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Friday, October 7, 2016

Section 302 read with Section 149 of the Indian Penal Code and convicted by the trial court, have approached this Court after their conviction was upheld by the High Cour= Once it is found that these witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.- Chowkidar, who was the first informant, was not examined by the prosecution, it would be apt to reproduce the following discussion in the impugned judgment of the High Court, with which we fully agree: “10...It is worth pointing out that in cross examining the IO the defence has not elicited either the number and time of the station diary entry nor the time when the choukidar allegedly gave some information whose substance was entered in some station diary entry. The name of the Choukidar has also not been elicited. This was an extraction or revelation of a fact which had never been put before the material witnesses like the informant and the injured witnesses who had been examined before the IO. Even the limited information given by the IO is cross examination is insufficient and it was not possible for the prosecution to produce the alleged station diary entry whose number, date and time was not elicited from the IO. It was also not possible to examine the Choukidar who had allegedly given the information because his name was also not elicited. The prosecution is thus being blamed for suppressing the contentions of a station diary entry whose details are absolutely vague and missing and the defence never requisitioned any station diary entry to be produced during trial. Further, the IO has stated in the same paragraph that Fardbeyan of the informant is mentioned in the case diary systematically as they took place. This piece of evidence from the IO is sufficient to take away all the force from the submission of the defence that information by Choukidar was the earliest version of the occurrence. In such circumstances, no adverse inference can be drawn against the prosecution on the unacceptable plea of the defence that there was an earlier version of the occurrence which has been suppressed.” We, thus, do not find any merit in this appeal, which is accordingly dismissed.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1266 OF 2009


|KAMTA YADAV & ORS.                         |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF BIHAR                             |.....RESPONDENT(S)           |



                               J U D G M E N T

A.K. SIKRI, J.
                 Five appellants, who were tried for offence  under  Section
302 read with Section 149 of the Indian Penal  Code  and  convicted  by  the
trial court, have approached this Court after their  conviction  was  upheld
by the High Court as well vide impugned judgment dated September  28,  2007.
During the pendency of this appeal,  one  of  the  accused  persons,  namely
Hiralal Yadav, expired and the appeal qua him stood  abated.   The  validity
of the judgment  of  the  High  Court  in  respect  of  the  remaining  four
appellants is the subject matter of this appeal.


To trace out the prosecution case in brief, it  may  be  mentioned  that  on
November 16, 1991, at about 9:00 am, Ajodhaya Yadav,  armed  with  a  lathi,
and  other  four  appellants  armed  with  bhala,  were  ploughing  a  field
belonging to the informant while Kashinath Yadav  exhorted  others  to  kill
the informant Ramji Yadav.  Hiralal Yadav caused a bleeding  injury  on  the
head of the informant with a bhala.  The informant  in  order  to  save  his
life shouted on  which  his  uncle  Ramayan  Yadav  (deceased),  his  father
Dharichhan Yadav (PW-1) and his brother Bir Bahadur Yadav  (PW-3),  came  in
order to save him.  Hiralal Yadav then caused a bhala injury  on  the  chest
and abdomen of the deceased who fell  down  and  became  unconscious.   PW-1
also fell down as he was assaulted with bhala by Kashinath Yadav  and  Kamta
Yadav causing injuries on his abdomen, back of the body and hand.  PW-3  was
also assaulted by Ajodhaya Yadav with lathi and  also  by  Bhim  Yadav  with
bhala on head  causing  bleeding  injury.   On  the  shouts  raised  by  the
informant and his party, Dudhnath Yadav (PW-2) and Jagdish  Yadav  came  and
saved them.  Other persons from the village also  came  and  thereafter  the
accused persons stopped assaulting  and  fled  away.   The  reason  for  the
occurrence was said to be a dispute over the  land  and  litigation  in  the
past which had resulted in filing of a court case also.

First Information Report (FIR)  was  registered  after  recording  fardbayan
(Exhibit – 4) and this FIR was proved during trial as  Exhibit  –  5.   This
FIR shows that the police station was situated very close to  the  place  of
occurrence, i.e. about 300  yards  on  the  west.   It  further  shows  that
formally Section 302 was not added by the Investigating Officer (PW-9).   By
way of correction in the FIR,  this  provision  was  added  after  obtaining
permission for the same from the Court of the  Magistrate  on  November  16,
1991 itself by informing that uncle of the informant,  i.e.  Ramayan  Yadav,
died on way to Bihia Hospital.   The  Investigating  Officer  inspected  the
place of occurrence; prepared Inquest Report (Exhibit – 3);  sent  the  body
for postmortem examination and  obtained  postmortem  report;  recorded  the
statement of witnesses, including further statement of  the  informant;  and
submitted  charge-sheet  for  the  offence  under  Section  302  and   other
provisions of the IPC.  After taking cognizance,  the  Magistrate  committed
the case to the Court of Sessions where  charges  were  framed  for  various
offences, including Section 302 IPC.  The appellants  pleaded  'Not  Guilty'
to the charges.  After the trial, accused persons were found guilty  by  the
trial court for offence under Section 302 IPC and were awarded  imprisonment
for life.

The judgments of the Courts below reflect that the prosecution, in order  to
prove its case, examined nine witnesses.  PW-1,  Dharichhan  Yadav,  is  the
father of the informant.  He also sustained injuries and claimed  to  be  an
eye witness to the occurrence, as mentioned  in  the  FIR  itself.   He  has
fully supported the prosecution case.  PW-2, Dudhnath Yadav, is the  brother
of PW-1, who came on the shouts raised, and has claimed  to  have  seen  the
occurrence.  PW-3, Bir Bahadur Yadav, is the son  of  the  deceased  Ramayan
Yadav.  Like PW-1, he is also an injured eye witness to  the  incident.   He
has fully supported the prosecution case.  Sonia Devi  (PW-4)  and  Munesari
Devi (PW-5) are mother and wife respectively of  the  informant.   PW-4  has
claimed to have gone to the place of occurrence on hearing  the  shouts  and
also claimed to have seen the occurrence, whereas PW-5 stated that  she  was
on the roof of her house and from there she saw  the  entire  occurrence  as
the place of incident was close to her house.  Ramji  Yadav  (PW-6)  is  the
informant, who  also  suffered  injuries  and  as  claimed  by  him  in  the
fardbayan as well as in his deposition in  the  Court,  he  saw  the  entire
occurrence from beginning till end.  Dr. Rajesh Kumar Singh (PW-7) held  the
autopsy on the dead body of the deceased.   He  has  proved  the  postmortem
examination report as  Exhibit  –  1.   According  to  him,  the  postmortem
examination was held on  November  17,  1991  at  8:00  am.   He  found  the
following eight injuries on the dead body of the deceased:
“(i)  Incised wound with clean cut edges 1” x 2/10”x whole thickness of  the
pina of right ear.

(ii)  Incised wound 1½” x ½” x 2/10” on the upper portion of the right arm.

(iii)  Incised wound 1” x 2/10” x 2/10” on the back of the scalp left side.

(iv)  Incised wound 1/10” x 1/10” x 1/10” on the front of right shoulder.

(v)  Incised wound 1” x 1/2”x abdominal cavity deep on  the  right  side  of
abdomen upper portion.

(vi)  Swelling 2” x 2” on the left side of back of scalp.

(vii)  Penetrating wound with cut edges 1” x ½x chest  cavity  deep  on  the
right side of chest.  2½” away from midline almost in the middle.

(viii)  Incised wound ¾” x 1/10”x skin deep on the middle  finger  of  right
hand.”

      In his opinion, all the injuries were  ante  mortem  caused  by  sharp
cutting pointed instruments and the time elapsed since death was  within  36
hours of postmortem examination.  He found the cause of death to  be  injury
No. (vii), a penetrating wound 1” x ½” chest cavity deep on the  right  side
of chest.  He has further opined  that  the  injuries  could  be  caused  by
bhala.  However, injury No.  (vi)  could  be  caused  by  lathi  also.   The
stomach of the deceased contained undigested food material and  the  bladder
was empty.
PW-8 examined the injuries of PW-1, PW-3 and PW-6 on November  16,  1991  at
Bihia Block Hospital between 12:30 pm to 1:15 pm.  He found six injuries  on
the person of PW-1.  He found all the injuries simple in nature  but  injury
No.2 and 3 were penetrating wounds on chest, right side of  back  and  lower
part of right arm above elbow joint.  On PW-3, he found  two  injuries,  one
was incised wound over front portion of head 3”  x  ½”  skin  deep  and  the
other was penetrating wound on the right side of abdomen ½” x ¼” x ¾”.   The
injuries were found to be simple.  On PW-6, the informant,  he  found  three
injuries.  One was a lacerated wound on the left  side  of  head  ¼”  x  ¼”x
scalp deep upto bone, the second injury was also  lacerated  wound  on  left
side near middle of head 1” x ¼” x 1/6”.  The third injury  was  a  swelling
3” x 2” on left buttock.  The injuries were simple.  Some  of  the  injuries
on PW-1 and PW-3 were by sharp weapons like bhala, but in case of PW-6,  the
doctor opined that the injuries  were  by  hard  and  blunt  substance  like
lathi.  The age of injuries in respect of all the three  injured  was  found
to be within six hours.  The  injury  reports  of  the  three  injured  were
proved by PW-8 as Exhibits – 2, 2/1 and 2/2 respectively.

The investigation was done by Surajdeo Ram  (PW-9),  Investigating  Officer,
as  pointed  out  earlier.   During  inspection,  he  found  the  place   of
occurrence to be a field belongiong to the informant in  which  potato  crop
had already been planted.  He found that potato crop marks of  three  rounds
of ploughing were visible.  He also seized  blood  stained  earth  from  the
place of occurrence.  He has stated in his cross-examination that report  of
the occurrence was first received by him from Chowkidar and on that basis  a
Station Diary Entry was  made  but  he  did  not  record  the  statement  of
Chowkidar.  He has admitted  that  he  has  written  the  Case  Diary  in  a
systematic manner, as the events unfolded, and the  fardbayan  is  mentioned
in paragraph 1 of the  Case  Diary.  He  has  also  stated  that  after  the
fardbayan, further statement of the informant was recorded and the place  of
occurrence was inspected and only  thereafter  formal  FIR  was  instituted.
According to his statement in  the  cross-examination,  in  respect  of  the
earlier statements made by PWs 1, 2 and 3 under Section 161 of the  Code  of
Criminal Procedure, 1973, there was virtually no  difference  in  what  they
had stated regarding the occurrence in Court.  As far as PW-4 is  concerned,
she has deposed that she had not told him in clear  terms,  in  her  earlier
statement, as to which of the accused persons were having bhala and who  was
ploughing and that  Hiralal  had  assaulted  on  head  with  bhala  and  the
deceased had received injury on head with bhala.  She had  also  not  stated
on what part her husband (PW-1) had received injuries by bhala and that  the
accused persons fled away on arrival of  Jagdish  and  Dudhnath  Yadav.   No
contradiction was sought in respect of the statement of PW-5.

Various contentions were raised before the High Court with an  endeavour  to
find loopholes in the judgment of the trial court  regarding  conviction  of
the appellants.  It was argued that the time of offence had not been  proved
by the prosecution beyond reasonable doubt because the  Doctor  had  opined,
while conducting the postmortem examination on November  17,  1991  at  8:00
am, that the death  of  the  deceased  appeared  within  36  hours,  whereas
according to the prosecution case, death had taken place  within  23  hours.
It was also argued that the nature of injuries found  on  the  deceased  and
injured persons did not support the prosecution  case.   Another  submission
was that though the Investigating Officer (PW-9) had admitted in his  cross-
examination that  information  of  the  occurrence  was  first  given  by  a
Chowkidar, which was incorporated in his Station Diary Entry  as  well,  FIR
was not registered on the basis of said information and that  Chowkidar  was
not even produced as a prosecution witness.

All the aforesaid arguments have been rejected by the High Court as  without
any substance.  It is not necessary to reproduce the discussion of the  High
Court on these arguments as before us the learned counsel pressed only  last
of the aforesaid arguments, in addition to couple of other submissions.

In the first instance, the learned counsel drew our  attention  to  the  FIR
and referred to the following column regarding the place of incident:
|Place of incident & distance|
|from the Police Station &   |
|Side                        |
|2.                          |
|Villate Tiar, about 300 sq. |
|yds. West from Police       |
|Station                     |
|Circle No. 4                |

      It was submitted that when the place of  incident  was  300  sq.  yds.
away, it was impossible for the witnesses to see the occurrence clearly  and
identify the accused persons.
                 This argument appears to be an argument of  desperation  as
the place of occurrence is shown to be at a distance of 300  sq.  yds.  from
the Police Station in West direction.  It is nowhere stated that  those  who
were eye witnesses to the incident had seen the occurrence from  a  distance
of 300 sq. yds.  When confronted with this  position,  the  learned  counsel
accepted the inaccuracy of his argument.

It was further argued that no independent witnesses  were  examined  in  the
present case.  However, in the cross-examination or  otherwise  it  has  not
even been brought out by the defence that there were other  persons  at  the
scene of occurrence who were independent persons.  The learned counsel  also
could not point out as to how, in these  circumstances,  non-examination  of
independent persons acted to the prejudice of the appellants.

We have already narrated the deposition of the  witnesses  in  brief.  There
are six eye witnesses and three of them are injured eye witnesses, which  is
a weighty factor to show the actual  presence  of  these  witnesses  at  the
scene of occurrence.  Moreover, the credibility and trustworthiness  of  all
these eye witnesses could not be shaken by the accused persons.  Once it  is
found that these witnesses, who are eye witnesses,  were  present  and  they
have truthfully narrated the incidence as it happened and their  depositions
are worth of credence, conviction can be based on their testimonies even  if
they  were  related  to  the  deceased.    The   only   requirement,   while
scrutinising the interested witnesses, is to examine their depositions  with
greater caution and deeper scrutiny is needed, which exercise has been  done
by both the courts below.   In  fact,  when  the  learned  counsel  for  the
appellants was confronted with the aforesaid factual and legal position,  he
could not even provide any answer to the same.

Coming to the last submission that Chowkidar, who was the  first  informant,
was not examined by the prosecution,  it  would  be  apt  to  reproduce  the
following discussion in the impugned judgment of the High Court, with  which
we fully agree:
“10...It is worth pointing out that in cross examining the  IO  the  defence
has not elicited either the number and time of the station diary  entry  nor
the time when the choukidar allegedly gave some information whose  substance
was entered in some station diary entry.  The  name  of  the  Choukidar  has
also not been elicited.  This was an extraction  or  revelation  of  a  fact
which had never been put before the material witnesses  like  the  informant
and the injured witnesses who had been examined  before  the  IO.  Even  the
limited information given by the IO is  cross  examination  is  insufficient
and it was not possible for the prosecution to produce the  alleged  station
diary entry whose number, date and time was not elicited from  the  IO.   It
was also not possible to examine the Choukidar who had allegedly  given  the
information because his name was also  not  elicited.   The  prosecution  is
thus being blamed for suppressing the contentions of a station  diary  entry
whose details are  absolutely  vague  and  missing  and  the  defence  never
requisitioned any station diary entry to be produced during trial.  Further,
the IO has stated in the same paragraph that Fardbeyan of the  informant  is
mentioned in the case diary systematically as they took place.   This  piece
of evidence from the IO is sufficient to take away all the  force  from  the
submission of the defence that information by  Choukidar  was  the  earliest
version of the occurrence.  In such circumstances, no adverse inference  can
be drawn against the prosecution on the unacceptable  plea  of  the  defence
that there  was  an  earlier  version  of  the  occurrence  which  has  been
suppressed.”

We, thus, do not find  any  merit  in  this  appeal,  which  is  accordingly
dismissed.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI;
OCTOBER 06, 2016.

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