Patna High Court
Binoy Kumar Yadav @ Ramdeo Yadav & Anr vs State Of Bihar on 18 December, 2017
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.561 of 2002
Arising Out of PS.Case No. -26 Year- 1994 Thana -Khajauli District- M adhubani
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1. Binay Kumar Yadav @ Ramdeo Yadav S/o Maheshwar Yadav.
2. Maheshwar Yadav S/o Nebu Yadav
Both R/o Village-Gobraura, P.S. Khajauli, District-Madhubani
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Md. Imteyaz Ahmad
Mr. Ritwaj Raman
For the Respondent/s : Mr. Bipin Kumar, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date: 18-12-2017 Heard learned counsel for the appellants and learned APP for the State on this Criminal Appeal.
2. This appeal has been preferred against the judgment and order of conviction and sentence dated 12.09.2002 passed by the Additional Sessions Judge, Additional Court-IInd, Fast Track Court Madhubani in Sessions Trial no. 176 of 1995/99 of 2002 arising out of Khajauli P.S. Case No. 26 of 1994, whereby the learned trial court convicted the accused persons namely, Binay Kumar Yadav@ Ramdeo Yadav and Maheshwar Yadav for the offence punishable under Section 324 of the Indian Penal Code and sentenced them to undergo R.I. for two years for the said offence. Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 2/12
3. The factual matrix of the case is that Khajauli P.S. Case No. 26 of 1994 was instituted under Sections 447, 323, 324, 307, 379, 504/34 of the Indian Penal Code against accused Binay Kumar Yadav @ Ramdeo Yadav and Maheshwar Yadav on the basis of fardbeyan of Gagbir Yadav S/o Mahadeo Yadav R/o Village Gobraura P.S. Khajauli District-Madhubani recorded by S.I. R.E. Singh of P.S. Khajauli on 05.02.1994 at 13:45 hrs. at P.H.C. Khajauli with the allegation, in succinct that on 05.02.1994 at around 11:00 AM, accused Binay Kumar Yadav @ Ramdeo Yadav armed with farsa and lathi and Maheshwar Yadav armed with lathi and spear descended at his door and started rapping expletives. On protest made by him, Binay Kumar Yadav @ Ramdeo Yadav assaulted him by means of lathi, sustaining injury he fell down then Binay Kumar Yadav @ Ramdeo Yadav assaulted on his head by means of farsa while Maheshwar Yadav assaulted on his leg by means of spear inflicting injury on his head and leg. When his wife Rameshwari Devi rushed in his rescue responding hulla made by him, Binay Kumar Yadav @ Ramdeo Yadav snatched her gold nose pin and silver hasuli. Witnesses namely, Adhiklal Yadav, Panch Lal Yadav, Raj Nandan Yadav arrived there and witnessed the occurrence. The bone of contention is old animosity and felling of the Sisam tree. After the occurrence, the aforesaid villagers rushed Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 3/12 him to Khajauli hospital where he is undergoing treatment.
4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused persons under Sections 447, 323, 324, 326, 307, 504/34 of the Indian Penal Code.
5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and on transfer finally the case came in seisin of the Additional Sessions Judge, Additional Court-IInd, Fast Track Court Madhubani for trial.
6. Charge against accused Binay Kumar Yadav and Maheshwar Yadav was framed under Section 307 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence, the prosecution has examined altogether seven prosecution witnesses namely, Dukhi Yadav as PW-1, Sahdeo Yadav as PW-2, Panch Lal Yadav as PW-3, Ramnandan Yadav as PW-4, Rameshwari Devi as PW-5, Adhiklal Yadav as PW-6 and informant Gagbir Yadav PW-7. Out of the aforesaid witnesses, PWs- 2, 3, 4 and 6 turned hostile. The prosecution has only proved signature of informant on the fardbeyan marked as Ext-1 by way of documentary evidence. Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 4/12
8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of their case, in ocular evidence, the accused persons have examined one witness namely, Maheshwar Yadav as DW-1 and also filed and proved some documents.
9. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convicts have preferred the present Criminal Appeal.
11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not.
12. It is submitted by the learned counsel for the appellants that there are only three material witnesses of the case. Out of them, PW-1 (Dukhi Yadav) happens to be own brother of the informant, PW-5 (Rameshwari Devi) is wife of the informant and PW-7 (Gagbir Yadav) is the informant himself and they are highly interested witnesses of the case. The informant is on inimical terms Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 5/12 with the appellants and due to aforesaid animosity, he has falsely implicated the appellants in the case. It is further submitted that PWs-1 and 5 does not happen to be eye witnesses of the occurrence. As per the account of the informant itself he was senseless at the time of recording fardbeyan in the Khajauli hospital so it creates serious doubt about the prosecution case and giving fardbeyan by him. It is further submitted that the independent witnesses of the case have not been examined by the prosecution and no plausible reason has been assigned for the same which creates serious doubt about the prosecution case. It is also submitted that neither the injury report has been brought on record nor the doctor treating the victim has been examined by the prosecution. The I.O. of the case has also not examined by the prosecution and due to non- examination of the I.O., the place of occurrence does not stand established by it. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and appellants are entitled to be acquitted.
13. On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 6/12 conviction and sentence, submitted that though out of seven witnesses, four have turned hostile, but rest three material witnesses of the case including the informant have supported the prosecution case in toto. It is further submitted that though injury report has not been brought on record and doctor has not been examined by the prosecution but as there is consistent ocular evidence regarding the occurrence, assault and sustaining injury by the informant, non- production of the injury report and non-examination of the doctor by the prosecution is not going to shatter the prosecution case and learned lower court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed.
14. From perusal of record, it appears that there are three material witnesses of the case namely, PWs-1, 5 and 7. Though, the PWs-1 and 5 appears to have made an abortive bid to support the prosecution case by narrating occurrence etc., in their respective examination-in-chief in consonance with the prosecution case but from perusal of testimony of the aforesaid two witnesses, it appears that they are not eye witnesses of the occurrence as they were not present at the place of occurrence at the time of occurrence and have not witnessed the occurrence rather they arrived at the Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 7/12 place of occurrence after culmination of the occurrence. As PW-7 (informant) has stated in paragraph 1 of his examination-in-chief that responding hulla made by him, first of all his wife (PW-5) rushed at the place of occurrence in his rescue and PW-5 in paragraph 2 of her cross-examination has stated that she was present in her courtyard at the time of occurrence. She rushed at the place of occurrence responding hulla made by her husband but in the said paragraph she has further stated that when she arrived at the place of occurrence, she witnessed head injury of her husband bleeding profusely and he was lying on the ground sustaining injury. There was sign of lathi blow on his back and shoulder. The aforesaid testimony of PW-5 candidly indicates that she had not witnessed the occurrence of assault on her husband by the appellants rather she had arrived at the place of occurrence responding hulla made by her husband after culmination of the occurrence and found her husband lying on the ground sustaining injury and head injury of her husband bleeding profusely. She also noticed lathi injury on his back and shoulder. In the said paragraph, she also stated that she cleaned the blood by means of cloth and kept the wound of her husband pressed for two minutes and gave call to her neighbours. Responding the same, Lal Babu, Ramnandan, her brother-in-law Dukhi Yadav (PW-
1) and Adhiklal Yadav rushed there. Thus, the aforesaid statement Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 8/12 of PW-5 candidly rules out witnessing of the occurrence of assault on the informant at the hand of appellants by the PW-1 as well, as the said witness had arrived there on hulla made by PW-5 who on arriving at the place of occurrence had found her husband lying on the ground sustaining injury. She cleaned his blood and kept his wound pressed for two minutes and made hulla and responding the same PW-1 arrived there.
15. From perusal of testimony of the informant (PW-
7), it appears that though he appears to have made an abortive bid to support the prosecution case by narrating the occurrence etc., in his examination-in-chief, but in paragraph 4 of his cross-examination, he has stated that after sustaining lathi blow, he fell senseless and witnessed his wound bleeding on regaining sense then again he fell senseless and regained sense in the hospital. The aforesaid statement of PW-7 indicates that he had not seen the appellants assaulting him by means of farsa and spear as the appellant Binay Kumar Yadav @ Ramdeo Yadav had allegedly assaulted the informant first of all by means of lathi and on his felling down, assaulted him by means of farsa on his head and then Maheshwar Yadav assaulted on his leg by means of spear. But, as as per the aforesaid testimony of the informant after sustaining lathi blow, he fell senseless and found the blood oozing from his wound on regaining sense and then again fell senseless, he must not have seen Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 9/12 the occurrence of assault by means of farsa made on him by the appellant Binay Kumar Yadav @ Ramdeo Yadav and by means of spear made by the appellant Maheshwar Yadav.
16. From perusal of testimony of the informant as recorded in paragraph nos. 4 and 5 of his cross-examination, it appears that after sustaining injury he fell senseless and was rushed to the hospital in same state of health on the date of occurrence and had regained sense at the hospital at 04:00 PM on the same day meaning thereby that between the period of sustaining injury till 04:00 PM, he was not in sense and was not in a position to give statement before the police. But, from perusal of fardbeyan of the informant it appears that his fardbeyan was recorded on the date of occurrence at 01:45 PM when he must be senseless as per his own account. The aforesaid aspect of the case creates serious doubt about giving fardbeyan by the informant regarding the occurrence as well as prosecution case.
17. From perusal of the statement of the informant as given by him in paragraph 1 of his examination-in-chief it appears that besides the witnesses examined by the prosecution in the case, witnesses Nand Lal Yadav, Lal Babu Yadav and Shivnandan Mahto had arrived at the place of occurrence and witnessed the occurrence, but the aforesaid independent witnesses have not been examined by Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 10/ 12 the prosecution and no plausible reason has been assigned for their non-examination, hence the adverse inference is drawn against it.
18. Admittedly, the informant was treated in Khajauli hospital but neither any injury report has been brought on record nor the doctor who has allegedly treated him has been examined by the prosecution. Thus, the aforesaid blemished testimony of the informant also does not stand corroborated by medical evidence.
19. From perusal of record, it appears that PW-1 (Dukhi Yadav) happens to be own brother of the informant, PW-5 (Rameshwari Devi) is wife of the informant and PW-7 (Jagbir Yadav) is the informant himself. Thus, the aforesaid three witnesses happen to be highly interested witnesses of the case. It is the settled principle of law that testimony of the interested witness should not be discarded outrightly rather it should be scanned and scrutinized carefully and cautiously. On careful and cautious scanning of the testimony of the aforesaid witnesses, I find that the aforesaid witnesses are not worth credence as PWs-1 and 5 does not happen to be eye witnesses of the occurrence and informant has not witnessed the occurrence of assault on him by the appellants by means of farsa and spear as discussed by me hereinabove.
20. I.O. of the case has also not been examined by the prosecution and due to non-examination of the I.O., the place of Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 11/ 12 occurrence does not stand established by it.
21. From perusal of record it appears that it is the admitted case of the prosecution that the appellants are on inimical terms with it as stated by the informant in his fardbeyan itself. Further the informant in paragraph 2 of his examination-in-chief has stated that the appellant Maheshwar Yadav had filed criminal case against him in the year 1993 in which he was convicted. Thereafter, Maheshwar Yadav had also filed case against him for felling Sisam tree which is pending in the court of Judicial Magistrate Shri Shri Chand. The said tree was recovered from his possession and was handed over to the Maheshwar Yadav through court. Enmity cuts both the edges, but in view of aforesaid facts and circumstances of the case, not establishing of the occurrence etc., by the ocular as well as medical evidence, non-examination of the independent witnesses of the occurrence, non-examination of the I.O. of the case, false implication of the appellants, out of the aforesaid animosity cannot be ruled out.
22. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charge levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the Patna High Court CR. APP (SJ) No.561 of 2002 dt.18-12-2017 12/ 12 impugned judgment and order of conviction and sentence passed by learned lower trial is set aside and the appellants are acquitted of the charge levelled against them. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.
(Prakash Chandra Jaiswal, J) rohit/-
AFR/NAFR NAFR CAV DATE N.A. Uploading Date 21.12.2017 Transmission 21.12.2017 Date