Jharkhand High Court
Bijay Yadav vs The State Of Bihar Now Jharkhand on 4 March, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 192 of 1998 (R)
-----
(Against the judgment of conviction dated 14.07.1998 and order of sentence
dated 14.07.1998 passed in S.T. No. 434 of 1994 arising out of Jugsalai
(Burmamines) P.S. Case No. 9 of 1994 passed by the Court of Learned 3rd
Additional Sessions Judge, Jamshedpur)
Bijay Yadav, son of Sri Basudeo Yadav, resident of Carriage Colony,
Burmamines, P.S. Burmamines (Jamshedpur), District-Singhbhum East.
--- --- Appellant
Versus
The State of Bihar now Jharkhand --- --- Respondent
-------
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Naveen Kumar Jaiswal, Advocate
For the State : Mr. Pankaj Kumar, PP.
C.A.V. on 16th July, 2024 Pronounced on 04.03.2025
JUDGMENT
Challenge in this appeal 1 Prosecution Story 2 to 3 Charge and decision of the Trial Court 3 Argument advanced on behalf of the Appellant 3 to 5 Argument advanced on behalf of the prosecution 5 to 6 Appraisal & Findings of this Court 6 to 12 Result 12 Challenge in this appeal:
This appeal is directed against the judgment of conviction dated
14.07.1998 and order of sentence dated 14.07.1998 passed in S.T. No.
434 of 1994 arising out of Jugsalai (Burmamines) P.S. Case No. 9 of
1994 by the Court of Learned 3rd Additional Sessions Judge,
Jamshedpur, East Singhbhum, whereby and where under the appellant
has been convicted for the offence punishable under Section 302/34 of
IPC and further he has been convicted under Section 27 Arms and has
been sentenced to undergo rigorous imprisonment for life under section
302/34 I.P.C. and further sentenced to undergo R.I. for five years for the
offence under section 27 of Arms Act. However, both the sentences were
directed to run concurrently.
Prosecution Story:
2. The prosecution story is based upon the fardbeyan of the Dilip
Chhatriya (P.W.-3), whose statement was recorded on 22.01.1994 at
Santoshi Mandir, situated near the furniture shop of Parmod Sharma at
Baba Kuti near Aata Chakki P.S. Burmamines, District East Singhbhum
at Jamshedpur.
3. The gist of the allegations as unfolded in the Fardbeyan is as
under:-
The informant had stated that on 22.01.1994 in the evening he had
gone to the house of the deceased Patal Das for watching T.V. program at
7:30 pm. Upon the request made by Patal’s mother to call and bring the
deceased, he went out for the said purpose. In course of searching out the
deceased, when the informant reached near Santoshi Mandir, he found
the deceased talking with Pramod Sharma with respect to making of an
Ulna, at Pramod Sharma’s furniture shop. He asked the deceased to go
home as his mother was calling him whereupon he told the informant to
wait. In the meantime when the informant was going towards a lane
situated at the southern side of the said shop to urinate, he noticed that
this accused with a pistol in his hand in the company of another accused,
namely, Anji Rao reached at the said shop and pushed the deceased as a
result of which he fell down inside the shop and upon that it is alleged
that this accused caught hold of the deceased and by placing the pistol on
left side of his neck, he opened fire. Thereafter, upon the instigation of
this accused, Anji Rao threw a bomb like object on the back of the
deceased which burst out. Thereafter, when the deceased was struggling
for his life in a pool of blood, both the accused persons fled away.
Pramod Sharma and his father Sitaram Sharma were said to have
seen the occurrence. Upon halla, many people gathered there including
the family members of the deceased. The motive of the occurrence is
said to be the enmity between the family of the deceased and the family
of the accused, Bijay Yadav, which is said to be going on from before. It
is said that about a month before the occurrence, Matia Yadav (the
brother of the appellant Bijay Yadav) was murdered and, in the case,
filed in that connection, the younger brother of the deceased Patal Das
was also one of the accused persons and for that reason it is said that the2 Cr. Appeal (DB) No. 192 of 1998 (R)
present occurrence had taken place at the hands of the accused person.
4. On the basis of the aforesaid fardabeyan disclosing the aforesaid
story, the F.I.R. was lodged at Jugsalai (Burmamines) P.S. and the same
was being numbered as Jugsalai (Burmamines) P.S.Case No. 0009/94
under sections 302/34 I.P.C. and 27 of the Arms Act and further under
sections 3/4 of the Explosive Substances Act. The investigation was
carried out, after completion of which the charge-sheet under the
aforesaid sections was submitted against the accused persons, showing
another accused, namely, Anji Rao as an absconder. The cognizance of
the case, thereafter, was taken by the learned Magistrate who subsequent
to that committed the case to the court of Sessions. Having registered
Sessions trial, the same was ultimately transferred to the learned trial
court for trial and disposal.
Charge and decision of the Trial Court:
5. The charges under sections 302/34 I.P.C. and 27 Arms Act were
framed against the accused-appellant and the same were read over and
explained to him in Hindi to which he pleaded not guilty and claimed to
be tried.
6. The learned Trial Court after conducting the full-fledged trial
passed against the appellant impugned judgement of conviction and
order of sentence which is under challenge in this appeal.
7. Heard the learned counsel for the appellant and the learned P.P.
on behalf of the State.
Arguments advanced on behalf of the Appellant:
8. It is submitted on behalf of the appellant that as per the
prosecution case, it is said that there are two eye witnesses namely, PW-3
Dilip Chatraya (informant) and PW-4, Parmod Sharma. Deposition of
both of them are contradictory to each other as the PW-3 (informant)
identified the appellant as the assailant whereas PW-4 did not identify
the appellant as the assailant of the deceased. According to PW-4 the
assailant was unknown person. Further, it has also been pointed out that
the deposition of PW-3 as an eye witness, has been falsified by the
deposition of PW-2 Ajay Das (brother of the deceased Patal Das) who
had categorically stated in para 2 that PW-3 informant has come to his
house in the evening of 22.01.1994 (date of occurrence) at about in3 Cr. Appeal (DB) No. 192 of 1998 (R)
between 06:30 to 7:00 pm and stayed in his house till 9:00 pm.
Therefore, the claim of the informant that he had witnessed the
occurrence at 7:45 pm, which had taken place inside the furniture shop
of PW-4 at 7:45 pm on 22.01.1994 gets falsified.
Further, it has also been contended on behalf of the appellant that
the learned trial Court failed to appreciate the evidence of the
Investigating Officer in this case examined as PW-6 who has stated in
para 1 of his deposition that he noticed that the deceased was lying dead
at the place of occurrence and from the position of the deceased a loaded
country made pistol with three live cartridges were also recovered from
his pocket of full pant. PW-6 has categorically stated in his deposition
that the deceased was a man of criminal background and thus in view of
the conflicting deposition of the eye witnesses, the possibility that the
deceased might have been killed on account of gang war firing and not
by the appellant, cannot be ruled out. Further, it has also been pointed on
behalf of the appellant that there are conflicting statements on the point
of recording of evidence of the informant in view of the fact that the
fardbeyan of the PW-3 was said to have been recorded at Santoshi
Mandir, near the furniture shop of Parmod Sharma whereas PW-6 stated
in para 1 that the fardbeyan of the instant case was given by the
informant PW-3 at the police station and thus the version of PW-3 is not
reliable and being a „chance witness‟ of the entire occurrence his
statements need to scrutinized meticulously and thus the learned trial
Court has committed gross error in relying solely upon his statement in
convicting the appellant.
It has further been contended on behalf of the appellant that even
if accepting the depositions of only one eye witness i.e. PW-3
(Informant), the learned trial Court miserably failed to take into
consideration the deposition of this so called eye witness recorded in
para Nos.4, 5, 6, 7 and 9 where it has come in his depositions that PW-3
was facing sessions trial for assaulting by sword to the uncle, aunt and
cousin sister of the appellant for the offences, inter alia, under Section
307 of the IPC and further at para 5 it has been stated by PW-3 himself
that he was arrested and sent to jail for committing theft and on several
occasion he has been arrested and sent to jail as evident from para 7 of
4 Cr. Appeal (DB) No. 192 of 1998 (R)
his deposition and thus, the learned trial Court has committed an error in
his finding.
Further it has also been contended on behalf of the appellant that
from the deposition of PW-6 (Investigating Officer) as recorded in para 6
of his evidence where the place of occurrence has not been duly proved
since no blood mark was found nor any fired cartridges have been
recovered by the Investigating Officer inside the furniture shop of the
PW-4 where the occurrence took place by firearmed gun. Further, the
learned trial Court has committed an error in discarding the evidence of
DW-1 (examined in the defence of the appellant) without assigning any
cogent reason in view of the fact that DW-1 stated clearly that PW-3
(informant) in the year 1991 had attacked his house with another
criminal and DW-1 and his family members were assaulted by P.W.3
with sword. This witness DW-1 had also proved his fardbeyan in the said
case which was marked as Exhibit-X for identification and DW-1 had
further stated that the appellant had given evidence against PW-3 in the
said criminal case and therefore, false implication by the PW-3, who was
not present at the place of occurrence as evident from PW-2 and PW-4 is
natural and explicit. Further it has also been stated that the learned trial
Court did not appreciate the evidence in the present sessions trial
diligently and lawfully and in sweeping manner, judgment of conviction
has been passed for the offence under 27 of the Arms Act and 302/34
IPC without upholding the finding of guilt of the appellant either under
Section 27(1), 27(2) or 27(3) of the Arms Act as they are distinct
offences.
In view of the aforesaid submissions, the learned counsel for the
appellant has submitted that the impugned judgment of conviction and
order of sentence are bad in law and fit to be set aside.
Arguments advanced on behalf of the State.
9. On the other hand, learned P.P. appearing on behalf of the State
has vehemently opposed the contention raised on behalf of the appellant
and submitted that PW-3 who is the eye witness of the case has fully
supported the case of the prosecution and his version is not doubtful
even if the deposition of PW-4 and PW-2 are taken into account. Further,
it has also been pointed out that all the witness including PW-3, PW-4,
5 Cr. Appeal (DB) No. 192 of 1998 (R)
PW-5 & PW-6 have supported the case of the prosecution consistently
and uniformly and there is no legal point to interfere in the impugned
judgment of conviction and order of sentence and therefore the instant
criminal appeal is fit to be dismissed.
Appraisal & Findings of this Court
10. Having heard the parties, perused the record of the case including
the Trial Court Records.
11. In order to prove its case, prosecution has been able to examine
altogether 6 witnesses who are as under:
1. P.W.1-Dulal Das (Father of the deceased)
2. P.W.2-Ajay Das (brother of the deceased)
3. P.W.3-Dilip Chatraya (Informant)
4. P.W.4- Parmod Sharma (the person in whose furniture shop
the occurrence has taken place.)
5. P.W.5- Yogendra prasad Nath (Doctor, who conducted post
mortem of the deceased)
6. P.W.6- Barnabas Tirkey (Investigating Officer)
Apart from the oral evidences the prosecution has proved some
documentary evidences also which are as under: –
i. Exhibit-1- Signature of Ajay Das on the Inquest report
ii. Exhibit-2- is fardbeyan of the informant
iii. Exhibit-3- Signature of Dilip Bahadur(chatraya) i.e.
Informant on fardbeyan
iv. Exhibit-4- Post Mortem report dated 12.11.1997of the
deceased Patal Das.
v. Exhibit-5- Signature of Officer In-charge of Jugsalai Police
Station on formal F.I.R.
vi. Exhibit-6- Seizure List.
vii. Exhibit -6/1- Seizure list
viii. Exhibit-7- Inquest report
On the other hand, one witness has also been examined on behalf of
the defence as D.W.1- Rishideo Yadav
12. At the outset, the deposition of P.W.5 Dr. Yogendra Prasad Nath
is taken into account. P.W.5 had stated that he had conducted the post
mortem examination upon the dead body of the deceased and according
6 Cr. Appeal (DB) No. 192 of 1998 (R)
to him he had found the following injuries on the person of the deceased:
A. Bomb explosion injuries – over an area of 10x11x7 cm
over back of chest and right scapular area- the explosion
and the splinters of the bomb resulted in extensive
laceration of skin, soft tissues, fracture of the right
scapular blendi, lacerated and contused of the right lung,
pericardium, both lungs fractured 2 to 9 ribs at the lateral
side of the chest. Splinters thread and tissue recommends
from the somal was sent along with the post mortem
report. On posteriorly, the explosion contused the soft
tissue of back of chest and abdomen.
B. Fire arm injuries-
(a) Wound of entrance -6 x6 cm over left neck and
adjoining left face. There was blackening of skin tag
around the wound of entrance due to powder of
projectile.
(b) Wound of exit- 1×1 cm over left occipital scalp-
coarse of bullet- After lacerating the soft tissues the
projectile fractured left tissues the projectile fractured
left mandibular wound passed upward and posteriorly
entered into buckled cavity- Lacerated the posterior part
of tongue, fracture the bone of skull and entered into
cranial cavity- In the cranial cavity the projectile
lacerates the bone of the brain then travelled through
substance of left half of brain, made exit wound through
left occipital bone which was fractured over an area of
3×2 cm which prevailing of outer table and then
lacerated the occipital scalp to make the exit wound. A
crack fracture 9 cm over left tempero occipital bone was
also present. Contusion of right portion with blood and
blood clot in the cranial cavity.
According to the opinion of the doctor, all the injuries were ante-
mortem and the bomb explosion injury was found due to bomb
explosion, whereas fire-arm injuries were caused due to fire-arm. Death
of the deceased was caused due to shock and hemorrhage of the vital
organs of the injured. From the deposition of the witness, it is well
founded that it is a case of homicide and the deceased was killed by the
fire arm injuries and bomb explosion.
13. Now this court proceeds to consider comprehensively the
evidences available on record vis-à-vis the findings of the learned trial
Court with respect to the guilt of the accused-appellant in the
commission of the offence.
14. The two witnesses namely P.W.1- Dulal Das and P.W.2- Ajay
Das are father and brother of the deceased respectively and in fact they
are the inquest report witnesses. It is found from the testimonies of these
7 Cr. Appeal (DB) No. 192 of 1998 (R)
two witnesses that they are close relative of the deceased being father
and brother but they are silent during course of the trial before the
learned Trial Court about disclosing the name of the assailant, although
they must have been informed at the first instance immediately after the
said occurrence inasmuch as the so called eye witness PW-3 is said to
have been at the P.O. (place of occurrence) at the instance of this parents
of the deceased (P.W.-1 and mother). None of them either P.W.1 and
P.W.2 has given the detail account of the occurrence nor they have
disclosed the name of the accused in the commission of the offence
before the trial court at the time of recording their statements and as such
their ignorance in disclosing the name of the appellant before the learned
trial court during course of their examination speaks a volume against
the appellant‟s involvement in the commission of the offence.
15. P.W.3- Dilip Chatriya is the informant of this case and he has
stated that on the day, date and time of the occurrence he had gone from
the house of the deceased to the furniture shop of the P.W.4 Pramod
Sharma where this witness had met with the deceased Patal Das and
asked him to come back to home as his mother was calling him. He had
further stated that he had gone outside the shop to attend the nature‟s
call, in the meantime he saw that this appellant along with co-accused
persons come there and this appellant had fired upon the deceased
causing gun shot injury and the co-accused Anji Rao had thrown bomb
by which Patal Das died on the spot. It has also been stated by P.W.3 that
shooting of gun took place „inside the furniture shop’ and at the time
when gun was fired and bomb was exploded, he was by the side of the
shop and „P.w.4- Pramod Sharma was inside the shop‟. From the trend
of the cross examination, it is found that the defence taken on behalf of
the appellant is that this witness was not an eye witness and he had been
harboring grudge with this appellant because of enmity and therefor PW-
3 deposed against the appellant.
In cross examination this witness stated that he had gone to jail
for the offence of committing theft of one brief case from a tempo.
Further the attention of this witness P.W.3 was also drawn by the defence
that he had gone to jail in a case of attempt to murder by inflicting
injuries by a „Sword‟ upon the uncle, aunt and cousin of the appellant,
8 Cr. Appeal (DB) No. 192 of 1998 (R)
however, this witness had denied the same. P.W.3 however had
categorically admitted that he had gone to jail several times but did not
remember. Defence has also been taken that he was not at the spot at the
time of occurrence and he had falsely implicated this appellant and the
deceased had been killed in a “gang-war” by the opponents of the
deceased who himself was a dreaded criminal as disclosed by the I.O. of
this case in his deposition (P.W.6).
16. Another witness examined on behalf of the prosecution was P.W.4
-Pramod Sharma who is natural eye-witness in whose furniture shop
this incident took place. He had stated in his examination-in-chief that
the deceased was in his shop at the time of occurrence when P.W.3 had
come in the shop asking the deceased that the mother of the deceased
was calling him. He further stated that two persons had come to his shop
where one boy fired by a pistol and another person had exploded the
bomb by which deceased Patal Das had died. This witness categorically
stated in para 2 of his examination-in-chief that he did not identify the
accused. This witness has been declared hostile on the point of
identification and he has denied the earlier statement given before the
Police in the cross examination conducted on behalf of the prosecution.
This witness has identified his signature on the statement recorded under
Section 164 of Cr. P.C. before the learned Magistrate, which has been
marked as Annexure-A. From perusal of the statement of this witness
Pramod Sharma recorded under Section 164 Cr.P.C it is found that he
has not taken the name of this appellant in the commission of the offence
and stated that some unknown persons came there and fired upon the
deceased and further he also stated before the learned trial court that the
appellant was not the person who had killed the deceased.
17. P.W.6- Barnabas Tirkey is another witness examined on behalf
of the prosecution, who is the Investigating Officer of the case. This
witness had stated that P.W.4 was examined before the learned
Magistrate for recording his statement under Section 164 Cr.P.C wherein
he had not taken the name of the appellant as the assailant who fired gun
upon the deceased causing fire arm injury. This witness had categorically
stated at para 6 that deceased Patal Das had 5 criminal cases against him
in which charge-sheet was submitted and thus it is established that the
9 Cr. Appeal (DB) No. 192 of 1998 (R)
deceased was a history sheeter with a criminal background.
18. On the other hand, defence has been able to examine one witness
D.W.1 – Rishi Deo Yadav who is the uncle of the appellant. Defence has
examined this witness in order to substantiate his defence that P.W.3
Dilip Chattriya was on inimical terms with the appellant in view of the
fact that P.W.3 along with some other person had attempted to kill this
witness D.W.1 along with his daughter and wife, regarding which a case
was instituted, which has been marked as Ext. „X‟ for identification.
From perusal of the said document, Ext. – „X‟ it is found that the case
was instituted by this witness D.W.1 Rishi Deo Yadav against P.W.3 and
other accused persons which was registered as Burmamines P.S. Case
No. 131 of 1991 dated 28.07.1991 corresponding to G.R. No. 1664 of
1991 registered inter alia under Section 307 of the IPC.
19. Recapitulating the appraisal of the testimonies of the witnesses
and the documents available on record as above in foregoing paragraphs
it appears that the prosecution has claimed that as per the prosecution
story there were two eye witnesses namely P.W.3- Dilip Chattriya and
P.W.4- Pramod Sharma. It is manifest from the evidence that P.W.3 was
on inimical terms with this appellant and he is a “chance witness”.
It is a settled principle of law that deposition of a chance witness
cannot be discarded in a routine course, though a little more scrutiny is
required and in the present case due caution and care is more required in
analyzing his disposition when it is found that P.W.3 and the appellant
were on inimical terms and further it is found that P.W.3 had been in jail
in several cases and the deceased was also a hard-core criminal. Close
scrutiny of the deposition of this chance witness P.W.3 and the
deposition of P.W.4 who is a natural eye-witness become more important
when the deceased admittedly was a history sheeter having several cases
against him, as evident from the deposition of the Investigating Officer
P.W.6. Further the presence of this “chance witness P.W.3” is also
doubtful in the light of the deposition of P.W.2 Ajay Das (brother of
deceased), who has categorically stated that Dilip Chattriya -P.W.3 had
come to his house at about 6.30-7.00 p.m. at night and he remained there
till 9.00 p.m. on the date of occurrence i.e., 22.01.1994 and therefore, his
deposition about the incidence deserves to be discarded because the
10 Cr. Appeal (DB) No. 192 of 1998 (R)
incident is said to have taken place on 22.01.1994 at 7:15 pm and from
the version of P.W.-2 (brother of deceased) it is evident that at that time
the chance witness PW-3 was in the house of P.W.-2. Thus presence of
P.W.-3 is not only falsified by the version of brother of the deceased –
P.W.2 rather the deposition of P.W.3 is further not corroborated from the
natural eye witness i.e., P.W.4 Pramod Sharma, who did not identify the
appellant on the dock nor on the spot as a murderer of the deceased Patal
Das and according to him the assailant was unknown person, although
he stated that P.W.3 had come to his shop but the arrival of P.W.3 at the
time of occurrence becomes doubtful in the light of categorical
deposition of P.W.2 as discussed above..
From the aforesaid evidences, it is found that the learned Trial
Court has committed a gross irregularity in appreciation of evidences.
The version of P.W.3 who is a „chance witness‟ requires caution and
close scrutiny and his presence becomes wholly doubtful in view of the
version of the prosecution witness P.W.2. Further the version of P.W.4,
who is a natural witness, that the deceased was killed by unknown
person becomes more convincing and acceptable because as per the
prosecution story itself the deceased was a man of criminal antecedent
having 5 criminal cases in which charge-sheet was submitted against
him, hence the possibility of gang-war cannot be ruled out and thus in a
cogent and convincing manner based on the evidences available on
record, the benefit of doubt goes to the appellant who deserves to be
acquitted by giving benefit of doubt because of the major contradictions
in the versions of natural eye-witness (P.W.-4) and chance witness (P.W.-
3), particularly on the point of identification of the appellant as an
assailant.
20. Hence in the light of settled principle of law that the deposition of
the chance witness, as in the present case, whose presence at the place of
occurrence is doubtful, is discarded. It has also been well founded
principle of law that when the witness is on inimical terms with the
accused, the deposition of such witness is required to be analyzed very
cautiously and closer scrutiny is required. In the present case, from the
statement of P.W.3 himself and further from the deposition of D.W.1, it
is found that P.W.3 and the appellant were at logger head and therefore to
11 Cr. Appeal (DB) No. 192 of 1998 (R)
become a chance witness for P.W.3 gets persuasively falsified. There is
no other witness adduced on behalf of the prosecution except P.W.3 by
which charge of murder is proved beyond reasonable doubt against the
accused- appellant.
21. In the backdrop of aforesaid discussion and emerging facts from
the testimony of the witnesses, it is fit case where the benefit of doubt
goes to the appellant. The learned Trial Court has erred in appreciating
the evidences particularly when the learned trial court has accepted the
version of P.W.3 as a sacrosanct version without considering the enmity
vis-a-vis the version of natural eye witness P.W.4 and doubtful claim of
P.W.-3 to remain present at the scene of crime when the occurrence took
place in the light of categorical version of P.W.2. Therefore, impugned
judgment of conviction and order of sentence passed by the learned Trial
Court is fit to be set aside.
22. Accordingly, the appellant is acquitted of the charges levelled
against him by giving him benefit of doubt and consequently, the
impugned judgment of conviction dated 14.07.1998 and order of
sentence dated 14.07.1998 passed in S.T. No. 434 of 1994 arising out of
Jugsalai (Burmamines) P.S. Case No. 09 of 1994 passed by the Court of
Learned 3rd Additional Sessions Judge, Jamshedpur is set aside. The
appellant is on bail. Therefore, he is discharged from the liability of his
bail bond.
Result:
23. The instant criminal appeal is allowed.
24. Let the Trial Court Records and the copy of the judgment be
transmitted to the concerned Trial Court.
(Rongon Mukhopadhyay, J.)
(Navneet Kumar, J.)
A.Mohanty
Jharkhand High Court
Dated 04.03.2025
12 Cr. Appeal (DB) No. 192 of 1998 (R)
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