Patna High Court
State Of Bihar vs Shrilal Yadav And Ors. on 26 July, 2005
Equivalent citations: 2005(3)BLJR1686
Author: Rekha Kumari
Bench: Rajendra Prasad, Rekha Kumari
JUDGMENT Rekha Kumari, J.
1. This is an appeal by the State of Bihar against the judgment dated 22.12.1987 passed by Shri Anirudha Prasad Chaudhary, 2nd Additional Sessions Judge, Madhepura in Sessions Trial No. 42 of 1985 by which he has acquitted all the seven respondents of the charges framed against them.
2. Respondent Chandeshwari Yadav, Bino Yadav are sons of respondent Saryug Yadav. All other respondents are sons of one Muni Lal Yadav.
3. The prosecution case, in brief, is that on 14.8.1984 at about 5.30 in the morning, the two she buffaloos of respondents Saryug Yadav and Srilal Yadav had strayed in the Marua field of Dipo Yadav @ Dip Narayan Yadav, brother of the informant Narayan Prasad Yadav. Dipo Yadav started driving the buffaloos towards the house of respondent Srilal Yadav to raise his protest. When he reached in front of the house of Tilkeshwar Yadav, respondent Bino Yadav started altercating with him. The respondent then called his brother and others. On this the other respondents, all armed with lathi came and ran to assault Dipo Yadav . Dipo Yadav ran to the door of Tilkeshwar Yadav and all the respondents reached there and respondent Srilal Yadav, Upendra Yadav, Bino Yadav, Maheshwari Yadav and Chandeshwari Yadav started assaulting Dipo Yadav with lathi. It is said that respondent Srilal Yadav gave a lathi blow on his chest, Maheshwari Yadav gave a lathi blow on temporal region respondents Upendra Yadav and Bino Yadav gave lathi blow on right thigh, respondent Chandeshwari Yadav gave lathi blow on the face of Dipo Yadav. Dipo Yadav died on the spot. It is also said that during assault Jamun Yadav, Mausera brother (son of mother's sister) of the informant went to save Dipo Yadav, then he was also assaulted with lathi by respondent Saryug Yadav and Bhubneshwari Yadav. Seeing Dipo Yadav dead, the respondents fled towards their houses.
4. The SIBP Yadav, Officer-in-Charge of Singheswar Police Station recorded the fardbeyan (Ext. 4) of the informant on the same date i.e. 14.8.1984 at 10.30 a.m. at village Behrari. PS. Singheshwar District Madhepura where the occurrence is said to have taken place. On the basis of the fardbeyan, formal FIR (Ext. 8) was drawn up. The police investigated the case and after completing investigation submitted charge-sheet against the respondents.
5. All the respondents were charged under Section 147 of the Indian Penal Code for committing the offence of rioting. Respondents Srilal Yadav, Bino Yadav, Upendra Yadav, Maheshwari Yadav and Chandeshwari Yadav were further charged under Section 302 of the Indian Penal Code and respondents Bhubneshwari Yadav and Saryug Yadav were charged under Section 323 of the Indian Penal Code for causing hurt to Jamun Yadav. They pleaded not guilty to the charges. Their defence, as gathered from the suggestions given to the prosecution witnesses, is that no occurrence as alleged took place and that respondent Saryug Yadav had constructed his house by encroaching a portion of land of Munglal which was looked after by Jamun Yadav (PW 2) and on 14.8.1984 at 6.00 a.m. Dipo Yadav (deceased), Jamun Yadav and others went to the house of respondent Saryug Yadav to demolish it. Respondent Srilal Yadav, who is related to Saryug Yadav was present there. He protested whereupon the prosecution party assaulted respondent Srilal Yadav with phrase and lathi and in that-incident Dipo Yadav received injuries and died.
6. At trial, the prosecution examined ten witnesses. Out of them PW 1 Tilkeshwar Prasad Yadav, PW 2 Jamun Yadav, PW 3 Md. Jamaluddin, PW 4 Chandeshwari Prasad Yadav, PW 5 Sainilal Yadav and PW 8 Narayan Yadav (informant) claim to be eye witnesses to the occurrence, PW 6 Nageshwar Yadav has been tendered for cross examination, PW 7 Ashok Kumar is a witness who had seen the respondents with lathi fleeing after the occurrence, PW 9 is Dr. Arun Kumar Mandal, who had conducted the postmortem examination on the dead body of the deceased. PW 10 is Binod Prasad Yadav, Inspector of Police, who had investigated the case.
7. The respondents also examined DW 1 Dr. Rabindra Nath Ghosh, a Private Medical Practitioner who had examined the injuries on respondent Shrilal Yadav.
8. The learned trial Court, after considering the evidence of the above witnesses, held that the prosecution has succeeded in proving that the occurrence took place on the date, time and place and in the manner as alleged by the prosecution; but it further held that the fard beyan (Ext. 4) of Narayan Yadav (PW 8) is not an actual FIR of the occurrence as prior to the recording of the fard beyan, Tilkeshwar Yadav (PW 1) had gone to the police station and given information regarding the occurrence and that was the actual FIR of this case and as that has been withheld by the prosecution and not brought on record, a reasonable doubt is created against the prosecution case. Accordingly, it acquitted all the respondents of all the charges framed against them.
9. The learned APP appearing on behalf of the State appellant has submitted that there is no material on record to hold that prior to the instant fard beyan of the informant, any information regarding the occurrence was given and only on the stray statement of PW 1 at the end of his cross examination, it cannot be held that the fard beyan (Ext. 5) is not the actual FIR and hence the learned trial Court was not justified in acquitting the respondents.
10. Learned counsel for the respondents, on the other hand, submitted that the learned trial Court has rightly held that the prosecution has suppressed the actual FIR of the occurrence. He further submitted that though the learned trial Court has held that the prosecution has succeeded in proving that the occurrence took place on the alleged date, time, place and in the alleged mariner, but its finding to that extent is erroneous. The medical evidence is at variance with the oral evidence of the witnesses and, therefore, the learned Court below should not have held that the prosecution has proved that the occurrence took place in the manner as alleged by the prosecution.
11. PW 1 at whose door the occurrence is said to have taken place, has stated that on the alleged date at 6.00 a.m. he was working in his paddy field when. he saw that Dipo Yadav was driving two heads of she buffaloes towards the house of respondent Shrilal Yadav. One of the buffaloes was of respondent Shrilal Yadav and the other was of respondent Saryug Yadav. He has further stated that when Dipo Yadav reached in front of his (PW 1) house, respondent Bino Yadav started altercating with Dipo Yadav. On this the other respondents came armed with lathi. He (PW 1) also went to his door. Respondent Shrilal Yadav abused Dipo Yadav and exhorted to assault. Dipo Yadav fled towards west. Respondents Shrilal Yadav, Maheshwri Yadav, Bino Yadav, Upendra Yadav, Chandeshwari Yadav started assaulting Dipo Yadav with lathi. Dipo Yadav fell down and the respondents continued to assault him. Dipo Yadav died and the respondents fled away. He has further stated that Jamun Yadav had gone to save Dipo Yadav, when respondents Bhubneshwari Yadav and Saryug Yadav assaulted him with lathi on his right hand.
12. PW 2 Jamun Yadav has deposed that on the alleged date at 5.30 a.m. when he was returning from his field and reached in front of the house of Bechan Yadav, he saw that Dipo Yadav had fallen on the ground and respondents Shrilal Yadav, Maheshwar Yadav, Upendra Yadav, Chandeshwari Yadav, Bino Yadav were assaulting Dipo Yadav with lathi and respondent Saryug Yadav and Bhubneshwari Yadav were standing there with lathi. He (PW 2) ran to save Dipo Yadav when respondents Bhubneshwari Yadav and Saryug Yadav assaulted him with lathi. He received injuries on his left hand and right thigh and the bone of his left hand was fractured. The witness has specifically stated that respondent Shrilal Yadav assaulted Dipo Yadav on his chest, Maheshwari Yadav assaulted him on his right temporal region, Chandeshwari Yadav assaulted him on the face and respondents Upendra Yadav and Bino Yadav assaulted him on right thigh and Dipo Yadav died on account of the injuries sustained, at the spot and then the respondents fled away. The evidence of this witness also is that the she buffaloes of Shrilal Yadav and Saryug Yadav had grazed the crops of the field of Dipo Yadav and Dipo Yadav was taking the cattle to lodge his protest and on this there was at first altercation between Dipo Yadav and Bino Yadav and then the other respondents came and assaulted Dipo Yadav. In cross examination, this witness has stated that the door of Bechan Yadav and Tilkeshwar Yadav is the same and when he reached Bechan's house, he saw Dipo Yadav lying on the ground at the Sehan of the door of Tilkeshwar Yadav. He has further stated that he did not see the she buffaloes grazing the crops of Dipo Yadav.
13. PW 3 Md. Jamaluddin has deposed that on 14.8.1984 at 6.00 a.m. he saw respondents Shrilal Yadav, Upendra Yadav, Maheshwari Yadav, Chandeshwari Yadav, Bino Yadav assaulting Dipo Yadav with lathi at the door of Tilkeshwar Yadav. He also stated that respondent Shrilal Yadav assaulted Dipo Yadav on the middle of the chest, Chandeshwari Yadav assaulted him on the face, Maheshwari Yadav assaulted him on the right temporal region and that as a result of the assault by the respondents, Dipo Yadav died at the spot. His evidence also is that during assault Jamun Yadav had gone to save Dipo Yadav when Saryug Yadav and Bhubneshwari Yadav assaulted him with lathi. According to this witness he was going to attend the call of nature on the east of the village when he saw the occurrence.
14. In cross examination he has stated that he had seen Dipo Yadav fallen on the ground on his left side and he received lathi blows in that condition.
15. PW 4 Chandeshwari Yadav has said that on the alleged date at about 6.30-6.45 a.m. he was going to call the labourers and when he reached in front of the door of Tilkeshwar Yadav, he saw Dipo Yadav driving away two heads of she buffaloes belonging to Shrilal Yadav and Saryug Yadav. Respondent Bino Yadav met him there and there was altercation between them. Bino Yadav called his father and brother and other respondents reached there with lathi and they wanted to assault Dipo Yadav and Dipo Yadav tried to flee away and the respondents surrounded him and started assaulting him. Respondent Shrilal Yadav assaulted him on his chest, Maheshwari Yadav assaulted him on his right temporal region, Upendra Yadav and Bino Yadav assaulted him on the right thigh, respondent Chandeshwari Yadav assaulted him on his face and when Jamun Yadav came to his rescue, Saryug Yadav assaulted him on the right thigh and respondent Bhubneshwari Yadav assaulted him on his right hand and Dipo Yadav died on the spot. In cross examination, he has stated that at first Shrilal Yadav assaulted Dipo Yadav and then Dipo Yadav fell down and other respondents assaulted him when he had fallen down and that the assault took place at the door of Tilkeshwar Yadav and Dipo Yadav had fallen on the ground on his left side.
16. PW 5 Saini Lal Yadav has deposed that on the alleged date in the morning he was in his house when he heard hulla at the door of Tilkeshwar Yadav (PW 1) and he went there and saw respondents Bindeshwari Yadav, Chandeshwari Yadav, Maheshwari Yadav, Shrilal Yadav and Upendra Yadav assaulting Dipo Yadav with lathi as a result of which he died. He has also stated that Jamun Yadav went to save Dipo Yadav. But as he has further stated that he did not see any assault on him (Jamun) he has been declared hostile.
17. PW 8 Narayan Yadav, the informant, has deposed that on the alleged date at 6.00 a.m. the two she buffaloes one of respondent Shrilal Yadav and another of Saryug Yadav were grazing Marua crops of Dip Narayan Yadav. On this Dipo Yadav caught the she. buffaloes and was taking them to lodge protest and when he reached in front of the house of Tilkeshwar Yadav, respondent Bino Yadav started altercating with him. Bino Yadav then called his men and then the other respondents came armed with lathi and they all started assaulting Dipo Yadav. Dip Narayan Yadav went to the door of Tilkeshwar Yadav and there also they assaulted him with lathi. He has stated that at the door of Tilkeshwar Yadav, respondent Shrilal Yadav assaulted Dipo Yadav on his chest, Maheshwari Yadav assaulted him on his temporal region, Chandeshwari Yadav on face and Upendra Yadav and Bino Yadav assaulted him on right thigh and when Jamun Yadav went to save Dipo Yadav, respondents Saryug Yadav and Bhubneshwari Yadav assaulted him with lathi. The witness has stated that Dipo Yadav died at the spot on account of the above assault. In cross examination, he has stated that he had seen the buffaloes grazing the field from his door, which is about 2-3 laggis from the field and when Dipo Yadav was going with the buffaloes and reached in front of his house, he also followed him. His evidence further is that the accused respondents assaulted Dipo Yadav outside the house of Tilkeshwar Yadav and first of all Shrilal Yadav assaulted him on the chest on which Dipo Yadav fell down on his left side, and then Maheshwari Yadav assaulted him on his right temporal region and then Chandeshwari Yadav assaulted him on his face.
18. Thus from the evidence of the above PWs it is clear that on the alleged date and time two buffaloes, one of Shrilal Yadav and another of Saryug Yadav had grazed the Marua crops of Dipo Yadav and he was taking the buffaloes to the respondents for showing his resentment and when he reached in front of the house ' of Tilkeshwar Yadav, respondent Bino Yadav started altercating with him and then he called the other respondents and the other respondents came with lathi and then Dipo Yadav fled to the door of Tilkeshwar Yadav. The evidence of the prosecution witnesses also is consistent that at the door of Tilkeshwar Yadav respondents Shrilal Yadav, Maheshwari Yadav, Upendra Yadav, Bino Yadav and Chandeshwari Yadav assaulted Dipo Yadav with lathi as a result of which Dipo Yadav died then and there. Though there is some discrepancy as to whether all the blows on Dipo Yadav were given when he had fallen down, the evidence of PWs 2, 3, 4, and 8 is consistent that Shrilal Yadav assaulted Dipo Yadav on his chest, Maheshwari Yadav on right temporal region, Chandeshwari Yadav on the face. There is sufficient evidence also to the effect that Upendra Yadav and Bino Yadav assaulted him on his right thigh. Except PW 5 all the above PWs are consistent that when Jamun Yadav went to save Dipo Yadav, respondent Saryug Yadav and Bhubneshwari Yadav assaulted him with lathi.
19. Among the above PWs PW 1 is a competent witness. He also appears to be an independent witness. PW 2 though is Mausera brother of the deceased, he is also an injured. Therefore, he is the most competent witness. There is nothing in the evidence of PWs 1 and 2 to disbelieve their testimony. PW 3 is a co-villager and his house is at a distance of 8-9 laggis from the place of occurrence and hence his presence at the place of occurrence is natural. He is named in the fard beyan as a witness. He has admitted that respondent Shrilal Yadav had purchased land from his widow aunt about one-one and a half years prior to the date of occurrence, but he has denied that, he wanted to purchase that land from Shrilal Yadav or his aunt. Therefore, it cannot be said that there was any enmity between this witness and the respondents with regard to the above land. PW 4 is also a co-villager and named in the fard beyan as a witness. He has admitted that he had litigation with his co-villager Parmeshwari Yadav in 1981 and in that case respondent Upendra Yadav was a witness of Parmeshwari Yadav, but for this reason alone, it cannot be said that the witness has come to depose against the respondents falsely. He has again stated that his Nanihal is at village Amaha and the sister of Jamun Yadav has been married in that village, but this is also no ground to disbelieve this witness. PW 5 is also a co-villager and named in the fard beyan as a witness. There is nothing in his evidence to disbelieve his testimony so far assault on the deceased is concerned. PW 8, though is the informant, there is also nothing in his evidence to disbelieve him. The fardbeyan (Ext. 4) which was recorded promptly within five hours of the occurrence, corroborates his testimony in. material particulars. The evidence of this witness and the evidence of PW 1 also show that they had seen the buffaloes grazing the field of the deceased and there is nothing to disbelieve them on this point also.
20. Hence, it appears that all the above witnesses are reliable and trustworthy. Besides these witnesses, PW 7 has stated that on the alleged date soon after sun rise on hulla he went towards the house of Shrilal Yadav and he saw respondents Shrilal Yadav, Maheshwari Yadav, Bhubneshwari Yadav, Chandeshwari Yadav coming towards him with lathi. He further saw respondents Saryug Yadav, Upendra Yadav, Bino Yadav going north of the house of Tilkeshwar Yadav with lathi. Thus though this witness did not see the occurrence, his evidence shows that he had seen the respondents going away with lathi in their hands soon after the occurrence from near the place of occurrence. His evidence thus also lends support to the prosecution case.
21. The Investigating Officer (PW 10) has stated that he was posted as Officer-in-charge of Singheshwar Police Station on 14.8.1984 and on that date at 10.30 a.m. he recorded the fard beyan of the informant and started investigation. He prepared the inquest report (Ext. 6) and sent the dead body for post mortem examination. He then inspected the place of occurrence which was a Sahan in front of the house of Tilkeshwar Yadav where the dead body was lying. He has stated that he found the ground at that place trampling and that Sahan was at a distance of 15 yards from the village road and that the houses of the respondents were at a distance of about 100 yards from the place of occurrence. His evidence further is that 100 yards south of the place of occurrence is the house of the deceased and 50 yards south of his house is Marua field. He has stated that he found Marua crops grazed and had also found hoof marks of cattle in the field. The evidence of the I.O. hence supports the prosecution case and corroborates the testimony of the above witnesses.
22. PW 9 the Doctor has stated that on 15.8.1984 he was attached to Madhepura Sadar Hospital as Civil Assistant Surgeon. On that date at 11.00 a.m. he held postmortem examination on the dead body of Dipo Yadav (deceased of the instant case) and found the following ante mortem injuries on his body:
(i) Swelling 4" x 3" on the right side of parietal region.
(ii) Epistoxis-both nostrils.
(iii) Teeth not present in mouth.
(iv) Swelling 2" x 3" in front of the neck just above the upper portion of sternum.
(v) Abrasion 1" x 1" on left maxillary region.
(vi) Lacerated wound 1" x 1/2" x 1/4" on right thigh laterally.
whole face was cynosed. Both eye balls were slightly protruded and congested. On dissection of the neck following were found:
The skin of swollen portion contained bipod, the trachea was congested, bleeding froth was present inside the trachea and bronchial tree.
23. The doctor has opined that the death was caused due to asphyxia on account of injury No. (iv) which was sufficient in ordinary course to cause death and that all the injuries were caused by hard and blunt substance such as lathi and the time elapsed since death was about 24-48 hours.
24. The medical evidence hence, also corroborates the ocular evidence of the above prosecution witnesses.
25. The doctor, however, at the end of his cross examination in answer to Court question, has stated that if a pressure is applied by lathi either from the front of the neck or if it is done by placing the lathi in the front of the neck and then putting pressure on the back of the neck then the result found in the dissection will be produced.' The doctor by this answer has meant that such injury (injury No. iv) was possible by strangulation (a form of strangulation known as Bansdola).
26. Learned counsel for the respondents has submitted that the above answer of the doctor clearly suggests that there is contradiction between the medical and the oral evidence and the death of the deceased had not occurred in the manner as alleged.
27. Though the doctor has given above evidence, in his post mortem report, he has not mentioned that this injury was caused by strangulation. His evidence also does not show that the injury could be possible only by strangulation and not in the manner as stated by the witnesses. The evidence on the other hand, is that all the injuries (which includes injury No. iv) were caused by hard and blunt substance like lathi.
28. In the case of Anil Rai v. State of Bihar, , it has been held by the Hon'ble Supreme Court that if the medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statement of the eye witness has to be accepted.
29. In the case of Ramanand Yadav v. Prabhu Nath Jha and Ors., 2004 (1) PCCR, 58 the Hon'ble Supreme Court has held that the medical evidence basically being opinionative cannot got primacy over the oral evidence. The settled law is that the medical evidence can be used to repel the testimony of eye witnesses only if it is conclusive as to rule out possibility of eye witness version.
30. In this case it has been shown that the eye witnesses are quite reliable. Therefore, though according to the doctor injury No. iv was possible by strangulation also, as his opinion is not that the injury was possible only by strangulation, it has to be accepted that it was caused by assault with lathi on chest as stated by the eye witnesses.
31. As against the above evidence of prosecution, the accused respondents have examined DW 1 Dr. Rabindra Nath Ghosh, a private medical practitioner, in support of their defence case. He has stated that on 14.8.1984 at 2.10 p.m. he examined respondent Shrilal Yadav and found the following injuries:
(i) Incised wound or left upper back 4 cm. x 1/2" cm. x skin deep.
(ii) Swelling with occhymosis on middle back of right hemo- thorax 8 cm. x 2 cm.
(iii) Swelling with occhymosis on lower outer side of left thigh 5 cm. x 2 cm.
(iv) Ecchymosis on middle back of right leg 5 cm. x 2 cm.
32. The doctor has opined that the injuries were simple in nature and injury No. (i) was caused by some sharp cutting weapon and the other injuries were caused by hard and blunt substance, and that the age of the injuries was within 12 hours. In cross examination he has stated that the injuries were possible by friendly handle.
33. The evidence of the doctor (DW 1) hence shows that he had found injuries on the person of respondent Shrilal Yadav. But there is nothing on record to show that the injuries were caused at the time of the occurrence in question. The injuries were also simple in nature. So the prosecution was not obliged to explain the injuries and no adverse inference can be drawn for non- explanation of these injuries.
34. Then the defence of the accused respondents is that the prosecution party had gone to demolish the house of Saryug Yadav and when respondent Shrilal Yadav protested, the prosecution party assaulted him, and during that assault the deceased also received lathi blows as a result of which he died. PW 2 Jamun Yadav, of course, has admitted that 7-8 years prior to the occurrence, accused respondent Saryug Yadav had constructed the house by encroaching upon the land of Munglal Yadav and he used to ask Saryug Yadav to remove encroachment, but if the prosecution party would have gone to demolish the house of Saryug Yadav and caused the above injuries, respondents Shrilal, Yadav or Saryug Yadav must have lodged a case in this regard; but there is nothing to show that any case was lodged in this regard. No witness has also been examined by the respondents that any occurrence as alleged by them took place. So, only on the evidence of DW 1 it cannot be believed at all that the prosecution party had gone to demolish the house of Saryug Yadav and at that time, in course of assault on Shrilal Yadav, the deceased received lathi blows.
35. Thus, on an analysis of the evidence on record it appears that the prosecution has been able to prove the genesis of the occurrence and that the evidence of the eye witnesses which is corroborated by the objective finding of the I.O. and the evidence of the doctor prove that the occurrence took place at the alleged place of occurrence and in the manner as alleged and that the defence of the respondents is not at all reliable.
36. The impugned judgment shows that the learned trial Court has also held that the prosecution has succeeded in proving that the occurrence took place on the date and time, at the place and in the manner as alleged by the prosecution. The impugned judgment further shows that by referring to the evidence of PWs 1 and 4 the Court has however, further held that PW 1 Tilkeshwar Yadav had at first given information to the police and thereafter the fard beyan (Ext. 4) of Narayan Yadav (PW 8) was recorded, and as the earlier information given by PW 1 has not been brought on record, the accused respondents deserve benefit of doubt and accordingly the learned trial Court acquitted the respondents.
37. It appears from the deposition of PW 1 that at the fag end of his cross examination he has stated that he had gone to the police station with Jiyalal Chowkidar and had given information to the police and the Sub Inspector of Police had recorded his statement but he did not put his signature thereon. PW 4 has stated that he had come to know that Tilkeshwar had gone to call the police. But this is a hearsay evidence and is not admissible in evidence. The learned A.P.P. appearing for the appellant submitted that simply on the above shaky statement of PW 1 it cannot be said that actually he had made any such statement before the police before recording of the fard beyan (Ext. 4).
38. In this regard I think that the decision of the Supreme Court in the case of Pothakamuri Srinivasulu v. State of A.P., may be referred to. In that case the FIR was lodged on the basis of the statement of PW 1. The defence contention was that according to PW 1 she had first gone to the police station where the victim had made a report of the incident and then they had proceeded to the hospital, and hence an adverse inference ought to be drawn against the prosecution for withholding the first information report lodged by the victim herself. Such argument was advanced before the trial Court also. The trial Court had pointed out that the witness was a rustia village woman and the statement appears to have been made out of confusion. The Hon'ble Supreme Court repelling the defence contention held "if it was so as is being suggested then the police officers who had appeared as a witness, especially the one who has proved the first information report should have been asked whether there was any report of the incident than the one originating in the statement of PW 1 made at the police station and that too by the injured herself." In this case also PW 1 though can write his name is a rustic farmer and it appears that either out of confusion or stress of cross examination, at the end of the evidence he has made the above statement, otherwise there was no reason if he had given any such report, why he did not sign the same. No question was also asked on behalf of the accused respondents to the I.O. whether there was any other report regarding the incident than the fard beyan (Ext. 4) of Narayan Yadav.
39. Therefore, simply on the above evidence of PW 1 in my opinion, it was not proper for the learned trial Court to held that the prosecution has withhold the actual first information report, and to acquit the accused respondents on that ground.
40. It is, of course, true that in an appeal against acquittal the appellate Court should be slow in reversing the finding of the trial Court but the appellate Court must interfere when the finding of the trial Court is based upon erroneous appreciation of the evidence resulting in great miscarriage of justice. In this case also, as discussed above, the learned trial Court has relied upon the entire evidence of the eye witnesses but on erroneous appreciation of the evidence of a single witness given at one place, has acquitted the respondents, causing miscarriage of justice.
41. In view of the discussions made above, I find that the prosecution has been able to prove satisfactorily that accused respondents Shrilal Yadav, Maheshwari Yadav, Chandeshwari Yadav, Upendra Yadav and Bino Yadav assaulted Dipo Yadav with lathi in the manner as alleged causing his death, and that though no doctor has been examined the evidence of the prosecution witnesses prove that the accused respondents Saryug Yadav and Bhubneshwari Yadav caused hurt to Jamun Yadav by assaulting him with lathi when he went to save Dipo Yadav during the occurrence. It has also been proved that all the accused respondents had formed on unlawful assembly for causing hurt to Dipo Yadav, as a result of which, assault was committed on Dipo Yadav. But though the above named five respondents assaulted Dipo Yadav causing his death, considering the facts of the case, weapon used and the place of injury etc. it does not appear that actually they intended to cause death of the deceased though they had knowledge that they could cause his death by the assaults made by them. The accused respondents, namely, Shrilal Yadav, Maheshwari Yadav, Chandeshwari Yadav, Upendra Yadav and Bino Yadav are hence held guilty under Section 304, Part II/34 of the Indian Penal Code instead of Section 302 of the Indian Penal Code for the death of Dipo Yadav and the accused respondents Saryug Yadav and Bhubneshwari Yadav are held guilty under Section 323 of the Indian Penal Code for causing hurt to Jamun Yadav and all the respondents are further held guilty under Section 147 of the Indian Penal Code. They all are convicted accordingly.
42. In the result the appeal is allowed. The impugned judgment of acquittal passed by the trial Court is hereby set aside. Accused respondents Shrilal Yadav, Maheshwari Yadav, Chandeshwari Yadav, Upendra Yadav and Bino Yadav are sentenced to undergo rigorous imprisonment for five years each under Section 304, Part II/34 of the Indian Penal Code. They are further sentenced to undergo rigorous imprisonment for one year under Section 147 of the Indian Penal Code. Both the sentences would run concurrently. Accused-respondents Saryug Yadav and Bhubneshwari Yadav are sentenced to undergo imprisonment for the period already undergone by them as under trial prisoners for the offences under Sections 323 and 147 of the Indian Penal Code. Respondents Shrilal Yadav, Maheshwari Yadav, Chandeshwari Yadav, Upendra Yadav and Bino Yadav must surrender in the Court below forthwith to serve out the sentence. The Court below would also take steps to arrest them to serve out the sentences. The office will send a copy of the judgment and the lower Court records immediately for the needful.