the appellants that non-examination of I.O, has seriously prejudiced the case of defence. All the prosecution witnesses have sated that the place of occurrence was shown to the I.O. P.W. 10 has stated that he has handed over his documents relating to the case to I.O. Since the I.O. has not been examined the evidence has not come whether the actual occurrence took place at the alleged place of occurrence and exactly in the manner in which as stated by the prosecution.

The prosecution story regarding treatment of Harvallav Yadav at Khagaria Hospital has also not been proved by the prosecution as not a single document has been produced relating to his treatment at Khagaria. His death certificate has not been produced, though he died at Khagaria Hospital. Papers in support of this evidence that he was taken to Khagaria Hospital on ambulance has not been produced. Prosecution has failed to bring corroborative evidence to support the evidence of interested witness.

The counsel for the appellants has stated that according to prosecution the genesis of occurrence is that appellants asked for one bag of Parval from Harvallav and Jhaksu, as Rangdari Tax, which was being plucked by them from their field. This genesis is totally falsified from the document i.e. original sale deed Ext. A, executed in favour of Bhumi Yadav (appellant), with respect to land of khata No.79, plot No.496. A suggestion was given to PW 10, that the land which he claimed as his purchased (and is actual ly the part and parcel of total 4 bigha 15 kathas 16 dhurs lands of khata No.79, plot No.496 purchased by Bhumi Yadav, mutated in his name in Mutation Case No.290/93-94 10/94-95. Possession of Bhumi Yadav has been declared with respect to same land which is claimed by PW 10, as his own land. Since appellant Bhumi Yadav was in possession of land, there was no occasion for them to ask one bag of Parval as Rangdari Tax and to commit offence for same. Accordingly genesis of occurrence has not been proved.

The counsel for the appellants has also that the prosecution has concealed the first fardbeyan of PW 8, at Sahebpur Kamal Hospital as well as the statement of PW 10 made at Khagaria. The fardbeyan which has been brought before the Court is subsequent and has been instituted on the basis of concocted story. From the evidence of PW. 8 it is apparent that his statement was recorded by the Officer-in-Charge of Sahebpur Kamal at Hospital where he was being treated. This fardbeyan of PW 8 has completely been screened by the prosecution. PW 10 also admitted in his evidence that prior to his statement recorded at Begusarai, his statement was recorded at Khagaria by the police. This statement of PW 10 recorded at Khagaria has been concealed by the prosecution. This indicates that the prosecution has not come with clear hands. It has tired to conceal the real story from the Court.

In the circumstances I think, it is not safe to rely on the evidence of prosecution to uphold the conviction of appellants. I find merit in the appeal. Accordingly the appeal is allowed, the impugned judgment of conviction and sentence is set aside. Appellants Nageshwar Yadav, Bhumi Yadav and Hari Yadav are on bail and they are discharged from the liability of their bail bonds. Appellants Shital Yadav and Bhauku Yadav are in jail and they are directed to be released forthwith, if not required in any other case.