Ahir Nat and Others vs State of Bihar

B.K. Jha, J.—Both the appeals relate to the same occurrence and arise out of common judgment of conviction and sentence passed by 1st Additional Sessions Judge Arrah on 16.10.1996 in Sessions Trial No. 21 oM995 under Sections 302/396/149/148/147/323, IPC and Section 27 of the Arms Act. Hence, both the appeals were heard together and are being disposed of by this common judgment.

The appellant, Ahir Nat has been convicted and sentenced to rigorous imprisonment for life with a fine of Rs. 1,000/- for the offences under Sections 302 and 396, IPC. In case of default in payment of fine he has further been sentenced to simple imprisonment for three months. He has again been convicted and sentenced to rigorous imprisonment for one year for each of the offence u/s 148, IPC and 27 of the Arms Act.

The appellants, Amar Nat and Ram Prasad Nat, have been convicted and sentenced to rigorous imprisonment for life with a fine of Rs. 1,000/- each for the offences under Sections 396 and 302 read with 149, IPC. In case of default in payment of fine, they have further been sentenced to simple imprisonment for three months. Both the appellants have been again convicted and sentenced to rigorous imprisonment for six months and three months under Sections 147 and 323, IPC respectively. All the sentences, however, have been ordered to run concurrently.

The case of the prosecution is that on 10.3.1994, the informant, Birendra Prasad Yadav, was returning to his house from Bramhpur fair alongwith five heads of bullocks. Rajendra Yadav, the brother of the informant, Baliram Yadav, P.W. 1, Ram Jatan Yadav, P.W. 2 and Mahendra Yadav, P.W. 3 were also accompanying him. At about 7.15 p.m. when they arrived on Ara-Buxar Road about 300 meters east of village Doghra near Bhagwan Asthan all of sudden five accused persons, namely, Ahir Nat, Lalu Nat, Bangali Nat, Amar Nat and Ram Prasad Nat with 2/4 unknown miscreants flashing their torch light appeared from behind and encircled them. The appellant, Ahir Nat, was armed with country made pistol and rest with lathi. On their appearance there, Rajendra Prasad Yadav, the brother of the informant uttered "Jein Yahinja Kahan re Ahira". At this, the appellant Ram Prasad Nat, ordered to finish him whereupon the appellant, Ahir Nat, fired from his pistol at Rajendra Prasad Yadav, which hit on his left temple and he fell down injured on the ground in pool of blood. When the informant''s associates attempted to save him the accused persons clubbed them with lathi and injured them. The informant and his associates had identified the accused persons.

Further case of the prosecution is that as soon as Rajendra Yadav, fell down with fire arm injury, the informant fled away behind a tree and saved himself. Thereafter, the accused persons took all the five heads of bullocks and retreated in the northern direction. On receipt of the information of this occurrence, the co-villagers of the informant reached there and thereafter with their help while the injured brother of the informant, Rajendra Yadav, was being taken to Arrah Hospital for treatment he died on the way near Amrai-Nawada.

The motive behind the occurrence has been alleged to be the previous litigation in between the parties as a result of which on 9.3.1994 the accused side had scared the informant and others with dire consequences.

Therefore, in the intervening night of 10/11.3.1994 at about 1 a.m., the informant, Birendra Prasad Yadav with the help of Baliram Yadav, P.W. 1, Ram Jatan Yadav, P.W. 2 and Mahendra Yadav, P.W. 3 alongwith the dead body of his deceased brother, Rajendra Yadav went to Behea Police Station under Bhojur at Arrah District. There the informant lodged the Written Report (Ext. No. 1) on the basis of which Behea P.S. Case No. 21 of 1994 was instituted against all the aforesaid five accused persons under Sections 302/307/379/149/148/147/341/323, IPC and Section 27 of the Arms Act and the investigation of the case was entrusted to Baleshwar Singh the I.O. of this case (P.W. 10). He prepared the inquest report on the dead body of Rajendra Yadav (Ext. No. 7) and sent the dead body to the Sadar Hospital for post-mortem examination. He arrested the accused Ahir Nat, Amar Nat, Lalu and Ram Prasad Nat and the accused Bengali Nat was found absconding. On search all the bullocks were recovered, seized and were handed over to one Ramjanam Yadav on Jimmanama (Ext. No. 8). He visited the P.O., seized blood stained earth, one empty cartridge, a torn portion of pocket and prepared seizure list of all the seized articles (Ext. No. 9). He obtained the post-mortem report (Ext. No. 4) and injury report of Mahendra Yadav (Ext. No. 3), Baliram Yadav (Ext. No. 3/1) and Ram Jatan Yadav (Ext. No. 3/2).

On completion of investigation, he submitted the charge-sheet against all the five accused persons showing Bengali Nat as absconder.

In the midst of the further process one accused Lalu Nat died and so the case of all the four accused persons was committed to the Court of Sessions on 21.5.1994 for trial. There too the attendance of the absconding accused Bengali Nat could not be secured, so his case was split up on 7.12.1994 and all the aforesaid three accused-appellants were placed on trial.

In the eventual trial the prosecution examined altogether 10 witnesses and one witness was examined on behalf of the defence.

The accused-appellants pleaded their innocence and false implication in the present case out of enmity in view of the fact that they were arrested from their houses within four hours of the occurrence.

On consideration of entire evidence, the learned trial Court accepted the prosecution case and convicted and sentenced all the three accused-appellants in the manner as indicated above.

Learned Counsel for the appellants urged that the FIR is silent about the repetition of firing by the appellant, Ahir Nat and after knowing injury on the persons of the deceased on post-mortem examinations this development was introduced at the time of trial. According to him this major contradiction besides others casts serious doubt to the veracity of the prosecution case and suggests false implication of the appellants in the alleged crime.

On the other hand, learned APP contended that it has been well proved by the prosecution evidence that the firing by the appellants, Ahir Nat, caused the death-of Rajendra Yadav. The non-mentioning of the second firing by him in the FIR is not vital and sufficient to disbelieve the prosecution evidence and discard the prosecution case. He has placed his reliance on the case of Brij Lal Vs. State of Haryana, , wherein it has been held that "minor discrepancies in the evidence only lend assurance to the credibility of prosecution case."

In order to appreciate the rival contentions of the both sides, now, it is necessary to scrutinize the evidence available on the record. It appears that 10 witnesses as stated earlier were examined on behalf of the prosecution. They are P.W. 1, Baii Ram Yadav, P.W. 2, Ram Jatan Yadav, P.W. 3, Mahendra Yadav, P.W. 4, Birendra Prasad Yadav, the informant, P.W. 5, Ram Bhushan Upadhya, P.W. 6, Dwarka Nath Sinha, P.W. 7, Yogendra Rao @ Yogendra Yadav @ Yogi Yadav, P.W. 8 is Dr. Kesho Prasad Singh, who conducted autopsy on the dead body of Rajendra Yadav, P.W. 9 is Dr. Ashok Kumar Chaudhary, who examined all the three injured, Mahendra Yadav, Bali Ram Yadav and Ram Jatan Yadav and P.W. 10, Baleshwar Singh, is I.O. of this case. Out of them P.W. 6, Dwarka Nath Sinha and P.W. 7 Yogendra Rao @ Yogendra Yadav @ Yogi Yadav have been tendered by the prosecution for cross-examination but nothing material could be illicited from these witnesses by the defence.

The evidence of P.W. 4, Birendra Prasad Yadav, the informant, is that on 10.3.1994, he was returning to his house from Brahmpur Mela alongwith five heads of bullocks. Rajendra Yadav, Bali Ram Yadav, P.W. 1, Mahendra Yadav, P.W. 3 and Ram Jatan Yadav, P.W. 2, his co-villagers were also accompanying him. At about 7/ 7.15 p.m. when they arrived on Ara-Buxar Road near Bhagwan Asthan in between Doghra and Amrai-Nawadah, the accused Ahir Nat, Ram Prasad Nat, Bengali Nat, Amar Nat and Lalu Nat alongwith 3/4 unknown persons flashing their torch light came from behind and surrounded them. At that time the trucks were passing. His brother Rajendra Yadav asked them "Kare Ahira Kahan Se Tu" whereupon Ram Prasad Nat ordered to finish him. At this Ahir Nat fired from his pistol at Rajendra Yadav which hit on his left temple and he fell down injured on the ground in pool of blood. Thereafter when Mahendra Yadav, Bali Ram Yadav and Ram Jatan Yadav rushed to save him, the rest accused persons assaulted them with lathi. He kept himself concealed behind a mango tree and witnessed the entire occurrence from there. Then the accused-appellant, Ahir Nat fired again which hit Rajendra Yadav in between right side of stomach and chest and all of them made good escape with all the five heads of bullocks. The injured Rajendra Yadav was picked upon a jeep and was being taken for treatment but he died on the way near Amrai-Nawadah. An information was sent to his village Kalyanpur and after the arrival of the villagers they went to Behea Police Station. He has further stated that the case is pending against the accused persons in which they have threatened him with dire consequences on 9.3.1994. He lodged a written report (Ext. No. 1) at the PS. on the basis of which the case was registered.

In cross-examination his evidence is that the witness Ram Jatan Yadav, P.W. 2 and Ramji Yadav are his own uncle and Yogi Master is his own brother. Prior to the occurrence Ram Bali Nat, the father of the appellant Amar Nat had filed a criminal case against Ramji Yadav, Yogi Master and others. He has further stated that from the place of occurrence Amrai-Newadah is situated at the distance of one mile in the east, his village Kalyanpur at about 2-2 and 1/4 mile in the east and Narayanpur village of the accused persons at about one mile in the east. He has further stated that the accused persons had not masked their faces and he had identified them in the light of the passing trucks. At the time of occurrence neither he nor his associates had raised any sorts of alarm. On the following day of the occurrence all the stolen bullocks were found and given to him. At para 24 of his cross-examination he has stated that both the shots fired from the distance of 1-1 and 1/4 cubit. At the place of occurrence one empty cartridge and a torn portion of pocket of shirt were found. He stated before the police that all the accused persons encircled them but he kept himself concealed behind a mango tree. On the order of accused-appellant Ram Prasad Nat, the appellant, Ahir Nat again fired from his pistol in between chest and stomach. At para 39 his evidence is that the firing by Ahir Nat was not disclosed in his written report.

P.W. 1, Bali Ram Yadav, P.W. 2, Ram Jatan Yadav and P.W. 3, Mahendra Yadav, have stated that on the alleged date of occurrence they were also returning to their village from Brahmpur Mela alongwith the deceased Rajendra Yadav and the informant, Birendra Prasad Yadav, P.W. 4. They have fully corroborated the evidence of the informant. At about 7/7.15 p.m. when they arrived on Ara-Buxar Road at Bhagwan Asthan in between Doghra and Amrai-Nawada about 8 to 9 persons came from behind, flashing their torch light and surrounded them. They identified Ahir Nat, Ram Prasad Nat, Amar Nat, Lalu Nat and Bengali Nat. Ahir Nat was armed with pistol and rest with lathi and danda. On seeing them Rajendra Yadav asked them "Kya Re Ahira Yahan Kahan" whereupon the accused-appellant, Ram Prasad Nat ordered to kill him. At this Ahir Nat fired from his pistol which hit in the left temple of Rajendra Yadav and he fell down. When they rushed to save Rajendra Yadav, the rest accused clubbed them with lathi on different parts of their bodies. In the mean time, the appellant Ahir Nat again fired at Rajendra Yadav which hit in between the chest and right side of his stomach. Thereafter the accused persons made good escape with bullocks. Thereafter while the injured Rajendra Yadav was being to Ara on a jeep for treatment, he died on the way. Then they went to the Behea Police Station and the case was lodged and all the injured were sent to the Hospital for treatment. They have claimed to have identified the accused persons in the light of torch and truck.

In cross-examination, P.W. 1, Bali Ram Yadav, has stated that he had a torch in his hand at the relevant hour of occurrence and identified the accused persons in the light of truck and torch. He has further stated in his cross-examination at para 12 that the pistol was fired at Rajendra Yadav from the distance of 2/3 hands and both the firing was at the interval of five minutes. His further evidence is that his statement was recorded at Behea Police Station, He could identified all the accused persons because they were also the residents of his panchayat. He denied the suggestion that on receipt of the post-mortem report he stated about the second firing on the injured before the police. He has further stated that the injured Mahendra Yadav, witness, is his son.

P.W. 2, Ram Jatan Yadav, in his cross-examination has denied the suggestion that on receipts of the post-mortem report he stated before the police about the second firing. His further evidence at para 8 is that only one accused Ahir Nat had a torch in his hand.

P.W. 3, Mahendra Yadav, in his cross-examination at para 12 has stated that first shot was fired from very close range and second from the distance of 1 furlong at Rajendra Yadav. He had stated before the police that when Rajendra Yadav fell down on the ground Ahir Nat fired second shot at him in between the chest and right side of his stomach. He has further stated in his cross-examination that in course of the entire occurrence none of them raised any alarm.

P.W. 5, Ram Bhushan Upadhyaya, has stated that on hearing about the occurrence he alongwith 20-22 persons went to Amrai and saw the dead body of Rajendra Yadav lying in a jeep and also the injured Bali Ram Yadav, Mahendra Yadav and Ram Jatan Yadav. He learnt about the occurrence and identification of the accused persons by them. Then he alongwith them went to police station through place of occurrence. The Officer Incharge prepared inquest report in carbon process and he put his signature thereon (Ext. No. 2). The Mukhiya Dwarka Nath Sinha, also signed the inquest report (Ext. No. 2/1). In his presence one empty cartridge, blood stained earth and a torn portion of the pocket of shirt were seized and the seizure list was prepared in carbon process. He put his signature on the seizure list (Ext. No. 2/2) and Yogendra Rai also signed (Ext. No. 2/3). He has failed to name the persons who had sent the information in village about the occurrence.

In cross-examination his evidence is that he had not stated before the police about the seizure of blood stained earth, cartridge and the torn portion of the pocket of the shirt.

P.W. 8 is Dr. Kesho Prasad Singh who had examined all the three injured. He has stated that on 11.3.1994 while he was posted at Behea as incharge Medical Officer, PAC Behea he examined the injured Mahendra Yadav on the same day at 2.20 a.m. and found the following injuries on his persons:

(1) Cut with lacerated margin 2" � 1/4" � 1/4" over right parietal aspect of head caused by hard and blunt substance and was simple in nature.

He also examined Bali Ram Yadav and found the following injuries on his persons:

(i) Swelling 2" � 1" over left shoulder.

(ii) Swelling 1/2" � 1/4" over right knee joint.

According to him both the injuries were caused by hard and blunt substance and were simple in nature.

He also examined Ram Jatan Yadav and found the following injuries on his persons :--

(i) Swelling 2-1/2" � 2" over right shoulder caused by hard and blunt substance and was simple in nature.

He has proved all the three injuries reports (Ext. Me. 3 to. 3/2).

P.W. 9 Dr. Ashok Kumar Chaudhary, who conducted the post-mortem examination on the dead body of Rajendra Yadav on 11.3.1994 at 7.15 p.m. and found the following anti-mortem injuries on his dead bedy:

(i) Lacerated wound on his head middle part with charring 1-1/2 � 1/2 � bone deep.

(ii) lacerated wounds on chest both sides anteriorly with charring of skin and inverted margin size of each wound 1/6th" � 1/6th" � chest cavity deep.

(iii) One lacerated wound on right side of abdomen with charring of skin and inverted margin 1/2" � 1/6th" x muscles deep.

(iv) Bleeding from left ear and left auditory canal full of blood and blood dot and,

(v) 2 lacerated wounds on cheek right side with charring and inverted margin size each wound 1/6th" x 1/6th" x muscles deep.

His further evidence is that 2 small size metallic substances were taken out from brain tissue and 3 metallic substance of small size were taken out from chest cavity container and handed over to the police. According to him ail the injuries were caused by fire-arms, and time elapsed since death within 24 hours. He further opined that the cause of death was due to shock and haemorrhage due to Injury No. I and It were caused by fire-arm. Injury found on the body of the deceased was sufficient to cause his death. He proved post-mortem examination report (Ext. 4) In cross-examination he has stated that such type of injuries were sufficient to cause instantaneous death. He has further stated that he found injuries on four different parts of the body of the deceased and all the injuries were wounds of entries but he failed to say as to whether those injuries were caused by one firing or by four firihgs. He has further deposed that the charring was indicative of the fact that the firing was shot from a short distance.

P.W. 10, Baleshwar Singh is the I.O. of this case. On the day of the occurrence while he was posted as S.I. of Police in Bihia Police Station. He was entrusted with the investigation of the case, registered on the basis of the written report of Birendra Yadav, the informant. The FIR bears the signature of Dilip Kumar and the endorsement of P.W. 6. He recorded further statement of the informant and also the statement of witnesses Mahendra Yadav, Ram Jatan Yadav and Baliram Yadav and prepared inquest report of the dead body of the deceased (Ext. 7) in presence of the witness Ram Bhushan Upadhyaya, and Dwarka Nath Sinha. He sent the dead body to the Sadar Hospital, Ara for post-mortem examination. He arrested the accused Ahir Nat, Amar Nat, Lalu Nat and Ram Prasad Nat and accused Bengali Nut was found absconding two heads of oxen were recovered, seized and handed over to Ramjanam Yadav on Jimmanama (Ext. 8). He visited the place of occurrence, seized blood stained earth, one empty cartridge and a torn portion of the pocket of the shirt and prepared seizure list in presence of the witnesses Bhushan Upadhyaya and Yogendra Rai (Ext. 9). After obtaining the injury report of the injured and post-mortem report of the deceased he submitted charge-sheet against the accused persons showing Bengali Nut as absconder. In cross-examination he has stated that he recorded the statement of witnesses Ram Rekha Yadav, Lalan Yadav, Ram Janam Yadav and Yogendra Yadav. His further evidence at para 13 is that soon after three hours of the occurrence he arrested all the aforesaid four accused at 4 a.m. and no incriminating fire-arm, stolen article, torch etc. were recovered and from their houses. At P.O. he did not find any sign of hoofs of cattle, leg of persons floundering witness Baliram Yadav had not produced any torch before him nor had claimed to have identified the accused in the torch light. He stated before him that there was only one firing which had hit on the temple. The witness Ram Jatan Yadav had not stated that on the instigation of accused Ram Prasad Nut Ahir Nut fired second shot on Rajendra Yadav which hit in his abdomen. He had disclosed him about only one firing hitting on the temple of Rajendra. The witness Mahendra Yadav had shown his injuries to him. He had not disclosed before him that when Rajendra Yadav fell down, accused Ahir Nut fired second shot in the midst of chest and stomach. The informant Birendra Yadav had not stated before him that on the instigation of Ram Prasad Nut there was firing. He had not stated before him that he had kept himself concealed behind the mango tree and had witnessed entire occurrence from there. He had not stated before him that the accused Ahir Nut fired second shot at Rajendra Yadav hitting, in between his chest and stomach.

On the other hand, defence has examined one witness Tarkeshwar Prasad (D.W. 1). He has proved the FIR (Ext. 1/A) lodged by Ram Bali Nut, the father of the appellant Amar Nat being Behea P.S. Case 161/91 dated 2.11.1991 against the members of the prosecution party u/s 436 and allied Section of the IPC. The defence has also brought on record the Voter list (Ext. A) to show that both the parties hail from the same panchayat.

On hearing the Counsel for the parties and perusal of the evidence on record, I feel that the case of the prosecution is failing due to following reasons:

(i) All the witnesses examined by the prosecution are closely related to each other. P.W. 1, Bali Ram Yadav is the father of P.W. 3, Mahendra Yadav, P.W. 2, Ram Jatan Yadav, is own uncle of the informant Birendra Prasad Yadav, P.W. 4. It has come in the evidence of the I.O., Baleshwar Singh, P.W. 10, that he had recorded the statements of the independent witnesses, Ram Rekha Yadav, Lallan Yadav, Ram Jatan Yadav and Yogendra Yadav but none of them has been examined and prosecution has withheld their evidences.

(ii) According to the evidence of the informant Birendra Prasad Yadav, P.W. 4 (para 17) and P.W. 3, Mahendra Yadav, none of them had raised any alarm at the alleged time of occurrence but the evidence of P.W. 1, Bali Ram Yadav indicates otherwise. His evidence at para 12 suggests that they had raised alarm whereupon two co-villagers had come at the place of occurrence but he failed to spell out their names.

(iii) It appears from the FIR coupled with the evidence of the informant, Birendra Prasad Yadav, P.W. 4 that at the relevant hour of occurrence he fled away and saved himself. He witnessed the entire occurrence by hiding himself behind a mango tree but it does not find corroboration from the evidence of P.W. 1, Bali Ram Yadav, P.W. 2, Ram Jatan Yadav and P.W. 3, Mahendra Yadav, the eyewitnesses to the occurrence. On the contrary, P.W. 3, Mahendra Yadav, has clearly stated in para 1 that Amar Nat, Bengali Nat,-Ram Prasad and Lalu Nat "Hum Charon Ko Danda Se Marne Lage" and all four were injured by them. The injury report of the informant, Birendra Prasad Yadav, P.W. 4, was not brought on the record by the prosecution. Further the deceased Rajendra Yadav was own brother of the informant, Birendra Prasad Yadav, P.W. 4, so it does not stand to reason that he would have left his life at the sweet will of the accused persons.

(iv) At the instance of the informant, Birendra Prasad Yadav, P.W. 4, the FIR was lodged with all necessary details, i.e., the names of the accused, weapons in their hands and parts played by them in the commission of the alleged crime. It was clearly mentioned therein that the accused, Ahir Nat fired one shot from his country made pistol at Rajendra Yadav which hit on his left temple. The informant did not disclosed about the second firing by him. But at trial, P.W. 1, Bali Ram Yadav, P.W. 2, Ram Jatan Yadav, P.W. 3, Mahendra Yadav and P.W. 4, Birendra Prasad Yadav, the in formant, gave their statements that after receiving first shot when the injured Rajendra Yadav fell down Ahir Nut fired second shot at him which hit in between his right side of stomach and chest. P.W. 9, Dr. Ashok Kumar Chaudhary, who conducted post-mortem examination on the dead body of the deceased, Rajendra Yadav, found injuries of entry on four different parts of the body of the deceased caused by fire-arms. At the time of the preparation of the inquest report (Ext. No. 7), The I.O. Baleshwar Singh, P.W. 10, also found injuries on four different parts of the body of the deceased. The I.O., Baleshwar Singh PW-10 has specifically deposed that none of the eye-witnesses to the occurrence, P.W. 1, Bali Ram Yadav, P.W. 2, Ram Jatan Yadav, P.W. 3, Mahendra Yadav and P.W. 4, Birendra Prasad Yadav, the informant, had disclosed before him about the second firing by the accused Ahir Nat. The informant, Birendra Prasad Yadav, P.W. 4, has categorically admitted at para 39 of his cross-examination that he had not disclosed in his written statement about firing of second shot by the accused, Ahir Nat.

Thus, the prosecution has failed to establish that the injuries found on the dead body of the deceased Rajendra Yadav, were caused by the accused-appellant, Ahir Nat. In this context I refer the case of Lakhiram Murmuv, State of Bihar, reported in 1971 PLJR 114 wherein it has been held that "accused is entitled to benefit of doubt where evidence on record does not establish that none else other than the accused inflicted the injuries on the deceased."

The discrepancies and circumstances, pointed out above, touch the core of the prosecution version and shake the evidence of the eye-witnesses to the occurrence. It lends assurance to the false implication of the accused persons in this case, due to pending admitted litigation in between them.

For all the reasons, a reasonable suspicion arises in respect of manner of occurrence as stated by the prosecution. Accordingly, the appellants are entitled to gat benefit of doubt.

In the result, both the appeals are allowed. The order of conviction and sentence passed against the appellants is set aside. The appellant, Amar Nat, is on bail, so he is discharged from the liability of his bail bonds. The appellants, Ahir Nat and Ram Prasad Nat are in custody, So they are directed to be released forthwith if not required in any other case.

M.L. Visa, J.

I agree.