TIPAN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals arise out of Sessions Trial No. 298/5 of 1990 which was tried by learned 3rd Additional Sessions Judge, Patna who by his judgment and order dated 22nd August, 1991 convicted the appellants Tipan Yadav and Dukhit Yadav for the offences punishable under Sections 302/34 of the Indian Penal Code and sentenced them to undergo life imprisonment with fine of Rs. 2000/ - each and in default to undergo rigorous imprisonment for three months. Appellant Dukhit Yadav was further convicted for the offence punishable under Section 27 of the Arms Act and he was sentenced to undergo rigorous imprisonment of 2 years with fine of Rs. 500/ - and in default to undergo one month rigorous imprisonment. Both the sentences of appellant Dukhit Yadav were ordered to run concurrently.

(2.) THE prosecution case is based upon fard -beyan of informant Nagina Bind (since deceased) as recorded by the Officer In -charge, Dulhin Bazar Police Station at the Police Station on 10.9.1989 at about 6.45 PM. It is stated in the fard -beyan that while the informant along with others including Kamlesh Bind (PW 1) and his father Munna Bind (PW 5) were sitting at their door -step, the two appellants, namely, Tipan Yadav and Dukhit Yadav came. The informant's goats were tied outside the house. The appellants came and untied the two goats and walked away with them. The informant and his father protested but the appellants did not respond, then, the informant caught hold the waist of the appellants, then, they let go both the goats. Thereafter, Tipan Yadav ordered Dukhit Yadav to shoot the informant, upon which Dukhit Yadav took out a pistol from his waist. Seeing this, the informant started running towards his house. Dukhit Yadav then, shot. The bullet hit the informant Nagina Bind on his waist and he fell down. He was then, carried to Police Station where he gave his statement. Accordingly, the first information report was lodged under Sections 384, 307, 379 and 511 of the Indian Penal Code. It appears that said Nagina Bind was, then, taken to hospital from where he was referred to Patna. At Patna, because of doctor's strike, he could not be treated at PMCH. He was privately treated where, after four days, he died. The case was then, converted to Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Upon investigation, the Police filed chargesheet against the two appellants and cognizance having been taken the case was committed to the Court of Sessions for trial where charges have been framed to which the appellants pleaded not guilty and required to be tried.

(3.) WE , then, come to PW 2 Doman Bind, who, to some extent in his examination -in -chief, supports the prosecution but upon cross -examination, he turns turtle. Firstly, he states that he had heard two shots that were fired. The first had hit deceased. His cross -examination was then adjourned. When he came on adjourned date, he admits in the cross -examination that his statement was recorded by the Police but then, he totally became hostile to the prosecution and retracts so much so that he states that Kamlesh Bind (PW 1) came much later after the accused persons had escaped. He further states that he had not given his statement before the Police that he had seen the occurrence. He admits in the cross -examination that he had not seen the occurrence at all. He further damages the prosecution case by stating that when he reached at the spot, he found Nagina Bind lying injured and in unconscious state. He went with him to the hospital. He remained unconscious through out till he died. This is of some importance because if this is correct, then the fard -beyan that was recorded could not have been so recorded. It is also curious to note that in spite of all this the prosecution did not declare him hostile and did not reexamine. We, then, come to PW 3 Chinta Devi the wife of the deceased. Regrettably, she also feigns ignorance and says that she had not seen any thing as she was inside the house. We, then, come to Sitabiya Devi (PW 4). She is merely tendered. The last witness is PW 5 Munna Bind, father of the deceased. It is unfortunate that he had to be declared hostile because contrary to the fard -beyan where it is stated that he was there and he also went with the son to stop the appellants, he stated that he heard shots while he was inside the house and when he came out, he found his son lying on the ground grievously hurt. He had seen nothing. He denies having made any statement to the Police in his cross -examination by the prosecution. In his cross -examination by the defence, he makes matter worst for the prosecution by stating that PW 3 and PW 4, the two ladies, were inside the house when shots were fired. The death blow to the prosecution is when he states that his son had fallen grievously injured to the ground and was unconscious and remains so till he died.