Partly allowed

Sahdeo Yadav and Ors. v. State of Bihar

Patna HC21 Nov 2017CR. APP (DB)/74/1994

Case brief

AI extract

What is this about?

High Court modified appellants' conviction from murder and culpable homicide to culpable homicide not amounting to murder under Section 304 IPC due to medical evidence showing only two injuries. Appeal partly allowed with reduced sentences to a fine.

What did the court decide?

Appellants convicted under Section 304 IPC and sentenced to pay a fine of Rs. 10,000 each to the victim's family.

Sahdeo Yadav and Ors. Vs State of Bihar — Landlord and Tenant | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.74 of 1994

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

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Sahdeo Yadav

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Mahadeo Yadav

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Bindeshwar Yadav, all sons of Nanhak Yadav, resident of villageBharari, Police Station- Sherghati, District- Gaya

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Teni Yadav

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Gopali Yadav

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Rupa Yadav, sons of Bhukhan Yadav, resident of village- Salaiya, Police Station- Sherghati, District- Gaya

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Puran Yadav, son of Makhu Yadav, resident of villasge- Bharai, Police Station- Sherghati, District- Gaya

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... ... Appellant/s

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Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Gauri Shankar Prasad, Advocate For the State : Ms. S.B. Verma, APP ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY) Date : 21-11-2017

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During the pendency of the appeal appellant No. 5, Gopali Yadav died in 1995, whereas the appellant No. 7 Puran Yadav died in 2009 and as such the appeal on their behalf stands abated. Now the appeal is confined to five surviving appellants, namely, Appellant No. 1 Sahdeo Yadav, Appellant No. 2 Mahadeo Yadav, Appellant No. 3 Bindehswar Yadav, Appellant No. 4 Teni Yadav and appellant No. 6 Rupa Yadav.

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 2/9

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These appellants have been convicted vide judgment of conviction and order sentence dated 22.12.1993 passed by the 10^th Additional Sessions Judge, Gaya in Sessions Trial No. 12 of 1992/ 318 of 1991 arising out of Sherghatti P.S. Case No. 141 of 1990 for the offences under Section 302/149, 307/149 and accused Sahdeo Yadav has further been convicted under Section 148 and other accused persons under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offences under Section 302/149, 7 years for the offences under Section 307/149, and further accused Sahdeo Yadav was sentenced to undergo rigorous imprisonment for six months for the offences under Section 148 and other accused persons for two months for the offence under Section 147 IPC. However, all the sentences were directed to run concurrently.

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The prosecution case, in brief, is that on 11.8.1990 the sons of the informant, the deceased, Amarik Yadav, Rambali Yadav, Bhola Yadav, Ishwar Yadav were ploughing their field in village Mansha Bigha at about 2 PM, one Birju Sinh son of Ramratan Singh of villae Mansha Bigha came to the field and asked to unyoke the plough. But they did not oblige him and did not unyoke their plough. Thereafter at about 3 PM Bindeshwar Yadav, Sahdeo Yadav, Mahadeo Yadav, all sons of Nanha Yadav

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 3/9

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and Puran Yadav son of Marku Yadav, resident of village Bharahi along with Rupu Yadav, Gopali Yadav and Teni Yadav of village Salaiya came along with Rambesent Singh, Ramshraya Singh, Birju Singh, Awadh Singh. Birju Singh and Awadh Singh of village Mansha Bigha came armed with lathi and asked th unyoke the plough but the plough was not uyoked. Then the above named persons started calling names and went away. Subsequent to that after ploughing the field the sons of the informant came to their house at about 5 PM the informant Sonu Yadav was along with the deceased son. That in the meantime Bindeshwar Yadav, Sahdeo Yadav, Mahadeo Yadav and Puran Yadav of village Bharahi and Rupu Yadav, Gopali Yadav and Teni Yadav came armed with lathi and khanti and they assaulted them. The accused persons assaulted his son by lathi and Khanti and he was also assaulted by lathi and Khanti and he was also assaulted by lathi and khanti on his head as well as on his hand. On hulla the son of the informant Munarik Yadav, Rambali Yadav, Ishwar Yadav, Bhola Yadav and other villagers Jagdeo Das and others came. Amarik Yadav, son of the informant become unconscious there and then he was taken to the hospital on a rickshaw where he died. He has further stated that motive of the occurrence is the land dispute.

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 4/9

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The police after investigation submitted charge sheet for the offences under Sections, 147, 148, 149, 323, 325, 307 and 302 of the Indian Penal Code. After cognizance on 23.5.1991 the case was committed to the Court of Sessions and the 10^th Additional Sessions Judge, Gaya framed charges for offences under the aforesaid Sections. The appellants and others pleaded not guilty and as such they were put on trial.

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During the trial on behalf of the prosecution 13 witnesses were examined. P.Ws. 1,2,5 and 6 were sons of the informant. P.Ws. 3,7, 8 and 9 have been declared hostile, P.W. 4 was tendered. P.W.11 is the doctor who conducted post mortem, P.W.12 is the Doctor who examined the injury of the informant.

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Mr. Gauri Shankar Prasad, appearing on behalf of the appellants submitted that on account of land dispute between the parties the incident took place and only the family members are witnesses of this case. The independent witnesses, P.Ws. 3,7,8 and 9 have been declared hostile whereas P.W. 4 was tendered. He submitted that in the instant case the conviction of the appellant is not supported by the specific evidence of the prosecution as to the manner of assault and by weapon alleged. Referring to the deposition of the Doctor he submitted that the Doctor has found only two injuries on the deceased. The injuries do not indicate that

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 5/9

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they were caused by the accused in the manner suggested by the informant or other witnesses of the case. Referring to the deposition of P.W. 10 he submitted that the informant has alleged that his son was assaulted by Khanti but the injury does not suggest that it was caused by Khanti. He submitted that one side of the Khanti is pointed one and if the injury was caused by Khanti it must relate to injury by pointed side and no such injury was found on the person of the deceased. Again he referred to the deposition of the informant in para-48 where the informant has stated that accused persons have indiscriminately assaulted the deceased whereas P.W. 11 athe Doctor has found only two ante-mortem injuries. Referring to the suggestion made to the P.W. 11 the doctor who conducted post mortem. Learned counsel has drawn the attention of the court to para-11 where the doctor has admitted that injuries caused to the deceased may be caused even by falling vertically through head. He submitted that in the instant case the allegation of assault is only against the appellant Nos. 1 and 7. There is no allegation of any overt act against rest of the appellants.

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Mr. Prasad has submitted that in the instant case the IO was not examined and as such the prosecution has suffered immense prejudice on account of non-examination of the IO. He

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 6/9

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submitted that prosecution has failed to even mark the case diary as ext. and as such the defence could not be able to cross examine the IO of the case or in his defence rely upon the case diary for the purpose of contradiction under Section 145 of the Indian Evidence Act. He referred to various circumstances to indicate that the manner of occurrence, nature of injury, the allegation of assault or several points where the witnesses are at variance and the accused could have cross-examined the IO to take advantage of their contradiction in the matter of their first statement before the police and the improved version in Court. He referred to the deposition of P.W. 10 where he has admitted many contradiction in his crossexamination as to his statement before the police and the statement in the court particularly in paragraph 55 onwards. Mr. Prasad has also referred to the deposition of other witnesses to highlight the contradiction in their version before the police and their deposition in the court to find fault in the prosecution case and to highlight the prejudice caused to the appellants on account of nonexamination of the IO of the case. He referred to the contradiction in the version of the P.Ws. before the police and improved version in the court. Referring to evidence of P.W. 6 he submitted that this witness has stated in para-48 that approximately 50 lathi blows were given to the deceased which stands falsified by the post

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 7/9

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mortem report. The doctor found only 2 ante-mortem injuries on the person of the deceased.

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Ms. Shashi Bala Verma, appearing on behalf of the State submitted that although there are discrepancy in the version of the informant as to the manner of injury and the injury found on the deceased. She has not disputed the position canvassed by the appellants on the point that the weapon containing pointed side of khanti has not been found in the injury report and as such in view of the Apex Court judgment the injury of khanti cannot be taken as the weapon used for causing injury to the deceased. She has not been able to dispute the fact that the informant’s version of indiscriminate assault on the deceased or the version of PW-6 that 50 blows were given to the deceased is not supported by the medical evidence.

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We have heard the parties and on perusal of the record we find that there are discrepancy in the prosecution case. We also find that the prosecution witnesses have exaggerated in the matter of assault by the accused persons on the deceased. Neither there was indiscriminate assault by the appellants nor 50 lathi blows as per the P.W. 6. The medical report suggests that there was only two injuries on the deceased and as such we are of the view that in a land dispute altercation took place in which the

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 8/9

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deceased sustained two injuries and as such, we are of the view that the appellants have not caused injury with intention to kill the deceased, otherwise they could have used the pointed side of the khanti to cause death of the deceased. Thus, we are of the view that the instant case does not fall in the category of culpable homeside amounting to murder rather a case under Section 304 IPC.

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We have gone through the records and on perusal thereof we find that the appellant Nos. 1 and 7, against whom there are allegation of assault, have remained in jail for 9 years and rest of the appellants are only member of unlawful assembly. Thus, in the totality of the fact situation, we are of the view that ends of justice would be met if we convert the conviction of the appellants under Section 304 IPC and modify the sentences to fine of Rs. 10,000/- (ten thousand) each to be paid to the family of the victim. Accordingly, we allow the appeal in part and convert the conviction of the appellant under Section 304 IPC and reduce the sentences as fine of Rs. 10,000/-against all the appellants to be paid to the family of the victim within a period of three months from today.

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Since all the appellants has to pay Rs. 10,000/- as fine, we direct that they shall not be discharged from the liability

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Patna High Court CR. APP (DB) No.74 of 1994 dt.21-11-2017 9/9

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of the bail bonds without deposit of the amount of fine of Rs. 10,000/- each to the family of the victim within the aforesaid period of three months.

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With the aforesaid modification, the appeal is partly allowed.

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(Rajendra Menon, CJ)

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( Anil Kumar Upadhyay, J)

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spandey/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	24.11.2017
Transmission Date	24.11.2017

Sahdeo Yadav and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

Sahdeo Yadav and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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