Rohit Yadav Vs. the State of Bihar - Court Judgment

Excerpt:
- - the deceased got badly injured and fell down. 6 is the informant himself who is an eye witness as well as an injured in the case. he submitted that there should not be over dependence on medical evidence which has at best only corroborative value. he very vehemently argued that on exhortation of lalit yadav and niranjan yadav coming out of the accused from the gate of peer baba asthan and surrounding of the deceased and informant clearly show the common object of all the accused persons to commit the crime in furtherance of which the deceased was fired upon and in the result he died. 21. in the circumstances the submissions of the learned counsel for the appellant that due to discrepancy in the ocular evidence and medical evidence on point of firing and injury to deceased at the..... jayanandan singh, j.1. the sole appellant rohit yadav has preferred this appeal against judgment and order of his conviction dated 30th march, 2001 passed by the 5th additional sessions judge, begusarai in sessions trial no. 262 of 1998 holding him guilty under section 302/149 of the indian penal code and section 27 of the arms act and sentencing him to undergo rigorous imprisonment for life under section 302/149 of the indian penal code and rigorous imprisonment for seven years under section 27 of the arms act. both the sentences have been ordered to run concurrently.2. the prosecution started on the fardbeyan of samarjeet kumar (p.w.6) recorded by sub-inspector of town police station, begusarai at kalpana nursing home of one dr. ashok sharma at 9.30 a.m. on 15.4.1998. as per the.....

Judgment:

Jayanandan Singh, J.

1. The sole appellant Rohit Yadav has preferred this appeal against judgment and order of his conviction dated 30th March, 2001 passed by the 5th Additional Sessions Judge, Begusarai in Sessions Trial No. 262 of 1998 holding him guilty under Section 302/149 of the Indian Penal Code and Section 27 of the Arms Act and sentencing him to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and rigorous imprisonment for seven years under Section 27 of the Arms Act. Both the sentences have been ordered to run concurrently.

2. The prosecution started on the fardbeyan of Samarjeet Kumar (P.W.6) recorded by Sub-Inspector of Town Police Station, Begusarai at Kalpana Nursing Home of one Dr. Ashok Sharma at 9.30 A.M. on 15.4.1998. As per the fardbeyan, the informant along with his uncle Naresh Prasad Singh (since deceased) were coming to Begusarai at about 7.15 A.M. to depose in a Sessions Trial. They were being followed by their three Gotiyas, namely, Madan Singh, Mukesh Kumar Singh and Mithilesh Prasad Singh at a distance of about 50 yards. In front of them one Lalit Yadav and Niranjan Yadav were travelling on a Rajdoot Motorcycle. The said two persons stopped near Peer Baba Asthan. When the informant along with the deceased reached near Peer Baba Asthan at about 7.30 A.M. they were stopped by said Lalit Yadav and Niranjan Yadav and they gave a call saying that 'SALE DONO RAJPUTWA KO JAAN SE MAR DO'. On hearing this, from behind the gate of Peer Baba five named accused persons including this appellant came out and surrounded the informant and the deceased. Thereafter, accused Lalit Yadav ordered to fire upon them saying that they make regular pairvi in the court case. On his order, Pramod Yadav fired from his pistol on the deceased hitting him in the eye. Accused Mohit Yadav fired in the stomach and this appellant fired at the shoulder. Santosh Yadav fired 2-3 times on the deceased which hit at many places on his body. Accused Bakhera Yadav fired on the informant which hit him on the back and his another shot hit the informant at his right hand. The deceased got badly injured and fell down. The informant in order to save himself ran towards Police Station premises where he fell down and became unconscious. After gaining consciousness he found himself in the Kalpana Nursing Home, Begusarai where Officer-incharge of Begusarai Police Station arrived and, as stated earlier, this fardbeyan was recorded. He claimed in the fardbeyan that three named persons, namely, Madan Singh (P.W.5), Mukesh Kumar Singh (P.W.4) and Mithilesh Prasad Singh (P.W.3), who were coming from behind saw the occurrence and raised alarm on which the informant could be saved. He further claimed that those three persons also ran behind him to the Police Station at the time of occurrence. Some passers-by were also there, who had seen the occurrence and who also would be able to narrate the occurrence. The informant claimed that the motive behind the occurrence was that the informant and the deceased were going to depose in the case in which they were witnesses due to which the incident happened.

3. After investigation chargesheet was submitted and the accused persons were put on trial. During trial altogether nine witnesses have been examined by the prosecution, out of whom, P.W.1 and P.W.2 are the witnesses to seizure and inquest and they have narrated about the occurrence as they came to know at the place. P.W.3, P.W.4 and P.W.5 are three persons who are said to have been coming behind the informant and the deceased and have deposed as eye witnesses to the occurrence. P.W.6 is the informant himself who is an eye witness as well as an injured in the case. P.W.7 is the Sub-Inspector of Police of Sahebpur Kamal Police Station, who investigated the case and submitted chargesheet. P.W.8 is the doctor of Kalpana Nursing Home, who examined and treated the informant. P.W.9 is the Civil Assistant Surgeon, who at that time was posted at Sadar Hospital, Begusarai and conducted post-mortem examination on the body of the deceased at 2.15 P.M. on the same day. The trial court considered the evidence of the witnesses and the materials available on record and convicted this appellant as aforesaid.

4. At this stage, it may be pointed out that it was stated at the bar that the case of other accused was bifurcated and this appellant was put on trial separately and he has been convicted as aforesaid. It was informed that the trial of other accused is still pending and is going on in the court below. However, having been convicted, this appellant has preferred this appeal which has come up for hearing before this Court.

5. Mr. Abul Kalam appeared on behalf of the appellant. His submission can be summarised as follows :

(i) First of all, he submitted that the eye witnesses have given vivid details of the occurrence and have attributed specific role to this appellant in the occurrence inasmuch as they have specifically alleged this appellant to have fired at the deceased which hit him on his shoulder. The inquest report also supports the evidence of the eye witnesses and the Investigating Officer finds one injury on the shoulder of the deceased. However, he pointed out that in the post-mortem report there was complete absence of existence of any injury on the shoulder of the deceased. Moreover, he further pointed out that the attention of the doctor was drawn during his examination in court about absence of the injury on the shoulder and the doctor specifically stated that he did not find any injury on the shoulder of the deceased during post-mortem examination. The doctor has further accepted in his evidence that the post-mortem report was not in accordance with the inquest report. In the light of this discrepancy, learned Counsel submitted that the prosecution story so far as involvement of the informant and firing by him on the deceased hitting him at the shoulder is fit to be rejected and so far this appellant is concerned, he is fit to be acquitted on this score alone.

(ii) Learned Counsel for the appellant further contended that in case of discrepancy between the inquest report and the post-mortem report, the post-mortem report has to be accepted as correct.

(iii) Another point which the learned Counsel for the appellant urged was that the witnesses were interested witnesses and as such their evidence so far as involvement of this appellant is concerned should not be accepted since their claim with regard to firing by the appellant on the deceased stands completely belied by the post-mortem report.

(iv) Learned Counsel for the appellant further submitted that there was enmity between the parties and independent witnesses were not examined by the prosecution, which renders the prosecution story doubtful.

6. In support of his first argument learned Counsel for the appellant referred a number of authorities of the Supreme Court and contended that in view of the law laid down by the apex Court as evident in the said decisions, in the event of discrepancy between the medical evidence and the ocular evidence, the reasonable doubt arises with regard to correctness of the prosecution story and in the circumstances the appellant is entitled to benefit of doubt. He referred to the cases of Ram Narain v. State of Punjab : 1975CriLJ1500 , Amar Singh and Ors. v. State of Punjab : 1987CriLJ706 , Mohar Singh and Ors. v. State of Punjab 1981 (Supp) S.C.C. 18, State of M.P. v. Surbhan 1996 Cr.L.J.(S.C.) 3199, Ashim Das v. State of Assam 1987 Cr.L.J.(Gauhati) 1533 and Bejoy Singh v. State of West Bengal 1990 Cr.L.J.(S.C.) 901. On the basis of the above pronouncements of the Supreme Court he emphasised that in the present case the doctor had not found any gun shot injury on the back of the deceased, as per his specific evidence and objective finding, the same was glaringly in contradiction to the specific claim of the witnesses that this appellant had fired at the back of the deceased which hit him on the shoulder. He pointed out that the witnesses were so specific that two witnesses claimed the gun shot to have hit on the right side of the shoulder of the deceased. He also placed the evidence of the witnesses from which it was pointed out that each of the witnesses was specific with regard to the firing resorted to by each of the accused and gave specific part of the body where gun shots of each of the accused hit. It could not be presumed that the specific statement of the witnesses suffered from any vagueness or any minor discrepancy which could be ignored taking into account broad probabilities of the case. In view of the specific stand of the witnesses there was no occasion to presume that the gun shot alleged to have been fired by the appellant misfired or missed the deceased. In this situation, the clear cut specific objective finding of the doctor conducting post mortem examination that no gun shot injury was found on the shoulder of the deceased makes the entire prosecution story with regard to this appellant improbable and as such this appellant is entitled to be acquitted of the charges.

7. In support of his second submission that in the event of any discrepancy between the inquest report and the post-mortem report, the post-mortem report has to be given due weight and has to be accepted being evidence of an expert in terms of Section 45 of the Evidence Act. He referred to two judgments of the Supreme Court, namely, the case of Maula Bux and Ors. v. State of Rajasthan : (1983)1SCC379 and Surjan and Ors. v. State of Rajasthan : 1956CriLJ815 .

8. Learned Counsel for the appellant further claimed that these witnesses were inimical to the accused persons, especially the present appellant. However, in support of this contention, learned Counsel for the appellant did not point out any statement of any witness or any material on record to establish the same.

9. In support of the next submission, learned Counsel for the appellant pointed out that admitted position was that three witnesses, namely, P.W.3, P.W.4 and P.W.5 were Gotiyas of the informant and the deceased, as such, being highly interested witnesses, their evidence with regard to involvement of this appellant in the occurrence has to be looked upon with suspicion and without any unimpeachable corroborative evidence, the same should not be accepted.

10. Sri Lala Kailash Bihari Prasad, learned A.P.P. appearing for the State, also cited certain judgments of the Supreme Court in reply to the first submission of the learned Counsel for the appellant. Relying on the decisions of the Supreme Court in the cases of Ramanand Yadav v. Prabhu Nath Jha and Ors. 2003(4) PLJR 224 (S.C.), Leela Ram v. State of Haryana (2000 S.C.C. (Cr.) 222, Mohan Singh v. State of M.P. : 1999CriLJ1334 , Mithilesh Upadhyay v. State of Bihar 1997 S.C.C.(Cr.) 715, he submitted that in the case of variance between the medical evidence and ocular evidence, the ocular evidence is acceptable if it is otherwise not impeachable and are trustworthy. He submitted that there should not be over dependence on medical evidence which has at best only corroborative value. He further submitted that minor embellishment and trivial discrepancy should not be made a ground for giving any benefit to the accused. He further submitted that the Court should make efforts to find truth and it is the solemn duty of the Court not to merely conclude and leave the case the moment the suspicion is created. In view of this legal position, he submitted that the evidence of the P.Ws. were consistent and specific which were supported by the findings in the inquest report. He pointed out that the learned Counsel for the appellant has not claimed any contradiction in the evidence of the P.Ws. inter se. In such a situation, there being a clear cut definite evidence with regard to the firing by this appellant on the deceased hitting his shoulder, the absence of injury in the post-mortem report ought to be ignored. He further submitted that this discrepancy may be due to mistaken impression of the witnesses that the firing actually hit the deceased on the shoulder. He pointed out that the deceased had injury in the left eye whose exit point was near temporal region. He asserted that due to this injury the witnesses may have been mistaken about the injury on the shoulder of the deceased at the hands of this appellant.

11. Learned Counsel for the State next submitted that even if the stand of the learned Counsel for the appellant on this point is accepted as the doctor has specifically stated in his deposition before the court that the post-mortem was at variance with the inquest report and he did not find any injury on the shoulder, still the participation of the appellant in the occurrence is not ruled out. He led this Court to the portions of the First Information Report and the evidence of the four eye witnesses where it has been specifically claimed that on exhortation by Lalit Yadav and Niranjan Yadav, the five accused persons came out from the gate of Peer Baba Asthan and surrounded the deceased and the informant. He very vehemently argued that on exhortation of Lalit Yadav and Niranjan Yadav coming out of the accused from the gate of Peer Baba Asthan and surrounding of the deceased and informant clearly show the common object of all the accused persons to commit the crime in furtherance of which the deceased was fired upon and in the result he died. Relying on this part of the prosecution case, learned A.P.P. vehemently argued that in case of this appellant, at least, all ingredients of Section 149 of the Indian Penal Code was fulfilled and hence this appellant was rightly convicted under Section 302 with the aid of Section 149 of the Indian Penal Code. In support of this argument, learned A.P.P. relied upon a number of judgments of the Supreme Court in the cases of Lalji and Ors. v. State of U.P. 1989 S.C.C. (Cr.) 211, Chanda and Ors. v. State of U.P. 2004 S.C.C. (Cr.) 1553, Ram Bhajan Yadav v. State of Bihar 2004(4) PLJR 1 (S.C.).

12. In reply to the other submissions of the learned Counsel for the appellant, learned A.P.P. accepted that the evidence of the interested witnesses have to be looked into with caution. However, he submitted that the relationship of witnesses cannot be the sole ground for rejecting their testimony. He submitted that the testimony of the interested witnesses has to be examined with care and caution and if otherwise truthful and consistent, they can be relied upon in support of the prosecution case.

13. With regard to the comparative weight of the inquest report vis-a-vis post-mortem report, he referred to the decision of the Supreme Court in the case of Pandurang v. State of Hyderabad : 1955CriLJ572 , from where he pointed out that the inquest report was admissible under Section 45 of the Evidence Act.

14. Examining the rival contentions of the parties on the point of discrepancy between the medical evidence and the ocular evidence, I find substance in the submission of the learned Counsel for the appellant. Submissions of the learned A.P.P. and the cases relied upon by him do show that minor discrepancy and omissions have to be ignored and if the ocular evidence is trustworthy and otherwise unimpeachable, they have to be accepted even if not fully supported by the medical evidence. However, in this case, I find that there was no vagueness in the statement of the eye witnesses and all of them in one breadth specifically claimed that the firing by this appellant hit the deceased on his shoulder. The statements of these witnesses were recorded by the Investigating Officer on the same day and the Investigating Officer performed inquest on the dead body which is within few hours of the occurrence i.e. at 11.00 A.M. The inquest report also supports the evidence of the witnesses and records the findings by the Investigating Officer of existence of a gun shot injury on the shoulder of the deceased. However, the doctor deposing in court has accepted in his examination-in-chief itself that his post-mortem report is not in accordance with the inquest report. In his cross-examination, his attention was specifically drawn towards his finding of absence of any injury on the shoulder and in answer to it he very specifically stated that he did not find any injury on his shoulder during post-mortem examination. Had it been a case where the findings of the doctor could be held to be vague or it could be held to be a case of over looking or oversight by the doctor, there would have been no difficulty for this Court to accept the submission of the learned A.P.P. However, in view of the attention of the doctor being specifically drawn towards the discrepancy between the post-mortem report and the inquest report and his specific statement that during post-mortem examination he did not find any injury on the shoulder of the deceased leaves no doubt in my mind that in fact there was no injury sustained by the deceased on his shoulder by fire arm. In view of this clear cut objective evidence, there is no escape from concluding that the evidence of P.Ws. so far as their specific claim with regard to the firing by this appellant on the deceased hitting him on the shoulder is concerned, the same cannot be accepted and as such this part of the prosecution story so far this appellant is concerned is fit to be rejected as not proved.

15. So far as other submissions of the learned Counsel for the appellant is concerned, they do not throw much water as except from asserting that they are interested witnesses, he has not been able to point out any material flaw in their evidence or any surrounding circumstances to disbelieve their evidence. As stated earlier, he has not been able to point out any direct enmity of P.W.3, P.W.4 and P.W.5 with the accused persons and particularly with Lalit Yadav. Learned Counsel for the appellant has submitted that independent witnesses, namely, Shyama Kant Jha, Officer-in-charge of Begusarai Police Station, who recorded the fardbeyan of the informant in the Nursing Home and the driver and khalasi of the Tata vehicle 407 on which the injured informant was carried to the Nursing Home were not examined. However, learned Counsel for the appellant has not been able to point out the relevance and importance of these witnesses and in what manner the case of the defence was prejudiced on account of the same. It has come in evidence that the Officer-in-charge of Begusarai Police Station had come to the place of occurrence and had handed over the fardbeyan to P.W.7 the Investigating Officer of this case. Except for this, he did not play any role at all in the case and as such we do not find his evidence to be so important as to give any benefit to the defence on account of his non-examination. Similarly, the driver and khalasi of the Tata vehicle 407 were involved only in carrying the injured with the help of the witnesses to the Nursing Home and nothing more. In that circumstance, their examination also does not appear to be of any relevance having any material bearing on the case. It may be pointed out that this appeal is confined to Rohit Yadav only against whom allegation was of firing on the deceased and hitting him on the shoulder. Learned Counsel for the appellant has fairly accepted that his case is confined to only this appellant and it has no bearing so far as truthfulness of the case of the prosecution in respect of other accused persons are concerned.

16. The last submission of the learned Counsel for the appellant with regard to comparative value of the inquest report vis-a-vis post-mortem report is acceptable as learned A.P.P. except for citing judgment in the case of Pandurang (Supra) where an observation has been made that the inquest report may be admissible under Section 145 of the Evidence Act, has not seriously doubted the proposition that an expert opinion and objective finding of an expert carries more weight than the opinion and findings of a layman.

17. Now I come to the submissions of the learned A.P.P. that inspite of the discrepancy in the post-mortem report and the ocular evidence with regard to the firing and injury on the deceased at the hands of the appellant, the appellant is fit to be convicted under Section 302 with the aid of Section 149 of the Indian Penal Code as his participation with the common object of murder of the deceased is established. In support of this stand, learned A.P.P. drew the attention of the Court to the statements of the witnesses which show that at 7.30 A.M. Lalit Yadav and Niranjan Yadav both stopped the deceased and the informant near Peer Baba Asthan and exhorted other accused persons to come out and kill them. Upon hearing this, five named accused persons including this appellant came out of their hiding and surrounded the deceased and the informant. He claimed that the act of coming out on exhortation of Lalit Yadav and Niranjan Yadav surrounding the deceased and the informant was enough to establish their common object in furtherance of which the deceased was fired upon and he eventually died. The witnesses are consistent about this part of the prosecution case and the learned Counsel for the appellant was not able to point out any discrepancy in the ocular evidence and evidence of the witnesses on this score. In support of this contention, learned A.P.P. referred to the judgment in the case of Chanda and Ors. (Supra). Besides placing the judgment in extenso, he relied on the following passages from paragraphs 8 and 9 of the judgment.

8. ... It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141....

9. ... 'The common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances....

18. In support of this proposition he cited other judgments as mentioned above and concluded that the prosecution case stands segregated from point of surrounding of the deceased and informant by the accused persons and thus the prosecution case was in two parts, the first part was acts by the accused persons upto the surrounding of the deceased and the second part was individual firing on the deceased. The role of the appellant in the second part was not established due to absence of objective finding of the doctor of the gun shot injury on the back of the deceased, but so far as participation of the appellant in the first part with the common object of murder of the deceased on the exhortation of Lalit Yadav and Niranjan Yadav is concerned, the same remains unimpeachable and fully corroborated and established.

19. Since the matter hinges on the application of Section 149 of the Indian Penal Code, I may usefully quote the section hereinbelow :

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence.

20. As interpreted by the Supreme Court in above judgments, language of Section 149 of the Indian Penal Code makes it clear that it is in two parts. The first part of the Section talks of commission of an offence by any member of an unlawful assembly in prosecution of common object. The second part of the Section talks of knowledge of the member of the assembly of any offence which was likely to be committed in prosecution of that object by any member of the assembly. Thus, apart from any act of commission of offence by any member of the unlawful assembly the mere knowledge of likely commission of such an act also comes within the purview of Section 149 of the Indian Penal Code. In the present case evidence establishes beyond reasonable doubt that on the exhortation of Lalit Yadav and Niranjan Yadav, five accused persons came out of their place of hiding armed with fire arms and surrounded the deceased and the informant, which was followed by firing and death of the deceased. Thus, the common object of firing at the deceased and the informant in the minds of each of the member of the unlawful assembly stands established on the basis of the evidence adduced by the prosecution in this case. Hence, I find that all ingredients of Section 149 of the Indian Penal Code exist in the case for conviction of the appellant under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code.

21. In the circumstances the submissions of the learned Counsel for the appellant that due to discrepancy in the ocular evidence and medical evidence on point of firing and injury to deceased at the hands of this appellant, the entire prosecution case with regard to this appellant should be disbelieved, does not hold good and is fit to be rejected.

22. Since the role of the appellant with regard to firing on the deceased hitting on his shoulder is not established in absence of objective finding of corresponding injury on the shoulder by the doctor, the case of the prosecution so far as this part is concerned, fails. Consequently, the charge under Section 27 of the Arms Act against the appellant also fails as there is no specific independent evidence of he having pistol in his hand.

23. As I find that ingredients of Section 149 of the Indian Penal Code are established in the case, we uphold the conviction of the appellant under Section 302 read with Section 149 of the Indian Penal Code and his sentence of rigorous imprisonment for life.

24. I may observe that as the trial of other accused is still pending in the court below, this judgment will not in any manner affect the trial of the other accused and no party shall take any benefit out of any observations or findings made in this judgment in the said trial.

25. In the result, this appeal fails and is accordingly dismissed with the aforesaid observation.