Raju Yadav vs State of Bihar

Rekha Kumari, J.—As both the appeals arise out of the same judgment dated 21.12.2001 passed by Sri Pramod Bahadur Mathur, 4th Additional Sessions Judge, Gaya in Sessions Trial No. 103 of 2000/2 of 2000, they have been heard together and are being disposed of by this common judgment. The appellants faced trial for the commission of offence punishable u/s 302/34 of the Indian Penal Code. The learned trial court found the appellants guilty under the said section and convicted them thereunder and sentenced them each to undergo imprisonment for life and also to pay a fine of Rs. 2000/- each and in default to undergo rigorous imprisonment for a period of three years.

It would not be out of place to mention here that appellant Nanhak Yadav died during the pendency of the appeal and the appeal with respect to him abated by an order dated 16.8.2005 with the observation that the fine imposed against him shall, however, be recoverable.

The prosecution version which led to the trial of the appellants is that on 29.7.1998 at about 8.00 A.M. deceased Lakhan Yadav had gone to plough his field alongwith his wife which was at a distance of 1/2 km. from his village. At about 9.00 A.M. the appellants, who happen to be the uncle and cousin of the deceased, reached there with lathi, Khanti and Tangi and started assaulting him. On account of the said assault the deceased became badly injured and fell down in the field. The witnesses including the informant, in the meantime, arrived at the place of occurrence and the deceased was taken to the hospital where he was declared dead.

The Fardbeyan of the informant Jagdish Yadav, full brother of the deceased, was recorded by the A.S.I. R.K. Singh of Barachatti Police Station on the same day i.e. 29.7.1998 at about 12 hours at Primary Health Centre, Barachatti, district Gaya. On the basis of the Fardbeyan a formal F.I.R. was drawn. After usual investigation charge-sheet was submitted against the appellants.

In order to prove its version, the prosecution has examined altogether 11 witnesses, among whom P.W. 8 Jagdish Yadav is the informant and P.W. 3 Parwati Devi is the wife of the deceased. P.W. 1 Balo Yadav son of Jangal Yadav, P.W. 4 Balo Yadav Son of Late Gopi Yadav, P.W. 5 Sukhdeo Das and P.W. 6 Naresh Yadav claim to be the eye witnesses of the occurrence. P.W. 7 Brahmdeo Yadav is a witness who has been declared hostile by the prosecution, P.W. 10 Ramesh Singh and P.W. 11 Mahendra Dwivedi are formal witnesses who have simply proved the sale deed executed by Soman Devi and the rent receipts in the handwriting and signature of the Karamchari. P.W. 2 Dr. Arbind Prasad has proved the post mortem report written by Dr. M.K. Sinha, Head of the Department of Forensic Medicine, A.N.M.C.H., Gaya (since retired) and P.W. 9 Rajkeshwar Singh is the I.O. of the case.

The defence of the appellants, as gathered from the suggestions given to the P.Ws., is that no occurrence as alleged took place and they have been falsely implicated on account of land dispute with the informant. Their further defence is that deceased Lakhan Yadav, in fact, was killed by the extremists of the area.

On considering the evidence on record, the trial court held that the prosecution has been able to bring home the accusation against the appellants. The abovenamed appellants were found guilty u/s 302/34 of the Indian Penal Code for committing the murder of Lakhan Yadav in furtherance of their common intention and they were convicted and sentenced, as stated above.

The question that fails for determination in these appeals is whether on the facts and circumstances of the case and from the evidence on record the order of conviction and sentence passed by the learned court below is fit to be sustained.

The contention of the learned counsel for the appellants is that the conclusions of the learned trial court are without any basis and the judgment is practically unreasoned. The court below erred in placing reliance on the evidence of the eye witnesses, who are not competent to witness the occurrence. The evidence of the witnesses are full of infirmities and contradictions and they are not fit to be relied upon.

Before examining the contentions raised by the learned counsel for the appellants, it would be proper to discuss the evidence, which has been adduced by the prosecution to sustain the charges levelled against the appellants.

P.W. 8 has deposed that on the alleged date he had gone with his cattle for grazing and his brother Lakhan Yadav (deceased) had gone to his field which he had taken on Ijara for ploughing. At about 9.00 A.M. his brother and his sister-in-law (wife of the deceased) started shouting and he alongwith Brahmdeo Yadav (P.W. 7) rushed towards his brother and saw that Nageshwar Yadav with Khanti, Rameshwar Yadav with Tangi and Raju Yadav with lathi were assaulting his brother. At that time, Balo Yadav (P.W. 1), Sukhdeo Das (P.W. 5) and his son Naresh Yadav (P.W. 6) also reached there. He has further stated that after they (witnesses) reached there, the accused persons (appellants) fled away. His brother had fallen down in his field and was writhing in pain. They got a cot from their house and took his brother to some distance and thereafter on a vehicle they took him to Barachatti Hospital where he died in course of treatment. He has further stated that in the hospital the Sub-Inspector of Police came and recorded his Fardbeyan.

He has also stated that Lakhan Lal was constructing a house in his land which was opposed by the appellants and as Lakhan Lal did not listen to them, they had threatened him and the occurrence took place on that account.

P.W. 3 Parwati Devi, the wife of the deceased, has stated that on the alleged date at about 10.00 A.M. her husband was ploughing his field in the south of the village. She was also there. The appellants, at that time came among whom Nageshwar Yadav was armed with Khanti, Rameshwar Yadav was armed with Tangi, Raju Yadav and Nanhak Yadav were armed with lathi and they started assaulting her husband. She raised alarm on which the informant and other witnesses came and the appellants fled away. Her husband fell down in the adjoining field where there were paddy seedlings. Her husband thereafter was taken to Barachatti Hospital where he died. Her evidence also is that her husband was constructing a house in his land which was objected to by the appellants and for that reason the occurrence took place.

According to P.W. 1 on the alleged date at 9.00 A.M. he was in his house (at village Dewania) and on alarm raised, he alongwith Naresh Yadav (P.W. 6), Balo Yadav (P.W. 4), Sukhdeo Das (P.W. 5) and others went south of their village and saw the appellants assaulting Lakhan Yadav and on seeing them the appellants fled away. He has further stated that they then took the injured to Barachatti Hospital where he died.

P.Ws. 4, 5 and 6 have corroborated the evidence of P.W. 1 and deposed to the same effect.

The evidence of P.Ws. 1, 4 and 6 further is that on account of land dispute the occurrence took place.

The evidence of P.W. 2 is that he had worked under Dr. M.K. Sinha and is acquainted with his handwriting and that the post mortem report (Ext. 2) is in his pen and signature. He has further stated that Dr. M.K. Sinha retired in September, 1999 (the witness deposed on 24.5.2001). As Dr. M.K. Sinha has retired, it is obvious that it was not possible to procure his attendance without any amount of delay. The post mortem report thus is admissible u/s 32(2) of the Indian Evidence Act though Dr. M.K. Sinha, who had performed the post mortem examination, has not been examined. The post mortem report (Ext. 2) shows that the doctor conducting the post mortem examination found the following ante mortem injuries on the dead body of deceased Lakhan Yadav:--

(i) Incised wound size 3" x 1" x cranial cavity deep, located over left temporal region of scalp above left ear. There was sharp cut of left temporal and parietal bone. Brain and meninges were lacerated under the injury.

(ii) Bruise (dark colour) size 3" x 1" over lateral aspect of the left shoulder with abrasion 2" x 1/2". On dissection underlying tissues infilterated with dark blood clots.

(iii) Incised penetrating wound 1" x 3/4" x 3/4" x bone deep located over the back of right shoulder in middle of scapula.

(iv) Two incised penetrating wounds 1" x 2" x bone deep over back of middle of right forearm 1 1/2" below right elbow joint. There was fracture of shaft of right ulna bone.

(v) Abrasion over front of right leg 2" below the front of right knee 1" x 3/4".

(vi) Incised would 2" x 1/2" x Cranial cavity deep located over right parietal region of scalp. There was sharp cut of right parietal bone with laceration of underlying brain and meninges.

P.W. 9, the Investigating Officer, has stated that on 29.7.1998 he was posted at Barachatti Police Station as A.S.I. and on that date on receipt of O.D. slip from the hospital at 11.45 A.M., he went to Barachatti Hospital and there he recorded the Fardbeyan (Ext. 3) of Jagdish Yadav, the brother of the deceased and that Brahamdeo Yadav and Balo Yadav also put their signature on the Fardbeyan. He has further stated that he took up investigation and prepared the inquest report (Ext. 5) and recorded the further statement of the informant and the statement of Parwati Devi in the Hospital. He has further stated that from the hospital he went to village Dewania and found the appellants absconding and he then inspected the place of occurrence. According to him the P.O. was a land at a distance of 1/2 km. south of Dewania village in Dewania Badhar. He found the land freshly ploughed and to the adjacent south of this land was the land of the deceased in which paddy seedlings were raised and he found this land trampled. He further found blood on the north west corner of land in which there were paddy seedlings. He also found broken plough in the field which was ploughed. In cross-examination he has stated that he could not collect and seize the blood as the same was trampled.

Thus from the evidence of the above witnesses it appears that all the eye witnesses have corroborated each other and have supported the prosecution case.

The post mortem report also shows that the doctor had found several injuries caused by hard and blunt substance such as lathi as well as sharp cutting weapons, such as Tangi and Khanti. The medical evidence, thus, corroborates the testimony of the eye witnesses.

The objective findings of the I.O. also shows that the occurrence took place at the place of occurrence as stated by the eye witnesses. The evidence of the I.O. hence also corroborates the testimony of the eye witnesses.

Among the eye witnesses, P.W. 8 is the informant and brother of the deceased. He is, hence, an interested witness. But it is well settled that mere interestedness is no ground to disbelieve the testimony of a witness. The only safeguard against such evidence is that it must be scrutinised carefully. I have, hence, examined his evidence carefully and I do not find sufficient material to discard the testimony of this witness. He was grazing cattle in the same Badhar where the occurrence took place and on hulla he had gone to the place of occurrence. Hence, though his evidence is that the place of occurrence was at a distance of 1/2 km. from the place where he was grazing the cattle, he had opportunity to witness the assault. He has, of course, stated that Brahamdeo Yadav (P.W. 7) was also grazing cattle and he also went with him to the place of occurrence, but the deposition of P.W. 7 shows that he was in his house at the time of occurrence and he did not see the assault with his eyes. This witness (P.W. 7), hence, has not supported the informant. But he (P.W. 7) has been declared hostile and the evidence of the I.O. P.W. 9 shows that the witness has stated before him that he was in Badhar when the appellants assaulted the deceased. Thus, it appears that the witness has actually turned hostile and is suppressing the truth. So, if P.W. 7 has not corroborated the evidence of P.W. 8 it does not affect the evidence of P.W. 8. Again P.W. 4 in his cross-examination, at one place, has stated that when he was going towards the place of occurrence from his village he saw Jagdish Yadav (informant), Naresh Yadav (P.W. 6), Balo Yadav (P.W. 1) going towards the place of occurrence. But P.Ws. 1, 5 and 6 who had gone to the place of occurrence from the village have not stated that the informant was with them. So, from this evidence alone, it cannot be said that the informant was not in the Badhar at the time of occurrence. The Fardbeyan (Ext. 3) also corroborates the evidence of the informant in material particulars. The Fardbeyan was recorded at Barachatti Hospital at 12.00 hours i.e. only after three hours of the occurrence. Therefore, there was no chance of concoction in it.

It has been suggested to the witness that there was dispute between him and the appellants with regard to the land of Somari Devi. The witness has denied the suggestion. The evidence of the witness, however, shows that he and his brother (deceased) had purchased land from Somari Devi, mother of appellant Nanhak Yadav (since dead) and that the land had been partitioned between him and his brother and when his brother was constructing house on his portion, the appellants protested claiming the land to be their own. Therefore, there was indeed some dispute at least between the deceased and the appellants in respect of the land purchased by the witness and his brother but from that dispute alone it cannot be said that the witness falsely implicated the appellants. Appellant Nanhak Yadav was the own uncle of the witness and other appellants are sons of Nanhak Yadav. Hence, it is not expected that the informant who is the brother of the deceased would leave the real culprits and would implicate his other relatives.

P.W. 3 is the most competent witness in this case as she was with the deceased at the time of occurrence. In the Fardbeyan also she is named as a witness to the occurrence. She is also, of course, an interested witness being the wife of the deceased but there is nothing else in her evidence to disbelieve her. The evidence of the I.O. shows that he had recorded the statement of the witness soon after the recording of the Fardbeyan in the Hospital. There was, hence, no chance of embellishment in her statement and there is nothing in her evidence to show that there is any inconsistency in her evidence in court and her statement before the I.O. It has been suggested to her that her husband was killed by the extremists but she has denied the suggestion.

As regards P.Ws. 1, 4, 5 and 6, though they have claimed to have seen the occurrence, their testimony was that they were in village Dewania at the time of occurrence and on halla they had reached the place of occurrence. The evidence of the I.O. (P.W. 9) shows that the place of occurrence was at a distance of 1/2 km. from the village. It is, therefore, doubtful that they had seen the occurrence.

But even if P.Ws. 1, 4, 5 and 6 did not see the actual occurrence, the evidence of P.W. 3 is unimpeachable and the evidence of the informant (P.W. 8) is also quite trustworthy and the evidence of these two eye witnesses coupled with the medical evidence and the evidence of the I.O. proved beyond reasonable doubt that the appellants had committed the murder of the deceased in the manner as alleged.

As regards the motive of the occurrence, the evidence of P.W. 8, as already mentioned is that he and the deceased had purchased a land from Soman Devi, the mother of appellant Nanhak Yadav and after purchase they partitioned that land between them and when the deceased was constructing house over his portion of land, appellant Nanhak Yadav objected claiming the land to be his own and also threatened that if he (deceased) did not stop the construction, he would be killed. P.W. 3 has also corroborated that when her husband was constructing the house, the appellants protested and on account of this the occurrence took place. P.W. 1 has also stated that there was land dispute between the appellants and the deceased. P.W. 4 has deposed that Lakhan Yadav (deceased) was constructing house on his land when the appellants started quarelling with him and thereafter Lakhan Yadav went to Calcutta and at the time of cultivation, he returned from Calcutta and that the appellants killed him. P.W. 3 has also stated that about 10-15 days prior to the occurrence her husband returned from Calcutta. The evidence of P.W. 1 also is that Lakhan Yadav used to work in a factory at Calcutta. P.W. 6, the son of the informant, has also stated that about 1 1/2-2 months prior to the occurrence, his uncle was constructing his house when the appellants started quarelling with him.

Besides the above evidence, it has been suggested to P.W. 8 that by setting up another woman they got the sale deed registered in the name of Somari Devi. It has also been suggested to him that during recent survey the names of the appellants have been recorded against the above land. The informant (P.W. 8) has denied the suggestion. He has also examined P.W. 11 who was a witness in the sale deed and he has proved the sale deed (Ext. 7) and has stated that in his presence Somari Devi had executed the sale deed. No document has also been filed by the appellants to show that their names have been recorded in the recent survey against the above land. The evidence of P.W. 8, on the other hand, is that during the lifetime of Somari Devi their names were mutated against the land.

The above evidence and suggestion given to the informant clearly shows that as the informant and Lakhan Yadav had purchased a piece of land from Somari Devi, the mother of Nanhak Yadav, and had come in possession, the appellants were aggrieved by it and when Lakhan Yadav went to construct house over the portion of that land which was in his possession, the appellants asked him to stop the work and also threatened him. Therefore, the motive alleged is proved and as the appellants were aggrieved, there was reason for them to commit the murder.

Thus, considering all the facts and circumstances and evidence on record, I also find that the prosecution has been able to prove beyond reasonable doubt that the appellants with a common intention to commit murder of the deceased assaulted him with lathi, Tangi and Khanti in the manner as alleged. The trial court, hence, was justified in convicting the appellants u/s 302/34 of the Indian Penal Code. As regards sentence, I think justice would be met if the appellants Raju Yadav, Nageshwar Yadav and Rameshwar Yadav are sentenced to undergo rigorous imprisonment for life only. Thus, with the above modification in sentence, the appeal of appellants Raju Yadav, Nageshwar Yadav and Rameshwar Yadav is dismissed. They must surrender in the court below within three months from the date of this order to serve out the sentence. The trial court would also take step to get the appellants arrested if they do not surrender within the above period and realise the fine amount of appellant Nanhak Yadav (since dead) as mentioned above.

Aftab Alam, J.

I agree.