{"id":193652,"date":"1999-01-12T00:00:00","date_gmt":"1999-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/paras-yadav-and-ors-vs-state-of-bihar-on-12-january-1999"},"modified":"2015-05-03T00:51:58","modified_gmt":"2015-05-02T19:21:58","slug":"paras-yadav-and-ors-vs-state-of-bihar-on-12-january-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/paras-yadav-and-ors-vs-state-of-bihar-on-12-january-1999","title":{"rendered":"Paras Yadav And Ors vs State Of Bihar on 12 January, 1999"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Paras Yadav And Ors vs State Of Bihar on 12 January, 1999<\/div>\n<div class=\"doc_bench\">Bench: G.B. Pattanaik, M.B. Shah<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  276-277 of 1997\n\nPETITIONER:\nPARAS YADAV AND ORS.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT: 12\/01\/1999\n\nBENCH:\nG.B. PATTANAIK &amp; M.B. SHAH\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>1999 (1) SCR 55<\/p>\n<p>The Judgment of the Court was delivered by<\/p>\n<p>SHAH, J. These two appeals are filed against the Judgment and Order dated<br \/>\n3rd September, 1996 in Criminal Appeal No. 14 of 1985 and Criminal Appeal<br \/>\nNo. 62 of 1985 by which Conviction of original accused nos. 2 and 3 under<br \/>\nSection 302 read with Section 34 I.P.C. and that of original accused no. 1<br \/>\nunder Section 302 I.P.C. is upheld by the High Court and they all have been<br \/>\nsentenced to undergo rigorous imprisonment for life.\n<\/p>\n<p>It is a prosecution version that on 7th February, 1983 Sambhu Yadav who was<br \/>\nworking as an employee in the cloth shop at Chanpatia Bazar was returning<br \/>\nat about 7.00 p.m. on a bicycle. At about 800 p.m., when he reached about<br \/>\n100 yards north of Ghogha Chowk on the pitch road, he met three persons who<br \/>\nabused him and asked him to stop his bicycle. There-after, Paras Yadav<br \/>\n(accused no. 1) caught hold of the bicycle and accused nos. 2 and 3, Satan<br \/>\nand Tulsi caught both the arms of Sambhu Yadav and started assaulting him<br \/>\nwith fists and slaps. In the meantime, Paras Yadav gave chhura blow in<br \/>\nabdomen. Accused thereafter fled away. On hulla being raised, Jhakhari<br \/>\nYadav (p.w. 9), Bagur Raut (p.w. 8) Basgeet Yadav (p.w. 1), Gogari Yadav<br \/>\nand other persons came there. It is the prosecution version that Sambhu<br \/>\nYadav (deceased) stated before the witnesses and the Police Sub-Inspector<br \/>\nthat he was surrounded by Tulsi, Satan, Munshi and Paras and thereafter<br \/>\nParas stabbed him on abdomen. It is also a prosecu-tion version that there<br \/>\nwas enmity between the accused person and the deceased on account of land<br \/>\ndispute. Sub-Inspector of Police, Shri Dina Nath Singh (p.w. 16) arrived on<br \/>\nthe spot while he was on patrolling duty along with others and recorded<br \/>\nfarbdeyan under Section 307 I.P.C. against the three appellants, besides<br \/>\ntwo unknown persons. The victim was shifted to hospital where he succumbed<br \/>\nto the injuries at night on 8th February, 1983. Thereafter, offence under<br \/>\nSection 302 I.P.C. was added.\n<\/p>\n<p>The Sessions Court convicted the accused by relying on farbdeyan (Ext. 1),<br \/>\nwhich was treated as dying declaration. The learned Additional Sessions<br \/>\nJudge held that as there was no eye witness to the occurrence the entire<br \/>\ncase rested on the dying declaration made by the deceased. The Court<br \/>\narrived at the conclusion that there was nothing to suggest that the Police<br \/>\nSub-Inspector Dina Nath Singh who recorded the dying declaration-cum-<br \/>\nstatement of Sambhu Yadav had any ill feeling against any of the accused<br \/>\npersons. The said statement is consistent with what other prosecu-tion<br \/>\nwitnesses have deposed before the Court. It is also found that dying<br \/>\ndeclaration is corroborated by the medical evidence as the doctor (p.w. 11)<br \/>\nwho held post-morterm examination found injury in the abdominal region of<br \/>\nthe deceased by a penetrating weapon like dagger. After appreciating the<br \/>\nentire evidence on record, the High Court has upheld the conviction of the<br \/>\nappellants. Hence, this appeal by special leave is preferred.\n<\/p>\n<p>Learned Counsel appearing on behalf of the accused vehemently submitted<br \/>\nthat there is no evidence on record to hold that the accused were having<br \/>\nany common intention and there is no evidence on record from which common<br \/>\nintention could be inferred. The evidence of the prosecu-tion witnesses is<br \/>\ntotally inconsistent with regard to the role played by accused no. 2 and 3<br \/>\nas stated by the deceased. It is further submitted that farbdeyan should<br \/>\nnot be treated as dying declaration as it is recorded in a routine manner<br \/>\nby the Police Sub-Inspector.\n<\/p>\n<p>The learned Counsel referred to the evidence of P.W. 1, Basgeet Yadav who<br \/>\nhas stated that at 8.00 p.m., he rushed to the newly built bridge and saw<br \/>\nSambhu Yadav lying there and he was bleeding. Sambhu, on being asked,<br \/>\ninformed that Paras Yadav, Tulsi and Munshi surrounded him and Paras gave a<br \/>\nchhura blow. Similarly, P.W. 2, Bachu Das stated that he alongwith<br \/>\nJagannath was going home on bicycle and when they reached at the distance<br \/>\nof 200 yards from Ghogha Chowk, they saw five persons going away. They were<br \/>\nParas, Munshi, Tulsi and Satan and fifth person could not be identified. At<br \/>\nGhogha Chowk, they saw Sambhu falling down in an injured condition. On<br \/>\ninquiry, Sambhu told that Munshi, Tulsi and Satan caught hold of him and<br \/>\nParas gave a Chhura blow. The statement to the aforesaid effect was made by<br \/>\nSambhu to Sub- Inspector. Similarly, P.W. 4, Ramchander Raut also stated<br \/>\nthat he rushed to the place of occurrence after hearing the noise and found<br \/>\nthat Sambhu had fallen down on the pitch road. On inquiry, Sambhu told that<br \/>\nhe was stabbed by Paras while Tulsi, Munshi and Satan had caught hold of<br \/>\nhim. P.W. 5 Kanchan Yadav, deposed similarly and has stated that Sambhu<br \/>\ntold him that he was sur-rounded by Munshi, Tulsi, Satan and Paras and<br \/>\nParas stabbed him on abdomen. He also deposed it with regard to the enmity<br \/>\nbetween Sambhu and others accused on account of the land dispute.\n<\/p>\n<p>P.W. 6 Jokhu Yadav, P.W. 7 Nug Raut, p.w. 8, Ragur Raut, P.W. 9, Jhakhari<br \/>\nYadav and P.W. 12 Wakil Rai also deposed to the same effect that Tulsi,<br \/>\nMunshi, Satan caught him and Paras gave a knife blow. P.W. 13, Lakshman<br \/>\nChowkidar has stated that he was patrolling with the Sub-In-spector on the<br \/>\nrelevant date. Hearing hulla, they rushed at the spot and saw Sambhu in<br \/>\ninjured condition. Sambhu told that Paras gave chhura blow while Satan,<br \/>\nTulsi and Munshi instigated him. The next witness is P.W. 16 Dina Nath<br \/>\nSingh, Police Sub-Inspector, who has stated that he recorded the statement<br \/>\nof Sambhu Yadav at the place of occurrence at 8.30 p.m. on 7th February,<br \/>\n1983. His thumb impression was taken on the FIR.\n<\/p>\n<p>From the aforesaid evidence, one thing is clear that there is no eye<br \/>\nwitness to the incident. Prosecution has relied upon the statements made by<br \/>\nthe deceased Sambhu at the place where he was lying injured. As stated<br \/>\nabove, these dying declarations consistently establish beyond reasonable<br \/>\ndoubt that deceased Sambhu was conscious and was in a position to speak<br \/>\nafter receiving the injuries. Considering the evidence of the prosecution<br \/>\nwitnesses, following facts emerges :-\n<\/p>\n<p>(a) No. of persons reached at the scene of offence after the incident and<br \/>\nat the time injured Sambhu Yadav was lying in the bleeding condition. P.W.<br \/>\n1, 2, 4, 5, 6, 7, 8, 9, 13 and 14 are the witnesses who have deposed that<br \/>\nthe deceased dis-closed the names of the accused persons. They have also<br \/>\nstated that Police Sub- Inspector, Dina Nath Singh came there and recorded<br \/>\nthe farbdeyan.\n<\/p>\n<p>(b)   Dina Nath Singh, Police Sub-Inspector was on patrolling duty and<br \/>\nreached at the place of occurrence at 8.30 p.m. He recorded the FIR on the<br \/>\nspot. That FIR is taken as dying declaration after the death of Sambhu. It<br \/>\nis true that FIR is recorded in a routine manner by the Police Sub-<br \/>\nInspector as complaint and not as dying declaration. However, it has to be<br \/>\nnoted that at the relevant time, Police Sub-Inspector was recording FIR and<br \/>\nat that stage, there was no question of recording it as a dying<br \/>\ndeclaration.\n<\/p>\n<p>(c)    No. of witnesses deposed about dying declaration made by Sambhu on<br \/>\ninquiry, that Paras gave chhura blow while Satan, Tulsi and Munshi caught<br \/>\nhold of him.\n<\/p>\n<p>(d)   Witness Bachu Das P.W. 2 and P.W. 7, Jag Raut state that while going<br \/>\nhome by bicycle they saw five persons going away, namely, Paras, Munshi,<br \/>\nTulsi and Satan and the fifth could not be identified.\n<\/p>\n<p>(e)    Sambhu was removed to the hospital by bus and that he was conscious<br \/>\nthrough out.\n<\/p>\n<p>(f)    Giving of chhura blow is corroborated by the medical evidence.\n<\/p>\n<p>It has been contended by the learned Counsel for the appellants that the<br \/>\nInvestigating Officer has not bothered to record the dying declaration of<br \/>\nthe deceased nor the dying declaration is recorded by the Doctor. The<br \/>\nDoctor is also not examined to establish that the deceased was conscious<br \/>\nand in a fit condition to make the statement. It is true that there is<br \/>\nnegligence on the part of Investigating Officer. On occasions, such<br \/>\nnegligence or ommission may give rise to reasonable doubt which would<br \/>\nobviously go in favour of the accused. But in the present case, the<br \/>\nevidence of prosecution witnesses clearly establishes beyond reasonable<br \/>\ndoubt that the deceased was conscious and he was removed to the hospital by<br \/>\nbus. All the witnesses deposed that the deceased was in a fit state of<br \/>\nhealth to make the statements on the date of incident. He expired only<br \/>\nafter more than 24 hours. No justifiable reason is pointed out to<br \/>\ndisbelieve the evidence of number of witnesses who rushed to the scene of<br \/>\noffence at Ghogha Chowk. Their evidence does not suffer from any infirmity<br \/>\nwhich would render the dying declarations as doubtful or unworthy of the<br \/>\nevidence. In such a situation, the lapse on the part of the Investigating<br \/>\nOfficer should not be taken in favour of the accused, may be that such<br \/>\nlapse is committed designedly or because of negligence. Hence, the<br \/>\nprosecution evidence is required to be examined de hors such ommissions to<br \/>\nfind out whether the said evidence is reliable or not. For this purpose, it<br \/>\nwould be worthwhile to quote the following observations of this Court from<br \/>\nthe case of Ram Bihari Yadav v. State of Bihar and others, J.T. (1998) 3 SC\n<\/p>\n<p>290.<\/p>\n<p>&#8220;In such cases, the story of the prosecution will have to be examined de<br \/>\nhors such ommissions and contaminated conduct of the officials otherwise<br \/>\nthe mischief which was deliberately done would be perpetuated and justice<br \/>\nwould be denied to the complainant party and this would obviously shake the<br \/>\nconfidence of the people not merely in the law enforcing agency but also in<br \/>\nthe administration of justice.&#8221;\n<\/p>\n<p>In this view of the matter with regard to Paras Yadav, in our view, there<br \/>\nis no reason to disbelieve the oral dying declaration as deposed by number<br \/>\nof witnesses and as recorded in farbdeyan of deceased Sambhu Yadav. The<br \/>\nfarbdeyan was recorded by the Police Sub-Inspector on the scene of<br \/>\noccurrence itself, within few minutes of the occurrence of the incident.<br \/>\nWitnesses also rushed to the scene of offence after hearing hulla gulla.<br \/>\nThe medical evidence as deposed by p.w. 11 also corroborates the<br \/>\nprosecution version. Hence, the courts below have rightly convicted Paras<br \/>\nYadav for the offence punishable under Section 302 I.P.C.\n<\/p>\n<p>The next question would be with regard to the conviction of accused nos. 2<br \/>\nand 3. that is Satan Yadav and Tulsi Sonar under Section 302 read with<br \/>\nSection 34 I.P.C. In our view the learned Counsel for the appellants<br \/>\nrightly pointed out that the prosecution version with regard to the part<br \/>\nplayed by accused nos. 2 and 3 is inconsistent. Some witnesses deposed that<br \/>\nthe deceased informed that accused nos. 2 and 3 surrounded him while other<br \/>\nwitnesses deposed that the deceased told that they gave fist blows or slaps<br \/>\nwhile some witnesses state that the deceased told that Tulsi Sonar and<br \/>\nSatan Yadav caught hold of the deceased. Considering, the aforesaid<br \/>\ninconsistencies in the dying declaration as deposed by the witnesses with<br \/>\nregard to the part played by accused nos. 2 and 3, and as there is no<br \/>\ndirect evidence in our view, it cannot be said that prosecution has proved<br \/>\nbeyond reasonable doubt that accused nos. 2 and 3 are guilty for the<br \/>\noffence punishable under Section 302 read with Section 34, I.P.C.\n<\/p>\n<p>In the result, the appeals are partly allowed, the conviction of original<br \/>\naccused No. 1, Paras Yadav is confirmed and the conviction of original<br \/>\naccused nos. 2 and 3, that is, Satan Yadav and Tulsi Sonar is set aside.<br \/>\nAppellant Satan Yadav and Tulsi Sonar be set at liberty forthwith, unless<br \/>\nrequired in any other case. Ordered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Paras Yadav And Ors vs State Of Bihar on 12 January, 1999 Bench: G.B. Pattanaik, M.B. Shah CASE NO.: Appeal (crl.) 276-277 of 1997 PETITIONER: PARAS YADAV AND ORS. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 12\/01\/1999 BENCH: G.B. PATTANAIK &amp; M.B. SHAH JUDGMENT: JUDGMENT 1999 (1) SCR 55 The Judgment [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-193652","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Paras Yadav And Ors vs State Of Bihar on 12 January, 1999 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/paras-yadav-and-ors-vs-state-of-bihar-on-12-january-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Paras Yadav And Ors vs State Of Bihar on 12 January, 1999 - Free Judgements of Supreme Court &amp; 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