Pappu Yadav, Son Of Jodha Yadav vs The State Of Bihar

In all 10 appellants viz. Balmiki Yadav, Manoj Yadav,

Subelal Yadav (appellants in Cr. Appeal (DB) No. 989 of 2013),

Pappu Yadav (appellant in Cr. Appeal (DB) No. 892 of 2013),

Ravindra Yadav, Mahesh Yadav, Bhuneshwar Yadav, Dani Yadav

and Surendra Yadav (appellants in Cr. Appeal (DB) No. 933 of 2013)

and Shyamdeo Yadav (appellant in Cr. Appeal (DB) No. 1011 of

2013) have filed the present set of appeals aggrieved by the judgment

of conviction and order of sentence dated 30.08.2013 passed by

learned Additional Sessions Judge, Sheikhpura in S.T. No. 659 of

2009 (arising out of Sheikhpura P.S. Case No. 237 of 2005) whereby

the appellants were held guilty under Sections 302 / 149, 147 and 148

of Indian Penal Code and sentenced to undergo R.I. for life, R.I. for

01 year and R.I. for 02 years respectively. Each appellant was also

imposed a fine of Rs. 5,000/- and in default thereof to further undergo

S.I. for one year.

As the submissions have been made with reference to the

serial numbers at which the accused(s) stand in the impugned

judgment, we propose to deal with them accordingly. Hereinafter

accused Balmiki Yadav shall be referred as A/1, Manoj Yadav as A/2,

Subelal Yadav as A/3, Ravindra Yadav as A/4, Pappu Yadav as A/5,

Mahesh Yadav as A/6, Shyamdeo Yadav as A/7, Bhuneshwar Yadav

as A/8, Dani Yadav as A/9 and Surendra Yadav as A/10 respectively.

The prosecution case, as unfolded in the fardbeyan

(Ext.3) lodged by Rajaram Yadav (P.W.-6) on 02.09.2005 at 15.00

hours recorded by the Sub-Inspector of Police, Sheikhpura Sri

Brahmdeo Tiwary at Sub-Divisional Hospital, Sheikhpura, in brief, is

that on 02.09.2005 at about 8.30 in the morning, the informant along

with his brother Sheo Balak Yadav (deceased) proceeded from their

village to Barbigha where a cattle fair was organized to purchase

buffalo. At about 9 o''clock, as they reached near a culvert close to

tatti bridge, all of a sudden A/1, A/2 and A/3 who were hiding

themselves beneath the culvert, appeared armed with iron rod and

started assaulting the victim. In the meanwhile, A/7 appeared, armed

with dagger, and started assaulting the victim and thereafter snatched

the cash amount carried by him. In the meanwhile, remaining other

appellants arrived there, armed with dagger, (knife) and started

assaulting him. The accused persons also chased the informant to

assault whereafter he ran to save him and also raised alarm which

attracted P.W.-5 (Haro Yadav), P.W.-3 (Dinesh Yadav), Krishna

Yadav (not examined), Baleshwar Yadav (P.W.-1) and Shanker

Yadav (P.W.-4) who ran towards the place of occurrence whereafter

the accused persons left assaulting the victim and escaped. With the

help of witnesses and co-villagers, the injured was carried to the clinic

of Dr. Purushottam where first aid was given and thereafter they

carried the injured to the Sub-Divisional Hospital, Sheikhpura where,

in course of treatment, he died. The motive for the assault was alleged

as previous animosity between the parties. The F.I.R. was lodged

wherein P.W.-1 also put his signature and the informant affixed his

L.T.I. As the victim had died, the death inquest proceeding was

carried out at the hospital itself on 02.09.2005 at 4.45 p.m. on which

P.W.-1 and Krishna Yadav (not examined) put their signatures. The

body was sent for post mortem examination. P.W.-11 Dr. Arun

Kumar Sinha, who was then posted at the Sadar Hospital, conducted

the autopsy on 03.09.2005 at 8.20 a.m. and submitted the post-mortem

report (Ext.-2). The I.O. recorded the statement of the witnesses and,

on finding the accusations true submitted charge-sheet against A/4 to

A/10. A/1 to A/3 were not sent up for trial as the police found

substance in their plea of alibi. Cognizance was taken on 23.06.2006

and the case was committed to the Court of Sessions for trial. A

criminal revision was preferred by the informant against the order

taking cognizance and on the basis of the observations made therein,

the learned Chief Judicial Magistrate later took cognizance on

17.06.2008 against A/1 to A/3. The case was then committed to the

Court of Sessions on 11.09.2009. On transfer, the same came on the

file of learned Trial Judge where charges were framed and read over

to the appellants to which they pleaded not guilty. The defence of the

appellants is complete denial of their involvement and false

implication due to previous animosity. A/1 to A/3, however, put up a

specific defence that on the alleged date and time of occurrence, they

were not present at Sheikhpura.

In order to bring home the charges, the prosecution, out

of 32 named witnesses in the charge-sheet, examined 13 prosecution

witnesses. We would classify those witnesses. P.W.-1 Baleshwar

Yadav, P.W.-3 Dinesh Yadav, P.W.-4 Shankar Yadav, P.W.-5 Haro

Yadav and P.W.-6 Rajaram Yadav (informant) have projected

themselves as eye witnesses to the occurrence whereas the other

witnesses have proved the attending facts and circumstances of the

case. P.W.-11 Dr. A.K.Thakur is the autopsy surgeon and has proved

the post mortem report as Ext.-2. P.W.-12 B. Tiwary and P.W.-13

Sahdeo Thakur are the two Investigating Officers of the case. Out of

whom P.W.-13 is a formal witness who after taking over the

investigation had only submitted the charge-sheet. However, P.W.-2

Sadal Yadav and P.W.-10 Shanti Devi were declared hostile by the

prosecution. The defence also adduced oral evidence and examined

Dr. S.K. Chaudhary (D.W.-1) on the point of alibi of A/1 and

Sheoshankar Prasad Singh (D.W.-2) on the point of report of Survey

Knowing Pleader Commissioner. They also produced Ext.-A, Ext.-B,

B/1 and Ext.-C to C/2 which are the prescriptions, report of the

Pleader Commissioner, map and khatiyan respectively. Learned Trial

Court, on the strength of evidence adduced by the prosecution, held

the appellants guilty and sentenced them in the manner noted above.

We have heard Mr. Surendra Singh, Senior Advocate

and Mr. Akhileshwar Prasad Singh, Senior Advocate in support of Cr.

Appeal (DB) No. 989 of 2013, Mr. Amit Sharma in support of Cr.

Appeal (DB) Nos. 933 of 2013 and 1011 of 2013, Mr. Ajay Kumar

Thakur in support of Cr. Appeal (DB) No. 892 of 2013, as also Mr.

Vikramdeo Singh, Counsel for the informant and Mr. Satya Narayan

Prasad, APP for the State.

Mr. Surendra Singh, while criticizing the impugned

judgment of the Trial Court, has submitted that there are sharp

contradictions in the evidence led by the prosecution. The witnesses

produced as eye witnesses are highly interested. The ocular evidence

suffers from inner contradictions besides being partisan. There is a

concerted effort of the eye witnesses to modulate their evidence in

Court to align their version with the findings of the autopsy surgeon.

On going through between the lines of their evidence, it would appear

that actually none of them had witnessed the occurrence. P.Ws.-7 and

9 produced by the prosecution give full credence to the defence put up

by A/1 to A/3 that they were not present at Sheikhpura on the relevant

date and time of occurrence. These two witnesses have not been

declared hostile by the prosecution, their evidence should not be

sidelined. Even without adverting to the evidence adduced by the

defence, their claim of alibi stand proved through their evidence. In

the F.I.R., the informant has said about assault on the victim by as

many as 10 accuseds at the place close to culvert whereas in course of

evidence, many of the witnesses have stated about two places of

occurrence when they claimed that upon receiving assault at the hands

of the A/1 to A/3, the other 07 accused persons appeared and took the

victim to the river side where he was assaulted with knife. The

objective finding of the I.O. also does not support the prosecution case

as projected by the prosecution as no blood stain was found by him in

course of inspection of the place of occurrence. On the basis of the

evidence of these highly interested witnesses, the conviction of the

appellants would not be sustained. The reason behind the false

implication is that earlier A/1 had deposed against the informant and

other witnesses of the case.

Mr. Amit Sharma, who has appeared in two cognate

appeals, while adopting the submissions advanced by Mr. Singh, has

added that the animosity being the reason for the occurrence would

not hold good as it was A/7 who had lodged the case against the

informant, the victim and P.W.-1 in which, on trial, they were

convicted. He next submits that the allegation of having caused injury

by knife, in all probability, ought to have caused penetrating wound

and the blood oozed out. The doctor did not find any such injury on

the person of the deceased having blood stains. Except one injury on

the frontal part of the head, all other injuries sustained by the deceased

were superficial/simple in nature. Referring to the prosecution

evidence, he has also supported the contention of Mr. Singh that both

parties suffer from groupism and factionalism calling for a deeper

scrutiny of their evidence by Court. In course of trial, the prosecution

has developed the case to align it with the medical evidence. Such

improvement, in the setting of facts, should be considered as material

contradictions and not a minor discrepancy. After placing the

evidence of the ocular witness, it has been submitted that they had not

actually seen the occurrence as the informant himself has stated that

after the assault inflicted on the victim, the accused also chased him

whereafter he ran away from the place of occurrence and raised

cry/alarm for about 10 minutes which attracted the other witnesses.

Mr. Thakur, in his turn, also severely criticized the

findings recorded by the learned Trial Court. He would submit that it

is a case where the C.D. statement of some of the P.Ws. were never

recorded by the I.O. They have, thus, stated for the first time about the

prosecution case in Court. In particular, he drew our attention to the

findings recorded by the doctor (P.W.-11) as also his evidence in

order to submit that the same does not support the prosecution case

and shifts the time of occurrence to early morning and not at 8.30 or 9

p.m. as stated by the prosecution. Lastly, he would submit that even if

the evidence adduced by the prosecution, on scrutiny, is accepted by

the Court, the conviction of the appellants under Section 302 IPC

would not be maintainable.

Mr. Vikram Deo Singh appearing for the informant and

Mr. S.N. Prasad, APP for the State, on the other hand, supported the

impugned judgment. It is urged that the evidence of the D.Ws. do not

prove the alibi of A/1 to A/3. In this connection, they drew our

attention to para 32 of the judgment. It is further submitted that almost

all P.Ws. were immediately examined by the I.O. who recorded their

C.D. statement. According to the prosecution, the informant along

with his brother left home in the morning to go to Barbigha. As soon

as they reached near the culvert near tatti bridge, A/1 to A/3, who

were hiding themselves under the culvert, appeared and assaulted the

victim with the iron rod with which they were armed. In the

fardbeyan, the informant alleged that the assault was made by iron

rod. In course of deposition, it is stated that the iron rod had sharp

edges. The other set of accuseds thereafter appeared, armed with

knives, picked up the injureds and took to nearby river side where he

was assaulted with knife by all of them. It has been argued that the

informant has made improvement in the prosecution case in Court as

the doctor (P.W.-11) found incised injury on the right side of frontal

bone with fracture. Another injury over left eye brow was also found

incised. The rest of the injuries on the person of the deceased were

also incised wounds.

9A. As much emphasis has been placed on the aforesaid

findings of the doctor in order to submit that the same does not support the

prosecution case, we propose to first consider this aspect of the matter. The

injury was sustained on the frontal part of the skull. In (2004) 7 SCC 408

Dashrath Singh vs. The State of U.P., the Hon ''ble Apex Court noticed

Modi''s Medical Jurisprudence & Toxicology wherein it has been explained

(at page P.342) that occasionally, an injury caused by blunt weapon or by a

fall, the skin splits and may look like incised wounds when inflicted on

tense structures covering the bones, such as scalp, eyebrow, iliac crest, skin,

perineum etc. The report further clarifies at P.404 that scalp wound by a

blunt weapon may resemble an incised wound. Placing reliance on the

above, the Hon''ble Apex Court negated the submission that the

injuries found on the occipital region would not have been caused by

a lathi or stick. Precisely, similar is the case here. We, therefore, do

not find much substance in the said submission. The doctor (P.W.-11)

has stated that the injuries found on the dead body was caused by

sharp cutting weapon. However, in paragraph 2, he has stated that

these injuries could not have been caused by the hard blunt substance.

We do not find from his evidence that the opinion expressed by him

was based on scientific analysis of the injuries. The Courts have

consistently negated such submission in view of the observations

made on this point by the Modi''s Medical Jurisprudence &

Toxicology. To further strengthen our view on this point, reliance is

placed on paragraphs 14 and 15 of the case of Anil Vs. State of

Maharasta (2014) 4 SCC 69.

The contention of the appellants is that the relevant

evidence adduced by the prosecution indicates factionalism/groupism

between the prosecution and the defence. Our attention in this regard

has been drawn to the evidence of P.W.-1 at paragraph 4, P.W.-4

Shankar Yadav at paragraph 4, the informant (P.W.-5) at paragraph-3

and 16. It has been urged that in the aforesaid background, the

testimony of the eye witnesses would require deeper scrutiny. It has

been urged on behalf of the appellants that the Court should keep in

mind that the prosecution case of assault by three accuseds on the

victim by iron rod and thereafter by all accuseds by knife near the river bed side but only 07 injuries were found out of which only one

was grievous injury. The aforesaid objective findings of the doctor

shake the prosecution case. Before we consider those criticism(s), it is

apt to briefly notice the relevant evidence produced by the

prosecution. P.W.-5 has stated that on the relevant date, he, along with

the deceased, had left the home in the morning without taking food.

As soon as they reached near the culvert, A/1 to A/3 appeared, armed

with sharpen iron rod, whereafter A/1 assaulted the deceased on his

forehead whereas A/2 assaulted on his left shoulder and A/3 assaulted

over his left eye brow. The victim fell on the ground whereafter the

rest of the appellants caught hold of him and dragged him to the river

bed side where he was assaulted by knife. What we find from his

examination-in-chief that the allegation has been embellished. He has

imputed some more allegation on A/1 to A/3 that they were catching

hold of the victim when the victim was assaulted by the other seven

accuseds. In paragraph 7, he has stated that when he first saw the

victim, he was falling flat on the ground having received 7 or 8

injuries. The assault continued for 5-6 minutes. Seeing the assault, he

fled away from the place of occurrence and started raising cry and

raised cry for 10 minutes which attracted the witnesses and the P.Ws.

arrived. Our attention has been drawn to the relevant omission in his

statement made before the I.O. where material aspect of the

prosecution case was not disclosed by him.

We would now examine the testimony of P.W.-1, who

is own uncle of the informant and a witness to the recording of the

F.I.R. Paragraphs 4 and 5 of his depositions spells out the inter se

relation between the informant and witnesses as also provides the

backdrop of inner disputes between the parties. One of the accuseds

namely Surendra Yadav (A/10) had filed a case against him, the

informant and the deceased in which they were convicted. In this case

A/8 had deposed against them (P.W.-1 para 5). The said case is

pending in appeal before the Appellate Court. He himself in paragraph

6 has stated that upon hearing the alarm raised by the informant, he

reached the place of occurrence. We have already noticed the

sequence of events narrated by the informant. P.W.-4 is the nephew of

P.W.-1 Baleshwar Yadav. If we contrast his evidence at paragraph 11

with the testimony of P.W.-2 at paragraph 6, we find a sharp

contradiction. P.W.-3 at paragraph 6 has stated that he reached the

place of occurrence but did not make effort to intervene in the assault

whereas P.W.-4 in paragraph 11 has categorically stated that he along

with other P.Ws. reached at the place of occurrence including P.W.-3

and Krishna Yadav (not examined), Haro Yadav (P.W.-5), Dinesh

Yadav (P.W.-3) and Baleshwar Yadav (P.W.-1) and had intervened

when the assault was being perpetrated on the deceased. Almost all

the prosecution witnesses have been suggested of deposing falsely in

the case on account of previous animosity which they, however, have

denied. P.W.-5 Haro Yadav has sharply contradicted P.W.-4. He has

candidly stated that he had not assembled at the place of occurrence

and had actually witnessed the occurrence from a distance. He, too,

has stated that he never tried to come to rescue of the informant and

the victim. We have already seen from the evidence of P.W.-4 (at

paragraph 11) that this P.W. was also stated as one amongst few

witnesses who had tried to intervene and pacify the matter. The P.W.-

4 has gone to the extent of asserting that he was the first who reached

the place of occurrence. If he was the first then his further statement

(para 11 at page 52 of the brief) is that when he reached the place of

occurrence, he saw the victim lying on the ground in an injured

condition. We also find a material difference in the evidence of the

prosecution. P.Ws.-1, 4, 5 and 6 state about two places of occurrence;

at one place, the victim was assaulted by A/1 to A/3. Thereafter,

emergence of the rest of the 07 appellants and dragging or lifting the

victim to the river bed side and then assault by knife by all. P.W.-3

has a different story to tell. According to his examination-in-chief, all

the 10 accused persons were hiding beneath the culvert and appeared

together and assaulted. He does not say about subsequent emergence

of the 07 appellants, lifting of the victim by them to the river bed side

and then assault by knife by them. We may, at this stage, highlight

that the case of the informant in the fardbeyan is also that the victim

was assaulted at one place firstly by A/1 to A/3 and thereafter by rest

of the appellants by knife on the same place. We would also note here

that P.Ws.-1, 3 and 6 had not disclosed in their C.D. statement before

the I.O. (P.W.-12) about the weapons with which the accused were

armed and assaulted. If that be the case then assignment of weapons to

accuseds by prosecution witness is apparently an improvement in the

prosecution case in the light of the objective finding of the doctor

(P.W.-11).

Having narrated the basic contradictions in the evidence

of the prosecution, it is noticed that they are related inter se and form

a faction or group. In the case of Budhwa vs. State of M.P . (AIR

1991 SC 4) on which reliance is placed by the appellants, it has been

held that it is an accepted proposition that in the case of group

rivalries and animosities, there is general tendency to rope in as many

as persons as possible having participated in the assault. The Courts

have, therefore, to be very careful in appraising their evidence. If

upon a close scrutiny of the evidence, a reasonable doubt arises with

regard to participation of any of those who have been roped in, the

Court would be obliged to give benefit of doubt.

We turn again to the objective finding of the doctor

(P.W.-11) which assumes significance. The informant has candidly

stated that in the morning, he and the deceased left home without

taking any food. It was about 8.30 a.m. in the morning. The time of

occurrence is around 9 a.m. The autopsy surgeon found semi-digested

food in the stomach of the victim. On analyzing his findings, he has

further stated that the deceased might have been done to death within

36 hours. He held the post mortem on the following day at 8.20 a.m.

If any credence is given to his objective finding then the time of

occurrence definitely shifts atleast by 4-5 hours prior to the time of

occurrence as suggested by the prosecution which also fits in his

finding that the semi-digested food was found in his abdomen. The

doctor has further testified that injury found on the person of the

deceased caused by sharp cutting/penetrating weapon shall have

stains of blood unless they are washed. His objective finding(s) is that

the injuries found on his person had no blood stains or clotting. He did

not find the wounds having been given first aid. Quite contrary, P.W.-

6 (informant) in his examination-in-chief stated that first aid/bandage

was given to the wounds at the clinic of Dr. Puroshottam before

taking the victim to Sheikhpura Government Hospital where in course

of treatment, he died. On an overall conspectus of the evidence of

P.Ws., it is brightly surfaced that P.W.-1 being the uncle of the

informant had direct animosity with many of the accuseds. He is also

a witness of recording of the fardbeyan. In this context, it is seen from

the evidence of the informant at para 10 that the I.O. interrogated him

(P.W.-1) first and recorded his statement whereon signature of P.W.-1

was first taken and thereafter the informant, too, affixed his L.T.I.. P.W.-

1, therefore, was the true mentor of the fardbeyan. He was guiding the

prosecution case since its inception.

There is another relevant aspect which creates doubt in

our mind. If the prosecution case is accepted, the victim was first

assaulted by iron rod by A/1 to A/3 and thereafter by all the 10

accuseds with knife. The doctor found only 07 injuries. All of them

were simple in nature except one caused on the frontal bone. If all the

ten accuseds had assaulted, as the prosecution goes, then atleast 10

injuries must be present on the person of the victim. In the simplest

words, it can be said that atleast 02 of them had not touched the body

of the deceased. This creates a doubt on the prosecution case.

P.Ws.-1, 3, 4, 5 and 6 have modulated their evidence at

the trial. In the case of Badri vs. State of Rajasthan [A.I.R. 1976 SC

560] at paragraph 18, the Hon''ble Apex Court, considering the facts

which are akin to the present case, held that if the informant or the

witnesses are found modulating his/their evidence, the Court should

discredit their evidence. In the case at hand, as we have already

noticed, the prosecution evidence suffers from vital omissions which

are vital contradictions. Many relevant aspects of the prosecution case

were, in fact, not stated by these P.Ws. before the I.O. The objective

finding of the I.O. is that no blood stain mark was found either at the

first place of occurrence or the second place of occurrence. If the

victim had suffered injuries of the kind as found by the doctor, non-

presence of the blood stain marks at any of the two places of

occurrence would throw a dense cloud on the prosecution case,

particularly, when many of the witnesses have stated about dropping

of blood at the place of occurrence.

We have, thus, several reasons, as discussed above, to

doubt the prosecution case as presented at the trial through P.Ws. 1 to

At the cost of repetition, we would again note here that if the

evidence of the informant (P.W.-6) is to be believed then he had fled

away from the place of occurrence on seeing that the accused

attempted to assault him and raised alarm for about 10 minutes which

attracted the witnesses. According to him, the occurrence was

committed within 5-6 minutes. Obviously, when the witnesses

arrived, the assault was complete. Many eye witnesses have claimed

that when they reached the place of occurrence, they could see the

victim lying injured on the ground. The doctor (P.W.-11) has different

story to narrate. He found semi-digested food in the stomach. The

informant has stated that both of them (he himself and the victim) had

left home without taking food. The estimated time of death as opined

by the doctor does not fit in the prosecution case.

Apart from what discussed above, there is yet another

circumstance which throw dust on the prosecution case instead of

galvanizing the guilt. It has been pointed out to us from para 12 of the

deposition of the I.O. (P.W.-12) that a joint C.D. statement of P.W.-1

and Krishna Yadav (not examined) was recorded by him on

05.09.2005 as they had earlier not turned up before him. It has been

urged that there is no such concept under law of recording joint C.D.

statement. In para 12, the I.O. has stated about the omissions in the

statement of P.W.-1 which although minor but in the given facts of

the case add to the series of deficiencies in the prosecution case. To

narrate few more in the evidence in Court, P.W.-9 has stated about the

non-presence of A/1 and A/2 at the place of occurrence supporting

their plea of alibi. The prosecution relies on his evidence as he was

not declared hostile. All these facts distinctly appearing from the

record go to prove that the assault on the victim was not seen by the

informant or the prosecution witnesses. The occurrence was

committed at least several hours before the time as suggested by the

prosecution. The hostility and factionalism between parties further

create a doubt on the prosecution case. All the appellants are said to

have assaulted the victim with iron rod and knife whereas the doctor

found only 07 or 08 injuries. Taking into account the aforesaid facts,

in our view, the prosecution has failed to prove its case beyond

shadow of reasonable doubts. The appellants are entitled to benefit of

doubt.

Resultantly, the present set of appeals is allowed.

The judgment of conviction and order of sentence dated 30.08.2013

passed by learned Additional Sessions Judge, Sheikhpura in S.T. No.

659 of 2009 (arising out of Sheikhpura P.S. Case No. 237 of 2005), is

set aside. The appellants are acquitted of the charges and are directed

to be set at liberty unless wanted in any other case. A/9 Dani Yadav is

on bail. He is discharged from the liabilities of bail bonds.