JAWAHIR YADAVA Vs. STATE OF BIHAR

JUDGEMENT

(1.) JAWAHIR Yadava and his brother Hira Yadava have preferred this appeal against the judgment of conviction and order of sentence dated 5th 3.7.1989 passed by the learned Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 316 of 1983, G. R. Case No. 2337 of 1982 (Rohtas P. S. Case No. 76 of 1982) by which the appellants have been convicted under Section 302/34 I.P.C. and have been sentenced to rigorous imprisonment for life. The appellant no.1 JAWAHIR Yadava has further been convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for one month and his sentence has been ordered to run concurrently.

(2.) THE prosecution case relates to an occurrence of 26.10.1982 at 8 P.M.. At that time informant (Gurucharan Yadav) P. W. 8 was sitting at his outhouse along with his family members. Villagers Jawahir Yadava and Hira Yadava, who are appellants here, came abusing and inquired about Rekha Yadav because he has uprooted some crops from the ridge of informant P.W. 8. Informant's bhabhi (P.W. 4) intervened. THE accused persons who are appellants here entered inside the house and assaulted by means of lathi. THE informant intervened and pacified. Rekha Yadav received injuries and he was taken to Tilauthu Government Hospital in that very night where he was treated but his condition did not improve and in the next morning he was taken to Bose Clinic at Dehari where his treatment started. In course of intervention the informant's bhabhi (P.W. 4) also received injuries. THE fard beyan was witnessed by Ram Bachan Yadav (P.W. 3) and Mundrika Yadav (not examined). A case was registered under Sections 452 and 307 I.P.C. This fard beyan led to a formal FIR which was sent to the Court where it reached on 5.11.1982 meaning thereby that fard beyan of 27.10.1982 reached the Court after more than one week. Allegations were investigated into. During pendency of the investigation Rekha Yadav died so the charge-sheet was submitted under Section 302 I.P.C.. THE case was triable by the Court of Sessions so it was committed after appearance of the accused persons. Charges were explained to them. One Katawaru Yadav was not named in the FIR but he was also charge-sheeted and charged. All the three accused persons were charged under Sections 302/34 and 325/34 I.P.C. THE accused persons pleaded innocence so the trial proceeded.

(3.) INFORMANT has named P.W. 6 as a witness of the occurrence. P. W. 6 in his evidence has not supported the case and he has declined that he has seen any part of the occurrence rather he has stated that it was a dark night. INFORMANT has named Jai Ram Yadav also a witness of the occurrence. Jai Ram Yadav has been examined as P. W. 7. He has stated that after hearing commotion he went to the place of occurrence and saw Rekha Yadav unconscious. He has brought the injured to the hospital. According to the deposition of informant two persons P. W. 6 and P. W. 7 have been stated to be witness of the occurrence but they have not supported the informant's version that they have witnessed the occurrence. P. W. 1 has supported the prosecution case. Therefore, the informant's version has been contradicted with regard to time or manner of occurrence by the witnesses who have been named by none else but the informant himself. The place of occurrence has become two. According to informant in the Fard Beyan (Ext. 2) the informant (P.W. 8) is specific that it is inside the house but his evidence excludes the version of his fard beyan and it creates another place of occurrence i.e. Gali or lane. Definitely these are two different places and there is no evidence that assault was made at both places. In evidence assault was said to be made inside Gali but in the Fard Beyan assault was made inside the house. Other contradictions have been compounded further on account of non- examination of any independent witness of the vicinity. The occurrence is of Gali which is encircled by the house but not even one person of any neighbouring house has come to the court to depose about any part of the occurrence. These contradictions get further complicated when the defence has challenged the manner of occurrence saying that assault was made by unknown thieves. Non-establishment of place of occurrence is itself a ground which casts a grave doubt regarding version of occurrence described by the prosecution. In such circumstances, examination of investigating officer which could have detailed the place of occurrence was essential but non- examination of I. O. without any explanation is a very important fact which has to be taken into account. Non-examination of Investigating Officer in the facts and circumstances is most important aspect of the case and non-examination of I. O. has definitely prejudiced the case of the defence as well as the prosecution that the place of occurrence has not been fixed.