Nathuni Yadav vs State of Bihar

A.K. Sinha, J.—This appeal has been directed against the judgment of conviction and sentence passed by 1st Additional Sessions Judge, Buxar in sessions trial No. 65 of 1992, whereby and whereunder, he convicted the sole appellant u/s 302, of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.

In short, the prosecution case is that on 23-2-1991 the informant''s brother Ram Chhabila Yadav, Mukhia, was returning from block office after attending some meeting along with the appellant who happened to be his brother-in-law. When they reached near the house of Bharosa Mushar, the appellant is alleged to have took out a sharp edged "Kutta" which he was hiding under the "Chadar" worn by him and started assaulting the deceased with that "Kutta"causing injuries on his neck, cheek, chest and below the eye. The informant was going to take tea in the shop and he saw the occurrence. Saral Yadav, Choukidar also witnessed the occurrence. The motive behind the occurrence is that the appellant had sold some land to the deceased but later on he demanded back the land from the deceased who reconveyed the land to him but even then the appellant committed the murder of the deceased.

The fardbeyan (Ext. 3) was recorded on the same day at 4.00 p.m. on the basis of which a formal F.I.R. was lodged and the police took up investigation in the case. After completing the investigation chargesheet was submitted u/s 302 of the Indian Penal Code on the basis of which congnizance was taken and the case was committed to the Court of Session for trial.

The appellant denied the charge and the case of the defence was that the appellant has been falsely implicated due to some dispute regarding payment of consideration amount of the land sold by him. .

In order to prove the charge, the prosecution examined altogether five witnesses out of whom P.W. 1 Jendu Yadav, P.W. 2 Saral Yadav and P.W. 3 Genda Yadav (informant) are the eye-witnesses to the alleged occurrence. P.W. 4 Dr. Shyam Sunder Singh is the doctor who conducted the post-mortem examination on the aead-body of the deceased and P.W. 5 Bijay Narain Ray is the formal witness who has proved the formal F.I.R. (Ext.2), fardbeyan and case diary (Exts. 3 and 4). The I.O. of the case has not been examined in this case.

The death of the deceased is not in dispute and it is established from the evidence of P.W. 4 who conducted the post-mortem examination on the dead-body of the deceased. P.W. 4 Dr. S.S. Singh has deposed that on 24-2-1991 at 8.30 a.m. he conducted the post-mortem examination on the dead-body of Ram Chhabila Yadav and found the following ante mortem injuries on his person:

(i) oblique incised wound on the left side of neck 3" x 1/2" bone deep.

(ii) Incised wound 3.1 /2x 3/4" x bone deep along lower margin of right side of mandible.

(iii) Oblique incised wound on the 2nd internal vertical space in the mid clavicular line 1" x 1/4" x chest thoracic cavity deep.

(iv) Incised wound left epigastric 1" x 1" x muscle deep.

(v) Incised wound on left cheek 1" x 1" x bone deep.

(vi) Incised wound below the left eye ball 1.1/2.X 1/2" bone deep.

(vii) three incised wound on the left arm of different sizes:

(1) 1.1/2" x 1/4" x muscle deep (ii) 1" x 1/2" x muscle deep (iii) not measured.

(2) On dissection he found the following injuries:

(i) Scalp -NAD (ii) Brain -NAD (iii) Heart - Empty (iv) Neck - Rapture of. carotide vessels left side. Thyroid bone-cut. Trachea- congested. Left, lung -badly lacerated. Right lung - congested. Liver - congested. Spleen - congested. Kidney -congested. Bladder partially full. Stomach - Digested food. Thoracis cavity - Full of dark blood.

(3) Time elapsed since death within 24 hours Cause of death was the result of shock and haemorrhage due to above ante mortem injuries caused by sharp cutting weapons like Katta. P.W. 4.has proved the post-mortem report (Ext.4).

In cross-examination P.W. 4 has stated that he did not mention the colour of all the injuries and mentioned only the colour of thoracic cavity. He also admitted that injuries found on the person of the deceased were possible by Farsa. It is therefore, established from the evidence of P.W. 4 that the deceased died as a result of injuries found by the doctor.

The most important witness in this case is P.W. 3 Genda Yadav who is informant of this case. He has stated in his fardbeyan that he was present near the place of occurrence while going to take tea and he was stunned to see the occurrence and raised alarm. P.W. 3 has stated that at first he raised alarm on which Choukidar, Saral Yadav (P.W. 2) and Jendu Yadav (P.W. 1) came and witnessed the occurrence. He supported the prosecution story as set forth in the fardbeyan: But, in his cross-examination he turned volte face by admitting that he had not seen the accused while assaulting and heard about the occurrence from a shop keeper whose name "could not be disclosed by him. He further stated that when he reached to the place of occurrence P.W. 2 Saral Yadav was 50 yards away from him towards south and his son was behind him and he was first to reach at the place of occurrence. From his statement it appears that he was not an eye-witness to the alleged occurrence rather, a hearsay witness and he also ruled out the possibility of the presence of P.Ws. 1 and 2 inasmuch as he has stated that P.W. 2 was 50 yards away from him and his son was behind him.

P.W. 1 who is the son of the informant has stated that nobody was present when the occurrence took place and after 15 to 20 minutes 50 to 60 villagers assembled there and he has named some of them. P.W. 1 claims that he was first to reach at the place of occurrence but his father (P.W. 3) claimed that he was the first to reach at the place of occurrence and his son was behind him. As already stated above P.W. 3 had not witnessed the occurrence rather he heard about the occurrence from a shop keeper and if P.W. 1 reached at the place of occurrence after P.W. 3 there could not be any occasion for P.W. 1 to witness the occurrence. P.W. 1 has admitted that the land purchased by the deceased from the appellant was reconveyed in favour of the appellant by deceased six months before the alleged occurrence. If thatx be so, there was no valid reason for the appellant to commit the murder of his own brother-in-law. Therefore, the very motive assigned for pommitting the occurrence by the appellant does not look convincing. P.W. 1 has stated that neither he nor anybody else tried to apprehend the accused although several houses were situated by the side of the place of occurrence and this circumstance also looks improbable. The normal course of conduct would have been that P.W. 1 must have raised alarm and tried to chase the appellant with the help of the villagers and there was every possibility that the accused Would have been caught with the weapon. The police station is also situated at a distance of 200 yards from the P.O. and the police came after 15 to 20 minutes of the occurrence as stated by P.W. 1 but curiously enough the police also did not make any attempt to catch hold of the appellant or to search him. The conduct of the police also looks highly suspicious and the I.O. was the best person to explain in this regard but the prosecution has failed to examine the I.O. and no satisfactory explanation has been given for his non-examination.

P.W. 2 Saral Yadav is the Choukidar of the village who has stated that he was going to Brahmpur police station and Ram Chhabila Yadav (deceased) was 100 cubits ahead of him and when he reached near the house of Bharosa Mushar, the accused Nathuni Yadav caught Ram Chhabila Yadav with one hand and assaulted him with Kutta on his neck, chest and other parts of the body. He has stated that the accused was concealing the Kutta under the Chadar The deceased fell down and Nathuni Yadav fled away. According to him also P.Ws. 1 and 3 had witnessed the occurrence.

In cross-examination P.W. 2 has admitted that his village is at a distance of six miles from Brahmpur and the informant is his own brother and P.W. 1 is his nephew. He further admitted that P.Ws. 1 and 3 live at their house. He also stated that there is no tea shop near the place of occurrence, rather, tea shop is situated at a distance of half mile from the P.O. He has further stated that whe''n when he reached at the P.O. he saw a man. He has not stated that he saw the appellant and the identity of the man seen by him has not been disclosed He has further stated that Jendu Yadav (P.W. 1) reached after 5 to 7 minutes. He also admitted that when he reached the deceased was lying on the ground with injuries. The statement made by him goes to show that he is not the real eye-witness to the alleged occurrence and he reached at the P.O. when the occurrence was over and after his arrival at the P.O. P.W. 1 came after 5 to7 minutes which indicates that P.W. 1 was also not an eye witness to the alleged occurrence. To my utter surprise I find that after reaching the dead-body at the police station this witness returned back home which also looks highly improbable/inasmuch, as he happened to be the own brother of the deceased and was Choukidar also.

In this case not a single independent witness has been examined to support the prosecution case although the place of occurrence is situated in a densely populated village. The I.O. has also not been examined in this case and due to his non-examination the place of occurrence could not be established with exactitude. The inquest report has not been brought on record. That apart, the F.I.R. of the case was sent to the Court on 27.2.91 i.e. after four days, although, it was lodged on 23.2.91 at 4.00 P.M. No valid explanation has been given for the inordinate delay of four days in sending the F.I.R. to the Court and this circumstance alone cannot rule out the possibility of concoction and false implication of the accused/appellant. It may be pertinent to point out that P.Ws. 2 and 3 are own brothers of the deceased whereas P.W. 1 is the son of the informant and it is really astonishing to note that all of them were present at the P.O. to witness the occurrence although their houses are situated at a distance of six miles away from the place of occurrence and there could have been no occasion for them to be present at the place of occurrence. The explanation given by P.Ws. 1 and 3 for being present at the P.O. is also not convincing inasmuch, as P.W. ''3 stated that he was going to take tea at the tea shop in course of which he saw the alleged occurrence but P.W. 2 has admitted that there is no tea shop near about the place of occurrence. Similarly, P.W. 2 has stated that he was going to file his attendance at the P.S. where he used to go regularly for that purpose and while going to the police station he witnessed the occurrence. But, no paper has been produced to show that he used to go to the police station regularly at 4.00 P.M. to file his attendance and the I.O. has also not been examined to testify on this point. Therefore, the very presence of P.Ws. 1 to 3 at the P.O. appears doubtful.

On careful consideration of the evidence and the facts and circumstances of the case, I am of the view that P.Ws. 1 to 3 are not the real eye-witnesses to the occurrence and their testimony does not inspire confidence to believe and they have deposed because they are closely related to the deceased. There also does not appear any valid reason as to why the appellant will kill his own brother-in-law because the motive assigned for the occurrence stands belied by the evidence of the witnesses who admitted that the deceased had reconveyed the land to the appellant six months before thealleged occurrence. I am, therefore, of the view that the prosecution has not proved the charge against the appellant beyond all reasonable doubts and the order of conviction and sentence recorded against the appellant by the trial Court cannot be sustained.

In the result, therefore, this appeal is allowed and the order of conviction and sentence recorded by the trial Court against the appellant is set aside. The appellant Nathuni Yadav who is in jail custody is ordered to be set at liberty forthwith, if not wanted in any other case.

R.N. Prasad, J.

I agree.