Patna High Court
Kashi Nath Yadav @ Jiut & 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.217 OF 2000
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AGAINST THE JUDGMENT OF CONVICTION DATED 27TH MAY, 2000 AND
THE ORDER OF SENTENCE DATED 03RD JUNE, 2000 PASSED BY SHRI
AJAY KUMAR SHRIVASTAVA, ADDITIONAL SESSIONS JUDGE VI,
SIWAN IN SESSIONS TRIAL NO. 306 OF 1990 ARISING OUT OF
MAHARAJGANJ POLICE STATION CASE NO. 105 OF 1989
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1. KASHI NATH YADAV @ JIUT, SON OF KUBER YADAV
2. LAL BACHAN YADAV, SON OF HARICHARAN YADAV
3. SHEO JEE YADAV, SON OF HARICHARAN YADAV
4. RAM NATH YADAV, SON OF DIPAN YADAV
5. RAM CHANDRA YADAV, SON OF HARI CHARAN YADV
6. JAGARNATH YADAV, SON OF SITA RAM YADAV
ALL RESIDENT OF VILLAGE INDAULI, POLICE STATION
MAHARAJGANJ, DISTRICT SARAN
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
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APPEARANCE :
FOR THE APPELLANT/S : MR. MADAN PD. SINGH NO. 2, ADVOCATE
MR. ARUN KUMAR SINGH, ADVOCATE
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
Sheema Ali Khan, J.This appeal is preferred against the judgment of conviction dated 27th May, 2000 and the order of sentence dated 03rd June, 2000 passed by the Additional Sessions Judge VI, Siwan in Sessions Trial No. 306 of 1990, whereby the six appellants before this Court has been convicted to undergo rigorous imprisonment for three years under Section 324/34 of the Indian Penal Code and one year under Section 323/34 of the Indian Penal Code.
2. The occurrence took place on 04.07.1989. 2 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 2 / 10 The fardbayan of the informant Gautam Yadav was recorded by the Daroga of the concerned Police Station at the Maharajgnj Hospital. The prosecution case, in brief, is that Ram Chandra Yadav (appellant no. 5) and Sheo Jee Yadav (appellant no. 3) were removing mud from their field. After some time, their father Hari Charan Yadav joined them and all three of them began to cut the ridge which was in the field of the informant. The informant utilized this ridge to go towards the canal situated near his land. The informant protested, which resulted in assault, which has been described in the First Information Report in some details. It is said that Ram Chandra Yadav gave the informant a spade blow, which hit him on his left elbow. He got disbalanced and fell down, thereupon Sheo Jee Yadav began to assault him by lathi. Kashi Yadav assaulted the informant's grandfather Ram Barai Raut on his back, hip and arm by means of a bhala and stick. The mother of the informant was also assaulted by the miscreants by means of bhala and lathi.
3. During the trial, seven witnesses were examined on behalf of the prosecution. The main argument advanced on behalf of the appellants is that the genesis of the occurrence has not been proved and as such, the entire prosecution case is false. It is specifically submitted that the Investigating Officer has not supported the fact that the ridge was cut and thus, the entire case appears to be false and 3 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 3 / 10 fabricated.
4. This Court will begin with the evidence of PW 7 Dr. Rajeshwar singh who has examined the injured persons. The injuries indicated by PW 7 supports the manner of occurrence. Ram Barai Raut has received three injuries. Two of the injuries are penetrating wounds and one of them is a lacerated wound on the temporal region. Apart from which, there were swelling and pain over the entire body including the thigh and back. The injuries on Gautam Yadav are by lathi andsharp cutting weapon. He was also assaulted by lathis on his chest and back, which would be supported by the injury report. The doctor found seven injuries, out of which two injuries are by sharp cutting weapon, whereas the other injuries have been caused by hard blunt substance, which are on the head, chest and back. There was also swelling and pain all over the body. Panna Devi, the mother of the informant, has received three injuries by means of hard blunt substance which is again in accordance with the allegations levelled in the First Information Report. This Court therefore, finds that prima facie the injuries found on the informant, his grandfather and mother are in accordance with the allegations made in the First Information Report and for that matter, the evidence led in Court.
5. The informant Gautam Yadav has been examined as PW 4. He has supported the prosecution case 4 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 4 / 10 and has stated that when Hari Charan Yadav came to the field, his sons began to cut the ridge, which demarcated the land of the informant and the accused. It has been stated at paragraph 13 of the deposition that the appellants had cut about 10-13 feet of the ridge, which was on the block of land belonging to the informant. Apart from this, he has also supported the manner of assault on his mother and himself. It has been argued that this witness has stated in his evidence that blood was found in the field, whereas the Investigating Officer has not found blood at the place of occurrence when he visited the place of occurrence.
6. PW 5 Panna Devi is the next injured witness. She is the mother of the informant. She came to the place of occurrence when she heard sound of raised voices. She has supported the fact that Ram Chandra was armed with 'spade', Lal Bacchan was armed with 'bhala' and he used the lathi portion of the bhala for the purpose of assaulting her, her son and Ram Barai Raut, the grandfather of the informant. She has made specific allegation against Kashi Nath Yadav for assaulting her on her back and shoulder. She has also stated in her cross-examination that there was blood on the place of occurrence and has supported the genesis of the occurrence inasmuch as she has stated that there was a dispute between the appellants and Dipan, who is the uncle of the accused persons. She has also stated that since they 5 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 5 / 10 had purchased the land from Dipan, the informant was also involved in a case with the accused persons.
7. The other witnesses to the occurrence are PW 1 Kanhaiya Singh, PW 2 Janak Yadav and PW 3 Satyendra Singh. PW 1 Kanhaiya Singh has been mentioned in the First Information Report as a witness and he supports the case made out in the First Information Report and states that the dispute arose because the appellants were cutting the ridge which was situated on the land of the informant. It has been argued that this Court should not believe the statements of PW 1 as he has tried to improve the prosecution case and has stated that the wife of the informant was also injured in the occurrence. He supports the fact that Ram Barai Raut was injured in the said occurrence and goes so far as to say that he died six months after the occurrence on account of the injuries received by him. Counsel for the appellants submitted that this aspect of the matter had not been mentioned in the First Information Report and this witness is making allegations which have not been levelled by the informant or any other prosecution witnesses.
8. With respect to the depositions of PWs 2 and 3, it has been stated that these witnesses do not disclose the manner in which the informant received injuries. Both witnesses have supported the fact that there was an incident in which the mother and the grandfather of the informant 6 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 6 / 10 were assaulted. I may point out here that it is not essential that the independent witnesses have to mention in detail the injuries on each and every injured person. They can still remain witness to the assault on the mother and the grandfather of the informant. This Court finds no reason to disbelieve their case just because they do not make a specific statement giving details of the injuries.
9. It has been argued with some emphasis that PW 6 Raj Ballav yadav, the Investigating Officer of this case, has not supported the manner of occurrence. It is submitted that at paragraphs 29 to 33, the Investigating Officer has stated that he has not recorded in the case diary the length and breadth of the ridge which he found to be cut at the place of occurrence, not recorded that he found blood at the place of occurrence and that he has not recorded whether the ridge was completely removed by the accused persons. The fact that the Investigating Officer has not properly investigated the case and has not recorded the aforesaid facts, does not mean that the occurrence did not take place or that the genesis of the occurrence is not correct as he had not recorded the length and breadth of the ridge which had been removed or destroyed by the accused persons. In fact, the Investigating Officer has not stated that there was no sign of disturbance at the place of occurrence or that the ridge was intact and therefore, this Court cannot hold on the basis of 7 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 7 / 10 these pieces of evidence referred above that the genesis of the occurrence is not true and the appellants are entitled to be acquitted on this count.
10. Counsel for the appellants has cited two judgments to support the submission that the Court cannot convict the appellants, if the genesis of the occurrence is not proved or that the ocular evidence does not support the injuries. This Court has already concluded that PW 4, the informant and PW 5, the mother of the informant have supported the manner in which the injuries have been inflicted, which was also proved by the evidence of the doctor. The very fact that one of the witness states that the injuries were inflicted in a different manner, does not lead this Court to conclude that the entire evidence of all the prosecution witnesses should be thrown out.
11. In the case of Sheikh Abdul Jabbar and another vs. The State [1955 B.L.J.R. 232, the Court has held that the Court cannot reconstruct or make out a new case. In the aforesaid case, the Trial Court disbelieved the origin i.e. the root cause which led to the assault and also disbelieved the prosecution evidence to the extent that Neyaz and Gafoor were waiting while they were taking the cattle. In those circumstances, this Court had held that after the genesis of the occurrence is disbelieved, the Court cannot convict a person and hold that he was responsible for committing an 8 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 8 / 10 act punishable under Section 324 of the Indian Penal Code. In the present case, the Trial Court has not disbelieved the genesis and this Court also finds that there is evidence of the informant as well as the other witnesses to support the fact that there was a land dispute and also support the fact that the ridge of the land of the informant was cut away by the appellants. The fact that the Investigating Officer did not mention the length and breadth of the ridge, which was destroyed, cannot be a ground to disbelieve the genesis of the occurrence.
12. Counsel for the appellants further relied on the case of Nanhkoo Singh and others vs. State [1959 B.L.J.R.
734. The facts of this case were that, there was a dispute regarding plucking of mangoes which led to exchange of abuses and finally assault. The defence case, on the other hand, was that there was a dispute existing between the petitioners who were Bhumidhars and the complainants who were Koeris, regarding irrigation of the lands of the Bhumidhars from a well which was in front of the house of Akloo Mahton. The Koeris had denied the rights of the petitioners to irrigate their lands. The Trial Court disbelieved the story that the occurrence had taken place due to plucking of mangoes belonging to the complainant, as a result of which, there was exchange of hot words. Having disbelieved the manner of occurrence, as the blood marks found were not 9 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 9 / 10 at the place of occurrence but at another spot, the Court came to the conclusion that since the genesis of the occurrence has been disbelieved, the Court cannot convict the petitioners merely on the ground that some of the witnesses had received injuries. In the present case, the Trial Court and this Court has not disbelieved the genesis of the occurrence or the manner in which it has taken place and as such, the facts of the case referred to above will not be applicable in the facts of the present case.
13. Having gone through the evidence, this Court comes to the conclusion that the prosecution has been able to show that injuries were caused by the appellants because of the dispute over cutting of the mud on account of destroying the ridge dividing the lands of the appellants and the informant. This aspect has been supported by the injured persons and to a great extent by the independent witnesses of this case.
14. Lastly, it has been argued that the occurrence had taken place in the year 1989 and the appellants have already remained in custody for about 3 weeks to 1 month.
15. Considering the lapse of time which has taken place and the fact that the appellants have remained in custody for 3 weeks to 1 month, this Court alters the sentence to the period already undergone. The appellants are 10 Patna High Court CR. APP (SJ) No.217 of 2000 dt.09-08-2012 10 / 10 discharged from the liabilities of the bail bonds furnished earlier in this case.
16. In the result, this appeal is dismissed with the alteration in the sentence.
(Sheema Ali Khan, J) Prabhakar Anand/-