Naujadik Yadav and Others vs State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment and order dated 16.6.87 passed by 2nd Addl. Sessions Judge, Patna in Sessions Trial No. 201 of 1982 convicting and sentencing all the appellants to undergo imprisonment for life u/s 302 read with Section 149 of the Indian Penal Code (In short, I.P.C.). Appellant Naujadik Yadav has been further convicted and sentenced to undergo R.I. for one year u/s 27 of Arms Act but both the sentences passed against him have, however, been ordered to run concurrently.

The case of prosecution in short is that at village Narauli Mathia, P.S. Paliganj, District Patna a wrestling competition was used to be organised on every Sunday under the management of Bujhawan Yadav (PW 5). On 11.2.79 two wrestlers, namely, Rabindra Mochi of village Narauli Mathia and Pahalwan Rajan Yadav of village Pansari took part in the wrestling. When Rabindra Mochi defeated Pahalwan Rajan Yadav the appellants and their companions ran to assault Rabindra Mochi. When informant Kameshwar Manjhi (deceased) tried to stop the appellants, co-accused Rajdhari Yadav (since dead) ordered to kill the informant on which co-accused Sudheshwar Yadav (since absconding) fired from his pistol at Kameshwar Manjhi and when Kameshwar Manjhi fell down appellants assaulted him with ''lathis''. Co-accused Rajdhari Yadav assaulted Nanhku Manjhi (PW 7) with ''lathi'' causing injury on his head. When Raktu Yadav (PW 6) caught hold of co-accused Sudheshwar Yadav appellant Naujadik Yadav gave him threatening to release Sudheshwar Yadav otherwise he would also be shot dead. Raktu Yadav then released co-accused Sudheshwar Yadav who jumped in a river in order to escape but he was caught on the other side of river by Chandeshwar Mishra (not examined).

After occurrence, informant Kameshwar Manjhi was taken to Paliganj State Dispensary where his fardbeyan (Ext. 3) was recorded by A.S.I. Raj Kishore Chaubey (PW 13) at 10.30 p.m. Informant was thereafter taken to Patna Medical College & Hospital where he on the next day i.e., on 12.2.79 succumbed to injuries. On the basis of fardbeyan (Ext. 3), a case under Sections 324/307/341/34, I.P.C. and Section 27 of the Arms Act was registered against ''sala'' (brother-in-law) of one Jangi Yadav and 4-5 unknown persons of village Pansari because in the fardbeyan the informant had stated that it was ''sala'' of Jangi Yadav who had fired at him by his pistol causing injury on his chest and he did not name the persons who assaulted him and others with ''lathis''. After investigation, the police submitted charge-sheet against all the appellants as well as against co-accused Sudheshwar Yadav, Rajdhari Yadav and Rajan Yadav u/s 148, 149, 302 and 324, I.P.C. After taking cognizance, the case was committed to the Court of Sessions. Co-accused Sudheshwar Yadav absconded and his case was separated. Co-accused Rajdhari Yadav and Rajan Yadav did not appear and from the evidence of PW6, it appears that they both died. Charge under Sections 302/149 and 27 of the Arms Act were framed against all the five appellants who pleaded not guilty. The case of appellants before the trial Court as it appears from the trend of cross-examination of prosecution witnesses is complete denial of their participation in the occurrence and their false implication. After trial, the Court below found all the appellants guilty u/s 302 read with Section, 149, I.P.C. and appellant Naujadik Yadav guilty u/s 27 of Arms Act and, accordingly, convicted and sentenced the appellants as indicated above.

Altogether 13 witnesses have been examined on behalf of prosecution. Bujhawan Yadav (PW 5), Raktu Yadav (PW 6) and Nanhku Manjhi (PW 7) are said to be eye-witnesses to the occurrence. Tapeshwar Manjhi (PW 2), Ravindra Das (PW 4), Kamal Yadav (PW 8), Suraj Deo Singh (PW 11) have not supported the case of prosecution and they have been declared hostile. Awadhesh Yadav (PW 9) and Chander Manjhi (PW 10) are tendered witnesses. Bindeshwar Manjhi (PW 12) is a witness on the inquest report which was prepared by police after taking the charge of dead body. Dr. Rama Shanker Prasad (PW 3) is a formal witness who has proved the post-mortem examination report (Ext. 2) in the pen of Dr. R.B. Choudhary, who, according to him, is dead now. Indradeo Mochi (PW 1) on seeing some persons hurling ''lathis'' fled away from the place of occurrence and had heard the sound of firing and when he came back to the place of occurrence, he saw informant with injuries on his chest and he then along with others took the informant first to police station and then to hospital where fardbeyan of informant was recorded on which he also put his signature (Ext. 1). Raj Kishore Chaubey (PW 13) is the I.O.

Bujhawan Yadav (PW 5), Raktu Yadav (PW 6) and Nanhku Manjhi (PW 7) who are said to be eye-witnesses to the occurrence have said that co-accused Sudheshwar Yadav fired at informant causing injury on his chest. About assault by appellants to deceased informant their evidence is quite contradictory to each other because Bujhawan Yadav (PW5) has said that when informant after receiving fire-arm injuries caused by co-accused Sudheshwar Yadav fell down only appellants Chandeshwar and Kamendra assaulted the informant with ''lathi''. Raktu Yadav (PW 6) has said that co-accused Rajdhari had assaulted Kameshwar with ''lathi'' when Kameshwar fell down after receiving fire-arm injury and nobody else assaulted him with ''lathi'' and Nanhku Manjhi (PW 7) has said that all appellants assaulted Kameshwar with ''lathi'' when he had fallen down after receiving fire-arm injury. Post-mortem examination report (Ext. 2) shows that deceased informant had received pellet injury penetrating the body separately covering an area of 6 round. It does not mention about any other injury much less any injury caused by ''lathi''. It is true that Raj Kisdhore Chaubey (PW 13), who is I.O. of this case, has proved an injury report (Ext. 5) in the pen of Dr. R.P. Singh of deceased informant which apart from fire-arm injury mentions about tenderness over the waist and it is also mentioned that this tenderness was caused by some hard and blunt substance but then neither the doctor who issued this injury report has been examined nor the prosecution has come up with any explanation for his none examination. Besides this, in view of post-mortem examination report (Ext. 2) which is silent about any injury except the fire-arm injury and the specific evidence of Raktu Yadav (PW 6) that none of the appellants caused any injury by ''lathi'' or by any means to deceased informant, it does not support the evidence of PWs 5 and 6 that appellants also assaulted the deceased informant with ''lathis''. There are other contradictions also in the evidence of eye-witnesses such as Bujhawan Yadav (PW 5) has said that Raktu Yadav (PW 6) caught hold of co-accused Sudheshwar Yadav when appellant Naujadik Yadav gave him threatenings by showing a pistol but Raktu Yadav (PW 6) in his evidence has not said that he had caught hold of co-accused Sudheshwar Yadav. Again Nanhku Manjhi (PW 7) has said that he was assaulted by co-accused Rajdhari Yadav by ''lathi'' and received injury on his head and later on eight-stitches were put on that injury but Bujhawan Yadav (PW 5) has said that appellant Dillago Yadav had assaulted Nanhku Manjhi with ''lathi'' on his head. If no adverse inference by these contradictions is drawn against prosecution, I find that from the evidence of PWs 5, 6 and 7, who are said to be eye-witnesses to the occurrence only this much has been established that it was co-accused Sudheshwar Yadav, who fired from his pistol on the informant.

All the appellants have been convicted u/s 302 read with Section 149, I.P.C. It is the own case of prosecution that appellants and others had assembled to see a wrestling competition and the occurrence took place when one wrestler defeated the other wrestler. The Court below has observed that conduct of appellants shows that they had common object to kill Rabindra Mochi and even if co-accused Sudheshwar Yadav alone fired at deceased informant all the appellants who formed an unlawful assembly knew that the offence was likely to be committed in prosecution of the common object. I am unable to accept this finding of the Court below in respect of appellants. It cannot be said that the appellants who were simply viewers of a wrestling competition knew from before that in the wrestling competition a particular wrestler was going to be declared winner and they had made a plan to commit his murder because the evidence on record does no show that any of the appellants caused any injury to the deceased-informant and all the appellants admittedly had gone to see the wrestling competition which had been organised in public. They cannot be said to have formed an unlawful assembly along with main assailant Sudheshwar Yadav with a common object to commit the murder of a wrestler who was declared winner and in that process, the murder of deceased informant who had come to intervene them was committed. I, therefore, find that the conviction of appellants is not warranted in this case.

in the result this appeal is allowed. The judgment and order of Court below convicting and sentencing all the appellants is hereby set aside and the appellants are acquitted. As all the appellants are on bail they are discharged from the liability of their bail-bonds.

Narayan Roy, J.

I agree.