The State of Bihar vs Umeshanand

Dharnidhar Jha, J.—The present Government Appeal has been preferred by the State of Bihar to challenge the correctness and propriety of judgment dated 19.09.1991 passed by the learned Additional Sessions Judge I, Khagaria in Sessions Case No. 217 of 1989 by which the three respondents were acquitted of the charges they had been indicted with. The connected Criminal Revision Petition was filed by P.W. 6 the informant of the case who happened to be the elder brother of deceased Krishna Deo Yadav @ Krishna Kumar Kusum with the same prayer of setting aside the judgment of acquittal aforesaid with a further prayer of directing the retrial of the accused persons. The Government Appeal and the Criminal Revision Petition having arisen out of the same judgment, we have heard them together and are disposing them of by the present common judgment.

As per the prosecution case, contained in Ext. 2 fardbeyan of P.W. 6, the deceased and the informant were sitting on a cot in the courtyard of their house and discussing the prospect of the deceased getting employed in some future point of time. It was stated that the three respondents along with four unknown others came there and surrounded the cot. Respondents No. 1 and 2, i.e., Umeshanand @ Umesh Yadav and Sanjay Yadav were armed with country made pistols whereas their father respondent no. 3 Ayodhya Yadav was carrying a Bhala with him. Out of the four unknown criminals accompanying the respondents two were having bigger guns while the other two were armed with short barrel weapons.

It was stated that there was some dispute for some properties which undisputedly belonged to one of the brothers of the grandfather of the informant named Jangli Yadav who had parted with the homestead land in favour of the grandfather of the informant, namely, Nathu Yadav. But, the widow of Jangali Yadav who had been named Most. Kaushalya Devi, had gifted the properties to the son of Dhanna Yadav, i.e., accused Ayodhya Yadav and there had been some litigation on account of some Maar-Peet which was pending in court.

In the background of above dispute and inimical relationship, it was alleged that respondent no. 1 abusively challenged the informant by telling him that he should have to reap the consequences of getting the land transferred in his and others favour. The deceased who was also sitting with the informant on the same cot rose and in an attempt to pacify the frayed temper of the accused persons, offered them to sit down and talk to settle out the dispute. But, what appears is that that offer further infuriated the respondent Umeshanand who fired a shot into the chest of the deceased who slumped into the cot holding his loongi over the injury and died subsequently.

The case was investigated into by P.W. 9 S.I. Satish Chandra Das who on 02.07.1988 was the officer-in-charge of Pasraha out post of Parbatta Police Station in the district of Khagaria who rushed to the scene of occurrence picking up rumour regarding an incident of firing and cross firing between the parties to find that it was indeed Krishna Deo Yadav @ Krishna Kumar Kusum the deceased who had lost his life. He recorded the fardbeyan (Ext. 2) of P.W. 6 and forwarded the same to the police station on the basis of which FIR of the case (Ext. 3) was drawn up. He, thereafter, inspected the place of occurrence and found that the dead body of Krishna Deo Yadav @ Krishna Kumar Kusum was lying in an another cot which was kept on the verandah of the house and the cot in which the deceased had slumped after receiving the gun shot was very much lying in the middle of the courtyard with a blood stained loongi lying over it. He did not find a single drop of blood either on the cot or under it or anywhere around it in the courtyard. In spite of his alert and minute inspection of the place of occurrence, the Investigating Officer did not even find either an empty of the cartridge or a bullet or any other part of the missile which was fired which suggested as if the incident could not have taken place in the Angan. But, support was coming from the witnesses regarding the participation of the accused persons and as such, he sent up the respondents for their trial which ended in the impugned judgment.

The defence of the respondents was of false implication on account of admitted land dispute and enmity. Nine witnesses were examined during the course of the trial by the prosecution and five witnesses were produced by the defence. Anandi Prasad Yadav (P.W. 7) the father of the informant was tendered for cross-examination as was tendered the mother of the deceased P.W. 5 for cross-examination. P.W. 4 was the wife of the informant and she came to support the prosecution story along with P.W. 6 Kailash Yadav. P.W. 1 Nand Kishore Prasad Sharma had not seen anything except that the dead body of the deceased was lying in a cot. P.W. 2 Bindeshwari Yadav was again tendered for cross-examination. Thus, the informant himself was coming to support his story with his wife P.W. 4.

The learned Judge who passed the impugned judgment held the witnesses especially P.W. 6 not reliable with other witnesses also.

We were taken through the evidence by the learned Additional Public Prosecutor as we are of the view that in an appeal against acquittal mere one line finding that the judgment may not be suffering from any perversity may not be sufficient and it was required of this Court to reappraise the evidence and to scrutinize the findings recorded by the learned trial Judge as regards the evidence adduced by the prosecution and if it had come to the conclusion that indeed the findings were perverse then it must interfere with the judgment of acquittal. We may point out that after having been taken through the evidence of the prosecution witnesses, we could not find any compelling reason to take a view different from the learned trial Judge and we find that there was no need to interfere with the judgment of acquittal.

The evidence of P.W. 6 Kailash Yadav is almost the reproduction of his story which was narrated by him in Ext. 2. But what he stated was that after his brother had slumped into the cot after having received the bullet into his chest, he also started caressing the area around the wound. But, the curious aspect of his evidence was that he was denying to have stained his hands by the flowing blood. The specious reason which was provided by the informant in his evidence was that the blood was being absorbed by the loongi which was put by the deceased over the aperture of the wound. It appears that the informant was very clever and conscious of one situation that while a man was sitting to discuss the prospect of his employment with his elder brother, he may not be having another loongi for pressing it against his wound and being as conscious as any intelligent man who was hellbent to establish his case, the informant was introducing a story of another loongi being kept around his neck by the deceased. We reject the story as the most unnatural story told by the informant because our experience of ordinary human behaviour in a situation as was point out by the informant, it is absurd to accept that a young chap who was a graduate and who had also graduated in law could be having another loongi without any reason around his neck while discussing the prospect of his employment with his elder brother. We also do not have any reason as to why the loongi which was put on by the deceased at the time of occurrence was removed from the dead body and that was spread or kept over the cot in which he had slumped after receiving the bullet injury. The most curious aspect of this part of the evidence was that though the investigating officer was finding a blood soaked loongi lying on the cot but the cot was not bearing any stains of blood nor any droplet of blood was found by the Investigating Officer under the cot or around the cot in the courtyard. The shot which was fired was also not leaving any evidence of the deceased having been shot at and killed because in spite of a very careful inspection of the place of occurrence the investigating officer besides, not finding any drop of blood as we have noted just now, also did not find any empty of a cartridge or a missile which could have flown off the barrel of the gun. The father was coming in the witness box not to state anything. The mother who was sitting inside a room in which P.W. 4 the wife of the informant was sitting was also tendered for cross-examination. No independent person came to say that they had seen the accused persons who fired the shot and what the Investigating Officer had picked up a rumour about a gun battle between two sides. The place of occurrence was devoid of any signs of violence, rather it suggested as if the dead body had been removed from some outside place for being kept on a cot in the verandah of the house. The other cot which was claimed by the prosecution as one in which the deceased had slumped after having received the bullet injury, we have already noted, was not bearing any signs of the deceased having fallen in it. These are some of the most suspicious circumstances afflicting the prosecution story which rendered the very story doubtful.

After having gone through the evidence of the witnesses, we do not have any doubt that Krishna Deo Yadav @ Krishna Kumar Kusum was killed but who killed him, what was the place where he was killed and who really was the person behind his killing were some of the bare facts which were probably concealed by the prosecution and in that light we find no need to interfere with the judgment of acquittal impugned in the two connected matters.

In the result, the Government Appeal and the Criminal Revision Petition both appear devoid of merit and are dismissed.