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Judgment
Honourable Mr. Justice Amaresh Kumar Lal
Govt. Appeal (D.B.) No. 48 of 1990 has been filed to set aside the judgment of the trial court so far acquittal of respondents is concerned and to pass the order for their conviction under the charges framed. Cr. Appeal (D.B.) No. 198 of 1990 has been filed by the appellants Ablu Yadav, Hari Yadav and Bichhu Yadav and Cr. Appeal (D.B.) No. 223 of 1990 has been filed by Bambam Yadav for setting aside their conviction and sentence and Cr. Revision No. 516 of 1990 has been filed by Fuleshwar Yadav (informant) against opposite parties (respondents in Govt. Appeal (D.B.) No. 48 of 1990) by which they have been acquitted from the charge framed u/s 148/302/149 of the Indian Penal Code (hereinafter referred to as the IPC) and 27 of the Arms Act in Sessions Case No. 130 of 1986/42 of 1986 vide judgment dated 7th May 1990 passed by the learned 3rd Additional Sessions Judge, Begusarai.
Since all the aforesaid cases have been filed challenging the judgment dated 7.5.1990 passed by learned 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 130 of 1986/42 of 1986 arising out of Balia P. S. Case No. 165 of 1985 as such they have been heard together and are being disposed of by this common judgment.
The prosecution case according to fardbeyan of Fuleshwar Yadav (P.W. 9), in brief, is that his brother Balmiki Yadav (deceased) was a social worker and on 31.8.1985 he was preparing the rope in the Thakurbari of the village and the informant (P.W. 9) reached there with a bundle of grass. They heard hulla coming from north eastern side near the village. Balmiki along with co-villager Janardhan Yadav (P.W. 8) went towards hulla and the informant (P.W. 9) followed them they reached near Chilly field of Tulsi Yadav. They saw that labourers were doing Kamauni (weeding) work in that field. They were forced by accused Satto Yadav, Jeto Yadav, Ashok Yadav, Baldeo Yadav, Chandradeo Yadav, Aplu Yadav, Hari Yadav and Bamdeo Yadav all armed with firearms, Shambhu Yadav and Gholat Yadav and Bichhu Yadav armed with lathi and Siko Yadav were forcing the labourers to work in their field but the workers were not ready. In the meantime, Balmiki (deceased) and Janardhan (P.W. 8) protested the accused and requested them not to exploit them but the hand of Dhaneshwar Yadav (P.W. 3) was injured by the accused with his Khurpi. Balmiki Yadav again protested, thereafter, accused Satto Yadav and Bamdeo Yadav told the co-accused to go back and take side. When they all went about 50 yards east to the kachhi road, Satto and Baldeo instigated to kill and stated that one lakh rupees would be spent in their defence. Thereafter, Bambam Yadav (appellant in Cr. Appeal (D.B.) No. 223 of 1990) shot fire which hit Balmiki Yadav, Aplu Yadav (appellant no. 1 in Cr. Appeal (D.B.) No. 1998 of 1990) shot fire which hit in the mouth of Balmiki Yadav and at other places. Balmiki Yadav fell down on the kachchi road. In the meantime, Hari Yadav also shot fire. The informant raised alarm and went towards his brother. Balmiki became senseless and was in a pool of blood. The co-villagers brought doctor Nasim who declared him dead. The reason of the occurrence of murder is said to be the obstruction made by the deceased while accused persons surrounded to take labourers from the said field to their own field.
On the basis of the fard beyan Balia P. S. Case No. 165 of 1985 dated 31.8.1995 was registered against all the 12 named accused for the offence punishable under Sections 302/324/34 IPC and 27 of the Arms Act. After investigation charge-sheet was submitted against all the accused. Cognizance was taken. The case was committed to the court of session. Charge u/s 302 IPC and 27 of the Arms Act was framed against the appellant Bambam Yadav. Charge u/s 27 of the Arms Act was framed against Satto Yadav, Hari Yadav, Baldeo Yadav, Jatto Yadav, Ashok Yadav, Chandradeo @ Churo Yadav and Abloo Yadav. Charges against all the 12 accused were framed u/s 302/149 and 148 of the Indian Penal Code. The charges were denied by all the accused as such the trial proceeded. After trial respondent nos. 1 to 8 of Govt. Appeal (D.B.) No. 48 of 1990 who are also opposite party nos. 1 to 8 in Cr. Revision No. 516 of 1990 were acquitted by giving them the benefit of doubt and they were discharged from the liability of their bail bonds. Accused Bambam Yadav was held guilty u/s 302 IPC and 27 of the Arms Act. Accused Ablu Yadav and Hari Yadav were convicted u/s 302/34 IPC and 27 of the Arms Act. Bichhu Yadav was convicted u/s 302/34 IPC and they were sentenced to rigorous imprisonment for life u/s 302/34 IPC and they (except Bichhu Yadav) were further sentenced to rigorous imprisonment for three years u/s 27 of the Arms Act. Both the sentences have been ordered to run concurrently.
This Court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its case against the accused beyond the shadow of all the reasonable doubts ?
The prosecution has examined the following witnesses to prove its case:- P.W. 1 Mukhiya, P.W. 2 Raghunath Sada, P.W. 3 Dhaneshwar Yadav, P.W. 4 Rajmani Yadav, P.W. 5 Ram Prakash Yadav, P.W. 6 Ram Naresh Yadav, P.W. 7 Sikandar Yadav, P.W. 8 Janardan Yadav, P.W. 9 Fuleshwar Yadav, P.W. 10 Shiv Shankar Choudhary, P.W. 11 Dr. Ashok Kumar Jha, P.W. 12 Lalan Singh, and P.W. 13 Kailash Mahton. Out of prosecution witnesses P.W. 1, P.W. 2 and P.W. 3 have shown ignorance about the occurrence and they have not supported the prosecution case as such they have been declared hostile. P.W. 6, P.W.10, P.W. 12 and P.W. 13 are formal witnesses who have proved the documents. Five witnesses alleged to have supported the allegations are P.W. 4, P.W. 5, P.W. 7, P.W. 8 and P.W. 9.
P.W. 9 Fuleshwar Yadav is the informant of this case as such his evidence is taken up first of all for consideration. He has stated that the deceased Balkimi Yadav was his own brother. He had gone to field in the morning to collect grass and at about 9 a.m. on the date of occurrence and he was returning with the bundle of grass. As soon as he reached near Thakurbari he saw Janardan Yadav and his brother Balmiki making rope. In the meantime, there was hulla in the north-eastern side, thereafter, his brother Balmiki (deceased) and Janardan went towards that direction. He also followed them keeping grass there. They reached at field of Tulsi Yadav at that time P.W. 9 also saw Sikandar Yadav (P.W. 7), Rajmani Yadav (P.W. 4) and Ram Prakash Yadav (P.W. 5) coming to the same field. The said field of Tulsi Yadav was situated in Mauza Danauli and the chilly crop was standing there and the labourers were working. There were 12 accused. The labourers were weeding out chilly field and the accused were making altercation but the labourers were telling that they had taken wages for the work as such they would work in that field and they would not go to work in the field of the accused. He has named all the persons who have faced the trial and has stated that out of them Bumbum, Ablu, Satto, Churo, Hari were armed with gun. Bichhu Yadav was armed with lathi and the remaining persons were armed with pistol. He has claimed to identify all the accused. He has further stated that accused were scuffling with the labourers. Bicchu Yadav snatched khurpi from Dhaneshwar Yadav (P.W. 3) and assaulted him with Khurpi causing injury in his hand. Balmiki, Janardan, Sikandar and others were asking the accused to stop scuffling. Balmiki was making protest effectively. Thereafter, Satto Yadav and Baldeo Yadav asked the co-accused to keep side and to kill him. He would spend rupees one lakh. After telling this all the accused went towards orchard (near Sisam tree). The labourers started moving. There were 7-8 workers out of them he identified Mukhiya Devi (P.W.1), Daneshwar Yadav (P.W. 3), and Raghunath Sada (P.W. 2). He has further stated that Bambam Yadav aimed at Balmiki Yadav which hit in the chest and abdomen that Balmiki, Ablu and Hari Yadav also shot at him. Balmiki fell down. The informant and others raised alarm that Balmiki was killed. All the accused escaped. He saw that Balmiki died there. Blood was oozing out from his mouth and nose. The police officer came there and took his statement on the place of occurrence itself. Fard beyan was witnessed by Ram Naresh Yadav (P.W. 6) and Jai Prakash Yadav. He has identified all the three signatures which have already been marked as exhibits. The police officer visited the place of occurrence of Chilly field where Balmiki was shot dead. He has also stated that said chilly field belonged to Tulsi Yadav and the accused persons had no concern with it.
P.W. 4 Rajmani Yadav, P.W. 5 Ram Prakash Yadav and P.W. 7 Sikandar Yadav have stated that on the date of occurrence all the three witnesses were sitting on the road and they were talking (gossiping) among themselves and at that time they heard hulla from the field of Tulsi Yadav in the north eastern direction, it was around 9.45-10 a.m.. All these three witnesses have stated that they reached towards hulla and they saw that Balmiki Yadav (deceased), Janardan (P.W. 8), Fuleshwar (P.W. 9) were going ahead to that place of hulla. These witnesses have further stated that these persons reached at the eastern road of the said field where these three witnesses also reached and they all found that the labourers and the accused in that field. P.W. 4 has stated that 7-8 labourers were doing work of Kamauni in the chilly field of Tulsi Yadav and he had identified all the 12 persons of unlawful assembly who were armed with guns, pistols and lathi and they all were of village Phulwaria situated at a distance of 8-10 rassi from his village. He stated the names of all the 12 accused and has specified the arms possessed by them. He has further stated about manner of scuffling between labourers and the accused persons. P.W. 5 and P.W. 7 have also stated the names of all the accused persons armed with weapons and the manner of scuffling between the labourers and the members of unlawful assembly. They have also supported the manner of occurrence causing death of Balmiki as stated by P.W. 9 while deposing in the court.
P.W. 8 Janardan Yadav is the witness who was with Balmiki in the Thakurbari and had rushed to the field of Chilly with the deceased (Balmiki Yadav). He has stated in the court that on the alleged date and time of occurrence he was sitting with Balmiki in Sahan of the village Thakurbari and he has also said that Balmiki was sitting and preparing rope since before P.W. 8 had gone to him. He has further stated that on hulla coming from north eastern side he and Balmiki went to that side and he saw that Fuleshwar (P.W. 9) was coming with grass near that place also followed him. He has further stated that when these persons were rushing towards hulla side he had seen Rajmani (P.W. 4), Sikandar (P.W. 7), and Ram Prakash (P.W. 5) were reaching from other direction to the said place of occurrence. He has also stated that all the aforesaid persons reached at the Dagar (road) close east of the field of Tulsi Yadav where he had seen Haseri of 12 persons making scuffle with the labourers working in the field. The persons of unlawful assembly were asking the labourers to come to their field to work but the labourers were not ready and were telling that they would work in the said field as they had already accepted the wages. P.W. 8 had identified all the accused persons being the members of said assembly and he has also specified the particular arms held by particular accused. He has also stated that accused Bichhu Yadav snatched Khurpi of labourer Dhaneshwar Yadav and assaulted him with it. All the said witnesses including Balmiki Yadav protested such act of the accused and Balmiki Yadav was vocal and was leading the protest on which Baldeo and Satto directed other accused persons to take side and to shoot out and he would spend one lakh rupees. The persons of unlawful assembly went near Sisam tree of the field of Chandi Yadav from where Bambam Yadav shot fire at Balmiki which hit in his chest and abdomen. The accused Ablu and Hari Yadav also shot fire at Balmiki, who fell down. The witnesses raised alarm of murder of Balmiki and the persons of the unlawful assembly fled away. P.W. 8 has further stated that labourers had already fled away when the order of taking side was made by the accused persons, after accused persons fled away he and other witnesses went close to Balmiki Yadav and found that Balmiki Yadav was dead. He has supported the prosecution case as P.W. 9.
Each of the aforesaid witnesses has been elaborately and excessively cross-examined on behalf of accused persons on all the points and it appears that defence has failed to demolish the evidence of P.W. 4, P.W. 5, P.W. 7, P.W.8 and P.W. 9.
P.W. 6 is a formal witness. He has stated that officer-in-charge recorded his statement in his presence at the place of occurrence which was read over to the informant Fuleshwar and after finding it correct he put his signature. His signature has been marked as Ext. 2. He and Jaiprakash witnessed the fard beyan and their signatures have been marked as Ext. 2/1 and 2/2. In his cross-examination, he has stated that his father Devi Yadav and Tulsi Yadav are full brothers. He has further stated that fardbeyan was recorded at the place where the dead body was lying.
P.W. 10 is a formal witness who has proved the entry made in the register of the hospital as Ext. 3 and the inquest report (Ext. 4) and challan of the dead body (Ext. 5). In her cross-examination he has stated that these documents were not written in his presence nor he is acquainted with the facts of those documents.
P.W. 11 Dr. Ashok Kumar Jha while posted as Civil Assistant Surgeon at Sadar Hospital Begusari performed the autopsy on the dead body of the deceased Balmiki Yadav aged about 32 years on 1st September 1985 and found the following ante-mortem injuries on his person:-
Multiple pellet injuries on the interior chest and abdomen 10 in number over chest, 12 over abdominal area 1/4 cm. Circular with blackish margins.
On dissection pillets traversed through skin, fascia muscles and many entered the pleura and finally lodged in lung, both left and right fluid of them (6 in number) could be separated out and sealed in a glass vial and handed over to accompanying constable.
Some of the pillets raptured the heart both right and left conical. Fluid lodged in limbs and gut.
one pillet injury on the outer pateral aspect of both thigh. Pillet lodged in deeper tissues.
All the above injuries were caused by firearms may be any arm containing pillets. A gun is a firearm. The death is due to rapture of heart and lung injury. Time since death is between 18 to 36 hours. The above injuries were sufficient to cause death in ordinary course of nature. He has identified the post-mortem examination report which is in his pen and signature and has already marked as Ext. 3.
In his cross-examination, he has stated that such injuries with blackish mark can be usually caused if the shots are made from a distance of 5 feet. Blackish marks and injuries can be caused from further distance depending upon firearm. The force of pellet is being lost if shot is made from a long distance. Rigor mortis starts appearing after six hours from the death and starts disappearing after 24 hours and usually it disappears after 48 hours and these timings are depending on environment.
P.W. 12 is a literate constable who has proved writing of fard beyan as Ext. 6 and endorsement on the fard beyan as Ext. 6/1. Formal FIR as Ext. 7 and writing of Officer-in-Charge on the fard beyan as Ext. 6/2.
P.W. 13 is a formal witness who had proved the injury report as Ext.8 in pen and signature of Dr. Kameshwar Singh.
The following witnesses have been examined on behalf of the accused:- D. W. 1 Sitaram Sharma, D. W. 2 Dwarika Mahton, D. W. 3 Anand Paswan, D. W. 4 Sukhdeo Sah, D. W. 5 Dr. Hariram Kumar, D. W. 6 Kedar Jha, D. W. 7 Shailendra Kumar Sinha, D. W. 8 Arun Kumar Mishra.
D. W. 1 is a formal witness who has proved writing of Balmiki Yadav. He has also proved endorsement on the fard beyan as Ext. A/1 and signature on the formal FIR as Ext. B.
D.W. 2 is also a formal witness and has proved the complaint petition as Ext. C.
D.W. 3 is also a formal witness and has proved writing and signature of Balia Sanha P.S. Case No. 655 dated 31.8.1985 as Ext. D.
D.W. 4 is an assistant in PWD Planning and Sub-divisional Road Construction Department, Saharsa. He has stated that he knows accused Satya Narayan who is an Assistant Research Officer for about 5 years and is in the Gazetted Rank. He is not required to make any attendance. On 31.8.1985 he was present in the Office.
D.W. 5 has also stated that he was Civil Assistant Surgeon at Begusarai. He has examined Baldeo Prasad Yadav who was suffering from Bacillary Dysintary with fever and he prescribed medicine also. On 30.8.1985 he was not able to move and had advised to administer saline water.
D.W. 6 is a formal witness and has proved the writing of Jail Superintendent.
D.W. 7 is also a formal witness who has stated that he was a draftman at Madhepura and Satyanarayan Prasad Yadav was an Assistant Research Officer in his office and he was present in the office on 31.8.1985 at Saharsa.
D.W. 8 is also a formal witness who has proved college leaving certificate and the writing of clerk Baleshwar Choudhary and signature of Principal Ram Pukar Singh which have been marked Ext. K and K/1.
Heard learned counsel for the State, accussed-respondents and accused-appellants. No one appears on behalf of the petitioner in Cr. Revision No. 516 of 1990.
It has been submitted on behalf of learned counsel for the State that all the accused including respondents and appellants had assembled at the place of occurrence with common intention and their object was to kill the deceased Balmiki Yadav who was protesting against their object to get the labourers worked in their field. The other witnesses were also protesting the action made by the accused persons. Since the deceased and others were protesting, the occurrence has taken place. Since the deceased was vocal, he was shot dead in furtherance of their common object. The learned trial court has held guilty only the four accused who are appellants in Cr. Appeal (D.B.) Nos. 198 of 1990 and 223 of 1990.
Learned counsel for the accused as well as the appellants has submitted that there is no evidence on the record to show that all the accused had common object to kill the deceased. Actually they were not interested in killing anyone. They were only interested that labourers should work in their field as it was a season of cultivation. There is vital contradiction between the ocular evidence and the medical evidence. The prosecution witnesses have stated that firing was made from distance but the doctor has found that there was charring mark on the deceased. It has further been submitted that Investigating Officer has not been examined which has also caused prejudice to the accused appellants.
After hearing learned counsel for both the parties and on perusal of the record it appears that the defence has produced the witness to prove alibi. There is no doubt that family members of the accused persons are the cultivators and they only need labourers for cultivation of large area. It also appears that it was a period of weeding of chilly plants. The most natural and probable conduct appears to be that the accused Bichhu being senior in age having lathi in hand with Bambam Yadav, Ablu Yadav, and Hari Yadav armed with firearms went in search of labourer to the village Danauli. It was a chance that on that date of occurrence there was no labourer in other fields other than the place of occurrence and the accused persons being fortified with arms must have insisted the labourers to come with them for weeding their chilly fields which was refused by the labourers and there was scuffle between the accused Bichhu Yadav and labourer Dhaneshwar Yadav (P.W. 3). On hulla the prosecution witnesses reached at the place of occurrence highhandedness of the accused but Bichhu being strengthened by his three gunmen attempted to take labourers forcibly and in that course he snatched the khurpi of Dhaneshwar and caused injury to the said labour Dhaneshwar (P.W. 3). Deceased Balmiki Yadav being the social worker protested against such atrocities on the labourers which caused annoyance to the said four accused i.e. Ablu Yadav, Hari Yadav, Bichhu Yadav (appellants in Cr. Appeal (D.B.) No. 198 of 1990) and Bambam Yadav (appellant in Cr. Appeal (D.B.) No. 223 of 1990) and by going out of that field Bambam Yadav shot fire at Balmiki which was followed by Ablu and Hari Yadav by making gunfire consequently Balmiki Yadav succumbed to the firearm injuries. From the circumstances on the record it also appears that other accused persons have been added at the instance of P.Ws. 4, 5, 7 on account of alleged old enmity for taking advantage of the said incident and as such other accused with their firearms did not make any overtact. It appears that no overtact has been alleged against the accused other than Ablu, Hari, Bichhu and Bumbum Yadav. Baldeo Yadav is aged about 75 years. There is no reason why all the old people like Baldeo and the persons in service and in college being armed with firearms would go in assembly to collect labourers. Therefore, there are obvious circumstances of adding these persons with accused Bichhu, Ablu, Bambam and Hari Yadav by exaggerating the manner of occurrence stating that Satto Yadav and Baldeo Yadav instigated other accused to take position and to kill Balmiki and others and they would spend Rs. 1,00,000/- This story made by prosecution does not inspire confidence.
It appears from the ocular evidence that they have supported the prosecution case and the manner of assault by firearms to the deceased. The doctor has also found the injuries of firearms and has opined that the firearm injuries were sufficient to cause the death of the deceased in ordinary course. It also appears from the facts and circumstances of this case that non-examination of Investigating officer has not caused any prejudice to the accused.
Learned trial court has considered the evidence on record minutely and has rightly come to the conclusion that other than the accused Ablu Yadav, Hari Yadav, Bichhu Yadav and Bambam Yadav have been falsely implicated in this case and has accepted their alibi and has not discussed about the evidence of defence witness. After scrutinizing and considering the evidence adduced on behalf of both the parties learned trial court has held the accused Satto Yadav, Jato Yadav, Ashok Yadav, Baldeb Yadav, Shambhoo Yadav, Gholat Yadav, Chandradeb Yadav and Sikko Yadav not guilty and they have been acquitted by giving them the benefit of doubt. Learned trial court has also found impeaching evidence against the appellants Ablu Yadav, Hari Yadav, Bichhu Yadav and Bambam Yadav in holding them guilty and has rightly convicted and sentenced them to rigorous imprisonment for life u/s 302 IPC and also imprisonment for three years u/s 27 of the Arms Act except appellant Bichhu Yadav.
Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment of conviction and sentence passed by the learned trial court. The bail bonds of Ablu Yadav, Hari Yadav, Bichhu Yadav (appellants in Cr. Appeal (D.B.) No. 198 of 1990) and Bambam Yadav (appellant in Cr. Appeal (D.B.) No. 223 of 1990) are hereby cancelled and they are directed to surrender before the learned trial court to serve out the sentence imposed by the learned trial court within a period of one month, failing which learned trial court will take effective steps for their custody.
In the facts and circumstances, we do not find any merit in Govt. Appeal (D.B.) No. 48 of 1990, Criminal Appeal (DB) No. 198 of 1990, Criminal Appeal (DB) No. 223 of 1990 and Criminal Revision No. 516 of 1990 and as such they are dismissed.
Shyam Kishore Sharma, J.
I agree.