RAM KESH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH the appellants have preferred this appeal against the judgment dated 19.3.1997 and order dated 27.3.1997 passed by 1st Additional Sessions Judge, Aurangabad in Sessions Trial No. 122 of 1992/161 of 1992 convicting and sentencing them to undergo imprisonment for life under Section 302 read with Section 34, Indian Penal Code and imprisonment for a period of seven years under Section 201, Indian Penal Code. BOTH the sentences have been order to run concurrently.

(2.) THE case of prosecution, as disclosed by informant Maharaj Yadav (P.W. 5) in the First Information Report (Exhibit-1), in short, is that on 27.10.1991 at about 7 a.m. Ram Dhyan Kumar (P.W. 1), the material grandson of informant (P.W. 5) came to his house and informed him that on 26.10.1991 in the night at about 11 p.m. when he was sleeping with his mother Jageshwari Devi, his father appellant Ram Kesh Yadav, his uncle Jagdish Yadav, and his grandfather appellant Dwarika Yadav brought his mother in the courtyard of the house and after holding her legs and hands, press d her neck and killed her and half an hour thereafter, they took the dead-body of deceased towards Berhni where they cremated the dead-body at a burning Ghat. Informant (P.W. 5) further stated that his grandson Ram Dhyan Kumar (P.W. 1) had come alone to his house for giving informant about the occurrence.

(3.) THE evidence of Ram Dhayan Kumar (P.W. 1) is that his father appellant Ram Kesh Yadav had passed the neck of his mother and his grandfather appellant Dwarika Yadav had caught the hands of his mother at the time of occurrence. About his aunt, he has said that she had caught the legs of his mother. A suggestion has been put by defence to P.W. 1 that neither before Investigating Officer nor before the Magistrate who recorded his statement under Section 164, Code of Criminal Procedure, he had stated that his grandfather had caught hands of his mother and his aunt had caught ledges of his mother. He has denied the suggestion but then prosecution has not examined Investigating Officer in this case and for this reason, the defence could not bring on record the contradiction in his earlier statement and his evidence in Court on the point of manner in taking part by appellant Dwarika Yadav in commission of occurrence. THE statement of P.W. 1 recorded by Magistrate has been brought on record by prosecution which is marked Exhibit-2 and the Court below has used this statement for corroboration of evidence of P.W. 1 but it failed to take note of the fact that in this statement P.W! 1 had stated that at the time of occurrence his grandfather Dwarika Yadav had caught hold of both legs of his mother and it was his aunt who had caught hold of both the hands of his mother. Appellant Dwarika Yadav has been found guilty considering the evidence of P.W. 1 that at the time of occurrence, he had caught hold of hands of deceased. No other overt act is alleged against him. THE allegation of pressing neck of deceased is, admittedly, against appellant Ram Kesh Yadav, the husband of deceased. When the evidence of Ram Dhayan Kumar (P.W. 1) that at the time of occurrence, appellant Dwarika Yadav had caught hold the hands of deceased, becomes doubtful in view of his earlier statement where he has stated that he had caught legs of deceased, it becomes very difficult to come to a finding as to participation of appellant Dwarika Yadav in the commission of offence. Besides this, P.W. 1 in para-20 of his cross-examination, has admitted that when his mother died, his grandfather lifted her asking to leave her because she was dead. This statement also makes the statement of P.W. 1 that his grandfather had caught hold of the hands of his deceased mother at the time of occurrence quite doubtful. So, we find that evidence of P.W. 1 does not inspire confidence that appellant Dwarika Yadav had also taken part in the commission of murder of deceased but so far his evidence against his father appellant Ram Kesh Yadav is concerned that is free from any doubt.