Criminal Appeal (DB) Nos. 110, 3 and 79 of 2012. Case: Girdhari Yadav and Ors. Vs The State of Bihar. Patna High Court

Case Number:Criminal Appeal (DB) Nos. 110, 3 and 79 of 2012
Party Name:Girdhari Yadav and Ors. Vs The State of Bihar
Counsel:For Appellant: Ambika Bhagat, Advocate and For Respondents: A.K. Sinha, S.C. Mishra and A. Sharma, A.P.Ps.
Judges:Samarendra Pratap Singh and Aditya Kumar Trivedi, JJ.
Issue:Arms Act, 1959 - Section 27; Code of Criminal Procedure, 1973 (CrPC) - Section 313; Indian Evidence Act, 1872 - Section 134; Indian Penal Code 1860, (IPC) - Sections 120B, 120A, 149, 302, 307, 324, 34
Judgement Date:February 04, 2017
Court:Patna High Court
 
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Judgment:

Aditya Kumar Trivedi, J.

  1. In Criminal Appeal (DB) No. 03 of 2012, Bihari Yadav is the appellant, in Criminal Appeal (DB) No. 79 of 2012, Anirudh Yadav is the appellant and in Criminal Appeal (DB) No. 110 of 2012, Girdhari Yadav and Adalat Yadav are the appellants, which arise out against the common judgment of conviction, dated 22.11.2011 and sentence, dated 30.11.2011 passed by the Additional Sessions Judge, Fast Track Court-IV, Begusarai in Sessions Trial No. 251 of 2009, on account thereof, have been heard analogously and are being disposed of by a common judgment.

  2. As per judgment of conviction, appellant Girdhari Yadav has been found guilty for an offence punishable under Section 302/120B of the I.P.C., whereunder directed to undergo rigorous imprisonment for life as well as also fine of Rs. 10,000/- in default thereof, to undergo simple imprisonment for six months, additionally, under Section 307/120B of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years as well as also to pay fine of Rs. 5,000/- in default thereof, to undergo simple imprisonment for three months additionally, Adalat Yadav, Anirudh Yadav and Bihari Yadav for an offence punishable under Section 302/149 of the I.P.C. read with Section 120B of I.P.C. and sentenced to undergo rigorous imprisonment for life as well as to pay fine Rs. 10,000/- and in default thereof, to undergo simple imprisonment for six months independently, Section 307/149 read with Section 120B of the I.P.C. and further, directed to undergo rigorous imprisonment for 10 years as well as also slapped with fine appertaining to Rs. 5,000/- in default thereof, to undergo simple imprisonment of three months additionally, to undergo rigorous imprisonment for seven years for an offence punishable under Section 27 Arms Act with a further direction to run the sentences concurrently.

  3. PW-5 had filed written report before Officer-in-charge, Balia P.S. disclosing therein that in usual way while he was returning from Begusarai Court to Bhagatpur his native place with his brother Ram Sharan Yadav, Baijnath and his son Ganesh Yadav accompanied them from Balia Bazar. At about 5.00 p.m., they reached near grocery shop of Suresh Mahto of Bhagatpur, where Adalat, Anirudh, Bihari, Vijay, Shivji along with 3-4 unknown persons armed variously encircled Ram Sharan Yadav and further, ordered to kill. Adalat Yadav shot at forehead of Ram Sharan Yadav as a result of which, he died instantaneously. Anirudh Yadav also fired at Ram Sharan Yadav. Shivji, Bihari and Vijay fired at him as well as Baijnath and Ganesh Yadav, during course thereof, the firing having made by Shivji Yadav struck over his right leg. It has further been disclosed that whole conspiracy relating to a murder as well as murderous attack upon them have been hatched by Girdhari Yadav, who happens to be under custody in relation to murder case. In one murder case relating to Mahesh Paswan, he along with his brother deceased Ram Sharan Yadav were a witness as well as doing necessary pairvi. Ram Sharan Yadav was to depose and for that, there was persistent demand at the end of Girdhari not to depose. Having been refused at their end, he had threatened to do away with life.

  4. On the basis of the aforesaid written report, Balia P.S. Case No. 222 of 2008 was registered under Sections 302, 307, 324, 34, 120B of the I.P.C. and Section 27 of the Arms Act followed with an investigation. After completing the investigation, chargesheet was submitted and on the basis thereof, trial commenced and concluded in a manner as indicated above, the subject matter of these appeals.

  5. Defence case as is evident from mode of cross-examination as well as statement having been recorded under Section 313 of the Cr.P.C. is that of complete denial as well as false implication. Furthermore, it has also been pleaded that prosecution party themselves happen to be notorious criminals, who have sustained the death as well as injury at different place in different manner by different persons, but in the background of prevailing animosity, got them involved with false and frivolous allegations. Though no oral evidences were adduced, however, certain documentary evidences have been adduced at their end.

  6. While challenging the judgment of conviction and sentence, the learned defence counsel has raised manifold argument. The first and foremost is that from the own deposition of the witnesses, it is crystal clear that none of the prosecution witnesses happen to be an eye witness. Apart from this, the informant PW-5 also speaks with regard to an incidence having been committed in different manner at different place than the earliest prosecution version as flashed by way of written report. That being so, the prosecution version as is exposed by way of written report has not been substantiated by the witnesses themselves apart from contradictory objective finding of the I.O. with regard thereto. Therefore, the apparent inconsistency prevailing on the record completely demolishes the prosecution version whereupon the conviction and sentence having been recorded by the learned trial Court would be found vanished.

  7. Furthermore, it has also been submitted that prosecution had not brought up on record the relevant papers relating to murder of Mahesh in order to suggest that these appellants, for the reason assigned by the prosecution virtually happens to be an aggrieved to that extent provoking them to cause murder of Ram Sharan Yadav as well as to cause injury to Sunil, the informant. Consequent thereupon, there was no occasion for these appellants to cause murder of Ram Sharan Yadav as well as to cause murderous attack upon Sunil, PW-5.

  8. Apart from this, from own conduct of the prosecution, it is evident that the narration with regard to commission of the occurrence was not at all convincing as well as probable. To substantiate the same, it has been submitted that from the written report itself, it was not Ram Sharan Yadav alone, but Ram Sharan Yadav as well as Sunil both, who were doing necessary pairvi in a murder case relating to Mahesh. It is evident that on the way to their house, they met Baijnath and his son Ganesh. It has further been alleged that all the four were intercepted and were encircled by the accused persons. While Ram Sharan Yadav was shot at by Adalat, there was no firearm injury on Baijnath as well as Ganesh Yadav while Sunil, PW-5, who sustained single injury at his leg, was not at all attempted by the appellants in order to murder him that too, when there was no intervening circumstance, which could have prevented the appellants. It has also been submitted that improbability of the prosecution version is visible from the further conduct of the prosecution as none of the witnesses have stated that they came or they were carrying paper, then how the written report was prepared by Baijnath on dictation of PW-5, informant in presence of police officials is another circumstance which belies the prosecution case. Had there been a genuine conduct, the fard-bayan would have been given to the police official by the PW-5, Sunil at the place of occurrence itself. The aforesaid activity casts doubt on presence of PW-5 at the place of occurrence, more particularly in the background of the evidence of the I.O.

  9. Another circumstance which also casts doubt over the genuineness of the prosecution version is further apparent from the record. From the evidence of PW-5, it is evident that when the police came at the place of occurrence, he was present there and in presence of police officials, he dictated written report, which was scribed by Baijnath and then thereafter, he was sent for treatment on account of firearm injury having been sustained by him. From the evidence of doctor, it is apparent that no police requisition was ever received by him at the time of admission of PW-5. Contrary to it, it has been deposed by Dr. Ashok Kumar Sharma, PW-8 that he had sent requisition to the police with regard to arrival of PW-5 in an injured condition on account of having sustained firearm injury. In cumulative effect, it has been submitted that the assertion of the prosecution that Sunil, Baijnath, Ganesh were along with Ram Sharan Yadav, deceased happens to be palpably false and as, it has been flashed in a pre-planned manner to implicate these appellants, on account thereof, such kind of inconsistency, variance in their evidence is found. Apart from this, it has also been submitted that objective finding of the I.O. completely demolished the prosecution version. As per prosecution version, it is apparent that while they were on way to Bhagatpur and reached near grocery shop of Suresh Mahto, they were intercepted by the accused persons followed with commission of the crime and that happens to be consistent prosecution version, but contrary to it, from inquest report having been prepared by PW-9, it is apparent that dead body was found in front of house of Jago Choudhary. Furthermore, as per objective finding relating to place of occurrence by the I.O., PW-9 as detailed under Para-5, he completely ruled out presence of dead body in front of grocery shop of Suresh Mahto. Therefore, the place of occurrence found by the I.O. happens to be inconsistent with the place of occurrence shown by the prosecution witnesses. In the aforesaid background, it has been submitted that on account of inconsistency creeping amongst eye witness amongst themselves as well as with the I.O. coupled with improbableness of the prosecution version, makes the whole prosecution case unreliable, unacceptable. Consequent thereupon, prosecution case is fit to be thrown out rightly as a result of which, these appeals are fit to be allowed.

  10. Furthermore, it has been submitted that for the purpose of attracting conviction under guise of criminal conspiracy, there should be positive as well as conclusive evidence over meeting with an agreement, which from...

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