Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.339 of 2001 (Appeal against the Judgment and order of conviction dated 27.9.2001 passed by the Presiding Officer, Additional Court No. 2 (F.T.C.), Patna, in Sessions Trial No. 370 of 1987/77 of 2001) =========================================================== 1. Lakhan Yadav, son of late Prithivi Yadav 2. Seth Yadav, son of Lakhan Yadav 3. Suresh Yadav, son of late Jhalaku Yadav 4. Dharmdeo Yadav, son of Lakhan Yadav 5. Prahlad Yadav, son of late Jhalaku Yadav 6. Ram Ishwar Yadav, son of late Jhalaku Yadav 7. Dina Nath Yadav, son of Mithilesh Yadav 8. Mithilesh Yadav, son of late Gajraj Yadav 9. Tarachand Yadav, son of late Gajraj Yadav 10. Indradeo Yadav, son of late Jawahir Yadav 11. Suryadeo Yadav, son of late Jawahir Yadav 12. Bhushan Yadav, son of late Shiv Prasad Yadav 13. Ram Niwash Yadav, son of Ram Pravesh Yadav 14. Ram Pravesh Yadav, son of late Yogi Yadav All are resident of village Palidih, P.S. Paliganj, Distt. Patna. Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Suraj Pd. Nr. Sinha, Senior Adv. Mr. Pramod Kumar, Adv. Mr. Ravi Bhardwaj, Adv. Ms. Shikha Roy, Adv. For the State : Mr. R.B. Roy „Raman‟, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 05-12-2013 Anjana Prakash, J: It appears that during pendency of the Appeal, the Appellant No. 8 Mithilesh Yadav, Appellant No. 10 Indradeo Yadav and Appellant No. 11 Suryadeo Yadav passed away and, hence, their appeal is dismissed as having become infructuous. 2. The Appellant No. 1 Lakhan Yadav is convicted under 2
Legal Reasoning
Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 2 / 7 Section 307 Indian Penal Code and Appellant No. 8 now dead had been convicted under Section 307/34 Indian Penal Code and sentenced to rigorous imprisonment for five years. Rest of the Appellants have been convicted under Section 307/149 Indian Penal Code and sentenced to rigorous imprisonment for five years. Appellants Tara Chand Yadav, Seth Yadav and Suresh Yadav have been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year whereas rests of the Appellants have been convicted under Section 148 Indian Penal Code and sentenced to rigorous imprisonment for two years. Further, Appellant Dinanath Yadav, Indradeo Yadav and Dharamdeo Yadav have also been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for three years by the Presiding Officer, Additional Court No. 2, F.T.C., Patna, by a Judgment and order of conviction dated 27.9.2001 in Sessions Trial No. 370 of 1987/77 of 2001. 3. The case of the Appellants is that on 20.8.1986 at about 7.30 A.M., while the informant was repairing the roof of his house, he saw the Appellant Dinanath Yadav abusing Ram Japit Yadav accusing him of having blocked the flow of water to his land. When the Informant protested and suggested that the matter be settled amicably, the accused persons variously armed, came and started pelting brick-bats at the house of Ram Japit Yadav. Further on the orders of Appellant Mithilelsh 3 Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 3 / 7 Yadav, Lakhan Yadav gave a Bhala blow on the chest of Raj Kumar while other accused persons fired causing fire arms injury to Ram Japit Yadav, Krishna Yadav and Arun Yadav. The accused Bhushan Yadav gave a Bhala blow on the neck of Arun Yadav. When the witnesses arrived, the accused persons fled away. 4. The admitted position is that for the same occurrence, a counter case was instituted on the part of the defence stating that Shiv Prasad Yadav had been shot dead by the Prosecution in which PW-2, PW-3, PW-4 and PW-5 are accused in the said case. The defence examined the Doctor as DW-1 who performed postmortem on Shiv Prasad Yadav brother of Appellant No. 1 and found 29 injuries on his person. 5. During Trial, the Prosecution examined nine witnesses out of whom PW-1 Rajendra Yada, PW-2 Krishna Yada, PW-3 Rameshwar Yadav, PW-4 Raj Kumar Yadav and PW-5 Chandrama Yadav are the material eye witnesses. PW-6 Bhuneshwar Singh is the Investigating Officer whereas PW-7 Dr. Bameshwar Prasad Sharma and PW-8 Dr.
Legal Reasoning
Ravindra Bhushan Srivastava are the Doctors who were examined Raj Kumar Yadav. PW-9 Vijay Kumar is a formal witness who has proved bed head ticket of injured Raj Kumar Yadav and various endorsements on the bed head ticket and treatment chart. 6. As per the Doctor, PW-7, he found one incised punctured 4 Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 4 / 7 wound 1 ½ “x ¾” x 2” on the left side of the chest of Raj Kumar Yadav. The opinion regarding the nature of injury was reserved till x-ray was conducted. PW-8 the Doctor at PMCH stated that he had examined the X-Ray Report of the injury on the chest of Raj Kumar Yadav and opined the same to be grievous in nature. However, he admitted that the X-Ray Report was not available with him. 7. PW-6 the Investigating Officer stated that when he went to the Hospital, he found Raj Kumar Yadav in an injured condition. 8. PW-5 the Informant stated that on the date of occurrence at about 7.00 A.M. he saw the accused Dinanath Yadav abusing Ram Japit to which he protested. The accused persons variously armed, started to pelt stone upon the house of Ramjapit Yadav on being provoked and then also resorted to firing. On the orders of Mithilesh Yadav, one Ram Lakhan Yadav pierced a Bhala on the chest of Raj Kumar Yadar. Shiv Prasad Yadav, Ramjapit Yadav, Jayandra Yadav and Krishna also received firearm injuries. 9. From the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5, I find that all the witnesses have stated the same version of the occurrence. 10. PW-1 Rajendra Yadav repeated the version of the Informant but added in his evidence that Shiv Prasad Yadav had sustained injuries on the firing of the accused persons themselves. However, in paragraph- 5 Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 5 / 7 6, he stated that Shiv Prasad Yadav had been murdered for which Sukhdeo Yadav instituted a case. He denies knowing as to who was accused in the said case. His attention was drawn to the earlier statement under Section 164 Cr. P.C. with regard to the incident of firing upon Shiv Prasad Yadav. 11. PW-2 Krishna Yadav has repeated the version of the Informant. In Paragraph-7, he stated that on the same day, Shiv Prasad Yadav had sustained firearm injury on account of which he died. A murder case was instituted in this regard in which he was also an accused along with Ram Japit Yadav, Ramesh Yadav, Nandeshwar Yadav and Chandrama Yadav (PW-5). In Paragraph-9, he stated that murder of Shiv Prasad Yadav as well as the incident of injury on Raj Kumar Yadav had taken place. His attention was also drawn to the statement recorded under Section 161 Cr. P.C. that he has stated before the Investigating Officer that Shiv Prasad Yadav had sustained accidental firearm injury at the hands of the accused persons themselves. His attention was also drawn to his earlier statement that he had not stated that Mithiles Yadav had given orders to kill Raj Kumar Yadav. 12. PW-3 Raj Kumar Yadav apart from supporting the First Information Report, stated, that deceased Shiv Prasad Yadav had sustained firearm injury on the person of the accused persons themselves. PW-4 Raj Kumar Prasad Yadav states about the genesis and 6 Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 6 / 7 manner of the occurrence in which the assault on him took place and stated that the occurrence of injury upon Shiv Prasad Yadav and himself happened at the same place. In his cross-examination, he stated that at the time of murder of Shiv Prasad Yadav, the accused persons were not present there. His attention was also drawn to the earliest statement where he had materially changed the place of occurrence. 13. PW-6 Bhuneshwar Singh, Investigating Officer stated that he found objective evidence at the house of Ram Japit Yadav but did not find any blood stain at the place of occurrence. In his cross-examination, he admitted that a counter case has been instituted before the present case by Appellant No. 11 Suryadeo Yadav. 14. It has been submitted on behalf of the Appellants that in the background of admission of the Prosecution that on the same day, Shiv Prasad Yadav was killed by the Prosecution even conceding the injury on Raj Kumar Yadav, the same appears to have been inflicted in right of private defence of person. 15. In these circumstances, the Appellant deserves to be acquitted. 16. Considering the manner of occurrence discussed above and the nature of evidence adduced on behalf of the Prosecution, it would be difficult to sustain the conviction of the Appellants. 17. Hence, the Appeal is allowed. The order of conviction and 7 Patna High Court CR. APP (SJ) No.339 of 2001 dt.05-12-2013 7 / 7 sentenced dated 27.9.2001 passed by the Presiding Officer, Additional Court No. 2 (F.T.C.), Patna, in Sessions Trial No. 370 of 1987/77 of 2001, is, hereby, set aside. 18. The Appellants are discharged from the liabilities of their respective bail bonds. (Anjana Prakash, J) Patna High Court, Patna. Dated the 5th December, 2013. NAFR/S.Ali