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IN THE HIGH COURT OF JUDICATURE AT PATNA
ARVIND SRIVASTAVA and SUNIL DUTTA MISHRA, JJ.
Criminal Appeal (DB) Nos. 1530 with 1486 of 2019
(23.2.2024)
Subodh Yadav (in 1530)
Sushil Yadav & Ors. (in 1486) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Indian Penal Code, 1860 – Sections 302, 307, 326, 324 and 148 – Criminal Procedure Code, 1973 – Section 374(2) – Murder, attempt to murder, grievous hurt and rioting – Conviction and sentence – Weapons of assault on injured and deceased were not recovered – Alleged recovery of blood stained earth from place of occurrence becomes highly doubtful – Although informant is injured witness but in his deposition before Court, he has deposed material contradictory from his previous statement in fardbeyan with respect to manner of incident – Eye-witnesses are family members of injured and deceased – There was land dispute between parties – Evidence of alleged eye witnesses except injured raises serious doubts on point of their presence at the time of actual occurrence of assault on informant and deceased – There were independent witnesses available but they have been withheld from Court and Court would draw adverse inference under Section 114(g) of Evidence Act for non-examination of independent witnesses – Mere non-examination of I.O. does not in every case cause prejudice to accused or affects credibility of prosecution version – Non-examination of I.O., in present case, is a serious infirmity resulting in prejudice being caused to appellants – On this score also conviction of appellants cannot be sustained – Appellants acquitted of charges levelled against them. (Paras 42, 43, 44, 48, 55, 58, 60, 61 and 62)
Criminal Law – Appreciation of evidence – Evidence of interested witnesses has to be examined with great care and caution to obviate possibility of false implication or over-implication – In cases involving group enmities, it is not unusual to rope in persons other than who were actually involved – In such a case, court should guard against danger of convicting innocent persons and scrutinize evidence carefully and if doubt arises, benefit should be given to accused. (Para 46)
Criminal Procedure Code, 1973 – Section 161 – Indian Evidence Act, 1872 – Section 145 – Statement given to police during investigation under Section 161 Cr.P.C. cannot be read as an 'evidence' – It has a limited applicability in a Court of law as prescribed under Section 162 Cr.P.C. – It is 'previous statement' under Section 145 of Evidence Act and can be used to cross-examine a witness for limited purpose to 'contradict' such a witness – Contradiction in two statements would not always result in totally discredit the witness – Section 145 read with Section 155 of Evidence Act, have to be applied carefully in a given case. (Para 50)
Sunil Dutta Mishra, J. – Heard learned senior counsel Sh. Y.C. Verma and learned counsel Sh. Ansul for the appellants and learned Additional Public Prosecutors appearing for the State.
2. These appeals have been preferred by the aforesaid appellants under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction dated 25.11.2019 and order of sentence dated 29.11.2019 passed by learned Additional District and Sessions Judge III, Supaul in Sessions Trial No. 35 of 2000 whereby and whereunder appellants, namely, Sushil Yadav, Devanand Yadav @ Devanandan Yadav, Surat Lal Yadav and Dhirendra Yadav [in Cr. Appeal (DB) No.1486 of 2019] have been convicted under Sections 307, 326, 324 and 148 of Indian Penal Code and appellants, namely, Subodh Yadav and Vinod Yadav [in Cr. Appeal (DB) No.1530 of 2019] have been convicted under Sections 302, 307, 326, 324 and 148 of Indian Penal Code and sentenced accordingly as under: –
Appellants in Cr. Appeal (DB) No.1486 of 2019
| Appellants | Penal |
| Sentence |
|
|
| Provision | Imprisonment | Fine (Rs.) | In default of fine |
| 1. Sushil Yadav 2. Devnandan Yadav 3. Surat Lal Yadav 4. Dhirendra Yadav | 307 IPC | RI for 10 years | 25,000/- | S.I. for 1 year |
| 326 IPC | RI for 5 years | 15,000/- | S.I. for 6 months | |
| 324 IPC | RI for 2 years | 5,000/- | S.I. for 3 months | |
|
| All the sentences shall run concurrently | |||
|
| Appellants in Cr. Appeal (DB) No.1530 of 2019 | |||
| Appellants | Penal |
| Sentence |
|
|
| Provision | Imprisonment | Fine (Rs.) | In default of fine |
| 1. Subodh Yadav 2. Vinod Yadav | 302 | IPC Life Imprisonment | 25,000/- | S.I. for 1 year |
| 307 IPC | RI for 10 years | 25,000/- | S.I. for 1 year | |
| 326 IPC | RI for 5 years | 5,000/- | S.I. for 6 months | |
| 324 IPC | RI for 2 years | 5,000/- | RI for 3 months | |
|
| All the sentences shall run concurrently | |||
3. Since the above captioned appeals arise out of common factual matrix and common judgment of conviction and order of sentence, we are disposing them by this common judgment.
4. The prosecution story, in brief, is that on 28.01.1998 at about 5:00 p.m. the informant Ramesh Yadav (PW-4) gave his fardbeyan recorded by police officer at Rajkiya Hospital, Chhatapur alleging that his brother Sadanand Yadav about 7 to 8 months ago had given advance money of Rs.21,000/- to Most. Asiya Devi for purchase of her 3 bigha land. The talk of purchase was done through her brother-in-law Baidyanath Yadav but he was not doing registry and was doing talk with Dev Nandan Yadav. On that day, Baidyanath Yadav had come to the house of his sister-in-law Asiya Devi and after sometime talking with Dev Nandan Yadav, he was returning to his house and when he reached near the house of Dayanand Yadav (near Kalmart) then Sadanand Yadav (brother of informant) with informant (Ramesh Yadav) went there and told Baidyanath Yadav for settlement with respect to advance money taken and then to go, on which hot talks were started between Dev Nandan Yadav and Baidyanath Yadav with Sadanand Yadav. In the meantime, on the side of the road, son of Dev Nandan Yadav, namely, Subodh Yadav and Vinod Yadav son of Ram Nandan Yadav and Surat Lal Yadav, who were cutting soil and spreading on the road from before, on hearing talk, they came there with their kudal (spade) in their hands and Dev Nandan Yadav ordered to kill on which Vinod Yadav and Subodh Yadav from their spade assaulted on the head of Sadanand Yadav (brother of informant) causing head injury and he fell down on the earth. In the meantime, Duli Chand Yadav (died during trial) and Sushil Yadav also came there. Dev Nandan Yadav taking farsa from the hand of Sushil Yadav assaulted the informant on his head and Duli Chand Yadav (died during trial) also hit kudal on his head causing head injury and Dhirendra Yadav also assaulted the informant with lathi. He also fell down and started writhing. Brother Bikan Yadav (PW-2), nephew Amod Kumar Yadav (PW-9), Ram Chandra Yadav (PW-3), Shatrughan Yadav,
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