Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.475 of 1990 ======================================================== AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 7TH SEPTEMBER, 1990 PASSED IN SESSIONS TRIAL NO. 12 OF 1990 / 254 OF 1988 BY SHRI CHAKRA DHAR RAI, 5TH ADDITIONAL SESSIONS JUDGE, GAYA ======================================================== 1. SATRUGHAN YADAV 2. LAKHAN YADAV 3. CHAITA YADAV 4. GANESH YADAV 5. SREE YADAV ALL SONS OF LATE BIFAR YADAV 6. RAJ KUMAR YADAV SON OF LATE DHANU YADAV ALL RESIDENT OF VILLAGE- TANTI, P.S.- PARAIYA, DISTRICT- GAYA ………………………………………………..... .... APPELLANT/S VERSUS THE STATE OF BIHAR ……..………………….... .... RESPONDENT/S ======================================================== APPEARANCE : FOR THE APPELLANT/S : MR. N. A. SHAMSI, ADVOCATE Mr. NEERAJ KR. @ SANIDH, ADVOCATE FOR THE RESPONDENT/S : MR. AJAY MISHRA, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 11-07-2013 Above named appellants assailed the judgment of conviction and order of sentence passed by the learned 5th Additional Sessions Judge, Gaya in Sessions Trial No. 12 of 1990 / 254 of 1988 on 7th September, 1990 whereby all the appellants were held guilty for the offence punishable under sections 302/34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life. 2. At 5.00 PM on 14.9.1987 the informant Matiya Devi Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 2 (PW 7) wife of Suraj Deo Beldar (PW 5) was returning after making Jitiya purchase along with her bhaisur, elder brother of the husband, Brahmdeo Beldar and son Jag Narayan Chouhan (PW 6). As soon as in her way she proceeded to the eastern ridge of the sugarcane field of Suraj Gorait, then her son asked her uncle (deceased) as to what was the time, it was told that it was 5.00 PM. At that very time appellant no. 1 Shatrughan Yadav, appellant no. 2 Lakhan Yadav, appellant no. 3 Chaita Yadav, appellant no. 4 Ganesh Yadav, appellant no. 5 Siri Yadav all sons of Bifan Yadav and appellant no. 6 Raj Kumar Yadav son of Dhani Yadav came out and attacked on the informant’s bhaisur. Shatrughan Yadav fired from his pistol, Lakhan Yadav hurled a bomb upon the back of Brahmadev Beldar. The impact of assault resulted into falling of Brahmadev Beldar. Thereafter, he was over powered by all the accused persons. Ganesh Yadav gave two blows of Fasuli and 2-3 Fasuli blows were also given by Chaita Yadav which proved fatal for Brahmadev Beldar. Shatrughan Yadav took away the wrist watch and Ganesh Yadav took away new umbrella inscribed as 555 of Brahmadev Beldar. All the accused persons retreated towards south. Two strangers could not be named by the informant. After her cry Nawal Rawani (PW 1), Jakir Hussain (PW 2), Lohari Yadav (not examined) and others came. The dead body was carried to the
Legal Reasoning
Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 3 house. The accused persons were trying to take away the dead body. The motive of the occurrence was that in the preceding Chaitra month Shatrughan Yadav forcibly wanted to take possession of Gairmazarua land which was being utilized by general people. That was objected by Brahmadev Beldar (deceased). Another motive was that many houses of the village were looted in the preceding Jet month in which Shatrughan Yadav was identified by the family members of the informant. The fard-beyan (Ext. 2) of Matiya Devi (PW 7) resulted into formal FIR (Ext. 1) of Guraru P.S. Case No. 00335 of 1987 dated 15.9.1987 under sections 302, 379/34 of the Indian Penal Code, sections 3, 4 and 5 of the Explosive Substance Act and section 27 of the Arms Act. The investigation commenced. In course of investigation statement of witnesses were recorded, seizure was made, post mortem report was obtained and inquest report was prepared and finding the case to be true chargesheet was submitted upon which cognizance was taken. After observing paraphernalia the case was committed to the court of Sessions where charges under sections 302/34 of the Indian Penal Code was explained against all the six named accused and charge under section 27 of the Arms Act was explained to Shatrughan Yadav. The accused persons pleaded their innocence, so the trial proceeded. Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 4 3. The defence of the accused was of innocence and also that the informant and her persons were having grudge against the accused persons and they have falsely named them in a case in which 12-13 houses were looted and one person was killed. 4. In order to prove its case, the prosecution has examined 10 witnesses. They are: Nawal Rawani (PW 1) was a hearsay witness, Jakir Hussain (PW 2) a constable who proved the formal FIR, Ramkrit Yadav (PW 3) has seen the accused fleeing away, Yadu Yadav (PW 4) is hearsay witness, Suraj Deo Beldar (PW 5) husband of the informant and has seen the accused persons escaping after the occurrence, Jag Narayan Chouhan (PW 6) son of the informant who was coming along with his mother, Matiya Devi (PW 7) the informant, Dr. Mithilesh Kumar Sinha (PW 8) who has held autopsy upon the dead body of the deceased, Sub-Inspector of Police Madheshwar Sharma (PW 9) who recorded the fard-beyan of the informant and investigated the case and Baldeo Singh (PW 10). The defence has not examined any witness. 5. After closure of the evidence, the substance of evidence was explained to all the accused persons to which they replied in negative. 6. The trial court after analyzing the evidences Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 5 available on record and after considering the submissions, came to finding that the prosecution has been able to prove its charge against all the accused persons. Since there was no sanction of prosecution of the accused under section 27 of the Arms Act, they were not held guilty under the provision of Arms Act and the accused persons were held guilty for sharing common intention for causing death. 7. Learned counsel appearing on behalf of the appellants submitted that there is no independent witness. Though PW 6 was a child but still his evidence was considered and he was not tested with regard to competency. There is no explanation as to why FIR recorded on 15.9.1987 was sent to the Court on 16.9.1987. It is further submitted that though there was initial allegation that bomb was thrown by Lakhan Yadav but no corresponding injury was found. Similarly no role was attributed to Sree Yadav and Raj Kumar Yadav but still they were also framed. The contradiction in the evidence goes to show that it was a case of false implication. 8. On the other hand learned APP has submitted that there is consistent evidence that firing was resorted by Shatrughan Yadav and after Brahmadev Beldar fell down, then Chaita Yadav and Ganesh Yadav caused sharp cut incised injury upon him which proved fatal. Regarding others it has Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 6 been submitted that they were also present throughout the occurrence and their participation is also beyond doubt. 9. The prosecution has examined three types of witnesses. PWs 6 and 7 are eye witness to the occurrence as they have seen the actual killing. PWs 1, 3, 4 and 5 are hearsay witness. They have come after the occurrence and they have seen the accused persons escaping. PWs 2 and 10 are formal witness who have proved the documents adduced on behalf of the prosecution. Whereas PWs 8 and 9 are official witnesses. PW 8 has held autopsy on the dead body and PW 9 is the investigating officer who submitted chargesheet against the accused persons. 10. Before discussing the oral evidence, it would be proper to go through the evidence of PW 8, who on 16.9.1987 while being posted in Magadh Medical College Hospital, Gaya held the post mortem examination upon the dead body of Brahmadev Beldar which was identified by constable no. 696 Ram Sewak Rajak and found following injuries:- (i) Blackening of area 2 ½” circumference with one circular wound of entry of size ½” diameter x chest cavity deep in middle of the area. Wound located over back of right shoulder, margin inverted. Fracture of right scapular and 4th right rib direction of wound horizontally forward. There was Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 7 laceration of right lung and plura. One bullet was found lodged into the substance of right lung. Chest cavity was filled with blood and blood clots. Bullets have been sealed and being forwarded through the constable. (ii) One circular wound of entry over back of left chest at anterior angle of left scapula. There was presence of blackening around the wound. Margin was inverted. Direction of wound horizontally and forward. There was one wound of exit of size 1 ½” x 1” over front of left chest at level of 5th. Left intercostal space in mid line. Margin was inverted. (iii) Two incised wounds of each size 1 ¼” x ¼” x bone deep over occipital region of scalp. (iv) incised wound over superior surface of left shoulder size 2” x ½” x bone deep (v) Transverse incised wound over front and extending to side of neck in middle. All underline structures including laryn, oesphagus, muscle and vessels were sharply cut with margin bruise. (vi) incised wound extending from root of right ear to right angle of mouth size 4 ½” x ½” x bone deep (vii) Transverse incised wound over ventral aspect of all terminal digits of all fingers both hand size ½” x ¼’ x bone deep. Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 8 (viii) Incised wound over dorsal surface of right hand size 1 ½” x ½” x bone deep. All the injuries were ante-mortem injuries. Injury nos. 1 to 5 are grievous and dangerous to life. Others were simple. Injury nos. 1 and 2 were caused by firearm like pistol and others by sharp cutting weapon such as Fasuli. Death was due to shock and haemorrhage. Time elapsed since death was within 36 to 48 hours. 11. The doctor’s evidence scanning gives a view that Brahmadev Beldar made a violent death by use of firearm as well as sharp cut instrument at about the time given by the prosecution. Others evidence has not been even challenged. In the cross-examination no suggestion was given which could create doubt with regard to veracity of the prosecution version. 12. Before dealing with other evidence, it would be proper to go through the evidence of the informant. The informant is an illiterate lady which is apparent from the thumb impression given by her upon her deposition. While deposing in court, she has stated that at 5.00 PM his Bhaisur Brahmadev Beldar was killed. At that time she was returning along with her son Jag Narayan Chouhan and Bhaisur Brahmadev Beldar from Gurua Bazar. As soon as she arrived near sugarcane field of Suraj Dorait, 8 persons namely, Shatrughan Yadav, Ganesh Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 9 Yadav, Sree Yadav, Chaita Yadav, Lakhan Yadav, Raj Kumar Yadav and two unknown came out of the field. Shatrughan Yadav was having pistol, whereas, Ganesh and Chaita were having Fasuli. Shatrughan asked to kill, then her Bhaisur tried to escape but Shatrughan fired twice which caused injury upon the back of Brahmadev Beldar as a result thereof he fell down. Thereafter, Ganesh gave two blows upon his neck and Chaita gave 2-3 blows upon his head by Fasuli which they were carrying. On her cry Nawal Rawani (PW 1), Ramkrit Yadav (PW 3), Lohari (not examined) and her husband (PW 5) came. Brahmadev Beldar died there. The dead body was carried to the house. On the day following the occurrence, the officer incharge came, she narrated the entire occurrence. Just three months prior to the occurrence several houses were looted and one villager was killed. A case was registered with regard to dacoity in which Brahmadev Beldar (deceased) was the informant wherein appellants Shatrughan, Ganesh, Chaita, Shree and Lakhan were accused. They were asking Brahmadev for withdrawing the case otherwise he was threatened for facing dire consequences. She has stated that she had not gone to Police Station and when the Officer Incharge came, then papers were prepared, her statement was recorded and place of occurrence was inspected. The officer Incharge told that there Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 10 was bomb injury. The deceased was brought to the house. In cross-examination, she has stated that on the eve of Jitiya she had gone to Guraru Bazar for purchasing some articles and she purchased those articles from the shop of Durga Sao (not examined). 13. Though the informant was cross-examined extensively but her cross-examination could not create any doubt so far as her evidence that Brahmadev Beldar was shot at by Shatrughan Yadav and when he fell down, then cut injury was caused by Chaita and Ganesh which were ante mortem injury. Regarding others she has not given any specific role and she has stated that they have come out from the sugarcane field along with actual assailants. Except this role she has not given any role to them. PW 6 has not given any role to them. PW 6 has supported the informant. At the time of deposition his age was shown to be 15 years and the occurrence was of about 16 months prior to the deposition meaning thereby that he was fully grownup and there was no need for the court to be satisfied regarding his competency. The extensive cross- examination of PW 6 goes to show that his competency was up to mark. He has supported the version given by his mother but has stated that after firing of Shatrughan his uncle Brahmadev Mandal fell down, thereafter, he was caught by all the accused Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 11 persons and thereafter, Ganesh and Chaita gave Fasuli blows to him which proved fatal. This portion of his evidence that after Brahmadev Beldar fell down, then he was caught by all including Lakhan, Sree and Raj Kumar. Though he has not named specifically but he stated that all have caught. PW 6 has fully supported his mother so far as it relates to killing and motive of killing and manner of killing as detailed by PW 7. Therefore, two witnesses are consistent so far as it relates to charge of causing overt act of killing by Shatrughan, Chaita and Ganesh. There was contradiction with regard to role of others. 14. PW 1 after hearing the shots of firing he came out and saw Brahmadev Beldar injured. Blood was coming out. Informant Bhatiya Devi nephew of Brahmadev Beldar were weeping and crying. Ramkrit (PW 3), Lohari Yadav (not examined) and others also came out. This witness has seen the accused persons escaping. Shatrughan was having a pistol, whereas, Ganesh, Chaita were having Fasuli. Regarding motive he has stated that on 2.6.1987 a dacoity was committed in 11 houses of the village. In that case one man was killed and two were injured. In that case Brahmadev Beldar became the informant and except Raj Kumar other accused persons were accused in that case also. That was the motive of the occurrence. Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 12 15. PW 3 has supported PW 1 wherein he has stated that he has seen the accused persons escaping. Shatrughan was having pistol, whereas, Ganesh and Chaita were having Fasuli. After going to the place of occurrence he was detailed about the actual occurrence. Regarding motive also he has supported the PW 1. 16. PW 5 the husband of the informant has also gone after hearing the sound of firing and has seen the accused persons escaping. He was told about the occurrence by his wife. He was specific that Shatrughan was having pistol, whereas, Chaita and Ganesh were having Fasuli. He has given the motive of occurrence wherein 13 houses were looted. His house was also looted. In that case Brahmadev Beldar was the informant, whereas, accused of the present case except Raj Kumar Yadav were accused in that case also. One person was killed. This witness has also received firearm injury on his leg and thereafter, he supported the recovery.
Legal Reasoning
17. Learned counsel for the appellants submitted that the witnesses are contradicting themselves. Their evidences cannot be relied upon. He placed reliance upon the judgment reported in (1999) 4 SCC 111 in the case of Ahmed Bin Salam Vs. State of A. P. 18. In the present case, the facts are totally different. Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 13 It has come that few months back there was massive dacoity in the village and dozen of houses were looted. One person was killed and two persons received injury. One of the injured is witness. That occurrence was of 2.6.1987. The accused persons were asking the deceased who was informant of the dacoity case to withdraw the case but that was not done and that was the cause of the occurrence. 19. The facts available on the record are thus quite different from the facts which was available in the judgment relied upon by the learned counsel for the appellants. There appears no motive at all to falsely implicate the accused in the present case, whereas, the motive was there with the accused as about three and half months before there was a dacoity and the deceased of the present case had dared to become the informant of the case. 20. Learned counsel for the appellants has submitted that so far as Lakhan Yadav is concerned, there is no corresponding injury. Neither any bomb nor any material which could use in the bomb was found at the place of occurrence. Regarding Sree Yadav and Raj Kumar Yadav it has been submitted that they have been named merely as a witness presence. Here also there is conflict in evidence of PWs 6 and 7 so far as role attributed to these unarmed persons are Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 14 concerned. Out of two witnesses only one has supported the role of killing. Mere presence should not give any role. 21. The principle of criminal liability is that it is a primary responsibility of the person who actually commits the offence and only that person who has committed crime can be held guilty and be punished in accordance with law. Section 34 of the Indian Penal Code lays down the principle of joint liability in the doing of a criminal act. It deals with the doing of separate act similar or diverse, by several persons, if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done this himself. Section 34 does not create distinct offence. 22. For proving charge under section 34 of the Indian Penal Code, it has to be proved that there was common intention to commit a criminal act and there was distinct participation in furtherance of common intention. The evidence brought on the record do not establish that unarmed person who were present has done anything and even if the entire evidence on record has to be accepted, then on this evidence, PW 6 has been contradicted by PW 7 and evidence regarding any participation of Lakhan Yadav, Sree Yadav and Raj Kumar Yadav are based upon a single witness. 23. In that view of the matter, the cases of Lakhan Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 15 Yadav, Sree Yadav and Raj Kumar Yadav are quite distinguishable. 24. If the evidence brought on the record is scanned, then it is apparent that on 2.6.1987 there was a dacoity in about a dozen houses of the village in which Brahmadev Beldar (deceased) was the informant. In that dacoity, one person was killed and two persons were injured. One of the injured is the witness here. In that case five accused of the present case were also accused. It appears from the evidence that accused of the present case were pressurizing the informant to withdraw from that case. The deceased was a daring and respectable person and he had dared to become whistle blower and for that he was done away. The role of Shatrughan Yadav for using his firearm and role of Chaita and Ganesh Yadav for using their Fasuli for causing death has been proved beyond the shadow of all reasonable doubt.
Decision
25. In view of the aforesaid discussions, we hold that the prosecution has been able to prove its charge beyond the shadow of all reasonable doubts against appellants Shatrughan Yadav, Chaita Yadav and Ganesh Yadav, whereas, due to lack of corroborative evidence appellants Lakhan Yadav, Sree Yadav and Raj Kumar Yadav are entitled to get the benefit of doubt. 26. In the result, appeal filed on behalf of appellant Patna High Court CR. APP (DB) No.475 of 1990 dt.11-07-2013 16 no. 1 Shatrughan Yadav, appellant no. 3 Chaita Yadav and appellant no. 4 Ganesh Yadav is dismissed and judgment of conviction and sentence against them is upheld. Whereas appeal filed on behalf of appellant no. 2 Lakhan Yadav, appellant no. 5, Sree Yadav and appellant no. 6 Raj Kumar Yadav is allowed and the judgment of conviction and sentence against them is set aside. Since they are on bail, they are discharged from the liabilities of their respective bail bonds. 27. The appellant no. 1 Shatrughan Yadav, appellant no. 3 Chaita Yadav and appellant no. 4 Ganesh Yadav are on bail, their bail bonds are cancelled, they are directed to surrender before the court below to serve out remaining period of sentence. Learned court below is directed to take steps for taking them in custody. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court Dated 11th July, 2013 Avin/A.F.R.