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Judgment
The sole appellant has been convicted under sections 302,
447 and 323 of the Indian Penal Code (herein after referred to as
''the IPC ''), and under section 27 of the Arms Act by judgment of
conviction, dated 13.7.2011, passed by the learned Additional
Sessions Judge-II, Danapur, district Patna in Sessions Trial No.
507/2009/ 616/2009, arising out of Bihta Police station Case No.
276 of 2008, dated 19.11.2008. For the offence under section 302
IPC, the appellant has been sentenced to RI for life along with a fine
of Rs.10,000/- and in default of payment of fine to undergo further
SI for one year. For the offence under section 27 of the Arms Act,
the appellant has been sentenced to RI for 3 years. For the offence
under sections 323 and 447 IPC, the appellant has been sentenced to
1 year SI and 3 months SI respectively. All the sentences have been
directed to run concurrently.
The prosecution case, as set out in the fard beyan of
informant Sanjay Yadav s/o Sri Ram Peyare Yadav, village Bindaul
Police Station Bhita, District Patna, recorded by S.I. D. Kumar,
Station House Officer, Bihta on 19.11.2008 at Referal Hospital,
Bihta at 8.30 PM, in short is as follows:-
The informant (deceased) stated that on 19.11.2008 at
about 7 PM, he was sitting in his house situated in village Bindaul.
In the meantime, the appellant Kameshwar Yadav, aged 30 years,
came to his house and started abusing him. He asserted that his field
shoud too be ploughed on credit, as being done in case of others.
Meanwhile, informant''s father Sri Ram Peyare Yadav came out of
the house and asked the informant as to why Kamlesh Yadav is
hurling abuses. At the same time, Ram Peyare Yadav moved
towards Kamlesh Yadav who began to assault him (Ram Peyare
Yadav) with lathi. When informant tried to catch Kamlesh Yadav,
the latter took out pistol from his waist and fired at him, hitting his
lower abdomen. Consequently, he slumped on the ground. On
hearing sound of firing, his family members including his brother
and others arrived there and on seeing them Kamlesh Yadav fled
away.
The informant stated that some days back he bought a
tractor and used to do agriculture work of others as well on rent. The
appellant wanted to use his tractor free of cost to which he did not
accede. Because of refusal to plough his field, Kamlesh Yadav came
in drunken state to his house and abused and assaulted his father
with lathi, and on protest, fired at him (informant) causing injury on
his lower abdomen.
On basis of fard beyan, Bihta P.S.case no.376 of 2008
dated 19.11.2008 under sections 447, 323, 326 and 307 IPC and
under section 27 of the Arms Act was registered. After death of
informant, section 302 IPC was added to the FIR on 28.11.2008.
The prosecution, in support of its case, examined
altogether 8 witnesses. Out of these 8 witnesses, PW 1 Raj Kishore
Yadav and PW 2 Ashok Kumar Yadav, both are brothers of the
informant/deceased (Sanjay Yadav). PW 3 Ray Peyare Yadav is the
father of the informant/deceased. PW 4 Ram Niwas Yadav and PW
5 Nawal Kishore Yadav, both cousins of the deceased. PW 6 (S.I.
Shri Birendra Singh) is the Investigating officer of the case. PW 7
(Dr. Ramesh Prasad Singh) examined the informant/injured at the
Referral Hospital, Bihta. PW 8 (Dr Arvind Kumar Singh),
conducted post mortem at 11 AM at PMCH and found "one
transverse stitch wound over left lower abdomen 2" away from
midline, ''" long. Time elapsed since death was six to eighteen
hours. Cause of death has been stated to be internal haemorrhage
and shock.
PW 1 Raj Kishore Yadav is the brother of the deceased.
He stated that the occurrence took place on 19.11.2008 at about 7
PM. At that time, he was sitting with his father and brother at his
Dalan. Meanwhile, appellant Kamlesh Yadav, armed with lathi,
reached and started abusing his father. On protest, he assaulted him
with lathi and began to flee. When his younger brother (the
deceased) tried to catch him, he took out pistol from his waist and
fired upon his brother Sanjay Yadav hitting left side of his Naabhi.
He further stated that Sanjay was taken to the Referal Hospital,
Bihta where the police came and recorded his fard beyan. His
brother was referred to the PMCH, Patna, where he died the same
day at 10 PM. In the cross-examination, this witness stated that the
appellant hurled 4/5 lathi blows at this father. He stated that he did
not lodge any separate case for the assault on his father. He stated
that his father too was treated at PMCH, Patna but there is no paper
or document in this regard on the record. In his further cross
examination, he stated that the appellant fired at his brother at the
place which was 300 yards north to his house and it was near the
house of Daroga Yadav. He stated that there is house of Durga
Yadav in the north, and in the south, a piece of land of Dagi Ram.
House of Lakhan Yadav was situated on the east and there is a road
on the west of the house. He stated that he heard the firing sound
from his house and within 2 minutes he reached at the spot. At that
time the accused had fled and 2/3 minutes later other people
including Sunil Yadav Durga Yadav, both not examined, reached
the spot. According to him, he is not the eye witness to the
occurrence and other witnesses too reached there after 2/3 minutes.
The house of Kamlesh Yadav, the appellant is situated 400 meters
away from his house.
PW 2 Ashok Kumar Yadav is another brother of the
informant/deceased (Sanjay Yadav). He stated that the occurrence
took place on 19.11.2008 at 7 P.M. At the relevant time, he was at
the house. On hearing firing sound, he too reached the place from
his house and saw Kamlesh running towards north brandishing his
pistol. He stated that his brother was lying injured in the field of
Lakhan Yadav and he had sustained fire arm injury in his stomach.
He further stated that Sanjay Yadav disclosed that Kamlesh Yadav
had fired at him with an intention to kill. Thereafter, Sanjay Yadav
was taken to the hospital with the help of his father Ram Peyare
Yadav (PW 3) and his brother Nawal Kishore Yadav (PW 5) to the
Referal Hospital, Bihta, where the doctor referred him to the
PMCH, Patna. He died in the PMCH during treatment. He learnt
from his brother and father that Kamlesh Yadav had come to his
house and entered into altercation with his brother Sanjay Yadav
and on protest he assaulted his father Ram Peyare Yadav. He further
learnt that when his brother tried to catch Kamlesh Yadav, the latter
ran some distance whereafter he turned and fired at his brother from
the vacant field of Lakhan Yadav.
From the evidence of this witness, it would appear that he
is an eye witness to the occurrence, and was at the house, when the
incident took place. He stated that on hearing firing sound, he ran
towards the spot and saw Kamlesh Yadav running in east direction.
He was having a pistol in his hand. He also saw his brother Sanjay
Yadav lying in the vacant field with fire arm injury in his abdomen.
PW 3 Ram Peyare Yadav is the father of the deceased. He
stated that the occurrence took place on 19.8.2008 and at the
relevant time he was sitting in his Dalan with his two sons Nawal
Kishore Yadav and Raj Kishore Yadav. In the meantime, Kamlesh
Yadav came and started abusing his son Sanjay Yadav and on
protest he too was assaulted with lathi on his shoulder. Kamlesh
Yadav then began to flee towards north side and Sanjay Yadav ran
after him. PW 5 also chased Kamlesh Yadav. However, Kamlesh
Yadav turned around on reaching the vacant field of Lakhan Yadav,
and took out a pistol from his waist and fired at his son causing
injury in his lower abdomen. He thereafter fled in the east direction
brandishing his pistol. PW 5 Nawal Yadav immediately came and
saw Sanjay Yadav lying injured in the field. PW 1 Raj Kishore
Yadav also reached the spot. PW 3 also arrived at the place of
occurrence and with the help of villagers, Sanjay Yadav was taken
to the Bihta Hospital. During treatment, police came and took the
statement of Sanjay Yadav followed by his signature. PW 5 Nawal
Yadav also signed the fard beyan. Thereafter, doctors referred him
to the PMCH. However, Sanjay Yadav died during treatment in the
PMCH.
This witness (PW 3) stated that at the time of
occurrence he was sitting at the Dalan of his house along with his
son Nawal Yadav (PW 5) and Raj Kishore Yadav (PW 1). In the
meantime, Kamlesh Yadav came and started abusing him. On the
contrary, I.O. (PW 6 Birendra Singh) in paragraph 6 of the cross-
examination, contradicted that the informant made any such
statement before him under section 161 Cr.P.C. As such, this
witness has made the aforesaid statement for the first time in the
court and in that view of the matter we do not hold him fully
reliable.
PW 4 Ram Niwash Yadav, is one of the uncles of the
deceased. He stated that the occurrence took place on 19.11.2008 at
about 7 PM, when he was sitting on the Dalan of PW 3 Ram Peyrae
Yadav. In the meantime, Kamlesh Yadav armed with lathi, came and
abused PW 3. He also gave him 2/3 lathi blows. Thereafter,
informant/deceased Sanjay Yadav came and indulged in fight with
Kamlesh Yadav. Appellant Kamlesh Yadav ran towards the field of
Lakhan Yadav. This witness further stated that he along with others
chased the appellant. Meanwhile, the latter fired from his pistol on
Sanjay Yadav, hitting his lower abdomen. He took Sanjay Yadav to
the Bihta Referal Hospital along with others, where police took his
statement and referred, him to the PMCH for treatment. Informant
(Sanjay Yadav) however died in the PMCH the same day at 10
PM.He stated that the place of occurrence was 300 yards away from
the Dalan of the deceased, where they were sitting. He further stated
that he did not see the person who fired on the deceased at the place
of occurrence. He stated that the deceased was not in a position to
speak. Thereafter, he was rushed to the Bihta Referal Hospital from
where he was carried to the PMCH, where he died.
From the evidence of this witness (PW 4), it appears
that he too has not seen the occurrence and secondly the victim was
not in a position to say anything in the field as well as to make
statement before the police in the Bihta Referal Hospital. Moreover,
he was carried to the PMCH, but he died there at 10 PM same night,
which creates a doubt, whether he was in a position to record his
fard beyan in the Bihta Referal Hospital at 8 PM.
PW 5 Nand Kishore Yadav is another cousin of the
deceased. He stated that he was present in the house of his uncle. In
the meantime, at 7 PM he heard some one hurling abuse. He saw
Kamlesh Yadav abusing his uncle Sanjay Yadav, whereupon PW 3
Ram Peyrae Yadav came and protested. This witness also followed
him. Kamlesh Yadav hurled 2/3 lathi blows on PW 3. On this,
informant/deceased Sanjay Yadav tried to catch Kamlesh Yadav who
was fleeing towards north. When Kamlesh Yadav reached the field
of Lakhan Yadav, he took out a pistol from his waist and fired at
Sanjay Yadav which hit on his lower abdomen. He fell in the field of
Lakhan Yadav and Kamlesh Yadav fled away brandishing his pistol.
It appears that this witness is also not an eye witness to the actual
firing.
PW 7 Dr. Ramesh Prasad Singh, who first examined
the deceased, was posted at Referal Hospital, Bihta as Medical
officer. He stated that at 8.30 PM, he examined Sanjay Yadav and
found gun shot injury 2" x 2" on left side of lower abdomen. He
further stated that he has not mentioned in the report, whether the
injured was in a position to speak or not.
PW 6 Birendra Singh is the IO of the case. He stated
that on 19.11.2008, he was posted at Bihta Police Station. He stated
that at the relevant day, Dhananjay Kumar, the Officer in charge of
the Bihta Police Station recorded the fard beyan of the
informant/deceased. He proved the fard beyan as ex 2. he stated that
he took over the investigation on 19.11.2008 at 9 PM. he further
stated that after taking over the investigation, he went at Referal
Hospital, Bihta. However, he was informed that the injured was
referred to the PMCH for better treatment. Thereafter, he went to the
place of occurrence and recorded the statement of Ashok Kumar
Yadav (PW 2), Ramdhari Yadav (not examined), Raj Kumar Yadav
(PW 1) and Ram Niwas Yadav (PW 4) and inspected the place of
occurrence which is the field of Lakhan Yadav, 300 yards away from
the house of the informant. In the cross- examination, he stated that
that the FIR was lodged on 19.11.2008, whereas it was sent to the
office of the ACJM, Danapur on 25.11.2008.
It appears from the evidence of this witness that the
fard beyan was recorded by one Dhananjay Kumar, officer-in-charge
of the Bihta Police Station , who has not been examined by the
prosecution side. Though the FIR was instituted on 19.11.2008 on
basis of statement of informant/deceased the same was sent to the
CJM court belatedly after six days on 25.11.2008 for which there is
no explanation.
From the critical analysis of the witnesses, it is evident
that PW 1 Raj Kishore Yadav, PW 2 Ashok Kumar Yadav, PW 4
Ram Niwas Yadav and PW 5 Nawal Kishore Yadav, who all are
family members of the informant/deceased, are not the eye witness to
the actual commission of the firing alleged to be made by the
appellant. Furthermore, Dhananjay Kumar Officer-in-charge of Bihta
Police Station who recorded the fard beyan of the informant Sanjay
Yadav, has not been examined, which could have thrown some light
whether in view of nature of his injury the injured was in a position
to make his fard beyan as PW 4 in his deposition stated that the
informant was not in a position to speak at all. This creates a doubt
about the authenticity of the fard beyan of the informant. Besides
this, there is a delay of six days in sending the FIR to the concerned
court for which no explanation has been provided by the prosecution,
which also creates a serious doubt regarding the authenticity of
institution of the fard beyan.
Situated thus, and in view of foregoing discussions, we
find that the prosecution has not been able to prove the case beyond
all reasonable doubt. The judgment of conviction and order of
sentence, passed against the appellant, is set aside and he is directed
to be set at liberty forthwith, if not wanted in any other case.
The appeal is allowed.