Allowed

Anugrah Yadav @ Ugrah Yadav v. State of Bihar

Patna HC1 Jul 2015CR. APP (DB)/1079/2009

Case brief

AI extract

What is this about?

The High Court allowed two criminal appeals against conviction and sentence for murder and arms offences. The Court held that prosecution evidence was inextricably mixed with untruths, noting discrepancies in the FIR, absence of bloodstains, and the accused's lack of disguise, leading to the acquittal of all appellants under the benefit of doubt.

What did the court decide?

Conviction and sentences set aside; accused acquitted of offences charged.

Anugrah Yadav @ Ugrah Yadav Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 960 of 2009 WITH

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Criminal Appeal (DB) No. 1079 of 2009

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========================================= (AGAINST THE JUDGMENT OF CONVICTION, DATED 06^TH OCTOBER, 2009, AND ORDER OF SENTENCE, DATED 08^TH OCTOBER, 2009, PASSED BY SHRI ANIL KUMAR SRIVASTAVA, ADDITIONAL SESSIONS JUDGE, F.T.C. NO.V, AURANGABAD, IN SESSIONS TRIAL NO. 104 OF 2004/130 OF 2006, ARISING OUT OF KHUDWA POLICE STATION CASE NO. 21 OF 2003, CORRESPONDING TO G.R. NO. 1716 OF ======================================== 1. Shaligram Yadav, son of late Jagdeo Yadav,

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Bashishth Yadav, son of Shaligram Yadav,

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Dilip Yadav, son of Mathura Yadav,

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Sunil Yadav, son of Mathura yadav All residents of village- Abdulpur, Police Station- Khudwa, District- Aurangabad.

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.... .... Appellant [In Cr. Appeal (DB) No. 960 of 2009 WITH

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Anugrah Yadav @ Ugrah Yadav, son of Shaligram Yadav, All residents of village- Abdulpur, Police Station- Khudwa, District- Aurangabad.

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.... .... Appellants [In Cr. Appeal (DB) No.1079 of 2009]

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Versus

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The State of Bihar

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.... .... Respondent (In both the appeals)

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=========================================

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Appearance :

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(In CR. APP (DB) No. 960 of 2009)

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For the Appellant/s : Mr. Humayou Ahmad Khan, Advocate. For the Respondent/s : Mr. Ajay Mishra, A.P.P. Mr. Neeraj Kumar @ Sanidh, Advocate, appearing as Amicus Curiae (In CR. APP (DB) No. 1079 of 2009) For the Appellant/s : None For the Respondent/s : Mr. Ajay Mishra, A.P.P.

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Mr. Amish Kumar, Advocate, appearing as Amicus Curiae ========================================= CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI

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and

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HONOURABLE MR. JUSTICE VIKASH JAIN

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ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)

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Patna High Court CR. APP (DB) No.960 of 2009 dt.01-07-2015

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Date: 01-07-2015

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Under the judgment, 06.10.2009, passed, in Sessions Trial No. 104 of 2004/130 of 2006, by learned Additional Sessions Judge, Fast Track Court No. V, Aurangabad, the appellants, Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav, stand convicted under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959. For their conviction under Section 302 read with Section 34 of the Indian Penal Code, all the accused-appellants have been sentenced, under the order, dated 08.10.2009, to suffer imprisonment for life and for their conviction under Section 27 of the Arms Act, 1959, they (Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav) have been sentenced, under the order aforementioned, to suffer rigorous imprisonment for a period of three years and pay fine of Rs.5,000/- each and, in default of payment of fine, suffer imprisonment for one year, all the sentences having been directed to run concurrently.

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2. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under:

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(i) While Ram Pravesh Yadav (PW 16), informant of the case, is the uncle of the deceased, PW 1

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(Ramashish Yadav) is the elder brother of PW 16 (Ram Pravesh Yadav) and PW 9 (Arvind Kumar) is the nephew of PW 16 (Ram Pravesh Yadav).

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(ii) On 22.09.2003, at about 9.00 O’clock at night, Birendra Yadav (deceased), Ramashish Yadav (PW 1), Arvind Kumar (PW 9) and Ram Pravesh Yadav (PW 16) were sleeping at their dhaba (i.e., way-side restaurant). While the deceased was sharing the cot with PW 1, PW 16 (Ram Pravesh Yadav) and PW 9 (Arvind Kumar) were sleeping on another cot. Other members of the family, including the parents of the deceased, were sleeping in the adjoining room of the said dhaba and a lantern was lying lit near the door of the dhaba .

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(iii) At about 11.00 O’clock at night, both the informant and the deceased heard the sound of foot-steps outside the dhaba . No sooner the deceased asked as to who it was, 5-6 persons entered into the dhaba . In the light of the lantern and the torch-light, which PW 16 (Ram Pravesh Yadav) was holding in his hand, they saw accused persons, namely, Anugrah Yadav @ Ugrah Yadav, Shaligram Yadav, Dilip Yadav, Sunil Yadav and Bashishtha Yadav. As Birendra Yadav (since deceased) made an attempt to get up and sat on the cot, accused Dilip Yadav and accused Sunil Yadav caught the deceased by hand and while they held the deceased to the cot, accused Shaligram Yadav exhorted to shoot the deceased,

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whereupon accused Anugrah Yadav @ Ugrah Yadav fired from his pistol on the stomach of Birendra Yadav. While being taken to hospital, Birendra Yadav died on the way near village Malwa and his dead body was brought back to his house.

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(iv) Ramshish Yadav (PW 1) informed the village Choukidar, Sri Paswan, about the occurrence, who, in turn, informed PW 15 (Arun Kumar), at Khudwa Police Station, to the effect that on 23.09.2003, at about 2.45 AM, he had received information about the murder of a person in village Abdulpur. This information was reduced into writing in the form of station diary entry No. 139, dated 23.09.2003. Acting upon the information, so received, police personnel, headed by Arun Kumar (PW 15), Officer-in-Charge, Khudwa Police Station, came, on 23.09.2003, at 4.30 hours, to the place of occurrence, and recorded the fardbeyan of Ram Pravesh Yadav (PW 16). Treating the said fardbeyan as the First Information Report, Khudwa Police Station Case No. 21 of 2003, under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, was registered against accused persons, namely, Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav.

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3. During investigation, inquest was held over Birendra Yadav’s dead body, which was also subjected to post mortem examination, and, on completion of investigation, a

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charge sheet was laid, under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against all the accused aforementioned.

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4. At the trial, while a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against accused Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav, a charge, under Section 27 of the Arms Act, 1959, was also framed against accused Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav. To the charges so framed, all the accused pleaded not guilty.

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5. In support of their case, prosecution examined altogether 16 (sixteen) witnesses. The accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, the accused denied that they had committed the offences, which were alleged to have been committed by them, their case being that of denial. The case of the defence was that the said deceased was involved in the activities of local naxalites and it was because of the local rivalry of the naxalities that Birendra Yadav was killed and the accused aforementioned were falsely implicated, because of land dispute and previous enmity.

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6. Having found accused persons, namely,

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Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav, guilty of the offences under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, learned trial Court convicted them accordingly and passed sentences against them as mentioned above.

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7. Aggrieved by their conviction and the sentence passed against them, accused persons, namely, Shaligram Yadav, Bashishth Yadav, Dilip Yadav, Sunil Yadav and Anugrah Yadav @ Ugrah Yadav, as convicted persons, have preferred these two appeals.

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8. While Criminal Appeal (DB) No. 960 of 2009 has been preferred by accused-appellants, Shaligram Yadav, Bashishth Yadav, Dilip Yadav and Sunil Yadav, Criminal Appeal (DB) No. 1079 of 2009 has been preferred by accusedappellant, Anugrah Yadav @ Ugrah Yadav.

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9. As both these appeals have arisen out of the judgment of conviction, dated 06.10.2009, and order of sentence, dated 08.10.2009, passed, in Sessions Trial No. 104 of 2004/130 of 2006, by learned Additional Sessions Judge, Fast Track Court No. V, Aurangabad, we propose to dispose of both these appeals by this common judgment and order.

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10. We have heard Mr. Neeraj Kumar @ Sanidh and Mr. Amish Kumar, learned Counsel, appearing as

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Amicus Curiae. We have also heard Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State in both the appeals.

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11. While considering the present appeals, what needs to be noted is that according to the evidence of Dr. Ravi Ranjan (PW 13), who had, admittedly, performed, on 23.09.2003, at about 12:20 PM, at Sadar Hospital, Aurangabad, post mortem examination on the dead body of Birendra Yadav, he found following ante mortem injuries:

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“(i) Lacerated oval wound of size ½” diameter margin inverted 2” below xyphoid process with blackening of 6” diameter around the wound. On dissection a metallic foreign body bullet shaped 3 cm. long was recovered from abdominal cavity. Multiple small intestine perforation were present.

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(ii) On dissection of Stomach, Stomach contained semi solid digested food material. On dissection of large intestine, it contains gas and foacal material. On dissection lever, spleen and both kidneys- all were intact and pale, nothing abnormal detected. Rigour mortis were present in all the four limbs.” 12. In the opinion of the doctor (PW 13), the

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ante mortem injury aforementioned was caused by fire-arm and the death was caused due to shock and haemorrhage resulting from the above injury.

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13. Neither the findings of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on, and death of, the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 13).

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14. From the unshaken evidence of the doctor (PW 13), what clearly transpires is that Birendra Yadav had met with homicidal death.

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15. The question, which, however, falls for consideration, is: whether the accused-appellants, or any of them, had caused the death of Birendra Yadav?

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16. While considering the question posed above, it needs to be noted that the informant (PW 16), on the night of the occurrence, was sleeping with his nephew Arvind Kumar, on a cot, at their dhaba , and Birendra Yadav (since deceased) and Ramashish Yadav (PW 1) were sleeping on another cot at the said dhaba . A lantern was lying lit at the door of the dhaba . It is the evidence of Ram Pravesh Yadav (PW 16) that he and

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Birendra Yadav woke up on hearing the sound of foot steps outside the dhaba and Birendra Yadav asked as to who it was and, then, 5-6 persons entered into the dhaba and as he (PW 16) flashed the torch-light, he could recognize among those, who had so entered into the dhaba , accused Shaligram Yadav, Dilip Yadav, Sunil Yadav, Bashishtha Yadav and Anugrah Yadav @ Ugrah Yadav, all of whom were armed with pistols.

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17. It is in the evidence of PW 16 that having entered into the dhaba, accused Sunil Yadav and accused Dilip Yadav caught hold of Birendra Yadav and Shaligram Yadav exhorted Anugrah Yadav @ Ugrah Yadav, whereupon Anugrah Yadav @ Ugrah Yadav shot Birendra Yadav on his abdomen and, in the meanwhile, Arbind Kumar (PW 9) and Ramashish Yadav (PW 1) wrapped a gamcha (i.e., country made towel) on the said injury and when Ramashish Yadav (PW 1) asked the accused persons as to why they had shot Birendra Yadav, accused persons told him to keep mum or else, they would shoot him too.

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18. According to the evidence of Ram Pravesh Yadav (PW 16), on receiving the bullet injury, Birendra Yadav, writhing in pain, stated that Ugrah Yadav had shot at him. All the accused-appellants, then, went out of the dhaba and fled away. The informant and others, then, started screaming and raised hulla . On hearing the sound of firing, the female

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members of the family and their neighbours also came to the place of occurrence.

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19. It is the further evidence of Ram Pravesh Yadav (PW 16) that when they were taking Birendra Yadav to Malwa with the help of other persons for his treatment, Birendra Yadav died on the way and, then, they came back to their house with the dead body and the Officer-in-Charge (PW 15) came there, at about 4:30 AM, in the morning and recorded his (PW 16) statement, which has been treated as First Information Report.

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20. Lending support to the evidence of PW 16, PW 1 has deposed that on the day of occurrence, he was sleeping with Birendra Yadav on a wooden cot and PW 16 and PW 9 were sleeping on another cot, a lantern was lying lit there and while they were so asleep, they heard sound of foot-steps of someone outside the dhaba . Birendra Yadav, then, asked as to who was there and, then, Ram Pravesh Yadav (PW 16) flashed torch-light and saw five persons having entered into the dhaba , while one person remained outside.

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21. It is in the evidence of PW 1 that he (PW 1) recognized those, who had come to the dhaba, as accused Shalimar Yadav, Sunil Yadav, Dilip Yadav and Bashishtha Yadav, all of them being armed with pistols. It is also in the evidence of PW 1 that as Birendra Yadav wanted to stand up, accused Dilip

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Yadav and accused Sunil Yadav caught hold of him by their hand and, on being exhorted by accused Shaligram Yadav, accused Anugrah Yadav @ Ugrah Yadav fired from pistol pointing to the abdomen of Birendra Yadav and shot him.

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22. It is also in the evidence of PW 1 that they bandaged the place where blood was oozing out from, and, in the meanwhile, on hearing the sound of firing, the female members of the family and the father of Birendra Yadav also arrived there, who, with the help of villagers, carried Birendra Yadav to hospital, but Birendra Yadav died on the way to hospital and, then, they carried the dead body of deceased Birendra Yadav back to their house, where police officer (PW 15) arrived at 4.30 AM along with village Chaukidar and Ram Pravesh Yadav (PW 16) gave his statement, which was treated as fardbeyan .

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23. Close on the heels of the evidence of PW 1, PW 9 has deposed that on the night of the occurrence, he (PW 9) and Ram Pravesh Yadav (PW 16) were sleeping on a wooden cot at their dhaba and Ramashish Yadav (PW 1) and Birendra Yadav (since deceased) were sleeping together on another cot. A lantern was lying lit there. It is in the evidence of PW 9 that at about 11.00 PM, he heard sound of foot-steps of some persons at the dhaba and when Birendra Yadav asked as to who there was, five persons entered into the dhaba and as PW 16 flashed

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the torch-light, they saw accused persons, namely, Shaligram Yadav, Anugrah Yadav @ Ugrah Yadav, Sunil Yadav, Dilip Yadav and Bashishtha Yadav, holding pistols in their hands and, on being exhorted by accused Shaligram Yadav, accused Anugrah Yadav @ Ugrah Yadav shot at on the stomach of Birendra Yadav from his pistol and after shooting Birendra Yadav, all the accused persons fled away.

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24. It is in the evidence of PW 9 that female members of the family also came and so came the people from their neighbourhood, whereupon Birendra Yadav was carried to hospital for treatment, but he died on the way.

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25. From the above description of the occurrence, which has been given by the prosecution witnesses, it transpires that the assailants were known to the deceased and his family members; yet no precaution, if we have to believe the evidence of the prosecution witnesses, was taken, in any manner, by the assailants to cover their faces or to disguise their identities so that they might not be recognized at the place of occurrence or while fleeing away.

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26. It is not only unlikely, but impossible to believe that if the names of the assailants were known to the prosecution witnesses, why their names had not been disclosed to the village Chaukidar inasmuch as the village Chaukidar merely informed the Investigating Officer (PW 15) that he

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(village choukidar) had received the information about commission of murder in village Abdulpur.

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27. It is, thus, clear that the earliest information, which was given to the Chaukidar and, then, conveyed to the police, did not reveal as to who the assailants were.

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28. Before we proceed further, we may point out that according to the evidence of Arun Kumar (PW 15), who was, at the relevant point of time, posted as Officer-in-Charge, Khudwa Police Station, he received, on 23.09.2003, at about 2.45 AM, information from Sri Paswan, Chaukidar, that the latter had received information about commission of murder in village Abdulpur and, on receiving this information, he made station diary entry No.139, dated 23.09.2003, at about 2.45 AM, and left for Abdulpur village with armed personnel and, upon reaching the house of the informant, he recorded the statement of Ram Pravesh Yadav (PW 16) in the form of fardbeyan , which has eventually become the First Information Report.

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29. Situated thus, it becomes abundantly clear that the names of the accused-appellants as assailants were disclosed after sufficiently long period of time. In this regard, it is noteworthy that though the people from the neighbourhood, who had assembled, at the place of occurrence, had been examined as PW 5, PW 6,PW 7,PW 8, PW 10, PW 11 and PW 12, all of them have turned hostile and the prosecution, too, has

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failed to elicit anything from the cross-examination of the hostile witnesses to show that following the incident of bullet having been fired at Birendra Yadav, anyone had informed these witnesses about the names of the assailants.

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30. Coupled with the above, it is the categorical assertion of PWs. 3 and 4 that injured Birendra Yadav revealed the name of accused Anugrah Yadav @ Ugrah Yadav as the person, who had fired from his pistol and shot at the deceased on his abdomen. It is the clear evidence of these two witnesses that Birendra Yadav died at the very place after revealing the names of the assailants.

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31. Curiously enough, the informant and others of his family claim that Birendra Yadav was being carried for treatment to hospital, but he succumbed to his injuries on the bank of Malwa river.

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32. The defence has, therefore, pointing out to the above discrepancies, contended that the place of occurrence was not the dhaba, but the bank of river. In this regard, it is imperative to note that according to the evidence of the informant and the members of the family of the deceased, the deceased was shot at on a wooden cot and blood oozed out from his wound. Surprisingly, however, no blood-stain, according to the evidence of the Investigating Officer (PW 15), was found either on the cot or on the floor near the cot. Absence of blood

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on or near the cot has not been explained by the prosecution nor is there any explanation discernable in this regard from the evidence on record.

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33. In the light of the evidence on record, which we have discussed above, there is considerable force in the submission made on behalf of the appellants that Birendra Yadav had not been shot at the dhaba, but on the bank of river.

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34. For belated disclosure of names of the accused-appellants as assailants, no explanation has been offered by the prosecution and non-explanation is discernible, in this regard, from the evidence on record. Belated disclosure of the names of the accused-appellants shows that the accusedappellants have been falsely implicated or there is likelihood of some innocent having been implicated along with guilty one(s), more particularly, when there is no convincing reason as to why the names of the assailants were not disclosed to the Chaukidar.

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35. Before proceeding further, we may point out that it is clear from the evidence of PW 1, elder brother of the informant, that there was enmity between the deceased and the appellants relating to dispute with regard to cow and that with regard to an occurrence, wherein one Ganpati Choudhary’s hut had been set on fire, a case was instituted against the deceased at the instance of Anugrah Yadav @ Ugrah Yadav. This shows that the relationship between the deceased and the main

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assailant, Anugrah Yadav @ Ugrah Yadav, was inimical in nature.

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36. While considering the present appeal, what needs to be borne in mind is that there was, admittedly, a land dispute between the parties concerned souring thereby their relationship. Both the parties, therefore, maintained inimical relation with each other. Enmity is a double-edged weapon, which cuts both the ways. While enmity may be a reason for committing an offence, such as, murder, enmity may also be a reason for either falsely implicating an enemy as an accused or roping in an enemy, who may be innocent, along with the guilty ones.

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37. Moreover, neither the torch nor the lantern was seized by the Investigating Officer, though it is claimed that it was in the focus of the torch light, which PW 10 had flashed and the lantern, which was lying lit at the said dhaba , that the assailants were recognized. In fact, the evidence of the Investigating Officer shows that neither the torch light nor the lantern was shown to the police as the means of identification of the assailants. The assailants had also not covered their faces in order to conceal their identities. PW 1 has claimed that he informed the Chaukidar after about four hours of the occurrence.

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38. While considering the above aspects of the appeal, it may be pointed out that in Ram Shankar Singh and Others v. State of Uttar Pradesh (AIR 1956 SC 441) , the

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Supreme Court had made it clear that when a dacoity is alleged to have been committed by, amongst others, an accused, who belongs to the village, where the dacoity is committed, he would take precaution to conceal his identity and it would be unnatural and improbable not to conceal one’s identity. In Ram Shankar Singh (supra), the Supreme Court has also held that if any such accused thinks it necessary to remain personally present at the scene of dacoity, he takes ample precautions to cover his face by some device and it is, therefore, difficult to believe that an accused, who is well known in the village and who was on bad terms with the informant, could have gone to commit dacoity in his own village without taking least precaution to conceal his identity.

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39. What emerges from the above discussion is that the evidence, adduced by the prosecution, is an admixture of half-truth and untruth and since the truth, if any, is so inextricably mixed with the falsehood that it is wholly impossible to disengage the truth from the half-truth and untruth, the prosecution’s case has to be held as wholly unsafe to believe in or rely upon.

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40. At any rate, therefore, in the light of the evidence on record and the law relevant thereto, the accusedappellants deserved to be accorded, at least, benefit of doubt.

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41. In the result and for the forgoing reasons, we

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allow these two appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

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42. Since accused-appellants, namely, Shaligram Yadav, Bashishth Yadav, Dilip Yadav and Sunil Yadav, are on bail, their bail bonds are hereby cancelled and their sureties shall accordingly stand discharged.

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43. As the accused-appellant, namely, Anugrah Yadav @ Ugrah Yadav, is in custody, he is directed to be released forthwith if not required to be detained in connection with any other case.

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44. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

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(I. A. Ansari, J.)

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(Vikash Jain, J.)

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N.A.F.R./Mkr./-

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U √ T √

Anugrah Yadav @ Ugrah Yadav v. State of Bihar

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Anugrah Yadav @ Ugrah Yadav v. State of Bihar

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