Allowed

Mani Yadav v. State of Bihar

Jharkhand HC23 Aug 2018Cr.A(DB)/109/1996

Case brief

AI extract

What is this about?

In this criminal appeal, the Division Bench of the Jharkhand High Court allowed the accused's appeal against a murder conviction. The court acquitted the appellant by quashing the trial court's judgment and sentence, holding that the prosecution failed to prove the charge beyond reasonable doubt due to material improvements and contradictions by key witnesses and lack of corroboration.

What did the court decide?

Quashed and set aside the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Chatra; discharged the appellant from bail bond liability.

Mani Yadav Vs State of Bihar — Murder and Culpable Homicide | Jharkhand HC (2018)

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Cr. Appeal (DB) No. 109 of 1996 (R)

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(Against the judgment of conviction and order of sentence dated 15.05.1996 and 16.05.1996 respectively, passed by Sri Satyendra Kumar Gupta, Additional Sessions Judge, Chatra, in connection with Sessions Trial No. 242 of 1991, corresponding to G.R. Case No.311 of 1990, arising out of Pratap Pur P.S. Case No.24 of 1990)

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Mani Yadav, son of Lochan Yadav, resident of Village-Pachmo, P.S. Hunterganj, District-Chatra ....... ….... Appellant

Versus

The State of Bihar

…… Respondent

PRESENT: HON'BLE MR. JUSTICE D.N. PATEL HON’BLE MR. JUSTICE AMITAV K. GUPTA

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--------For the Appellant : Mr. Rakesh Kumar Sinha, Advocate For the State : Mr. Arun Kumar Pandey, A.P.P. ---------------

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Dated: 23^rd August, 2018 (Oral Judgment) Per : D.N. Patel, J.

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1. This criminal appeal has been preferred by the accusedappellant, being aggrieved and feeling dis-satisfied, by the judgment of conviction and order of sentence dated 15.05.1996 and 16.05.1996 respectively, passed by the Additional Sessions Judge, Chatra, in connection with Sessions Trial No. 242 of 1991 , corresponding to G.R. Case No.311 of 1990, arising out of Pratap Pur P.S. Case No.24 of 1990 whereby this appellant has been mainly convicted under Section 302 of the Indian Penal Code for life imprisonment for causing murder of Chandra Dev Yadav. No fine has been imposed by the Hon'ble trial court.

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Case of the prosecution:

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2. The case of the prosecution is that PW-4 -Bilas Yadav had given his statement to the police to the effect that on 05.06.1990 accused-Mani Yadav, who is brother-in-law of the informant, came to his house. There was exchange of hot words between the accused and the deceased. It is further stated by PW-4 in his statement that his elder brother Chandra Dev Yadav (deceased) was sleeping along outside the house in the open space. It is also stated in his statement

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by the informant that Raj Kumari Devi-sister of the informant, his brother Buta Yadav and Kuldeep Yadav were sleeping in their respective rooms. All of a sudden on hearing screams “Maiya Gai Maiya Gai” the informant ( PW-4 ) awoke and found that Mani Yadav (accused) was attacking his brother-in-law (deceased) by tangi. The informant raised the alarm whereupon Buta Yadav ( PW-6 ), Kuldeep Yadav ( PW-5 ) and Raj Kumari Devi ( PW-1 ) came out of their rooms and found that the accused, after inflicting the injury with tangi (sharp cutting weapon) on Chandra Dev Yadav (deceased). They all raised alarm. The accused ran away with the weapon tangi towards the forest. Attempt was made to catch hold him, but, he could not be apprehended and he escaped away. Thus, the occurrence has taken place on 05.06.1990 at about 11.00 p.m. and the First Information Report was lodged on 06.06.1990 at about 12.15 a.m. After the First Information Report was lodged, investigation was carried out and after recording statement of several witnesses, charge-sheet was filed, the case was committed to the Sessions Court being Sessions Trial No.242 of 1991 and Additional Sessions Judge, Chatra has examined as many as eight prosecution witnesses and on the basis of the evidence on record has convicted this appellant for committing murder of Chandra Dev Yadav. This appellant has been punished for life imprisonment and hence the accused-appellant preferred the present appeal.

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3. Arguments canvassed by the counsel for the appellant:

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 It is submitted by the counsel for the appellant that prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt.

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 Learned counsel appearing for the appellant has submitted that there are major omissions, major contradictions and major improvements in the deposition of prosecution witnesses. This aspect of matter has not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside.

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Learned counsel appearing for the appellant has submitted

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that the place of murder, as narrated by PW-4 & PW-5 are different. This aspect of the matter has not been properly appreciated by the learned trial court.

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 It is also submitted by the counsel for the appellant that there was no light at the place of occurrence, on the contrary, the witnesses have consistently stated that it was a dark night, they all were sleeping and it is stated by PW-4 and PW-5 that when they saw accusedappellant, the whole occurrence was over and the appellant ran away with weapon. This has been stated in the First Information Report whereas, as per the deposition of the prosecution witnesses, this appellant had run away after throwing the weapon at the place of occurrence.

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 It is also submitted by the counsel for the appellant that as per the First Information Report, this appellant came at the house of PW-4 on just previous day of the occurrence whereas as per evidence, this appellant was staying at the house of informant since last several months and he was assisting the deceased and his family in the construction of the house.

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 It is further submitted by the counsel for the appellant that there is no recovery of the weapon at all whereas as per deposition of PW-4 (para-5 of his deposition) the weapon was recovered in his presence. Thus, PW-4 has no love, labour and loss for the truth. The weapon has never been recovered and he has stated that weapon was recovered in his presence. On the contrary, this PW-4 has stated in paragraph No.11 of his deposition that this appellant was assisting the deceased and his family for the construction of their house. The deceased and this appellant had no inimical terms. This appellant came at the house of the deceased without any weapon. Thus, there was no reason for this appellant to commit murder of the deceased because he is brother-in-law of the deceased. These aspects of the matter have not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence, passed by the learned trial Court deserves to be quashed and set aside.

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 It is also submitted by the counsel for the appellant that as per the First Information Report, after hot altercations between the deceased and this appellant, the appellant left the house of this deceased, but, in the First Information Report nowhere it has been stated that at what time and when this appellant returned to the house of the deceased.

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 It is submitted by the counsel for the appellant that PW-5 has narrated in paragraph No.13 that Mallick Yadav (uncle) was also present in the house, but, he has not been examined at all as a prosecution witness. He is a crucial witness of the occurrence. This aspect of the matter has not been properly appreciated by the trial court and hence also the judgment and order of conviction and sentence deserve to be quashed and set aside.

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4. Argument canvassed by the A.P.P.:

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 It is submitted by the Additional Public Prosecutor on behalf of the State that the prosecution has proved the offence of murder committed by this appellant beyond reasonable doubt.

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 It is submitted by the Additional Public Prosecutor that the case of the prosecution is based upon the eye-witness who is PW-4 (informant)- brother of the deceased. As per the deposition given by PW-4, he has clearly narrated the role played by this appellant-accused of causing murder of the deceased with weapon-tangi.

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 It is submitted by the Additional Public Prosecutor that as per the medical evidence given by PW-3- Dr. N.N. Mandal the medical evidence is corroborating to the deposition given by PW-4.

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 It is submitted by Additional Public Prosecutor that the place of occurrence is the house of the deceased. So far as recovery of the weapon is concerned, it is submitted by Additional Public Prosecutor that the weapon-tangi has not been recovered.

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 It is submitted by Additional Public Prosecutor that though PW-4 has stated in paragraph no.14 that the weapon was recovered, but, in fact, the weapon was never recovered as per Exhibit-3. Similarly, as per deposition of PW-5 (paragraph no.3), there was recovery of the weapon, but, in fact, there is no recovery of weapon

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as per Exhibit-3. Thus, there is discrepancy so far as this aspect is concerned. Nonetheless, recovery of the weapon is not a must.

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Reasons:

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5. Having heard learned counsel for both the sides and looking to the evidences on record, we hereby, quash and set aside the judgment and order passed by learned trial court- Additional Sessions Judge, Chatra in Sessions Trial no. 240 of 1991 dated 15.05.1996 and 16.05.1996 respectively mainly for the following evidences and reasons and judicial pronouncements:

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(i) It is the case of the prosecution that the offence of murder of Chandra Dev Yadav has taken place on 05.06.1990 at about 11.00 p.m., First Information Report was lodged on 06.06.1990 at about 12:15 a.m. The name of the deceased is Chandra Dev Yadav. The prosecution has examined following witnesses:

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PW-1	Raj Kumari Devi	She is a hostile witness
PW-2	Chander Mahto	Seizure list witness-hostile witness
PW-3	Dr. N.N . Mandal
PW-4	Bilas Yadav	Informant-brother of the deceased
PW-5	KuldeepYadav	Brotherof thedeceased
PW-6	Butu Yadav	Brother of the deceased- hostilewitness
PW-7	Ramavatar Mistri
PW-8	Rajendra Ram

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(ii) Thus, the prosecution has mainly relied upon the evidences given by PW-4, and PW-5 to be read with medical evidences given by PW-3. PW-4 and PW-5 are the brothers of the deceased and therefore their depositions will have to be scrutinized by this Court very closely and with all circumspection.

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(iii) Looking to the deposition given by PW-4 -Bilas Yadav (brother of the deceased), it appears that he is the informant of the case. As per First Information Report which has been signed by this witness he has stated that this appellant came at their house just on previous day whereas as per the evidence this appellant was staying in their house since long more than couple of weeks. Similarly, this

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witness has stated in the First Information Report that after having hot altercations between this appellant and the deceased during evening hours or at dinner time this appellant had left the house of the deceased. Nothing has been mentioned in the First Information Report that when this appellant returned at the house of the deceased whereas in his deposition PW-4 has stated that this appellant was staying at their house and had gone to bed alongwith him. Thus, there is material improvement in his deposition so far as returning of this appellant at the house of PW-4 or at the house of the deceased is concerned. This aspect of the matter has not been properly appreciated by the learned trial court while convicting this appellant in Sessions Trial no. 242 of 1991.

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(iv) As per First Information Report, which was signed by PW-4, after committing murder, this appellant had run away with the weapon whereas PW-4 has materially improved the case of the prosecution while giving his deposition before the learned trial court and has stated in paragraph no.5 of the deposition that the weapon was recovered and seizure list was also prepared whereas the weapon was never recovered nor it is mentioned as recovery in the seizure list (Exhibit-3). Thus, this PW-4 has no respect for the truth at all. There is material improvement by PW-4 during his examination before the trial court.

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(v) PW-4 has also stated in paragraph no.7 that there are several houses nearby the house of the deceased. By raising alarm the people rushed at the place of occurrence. But, except these two brothers of the deceased, who are PW-4 and PW-5, not a single independent witness examined by the prosecution who has supported the case of the prosecution. This aspect of the matter has not been properly appreciated by the learned trial court.

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(vi) PW-4 has stated in paragraph no.11 of his deposition that this appellant was staying at their house since last 15 days whereas in the First Information Report it has been stated that just a previous day of occurrence or 05.06.1990, he came at their house during evening hours. Moreover, as per PW-4 this appellant had come at their

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residence because he was assisting the construction of their house. Moreover, this appellant had come without any weapon. This graphic analysis of this appellant reveals that he has not committed murder of the deceased and PW-4 has materially improved the prosecution version. It is also stated by PW-4 in paragraph no.8 of this deposition that there was no light at the place of occurrence.

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(vii) As a cumulative effect of the aforesaid deposition of PW-4 we find that PW-4 is not a trustworthy witness nor he is a reliable witness. Moreover, it has been stated in paragraph no.13 of the deposition by PW-4 that the deceased and this appellant had consumed liquor on the date of occurrence. If it is so, then there is no question of hot altercations between these two persons whatsoever arises. Even otherwise also as stated hereinabove, there is material improvement by this PW-4, looking to the First Information Report which was signed by PW-4 and looking to the deposition given by PW-4 to be read with Exhibit-3.

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(viii) Looking to the deposition given by PW-5 who is also brother of the deceased - Kuldeep Yadav, he has narrated in paragraph no.3 of his deposition that the weapon was recovered and was handed over to the police, whereas, looking to the seizure list (Exhibit-3) there is no such recovery at all. Looking to the First Information Report lodged by PW-4, it is a case of another brother of the deceased that this appellant has run away alongwith the weapon towards the forest and this witness has stated that the weapon was recovered and looking to Exhibit-3, there is no recovery of the weapon at all. Thus, there is material improvement by this PW-5 during his deposition before the learned trial court. Looking to the deposition given by PW-5 in paragraph no.4, learned trial court through oversight has mentioned two paragraphs as paragraph no.4 and by reading both these paragraph no.4, it appears that this PW-5 has no respect for the truth.

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(ix) Looking to paragraph no.13 of the deposition of PW-5Kuldeep Yadav, his uncle Mallick Yadav was also there in the house at 11.00 p.m. on 05.06.1990. There were blood stains upon the cloth of this Mallick Yadav. This crucial eye-witness of the occurrence has not

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been examined at all by the prosecution and no justifiable reasons has been given by the prosecution for non-examination of Mallick Yadav as a prosecution witness. Moreover, it appears from the deposition given by PW-4, the brother of the deceased, who has stated in paragraph no.3 of his deposition that no sooner did PW-4 raised the alarm, the appellant ran away and upon hearing the alarm raised by PW-4, Rajendra Ram, Ram Awatar Mistry and other members of the family came at the place of occurrence as per paragraph no.8 of the deposition of PW-4. Thus, it appears that this PW-5 has not seen the appellant causing murder of the deceased.

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(x) Moreover, looking to paragraph no.14 which is cross- examination of PW-5, there are crucial suggestion by way of defence by this appellant which leads to material contradiction and material omissions and material improvement of the case of the prosecution by this PW-5, but, the Investigating Officer has not been examined by the prosecution which is fatal to the case of the prosecution. There is material improvement vis-a-vis his statement made under Section 161 of the Code of Criminal Procedure. Thus, PW-5 inspires no confidence and he is untrustworthy and unreliable witness. This aspect of the matter has not been properly appreciated by the learned trial court.

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(xi) So far as, PW-6 is concerned, he is hostile witness. So far as PW-7 and PW-8 are concerned, looking to their evidences, they have nothing much added in support of the prosecution. On the contrary, PW-7 has stated that he has not given any statement before the police and PW-8 has also stated that police has not enquired anything from him. PW-7 and PW-8 ought not to have been examined at all by the prosecution mechanically. This reflects mind set of the Investigating Officer which could have been avoided. Thus, over all looking to the deposition given by PW-4 and PW-5 the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. PW- 4 and PW-5 are the interested witnesses as stated hereinabove. There are material improvements of the case of the prosecution by these two witnesses. PW-1, PW-2 and

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PW-6 have turned hostile and they have not supported the case of the

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prosecution.

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6. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra reported in (2010) 13 SCC 657 the Hon'ble

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Supreme Court has held as under:

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“44. There had been a lot of improvements and contradictions in PW 10’s statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor had it been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother-in-law (A-3). More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions.

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The rules of appreciation of evidence require that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that the appellants had ill-treated the deceased or that Appellant 3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy, etc.”

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(emphasis supplied)

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7. In the case of Sampath Kumar v. Inspector of Police reported in (2012) 4 SCC 124 the Hon'ble Supreme Court has held as under:

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“20. The witness (PW 7) did not offer any explanation, much less a cogent and acceptable one for his silence for such a long period. His assertion that he was scared by the appellants even after they had been taken into custody by the police and, therefore, did not reveal anything about the actual events till he had the courage to come to the court to make a statement, is hard to believe. At any rate, reliance upon the deposition of a witness who has made such a material improvement in his version is wholly unsafe unless it is corroborated by some other independent evidence that may probabilise his version.

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21. In Narayan Chetanram Chaudhary v. State of Maharashtra this Court held that while discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable, contradictions in the testimony were not. This Court observed: (SCC p. 483, para 42)

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“42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.”

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22. The difference between discrepancies and contradictions was explained by this Court in State of H.P. v. Lekh Raj. Reference may also be made to the decision of this Court in State of Haryana v. Gurdial Singh where the prosecution witness had come out with two inconsistent versions of the occurrence. One of these versions was given in the court while the other was contained in the statement made before the police. This Court held that these were contradictory versions on which the conclusion of fact could not be safely based.

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23. This Court in Gurdial Singh observed: (SCC p. 500, para 21) “21. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police. … In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.”

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24. Reference may also be made to the decision of this Court in Kehar Singh v. State (Delhi Admn.). This Court held that if the discrepancies between the first version and the evidence in court were material, it was safer to err in acquitting than in convicting the accused.

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In the present case the statement made by Palani (PW 7) is in complete contrast with the statement made by him before the police where the witness stated nothing about having seen the appellants standing near the deceased around the time of the incident. This omission is of very vital character. What affects the credibility of the witness is that he did not in his version to the police come out with what according to him is the truth, but withheld it for a period of five years till he was examined as a prosecution witness in the court.”

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(emphasis supplied)

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8. In the case of Vijay Kumar v. State of Rajasthan reported in (2014) 3 SCC 412 the Hon'ble Supreme Court has held as under:

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“14. This witness, PW 10 Jaswant Singh was, admittedly, examined by the investigating officer during investigation and in that statement he has not stated the facts which he now for the first time stated before the trial court. This raises a serious doubt as to the veracity of the said facts (see Khalil Khan v. State of M.P.). In other words this witness has made material improvement while deposing in the court and such evidence cannot be safe to be relied upon. Thus the evidence adduced by the prosecution to prove Circumstances Nos. (ii) and (iii) does not pass the test of credibility and is liable for rejection.”

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(emphasis supplied)

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9. As a cumulative effect of the aforesaid facts, reasons, evidences and judicial pronouncements, we, hereby, quash and set aside the judgment and order of conviction and sentence passed by learned trial court-Additional Sessions Judge, Chatra in Sessions Trial no. 242 of 1991 dated 15.05.1996 and 16.05.1996 respectively. As this appellant is on bail, hence he is discharged from the liability of the bail bond.

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10. This appeal is allowed and disposed of accordingly.

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(Amitav K. Gupta, J.)

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Jharkhand High Court, Ranchi Dated : 23^rd August, 2018 NKC/ Tarun/ N.A.F.R.

Mani Yadav v. State of Bihar

Case brief

What is this about?

What did the court decide?

Mani Yadav v. State of Bihar

Case brief

What is this about?

What did the court decide?

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