Rajendra Yadav vs The State of Bihar

Anjana Prakash, J.—1. Heard learned counsel for the Appellant and learned counsel for the Additional Public Prosecutor.

The Appellant has been convicted under Section 302 Indian Penal Code and 27 of the Arms Act and sentenced to rigorous imprisonment for life and a fine of Rs. 25,000/- in default of which another one year rigorous imprisonment and no separate sentence has been awarded under Section 27 Arms Act by the Additional District and Sessions Judge, Siwan, in Sessions Trial No. 24 of 2008 arising out Marauna P.S. Case No. 41 of 2004 passed by a Judgment and order of conviction and sentence dated 28.1.2015/2.2.2015.

When facts of the case were placed before us, we noticed that it was a unique case in which the Prosecution has brought two Fard-beyans on record. One is that of Jagdish Yadav (PW-13) recorded by Shiv Shankar Pathak of Nirmali Police Station on 4.7.2004 at 10:30 P.M. at the Primary Health Centre, Nirmali Hospital Verandah and subsequently, of Ladu Lal Sah, son of Ram Kisun Sah recorded by R.P. Mallick of Marauna Police Station on 5.7.2010 at 7:00 A.M at Nirmali Police Station Campus. Surprisingly, the subsequent Fard-beyan was exhibited as the First Information Report in the present case and Ladu Lal Sah has been recognized as the Informant of the present case, even though, both the Fard-beyans are before the Court. From the Fard-beyan of Jagdish Yadav (PW-13), it appears that Ladu Lal Sah (PW-10) the Informant and Ram Kisun Sah (PW-12) were also signatories to the same whereas on the Fard-beyan of Ladu Lal Sah (PW-10), Sita Devi (PW-1) are signatories.

The first Fard-beyan is said to have forwarded to the Officer-in-Charge, Nirmali Police Station for institution of the First Information Report whereas 2nd Fard-beyan has been forwarded to the Officer-in-Charge, Marauna Police Station for registration of a case. It is Rampatti Mallick (PW-14) who took up the investigation.

From the 1st Fard-beyan given by PW-13, the facts which were stated therein is that on 4.7.2004 at about 4:00 P.M., he along with the deceased Mahendra Sah and Mukhia Shri Alauddin (not examined) went for Panchayati over a land dispute. Around 7:00 P.M. when they were returning and reached the west of Majhaura village, he saw the Appellant and four others standing there. Some persons were also standing on their South, but, he did not recognize them. Somebody amongst them with intent to cause the death of Mahendra Sah, fired, which hit him on his head due to which he fell down. Just then deceased father Ram Kisun Sah (PW-12), Ladu Lal Sah (PW-10) brother of the deceased and wife of the deceased Sita Devi (PW-1) arrived on hulla and started to take the deceased to the Hospital in a state of unconsciousness. The deceased also disclosed the names of Vijay Sah and the Appellant Rajendra Sah as the persons who had fired. He further stated that the injured was unconscious and would give his statements when he regained the same. He also stated that he knew that these persons had previous enmity with Mahendra Sah, the injured. He categorically stated that he was giving the Fard-beyan in presence of Ladu Lal Sah (PW-10) and Ram Kisun Sah (PW-12).

We find from the Fard-beyan of Jagdish Yadav that PW-10 in his own hand has noted in the Fard-beyan that this statement was being recorded in his presence.

The next Fard-beyan was given by Ladu Lal Sah (PW-10) on 5.7.2004 at 7:00 A.M. at Nirmali Police Station Campus, where he has given a very disjointed statement. The first few lines do not match with next few lines which we are narrating below:

"i) He stated that on 5.7.2004 at about 7:00 A.M, he was given the statement that his deceased brother Mahendra Sah on 4.7.2004 at about 4:00 P.M. along with Mukhia Alauddin (not examined) and Jagdish Yadav (PW-13) had gone to solve the dispute between Bhagirath Mukhia and Ram Nath Yadav. When three of them were returning and had reached the west side of the village near the house of Ram Prasad Sah at around 7:00 P.M., some persons shot at the deceased. On hearing the sounds of firing and hulla, he, his father Ram Kisun Sah (PW-12) and his sister-in-law (PW-1) Sita Devi reached and saw the deceased in an injured condition with bleeding injuries on his head.

ii) We note that suddenly, there is a disjointed addition to this narrative which continues as just then, Jagdish Yadav (PW-13) disclosed that when they were returning from the Panchayati and had reached the house of Ram Prasad Sah, he saw five accused persons standing and on the south, some persons were also standing whom he did not identify. Somebody shot from amongst them which hit his brother. His sister-in-law, the wife of the deceased Sita Devi (PW-1) stated that on hearing sounds of firing, she went while returning from looking after the fields and saw Rajendra Yadav firing at his brother and running away from the place of occurrence. Along with him, Vijay Sah was also running whom (PW-1) saw. They then removed Mahendra Sah for better treatment to Nirmali Hospital and on the way in state of unconsciousness, he disclosed that Rajendra Yadav and Vijay Sah had fired. At Nirmali Hospital, his brother was treated but for better treatment, he had to be removed to Darbhanga, in course of which, his brother died and, therefore, they brought the dead-body to the Police Station and gave this Fard-beyan in presence of Sita Devi (PW-1)."

From the above narrative, we find that the first information given by Jagdish Yadav (PW-13) was only to the extent that the Appellant was seen along with a number of other persons and someone amongst them had fired and that the deceased was muttering that the Appellant and Vijay Sah had shot at him.

In the next Fard-beyan, we find that in the first part, Ladu Lal Sah has merely stated about having reached along with his father Ram Kisun Sah and his sister-in-law Sita Devi (PW-1) the place of occurrence and had seen his brother injured. Thereafter, the statement of Jagdish Yadav which he had earlier given in the Fard-beyan has been incorporated. The third version is that of PW-1 who stated that she had seen the Appellant firing and running away from the place of occurrence. This Fard-beyan also states about the oral dying declaration of the deceased.

During Trial, the Prosecution examined 15 witnesses. Out of whom, (PW-2) Ayodhi Yadav, (PW-3) Badri Yadav, (PW-4) Bara Lal Yadav, (PW-5) Jewach Yadav and (PW-6) Kapil Deo Yadav have been declared hostile. (PW-7) Ram Sewak Sah is an inquest witness.

PW-15, Dr. Ganga Nath Mishra had examined the deceased in an injured condition whereas PW-14 Rampati Mallick is the Investigating Officer.

We, thus, find that the material witnesses are (PW-1) Sita Devi, wife of the deceased, (PW-8) Rajesh Sah son of the deceased, (PW-9) Shambhu Sah, brother of the deceased, (PW-10) Ladu Lal Sah, brother of the deceased, (PW-11) Phulo Devi, mother of deceased, (PW-12) Ram Kisun Sah, father of the deceased, and Jagdish Yadav (PW-13), person who first reported the matter.

On behalf of the Defence, seven witnesses have been examined on the character of the Appellant and the earlier grouse of the deceased over cancellation of his PDS dealership on the application of the Appellant. However, none of them have been examined during investigation and, therefore, we are not inclined to entertain their evidence.

PW-1, Sita Devi, wife of the deceased stated that on the date of occurrence, she had gone to the fields at about 4:00 P.M. whereas the occurrence was of 7:00 P.M. She stated that in the afternoon, her husband had left for Panchayati along with Jagdish Yadav (PW-13) and Alauddin Mukhia (not examined). Around 6:00 P.M. when she was returning from the fields, she saw near the house of Ram Prasad Sah, the Appellant and four others scuffling with her husband and catching hold of him. She attributes various specific overt acts to the rest of the persons and then says that the Appellant fired at her husband on account of which he fell down unconscious. She then raised hulla along with Jagdish Yadav (PW-13) and Alauddin Mukhia, on which several persons including Ladu Lal Sah, her brother-in-law (PW-10), Ram Kisun Sah, father-in-law (PW-12), Rajesh Sah, son, (PW-8), Sambhu Sah, brother-in-law (PW-9), daughters Rita and Sita (not examined), Phulo Devi, mother-in-law (PW-11) Raj Kumar Sah and son Mahesh (not examined) etc. came. She then stated that the injured was brought home and after having been put on a Cart, was taken to Nirmali Hospital where they reached about 10:00 P.M. Some initial treatment was given, thereafter, he was removed to Darbhanga Hospital, but on the way he died. Then the Fard-beyan was given at the Nirmali Police Station by Ladu Lal Sah, her brother-in-law (PW-10) in her presence on which she affixed her thumb print. She further stated that one Darshan Sah an accused in both the Fard-beyans was not involved in the present occurrence and in fact, it was he who had brought her husband home. She further stated that her husband disclosed on the way that about 13-14 persons had caught and assaulted him and, thereafter, the Appellant had shot at him. Laxmi Yadav was also involved in catching and felling him down.

We, thus, find that this witness initially says that she went to the place of occurrence on hearing shots of firing and, thereafter, deposes as an eye witness and gives a total different picture about accused scuffling with her husband. Further, she also states that in the oral dying declaration, the deceased had disclosed the name of the Appellant and one Laxmi Yadav whereas the initial story was that the deceased had disclosed the names of Vijay Sah and Rajendra Yadav, the Appellant. She has been cross-examined as to who had given the initial report about the matter and she asserts that it was her brother-in-law, Ladu Lal Sah (PW-10). In further cross-examination, she stated that it was on hulla that she reached the place of occurrence. There is nothing else which is notable. Her attention was drawn to the earlier statement that she had not stated that the Appellant had shot at the deceased. The Investigating Officer (PW-14) in paragraph-24 stated that this witness had stated that the Appellant had also gone in the Panchayati and after the conclusion, Rajendra Yada had left. Soon thereafter, PW-13, Alauddin and her husband Mahendra Sah had also left and they were seated on the road-bridge situated near about 100-107 yards west of the house. The Appellant Rajendra Yadav was going hurriedly towards his house and when Mukhia Alauddin asked him as to where he was going so fast, he stated that if you come and then I will tell you.

The next relevant witness Rajesh Sah (PW-8), son of deceased has stated that on 4.7.2004, his cousin Raj Kumar Sah told him that some anti social elements had come to the village to murder his father. On hearing this, he came home and went towards the west where his father had gone. His uncle Ladu Lal Sah (PW-10), Jagdish Yadav (PW-13) and Mukhia Alauddin were coming back from the Panchayati. Near the house of Ram Prasad Sah, the accused persons caught hold of the deceased and felled him down and, thereafter, the Appellant fired at him. He did not know the names of some accused persons. He also states that the deceased had disclosed that Appellant Rajendra had shot at him on way to the hospital. In cross-examination, he gave a confusing statement from which it appears that he is not an eye witness. He said that when he heard cries of his mother, he went to the field of Shiv Narayan and saw his father injured. His uncle and father also ran behind him, thus, disproving them also as eye witness.

PW-9, Shamhu Sah, brother of deceased stated that on 4.7.2004, when he was in the fields and returning home, he saw some 13-14 persons standing whose names he disclosed as also the Appellant. They were all armed variously. When the deceased was returning from the Panchayati, they caught hold of him and the Appellant fired. He was then taken to the Nirmali Hospital where he died.

He does not say anything about the deceased having given an oral dying declaration. His attention was drawn to the earlier statement that he has not stated that the Appellant had shot at him.

PW-10 Ladu Lal Sah brother of the deceased proves his Fard-beyan as Exbt. 1/1A and states that when his brother Mahendra Sah was returning along with Mukhia Alauddin and Jagdish Yadav (PW-13), he was at home. At around 6:30 PM, he heard his sister-in-law (PW-1), Sita Devi, screaming, at which he, his nephew Raj Kumar (PW-8) who was also at home, ran along with his mother Phulo Devi and father Ram Kisun Sah, (PW-11 and 12) respectively, where they saw the Appellant and number of named accused persons scuffling with the deceased and had felling him down. When his brother started screaming, Rajendra Yadav shot at him. Jagdish Yadav (PW-13), Alauddin (not examined) and Sita Devi (PW-1) were screaming when this was happening. He then states that when the deceased was brought to the door, he disclosed the name of Rajendra Yadav, Appellant and one Vijay.

His Protest petition was put to him from which it appears that he named about 13 persons as accused which he named even in Court. In cross-examination, he stated that he went to the place of occurrence on hulla and Jagdish Yadav (PW-13), Alauddin did not disclose to him about the occurrence. In fact, Sita Devi (PW-1) had told him about the same. Nobody else told him. He conceded that Jagdish Yadav (PW-13) had given statement at Nirmali Hospital where he was also there on 4.7.2004. In further cross-examination, he tried to explain that the Police had recorded a distorted version of what he stated. His attention was drawn to the fact that he has not stated earlier that he went on sounds of firing along with the rest of the family members. On comparison of the earlier statement given by this witness in the Fard-beyan, we find that all that he had stated was about the factum of some persons having waylaid the deceased and injured him. He does not depose an eye witness nor does he disclose any names. He had only given the version of Jagdish Yadav (PW-13) who had not stated anything specific about the Appellant. No doubt, he discloses that Sita Devi had said that the Appellant had fired and during Trial, while he deposes that he heard it from Sita Devi she did not corroborate this fact, and hence, this part of his evidence is inadmissible.

PW-11 Phulo Devi, the mother of the deceased stated that despite her son being unwell, he went to the Panchayati at the insistence of Jagdish Yadav and while returning, he was waylaid by a number of accused persons whom she named including the Appellant who shot at him. She stated that she ran to the place of occurrence where she saw PW-1 tying the injuries sustained by her son with the Saree and bringing him home. She also says that the deceased was put on a Cart and taken into the Hospital, but, on the way he was saying that Jagdish (PW13) and Alauddin should mete out justice. In cross-examination, she stated that she had not seen any firing. We, thus, find that she has not stated about the deceased also having given an oral dying declaration.

PW-12 Ram Kisun Sah, father of the deceased has supported his wife and stated that on hulla of his daughter-in-law, ran towards the place of occurrence were they saw the accused persons having surrounded his son. PW-1 Sita Devi said about firing. He also stated that on their reaching, the accused persons ran away. In cross-examination, he stated that Sita Devi has disclosed that the Appellant had fired and he himself has not seen anyone of firing. However, we find that Sita Devi has not supported the fact of disclosure to him and, hence, this part of his evidence becomes inadmissible. We further find that he has also not stated about the oral dying declaration having been given by the deceased, even though, he appears to be have accompanied the deceased all along.

PW-13 Jagdish Yadav, the person who had given the earliest report, stated that on the date of occurrence, while he and the deceased along with Alauddin were returning from Panchayati and had reached the house of Ram Prasad Sah, he saw PW-1 Sita Devi coming behind them. He also saw the accused persons including the Appellant and others who he named having caught hold of the deceased and felling him down and the Appellant firing at him. He further states that the deceased was removed to the Hospital on a Cart but the Doctor stated that he was taken to Darbhanga but on the way he died. He also stated that the Doctor at Nirmali Hospital had prepared some documents on which he affixed his signature. He stated that he along with Alauddin, Ladu Lal Sah, Rajesh Yadav and Sita Devi all had seen the occurrence and that when he was giving his statement, Ladu Lal Sah, Rajesh Sah, Sita Devi and Ram Kisun Sah were also present and it is in their presence he had given statement. He also stated that on his statement, Ladu Lal Sah had signed along with Ram Kisun Sah who had affixed his thumb print. He says that he had stated some true and some false statement and then it is only in the Court, he was giving correct version. In cross-examination, he stated that Mahendra Sah had become unconscious and he had accompanied the Cart to the Hospital. We find that he has not stated that the deceased has given any oral dying declaration and suddenly appears to have become an eye witness even though that he was not so at the initial stage.

PW-14 Rampati Mallick who was posted at Marauna Police Station at the relevant time stated that he had investigated the case after having recorded the statement of Ladu Lal Sah (PW-10) which he proves as Exbt. 2 and the Forwarding Report as Ext. 3 as also the First Information Report as Ext. 4. He admits that there was another Fard-beyan by Jagdish Yadav (PW-13) on which Shiv Shankar Pathak, A.S.I of Nirmali Police Station, affixed his signature. He identifies the same marked as Ext. 2/1. He further stated that he prepared the inquest report Ext. 5 and inspected the place of occurrence which was near the house of Shiv Narayan Yadav. There was something like a pit in the field of Shiv Narayan Yadav where the deceased was found injured, whereafter, he was taken to the Hospital where he died. In cross-examination, he concedes that the report was given on 4.7.2004 at 10:30 P.M. at PHC Nirmali which was recorded by Shiv Shankar Pathak, on which Ladu Lal Sah (PW-10) was a witness. He also explained that there was no allegation of the Appellant of having fired at the deceased in the first Fard-beyan. He stated that he recorded the second Fard-beyan because he did not have any information about the First Fard-beyan. He also stated that from the facts of the case, it appears that PW-10 had reached the place of occurrence after hulla. Even though, he had recorded the Fard-beyan after the death of the deceased, somehow, he was questioned as to whether he had seen the deceased muttering, to which he replied that he himself had not heard but rest of the witnesses had heard. In cross-examination, there is nothing else which is notable.

PW-15 Dr. Ganga Nath Mishra examined the injured and found the following injuries on his person. :

"Lacerated wound right side of scalp - Scalp bone not seen 4" x 3" regular brain matter (Dura matter)bulging and patient was semi conscious second degree. Outer side of injury hair burnt. Patient given cons erratic & other palliative treatment & referred to DMCH at 10:30 P.M. The injury is grievous and dangerous to life. Weapon used gunshot".

He stated in cross-examination that in the second degree of semi consciousness, patient would remain confused and he would not be in a position to speak too much and the patient was not responding even though, he was being asked loudly.

We also find that the Doctor who had performed the postmortem, has also not been examined.

The first notable point which has impressed us in favour of the Appellant is that the earliest version does not mention about the complicity of the Appellant so far as firing is concerned. It was much later that the story was developed. On this ground alone, we are inclined to reject the prosecution case where the allegation of firing is concerned. As for the oral dying declaration, we find as discussed above witnesses have given contradictory statements or omitted the factum of oral dying declaration and, hence, we are inclined to acquit the Appellant.

In the result, the Appeal is allowed and the Judgment and order of conviction dated 28.1.2015/2.2.2015 passed by the Additional District and Sessions Judge-II, Supaul, in connection with Sessions Trial No. 24 of 2008 arising out of Marauna P.S. Case No. 41 of 2004, is hereby, set aside.

The Appellant Rajendra Yadav, who is in jail custody, is directed to be released forthwith, if not wanted in any other case.