Patna High Court
Motichand Yadav & Ors vs State Of Bihar on 13 August, 2012
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) NO.115 OF 2000
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AGAINST THE JUDGMENT OF CONVICTION AND THE ORDER OF
SENTENCE DATED 25TH JANUARY, 2000 PASSED BY SHRI PRABHU
NATH LAL, 3RD ADDITIONAL SESSIONS JUDGE, BETTIAH IN SESSIONS
TRIAL NO. 161 OF 1990 ARISINT OUT OF BAGAHA POLICE STATION
CASE NO. 20 OF 1989
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1. MOTICHAND YADAV, SON OF BAHADUR YADAV
2. JAGARNATH YADAV, SON OF BISHNU YADAV
3. SADHU YADAV, SON OF BAHADUR YADAV
4. MANSHARI YADAV, SON OF BAHADUR YADAV
5. MISHRI YADAV, SON OF BISHUNU YADAV
6. SHRAWAN YADAV, SON OF BAHADUR YADAV
ALL ARE RESIDENT OF VILLAGE SIRISIA, POLICE STATION
BHAIROGANJ, DISTRICT WEST CHAMPARAN
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
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APPEARANCE :
FOR THE APPELLANT/S : MR. VISHWANEET KR. MISHRA, ADV
MR. ASHUTOSH TRIPATHI, ADV.
FOR THE RESPONDENT/S : MR. SUJIT KUMAR SINGH, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
Date: 13-08-2012
S.A. Khan, J.This appeal is directed against the judgment of conviction and the order of sentence dated 25.1.2000, passed by the 3rd Additional Sessions Judge, Bettiah in Sessions Trial No. 161 of 1990 convicting the appellant Jagarnath Yadav to undergo simple imprisonment for two years under Section 148 of the Indian Penal Code and simple imprisonment for three years under Section 324 of the Indian Penal Code whereas the remaining appellants have been sentenced to undergo simple imprisonment for one year under Section 2 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 2/9 147 of the Indian Penal Code and simple imprisonment of one year under Section 323 of the Indian Penal Code. Appellant Missari Yadav has further been sentenced to undergo simple imprisonment for three years under Section 325 of the Indian Penal Code. The appellants have also been directed to pay a fine of Rs. 2,000/- each to the injured persons. All the sentences are directed to run concurrently.
2. The prosecution case, as narrated in the First Information Report, is on the basis of the Fardbeyan of Surya Yadav. He has stated that his nephew Brajesh Yadav was cutting the sugarcane (Gaid) from the field. In the meantime, Manshari Yadav objected. The informant intervened and asked him to allow Brajesh Yadav to take away the sugarcane (Gaid) which he had cut. In the meantime, it is said that the appellants variously armed came to the place of occurrence and Jagarnath Yadav gave the order to kill. In the meantime, Mishri Yadav assaulted the informant on his head with a lathi, Jagarnath Yadav assaulted him with a Bhala on the right side of his leg. Sarwan Yadav, Moti Chand Yadav and Sadhu assaulted his nephew with Lathi. On alarm being raised, the informant's elder brother Dhrub Yadav and his younger brother came to the place of occurrence. Both of them were also assaulted by the accused persons. The occurrence was witnessed by Kishun Yadav and Parasuram 3 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 3/9 Missir. On the basis of the aforesaid First Information Report, investigation was conducted.
3. The defence has examined four witnesses. They deny the allegation and have stated that no such occurrence took place. It is their case that they have been implicated due to enmity. It has specifically been stated on their behalf that the occurrence did not take place in the field of Indrasan Singh rather the informant and other persons have prohibited the construction of a mosque near the house of Surya Yadav, the informant, which had led to a dispute between the Muslim community and others. The Hindu community wanted to place their flags in front of their house which would be just opposite to the mosque. It is said that there was a fight between the parties but no case was lodged and these appellants have been dragged into this case taking advantage of the occurrence which had taken place.
4. Altogether seven witnesses have been examined in this case on behalf of the prosecution, out of whom the eye witnesses named in the First Information Report i.e. PW 4 Ram Kishun Yadav and PW 5 Parashuram Missir have been declared hostile. The other witnesses who have been examined are all family members of the informant i.e. his nephew and three brothers.
5. PW 1 Brajesh Yadav was one of the injured in the 4 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 4/9 occurrence that took place. He has supported the prosecution case and he admits in the cross-examination that there was about 50 persons present at the time when the appellants and the informant and others were cutting sugarcane (bZ[k Nhy jgs Fks). It is also an admitted fact by all the witnesses including PW 1 that the sugarcane field belongs to Indrasan. This witness states that there was no dispute with Babujan regarding the laying down of foundation stone of mosque. He denies that they wanted to install a flag of Lord Mahavir on the said land. He also denies that there was any sort of dispute with respect to the construction of the said Masjid, although he accepts that there were hard feeling between the appellants and the family of the informant. This witness is the nephew of the informant
6. PW 2 Gomal Yadav is the brother of the informant. He was also one of the persons who has received injuries during the occurrence. He has supported the manner of occurrence and states that Suraj had fainted after the assault. He further states that he regained consciousness at the hospital. At paragraph 13 of the deposition, he has stated that there was a fight with respect to the lands of the Masjid. In the next breath, he denies that there was any fight for the construction of the Masjid.
7. PW 3 Dhrub Yadav is also the brother of the informant. This witness was not present near the field of Indrasan and 5 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 5/9 he came to the place of occurrence as soon as the fight began. He was also assaulted in the said occurrence. At paragraph 2, he has stated that when he tried to intervene, then Jagarnath issued order to assault, whereupon, the appellants began to assault this witness and Gomal Yadav (PW 2). At paragraph 5, this witness admits that there were hard feelings between Manshari Yadav (appellant no. 4) because of the fact that they were not granted bail (Zamanat). The prosecution has not explained nor has the defence tried to find out the case in which the appeallant was not granted bail.
8. PW 6 is Dr. A. P. Mishra who has found injuries on Gomal Yadav, Suraj Yadav, Jitan Yadav and Brajesh Yadav. All the injuries are simple in nature except one injury sustained by Gomal Yadav, where it is stated that there was a fracture of Ulna. It has been stated on behalf of the appellants that the said injury report and the opinion that there was a fracture on the forearm should not be believed in view of the fact that the X-ray report etc. has not been produced before the Trial Court to indicate that the fore arm of Gomal Yadav was fractured in the said occurrence. It is also submitted that the Doctor has not referred to the X-ray report to conclude that the injury was grievious.
9. The last witness who is the important witness in this case is PW 7, Surya Yadav, the informant of this case. He has 6 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 6/9 supported the prosecution version. According to him, there was no earlier dispute between the parties and this is the first time that a dispute had arisen. At paragraph 12, he states that a Masjid in the village was constructed 2-3 years after the occurrence. He has denied the suggestion that there was dispute with regard to the construction of the Masjid.
10. Unfortunately, the Investigating Officer of this case has not been examined in order to establish the place of occurrence and the manner in which it has taken place.
11. On behalf of the defence, four witnesses have been examined. DW 1 Mustaque Mian has stated that there was a dispute between Muslim community and Brajesh and others, when the Muslims of the village wanted to lay the foundation of construction of a Masjid. However, this witness does not remember the day, time or when the occurrence took place. No case has been instituted regarding the said occurrence, although he accepts that Brajesh and Dhruba were injured in the said occurrence.
12. DW 2 Indrasan Singh is an important witness, inasmuch, as the occurrence is said to have taken place in his field. This witness states that he was present in his field on the day of the occurrence, but denies that any such occurrence has taken place in his presence. He has further stated that he had received no complaints 7 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 7/9 against the appellants. According to him, no such occurrence had taken place in his field. In fact, in the cross-examination, he explains that his field measures about 6 acres and he works in his field during the season. He denies that the Investigating Officer had ever gone to his field and examined the place of occurrence.
13. DW 3 Kailash Yadav is the Tyre-Cart Driver. He has supported the fact that no such occurrence had taken place and he had not seen the injuries on the persons of the injured, although he was present in the field of Indrasan Singh on the day of occurrence.
14. DW 3 and DW 4 Bharat Baitha both support that there was some sort of dispute for laying down the foundation stone of the Masjid, in which Dhruba and Brajesh were assaulted by members of the Muslim community, although both admitted that no case was instituted regarding the said occurrence.
15. From the evidence led before the Trial Court, it would appear that the informant claims that the occurrence had taken place in the field of Indrasan. It is not explained as to how and why the appellants would object to the informant carrying away the sugarcane. It has been argued that the genesis of the occurrence is very weak as the prosecution has not been able to establish that the occurrence had taken place because the informant wanted to carry sugarcane which he was cutting. The prosecution has also failed to 8 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 8/9 show as to why the appellants could have objected to the said act of the informant, as it is accepted that the person who is interested in the usufructs of the lands, would be the man to object to any act of the informant. The injury report indicates that all the injuries were simple in nature. Counsel for the appellants submits that the fracture of the fore arm of Gomal Yadav is not supported by the connecting evidence which ought to have been brought on record such as the X- ray report etc. The defence version, on the other hand, appears to be a little far-fetched inasmuch as it is difficult to believe that there was a dispute with respect to laying down the foundation stone of the Masjid, which led to assault and injuries to Brajesh and Gomal Yadav, especially in view of the fact that no First Information Report or Sanha was lodged regarding this aspect of the matter, although the prosecution witnesses claimed that Daroga had come to the place of occurrence when the dispute arose. It is difficult for this Court to connect the two incidents and hold that the injuries were caused due to the dispute regarding the Mosque, whereas these appellants have been trying to take advantage of the said occurrence due to heard feelings between them. On the whole, this Court finds that the defence has not been able to show that an occurrence took place because of a dispute over construction of a mosque. On the other hand the appellants have not been able to raise sufficient doubt in the 9 Patna High Court CR. APP (SJ) No.115 of 2000 dt.13-08-2012 9/9 minds of the Court that there was no fight whatsoever between the parties. The evidence of the witnesses and the medical evidence regarding the manner in which the injury was inflicted tally and cannot be disbelieved. The injuries do not appear to be manufactured as such this Court upholds the order of conviction.
16. However, considering that two decades have been passed since the occurrence, this Court alters the sentence and directs the appellants to pay a fine of Rs. 2000/- each before the Trial Court within a period of four months from today to be paid to the injured of this case, failing which the appellants have to undergo simple imprisonment for six months. The appellants would be discharged from the liabilities of the bail bonds only after payment of fine. The fine should be deposited in the Court below after four months of valid service of notice to the appellants. Notice may also be sent to the informant so that he may collect the fine deposited on behalf of all the injured persons.
17. In the result, this appeal is dismissed with the alteration in the sentence.
(Sheema Ali Khan, J.) Sanjay/-