Patna High Court
Panchu Yadav & Ors vs State Of Bihar on 15 May, 2018
Author: Rajeev Ranjan Prasad
Bench: Chief Justice, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.288 of 1995
Arising out of judgment and order dated 6th September, 1995 in Sessions Trial No. 41 of 1994/66 of
1986 passed by the Additional Sessions Judge, Gaya.
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1. Panchu Yadav Son of Late Luchan Yadav
2. Ram Chandra Yadav son of Baiju Yadav
3. Kamta Yadav son of PanchuYadav
4. Nawal Kishore Prasad alias Munshi Yadav son of Baiju Yadav
All residents of Village Salimpur, PS Belaganj in the district of Gaya
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
with
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Criminal Appeal (DB) No. 312 of 1995
Arising out of judgment and order dated 6th September, 1995 in Sessions Trial No. 41 of 1994/66 of
1986 passed by the Additional Sessions Judge, Gaya.
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1. Sheo Bhajan Yadav son of Baiju Yadav
2. Sudama Yadav son of Panchu Yadav
Both residents of Village Salempur, PS Belaganj in the district of Gaya
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
(In Cr.Appeal (DB) No.288 of 1995)
With
Cr. Appeal (DB) No. 312 of 1995
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Zeynal Hoda
Mr. Ritwaj Raman
For the State : Ms. S B Verma, APP
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 15-05-2018
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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These two Criminal Appeals have been preferred
for setting aside the judgment dated 6th September, 1995 passed by
the learned 2nd Additional Sessions judge, Gaya in Sessions Trial
No. 41 of 1994/66 of 1986. By the impugned judgment the learned
trial court has been pleased to find the accused Sheo Bhajan Yadav
and Sudama Yadav (appellant in Cr. Appeal No. 312 of 1995)
guilty of committing the offence under Sections 148, 302/149 and
302 of the Indian Penal Code. Accused Kamta Yadav has been
found guilty under Sections 148, 324, 302/149 of the IPC whereas
accused Nand Kishore Prasad @ Munshi Yadav has been found to
have committed the offence under Sections 148, 324, 307, 302/149
of the IPC. Accused Panchu Yadav has been held guilty of the
offence committed under Sections 147, 323 and 302/149 of the
IPC.
The prosecution case is based on the Fardbeyan of
Ganauri Prasad (PW 2) who has alleged that on 25.10.1984 during
evening time he was irrigating his land in village Salempur through
a Karha (water channel). Accused Sheo Bhajan Yadav also wanted
to irrigate his land with the water through his machine using the
same Karha which was protested by the informant and his men. It
is alleged that on protest raised by the informant, accused Nand
Kishore Yadav threatened them to teach a lesson in the morning. In
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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the morning on 26.10.1984 at about 5.30 AM, it is alleged that
while the informant and his uncle Deo Nandan Prasad (PW 1) were
feeding his cattle near their door and Binda Yadav (PW 3) was
giving them water, at this time the deceased Shyam Bihari Yadav
(father of the informant) was returning to his house from the
machine, as he reached near the dalan of accused Sheo Bhajan
Yadav, Nand Kishore Prasaad allegedly ordered to assault him
whereupon accused Sheo Bhajan Yadav being armed with saif and
accused Sudama Yadav armed with garasa came there and then
Sheo Bhajan Yadav assaulted Shyam Bihari Yadav (deceased)
with saif on his ribs and Sudama Yadav assaulted him on his head
with garasa as a result of which Shyam Bihari Yadav sustained
injuries and fell down there.
It is alleged that the informant, his uncle Deo Nandan
Prasad and brother Binda Yadav rushed to save Shyam Bihari
Yadav, but in the meantime Nawal Kishore Prasad @ Munshi
Yadav being armed with saif came there and assaulted his uncle
Deo Nandan Yadav with saif on his head. Accused Kamta Yadav
allegedly assaulted Deo Nandan Yadav. On receipt of the injuries
he fell down there and then accused Nawal Kishore Prasad @
Munshi Yadav assaulted his brother Binda Yadav with saif on his
head. It is alleged that accused Sudama Yadav also assaulted the
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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informant (PW 2) with garasa causing injuries on his left hand
finger and right palm whereafter the accused Panchu Yadav being
armed with lathi came there and assaulted him thereby causing
injuries on his leg, thigh and hand. Accused Ram Chandra Yadav
also assaulted Deo Nandan Yadav with lathi. According to the
informant, on hearing hulla several villagers including Bhola
Yadav (not examined) and Ram BrikshYadav (not examined) came
to the place of occurrence and saw the occurrence. It is alleged that
Shyam Bihari Yadav and Deo Nandan Yadav had also sustained
serious injuries and they were unable to move, therefore, they were
being carried to Belaganj by cots but on the way near village
Bataspur, Shyam Bihari Yadav died. His dead body was brought to
Belaganj Police Station along with other injured persons. The
statement of the informant Ganauri Prasad (PW 2) was recorded by
police on the basis of which the formal First Information Report
(Ext.1) was drawn up and the present case being Belaganj PS Case
No. 113 of 1984 was instituted.
After investigation, police submitted a charge-sheet on
the basis of which cognizance was taken for the offence under
Sections 147, 148, 149, 302, 307, 323 and 324 of the Indian Penal
Code and five accused persons, namely, Sheo Bhajan Yadav,
Sudama Yadav, Kamta Yadav, Panchu Yadav and Ram Chandra
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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Yadav were proceeded against. After commitment of the case to
the court of sessions, Sessions Trial Case was registered. In course
of trial, one more accused, namely Nawal Kishore Prasad @
Munshi Yadav was summoned in the case and, therefore, charges
were framed against altogether six accused persons.
It also appears from the record that plea of juvenility
was raised on behalf of accused Kamta Yadav and Ram Chandra
Yadav but they were not found to be juvenile on the date of
occurrence.
In course of trial, altogether eight prosecution witnesses
were examined by the prosecution in support of its case. PW 2 is
the informant, PW 1 and PW 3 are said to be the eye-witnesses and
injured of the case. PW 6 is the doctor who had held post mortem
examination on the dead body of the deceased Shyam Bihari
Yadav. PW 7 is another doctor who examined the injured persons.
PW 8 is the Investigating Officer of the case. Before the learned
trial court, PW 4 and PW 5, namely, Shanti Devi and Bedami
Devi, were tendered.
The learned trial court examined the evidence of the
informant (PW 2) and other prosecution witnesses who supported
the prosecution case including the evidence of the Investigating
Officer and the doctors who had reported the injuries and had also
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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conducted the post mortem on the dead body. The informant (PW
2) has stated in course of trial that on 26.10.1984 at about 5.30
A.M. his father was murdered. He was at the said time feeding his
cattle at his dalan. He has further stated that his brother Binda
Yadav was giving them water and his uncle Deo Nandan Yadav
was also there. His father Shyam Bihari Yadav was returning home
from the cabin situated on the east of the village and when he
reached near the dalan of Sheo Bhajan Yadav, Nand Kishore
Yadav ordered to assault Shyam Bihari Yadav.
He has narrated the manner of occurrence as stated by
him in his Fardbeyan (Ext.1). He reiterated that due to assault his
father fell down and had become unconscious. The reason for
occurrence has been stated to be that one day before the alleged
occurrence while he was irrigating his field with water through a
Karha the accused Sheo Bhajan Yadav also wanted to irrigate his
land through the same Karha through which he was irrigating his
field. This was protested by the informant whereupon Sheo Bhajan
Yadav had threatened to teach him a lesson on the next day. This
witness has further stated that his injured uncle Deo Nandan Yadav
and injured brother Binda Yadav were treated in Belaganj Hospital
and as he had sustained simple injuries and was looking after the
dead body of his father, therefore, he was not treated by the doctor.
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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In his cross-examination, he has stated that Birja Yadav and Binda
Yadav are the accused in the counter-case and all the accused
persons except Birja Yadav are his family members. This witness
had not seen any injury on the person of Panchu Yadav, Ram
Chandra Yadav, Sheo Bhajan Yadav, Kamta Yadav and Sudama
Yadav. He has stated that the accused persons had nothing for
irrigation and their cabin is also situated in the east of the village.
He has further stated that in the morning of 25.10.1984 irrigation
of his filed was started, after irrigation of 2/3 bighas of land
accused Sheo Bhajan Yadav and Nawal Kishore Yadav stopped
him from irrigating the land and then they went to their house. He
has stated that the assault took place outside the dalan of Sheo
Bhajan Yadav on the eastern side. His father was assaulted from a
distance of 5-6 feet on the eastern side of the dalan of Sheo Bhajan
Yadav. He has stated that the accused persons had assaulted his
father surrounding him but all the accused persons were not armed
with weapons. According to this witness, after sustaining injuries
his father had moved a little ahead on the western side but
thereafter he had fallen down. This witness had seen the assault
from the place where he was feeding his cattle. PW 2 claims that
blood had fallen down on the place where his father was assaulted.
Binda Yadav and Deo Nandan Prasad were assaulted at the place
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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where the accused persons had assaulted the informant. It is stated
that his father was assaulted at a distance of 50 feet from the place
where he was feeding his cattle.
PW 1 Deo Nandan Prasad had supported the
prosecution case and narrated the manner of occurrence as stated
by PW 2. He has also stated that Nand Kishore Yadav ordered to
kill Shyam Bihari Yadav and thereafter Sheo Bhajan Yadav
assaulted Shyam Bihari Yadav on his right ribs with saif and
Sudama Yadav assaulted on his head with garasa. He has stated
that Nawal Kishore Yadav had assaulted him with saif on his head
and Kamta Yadav assaulted him with garasa on his head. He has
further stated that Nawal Kishore Yadav had assaulted his nephew
Binda Yadav and Ganauri Prasad with saif. He has further stated
that they were treated at Belaganj Hospital but Shyam Bihari
Yadav had died on the way to the hospital. PW 1 has stated that his
dalan is on the adjacent west of the dalan of Sheo Bhajan Yadav.
In his cross-examination, this witness has stated that he is a
member of the Gram Panchayat and in the murder case of Selim
Mian of village Bheria he was an accused in the said case. He has
admitted that accused persons had lodged a counter-case against
them and in the FIR of that case it has been alleged that he was
demanding contribution from the accused persons and others for
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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deciding the case of Selim Mian due to which the assault took
place.
PW 3 Binda Yadav is the brother of the informant and
has supported the prosecution case. He has also narrated the entire
manner of occurrence in similar terms as have been stated by PW 1
and PW 2. PW 6 Dr. Prajapati Sinha was posted in Magadh
Medical College, Gaya. On 27.10.1984 at about 2.30 PM he had
held post mortem examination on the dead body of Shyam Bihari
Yadav. He had found the following injuries:-
"(i) Incised wound 3"x ¼ " x skin deep over left front
parietal region of the skull.
(ii) Penetration wound 3"x ½" x lung deep over the left
side of the chest at the level of 5th rib along with
auxiliary line. On dissection of the carex left lung was
found collapsed. Forensic cavity was found filled with
blood."
According to the doctor, injury no.(i) was caused by
sharp cutting weapon maybe garasa and injury no. (ii) was caused
by sharp penetrating weapon maybe saif. Injury no. (ii) was
sufficient to cause death in normal course of nature. Post mortem
report has been marked as Ext. 2. In his cross-examination, PW 6
has stated that saif is both side sharp-edged weapon and saif can
produce incised injury.
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018
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PW 7 Dr. Ramesh Kumar Roy has stated that on
26.10.1984while he was posted as Medical Officer Incharge at Belaganj Hospital, at 8.30 A.M. he examined Deo Nandan Prasad (PW 1) and found the following injuries on his person:-
"(i) Incised wound 2"x ¼" x bone deep with fracture of skull bone on the left side which was cause by sharp cutting weapon. The injury was grievous in nature.
(ii) Swelling with tenderness 2 ½" on the left forearm. The injury was simple in nature and was caused by hard blunt substance."
On the same day, this witness had examined Binda Yadav (PW 3) and had found the following injuries:-
(i) Incised wound 2"x ¼" x muscle deep caused by sharp cutting weapon. The injury was simple in nature.
(ii) Swelling with bruise 3" x 2" on the dorsum of right hand. The injury was simple in nature and it was caused by hard and blunt substance."
In his cross-examination, PW 7 has stated that on the same day he had examined Sheo Bhajan Prasad and found the following injuries:-
"(i) Incised wound 4" x1/4" x 1/4" on the right side of the back.
(ii) Swelling 3" x 2 ½"
Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 11/22 PW 6 had examined Kamta Prasad and found the following injuries on his person:-
"(i) Patient was unconscious.
(ii) Incised wound 2" x ½" x cutting the upper part pinea of the right ear.
(iii) Incised wound 3" x 1 ½" x muscle deep on the right wrist.
(iv) Bruise with swelling 5" x 3" on the left side of the back below the 7th carvicle vertebrae.
(v) Bruise with swelling 4 ½" x 2 ½" on the right side of the back below scapula."
He further stated that he had also examined Sudama Prasad and found the following injuries:-
"(i) Patient was in coma.
(ii) Incised wound 3" x 1" x bone cut on the right side of the head.
(iii) Incised wound 3 ½" x 1" x muscle deep on the left deltoid region.
(iv) Bruise with swelling 5" x 2 ½" on the right side of the back below inferior angle of scapula."
In the opinion of the doctor, all the above injuries of the five patients except incised wound of Sudama Prasad were simple in nature. The first incised would of Sudama Prasad was grievous in nature. The incised wound on the persons of five patients were caused by sharp weapons like garasa and saif while the rest injuries Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 12/22 were caused by hard and blunt substance. The injury reports of the five persons proved by PW 7 were marked as Exts. A to A/4, respectively.
PW 8 Jainuddin Khan the then Officer Incharge of Belaganj Police Station happened to be the Investigating Officer of the case. He had recorded the statement of Ganauri Prasad PW 2 on the basis of which FIR (Ext.1) was drawn up. He had prepared the inquest report (Ext.4) of the dead body of Shyam Bihari Yadav and had also prepared the injury report of Deo Nandan Yadav and Binda Yadav. According to PW 8, the place of occurrence is the open land on the eastern side of Baithka of Sheo Bhajan Yadav in village Selimpur. He had found blood fallen on the ground in front of the door of Sheo Bhajan Yadav. He had seized the blood-stained earth from the place of occurrence.
The house of informant Ganauri Prasad is situated at the adjacent west of the house of Sheo Bhajan Yadav. In his cross- examination, he has stated that he did not find blood fallen adjacent to the house of Ganauri Yadav. He had found blood fallen only in front of Baithka of Sheo Bhajan Yadav. He has stated that he had found Ram Chandra Prasad, Kamta Prasad, Sheo Bhajan Yadav, Panchu Yadav and Sudama Yadav in injured condition and had prepared the injury reports and forwarded them for treatment Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 13/22 to the hospital. He has stated that he had found blood fallen at the place of occurrence and according to him the place of occurrence is the parti land in front of the door of Sheo Bhajan Yadav. He has stated that in both the cases the place of occurrence is the same.
On behalf of the defence two witnesses were examined. DW 1 Ashish Kumar Bhattacharya was at the relevant time posted as an Assistant Engineer and was looking after electrification maintenance at Gaya. He has stated that Sheo Bhajan Prasad was working under him as Table Spicer on daily wages and on 26.10.1984 he was on duty at Gaya from 6 hours to 14 hours. In the night of 25.10.1984 he was in the camp. He had granted a certificate to Nawal Kishore Prasad. He has proved his signature and signature of Sheo Bhajan Prasad on the Photostat copy of the certificate which has been marked as Ext. A and Ext. A/1, respectively. DW 2 Ramchander Prasad was working as an Advocate Clerk at Gaya and he has claimed that he was working with Sheo Pujan Prasad as Table Spicer in Gaya Railway while Ashish Kumar Bhattacharya was working in the Telephone Department in the Railway. He has stated that both of them were employees of Indian Post & Telegraph Department but on deputation they were posted in Gaya Railway. He has proved the attendance in the writing of Sheo Pujan Prasad which was Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 14/22 countersigned by Ashish Kumar Bhattacharya (Ext. D). He has also proved the Muster Roll paper written by Sheo Pujan Prasad.
The learned trial court rejected the contention of the defence that the prosecution had failed to prove the genesis of the occurrence relying upon the judgment reported in 1959 BLJR 734 (Nanhkoo Singh vs. State) to contend that failure of genesis or origin of the prosecution case will be fatal for the prosecution and for that reason the prosecution should be thrown out in its entirety. The learned trial court however believed the genesis of the occurrence. The learned trial court held that the prosecution had proved its case by the evidence of the prosecution witnesses. Therefore, in view of the judgment of the Hon'ble Supreme Court reported in AIR 1988 SC 863 (Hare Krishna Singh vs. State of Bihar) even if the prosecution had not given explanation about the injuries sustained by the five accused persons it would not give rise to an inference that the genesis of the case is false or the manner of occurrence is false and the defence version is probable. The following observations of the Hon'ble Supreme Court made in the case of Hare Krishna Singh (supra) on which reliance has been placed by the learned trial court is reproduced hereinbelow for ready reference:-
"........ If the witnesses examined on behalf of Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 15/22 the prosecution are believed by the court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused."
The learned trial court also rejected the plea that PW 1, PW 2 and PW 3 are highly interested persons and no independent witness has been examined by the prosecution as also no explanation had come forth for their non-examination. The learned trial court further rejected this plea as well saying that from the evidence of PW 1, PW 2 and PW 3 it does not appear that independent witnesses were available near the place of occurrence at the time of occurrence. These witnesses are the injured persons and eye-witnesses of the occurrence and their evidence has been fully corroborated by the doctors (PW 6 and PW 7) and the I.O. of the case (PW 8).
In course of hearing of these appeals, learned counsel representing the appellants has submitted that the prosecution has failed to prove the place of occurrence. It is stated that as per PW 1 Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 16/22 place of occurrence is the place situated near the dalan of the accused Sheo Bhajan Yadav. However, from the evidence of PW 1 it will appear that in his cross-examination, this witness has stated at one place that the assault took place outside the dalan of the accused persons. But again he has stated that it took place in front of the door of the house of Sheo Bhajan Yadav. He has further stated that from the said place the dalan of the informant was situated 70-80 feet towards north from the street. According to the learned counsel, from the evidence of PW 2 it will appear that according to him the assault took place at two places. It is the submission of the learned counsel that from the evidence of PW 3 in course of his cross-examination (paragraph-4) it will appear that this witness is shifting the place of occurrence to his own place. Learned counsel has further pointed out from paragraph-4 of the evidence of the Investigating Officer (PW 8) that he had found the place of occurrence being the door of Sheo Bhajan Yadav, i.e. the door of the accused. He has also referred to paragraph-8 of the cross-examination of PW 8 to support his contention.
Arguing on behalf of the appellants learned counsel submits that the prosecution has not been able to explain the injuries suffered by 4/5 persons of the accused side. According to the learned counsel, it is a case and counter-case and hence the Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 17/22 learned trial court was required to follow the settled principles that fouler the crime, higher the proof. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Lakshmi Singh & Ors. vs. State of Bihar [(1976) 4 SCC 394] and the judgment of the Apex Court in the case of State of Gujarat vs. Bibi Fatima [1975 SCC (Crl.) 384]. It is submitted that in both the judgments the Hon'ble Supreme Court has held that when the prosecution fails to explain the injuries on the person of the accused the non- explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence have been deliberately suppressed. He has also relied upon the judgment of the Hon'ble Supreme Court in the case of Bhagwan Sahai vs. State of Rajasthan [(2016) 13 SCC 171] in which the Hon'ble Supreme Court held that once the court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of the father of the appellant in the said case, the only possible and probable course left open was to grant benefit of doubt to the appellants. It was held that the appellants can legitimately claim right to use force once they saw the parents being assaulted.
On the other hand, the learned Additional Public Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 18/22 Prosecutor representing the State has placed before us a copy of the judgment rendered by a learned Single Judge of this Court in Cr. Appeal (SJ) No. 204 of 1995 in which Deo Nandan Yadav (PW 1) Ganauri Yadav (PW 2) and Binda Yadav (PW 3) were the appellants. It appears that they were convicted under Section 307/149 of the Indian Penal Code and had been sentenced to undergo rigorous imprisonment for seven years for the offence under Section 307/149 IPC and further two years under Section 148 IPC in Sessions Trial No. 38 of 1994/244 of 1991 arising out of the counter-case being Belaganj PS Case No. 113 of 1984. The learned Single Judge while hearing the appeal was not inclined to accept the prosecution version of the said case as correct version of the occurrence and the judgment of the learned trial court convicting the appellants (PW 1, PW 2 and PW 3) was set aside. The learned APP submits that the genesis of the occurrence has been thoroughly proved from the evidence of the prosecution witnesses who are injured witnesses and hence only because they happened to be the family members of the deceased, their evidence cannot be discarded. It is submitted that the Hon'ble Supreme Court has always held that the evidence of the injured witnesses be given due regard because an injured would never like to get the real culprit go escort free by substituting somebody else in place of Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 19/22 the real culprit. Reliance in this regard has been placed on the judgment of the Hon'ble Apex Court in the cases of State of Gujarat vs. Bharwad Jakshibhai Nagribhat [1990 (Crl. LJ) 2531], Abdul Sayeed vs. State of Madhya Pradesh [(2010) 10 SCC 259] and Mano Dutt & Another vs. State of Uttar Pradesh in Cr. Appeal No. 77 of 2007 decided on 29.02.2012 reported in (2012) 4 SCC 79.
It is further submitted that a bare perusal of the judgments of the Hon'ble Apex Court in the case of Lakshmi Singh (supra) and in the case of Bhagwan Sahai (supra) would show that in those cases the Hon'ble Supreme Court had found that the accused persons had relied upon the judgment in support of their case of private defence. Referring to the judgment of the Hon'ble Apex Court in the case of Bibi Fatima (supra) the learned APP submits that in the said case the Hon'ble Supreme Court has held as under:-
" In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may fall:-
1. That the accused has inflicted injuries on the members of the prosecution party in exercise of the right of his self defence.
2. It makes the prosecution version of the occurrence Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 20/22 doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
3. It does not affect the prosecution case at all."
It is further submitted that contention of the learned counsel representing the appellants that the prosecution witnesses have attempted to shift the place of occurrence from the place in front of the door of Sheo Bhajan Yadav to their own place is not correct. It is submitted that the case of the prosecution is that in the morning while the deceased was returning from his cabin and reached near the place in front of the house of Sheo Bhajan Yadav, the assault took place. The evidence has also come that the house of the accused and the prosecution witnesses are adjacent to each other. In these circumstances, they have seen the occurrence in the wee hours at 5.30 A.M. around and, therefore, they have narrated the manner of occurrence as an eye-witness to the whole occurrence.
Having heard learned counsel representing the appellants and learned Addl. Public Prosecutor for the State and upon perusal of the records of the case, particularly evidence available with us which have been discussed hereinabove, we find that the prosecution has been able to prove its case by cogent evidence and the defence has not been able to create any doubt in Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 21/22 the prosecution version. PW 1, PW 2, and PW 3 are though related witnesses but the defence has not been able to show that they are interested witnesses. There is a difference between related witness and interested witness as has been held by the Hon'ble Supreme Court in the case of Ganapathi & Another vs. State of Tamil Nadu with Muthulakshmi vs. State of Tamil Nadu. (AIR 2018 SC 1635) paragraph 14 of which is relevant in this regard and is reproduced hereinbelow for the facility of quick reference:-
"14. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made [See : Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu (2008) 16 SCC 529]."
When we examine the evidence of PW 1, PW 2 and PW 3 we find that they are the natural eye-witnesses to the occurrence and they stood the test in their cross-examination. The place of occurrence is parti land in front of the door of the accused Sheo Bhajan Yadav as has been proved by the prosecution. However, only because the place of occurrence is being in front of the door Patna High Court CR. APP (DB) No.288 of 1995 dt.15-05-2018 22/22 of Sheo Bhajan Yadav it cannot be said that the prosecution party were aggressors. Moreover, PW 1, PW 2 and PW 3 who were convicted by the learned trial court earlier in the counter case have been acquitted by the learned Single Judge of this Court in Cr. Appeal (SJ) No. 204 of 1995 holding that the court was not inclined to accept the prosecution case as the correct version of the appellants. Thus the counter case of the accused party has been rejected by the appellate court in Cr. Appeal (SJ) No. 204 of 1995.
On going through the materials available on record we do not find any reason to interfere with the impugned judgment of the learned trial court. Both the appeals are, therefore, dismissed. The bail bonds of the accused are cancelled and they are directed to surrender forthwith. Let a copy of the order be sent to the court of learned Chief Judicial Magistrate, Gaya for further action.
(Rajendra Menon, CJ) (Rajeev Ranjan Prasad, J) mrl./-
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