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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.

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2) 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.

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3) 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.

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4) 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

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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)

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could be caused by  lathi  also.   The stomach of  the deceased

contained undigested food material and the bladder was empty.

5) 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.

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6) 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

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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.  

7) 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

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Entry  as  well,  FIR  was  not  registered  on  the  basis  of  said

information  and  that  Chowkidar  was  not  even  produced  as  a

prosecution witness.

8) 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.

9) 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

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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.

10) 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.

11) 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

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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.

12) 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

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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.”

13) 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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