Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 675 (PAT)

Yogendra Yadav v. State Of Bihar

2001-07-31

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The instant appeal is directed against the judgment and order dated 12.12.1989, passed by Shri Bhikari Ram, Addl. Sessions Judge-XI, Patna in Sessions Trial No. 638 of 1985 whereby and whereunder he found and held the appellants guilty and convicted them under Section 307 read with Section 34 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced them to undergo regiourous imprisonment for five years each thereunder. 2. The prosecution case as unfolded in the FIR and the evidence of the prosecution witnesses lay within a narrow compass. The informant, Lal Deo Mahto (PW 2) was at about 8 p.m. in the night on 24.9.1984 sleeping at his house while his father, Rajgir Mahto (PW 4) was keeping watch over his electric pumping set machine at his Boring, situated a little away from his house at village Mahendranager under the jurisdiction of Danapur Police Station of Patna district, Just then, four-five miscreants having armed themselves with lathi and Spear went to the Boring where PW 4 was keeping watch. Detecting the arrival of the miscreants PW 4 raised alarm. Soon the miscreants surrounded him, PW 2, Laldeo Mahto hearing alarm of his father rushed to the scene with torch and lathi He flashed torch light and identified the appellants Yogendra Yadav and Rajendra Yadav as well as Ram Nath Yadav and Singhasan Yadav who were also accused in the case. No sooner had PW 2 arrived at the Boring then the appellant Rajendra Yadav assaulted him with lathi portion of Spear and the appellant Yogendra Yadav gave khanti blow on him as a result of which he sustained injuries on his head and right writs. In the meanwhile, his uncle Doman Mahto (PW 3) reached there and he was also assaulted by the appellants. He sustained injury on his head. Thereafter, the appellant Rajendra Yadav assaulted PW 4 Rajgir Mahto with Spear as a result of which he sustained injury on his abdomen and the appellant Yogendra Yadav gave Khanti blow causing injury below his lips. After sustaining injuries PW 4 got unconscious. 3. All the three injured person (PWs 2, 3 & 4) were taken to Bikram Police Station wherefrom they were sent to Bikram Hospital where fardbeyan (Ext. No. 2) of PW 2 was recorded at about 8 a.m. on 25.9.1984. After sustaining injuries PW 4 got unconscious. 3. All the three injured person (PWs 2, 3 & 4) were taken to Bikram Police Station wherefrom they were sent to Bikram Hospital where fardbeyan (Ext. No. 2) of PW 2 was recorded at about 8 a.m. on 25.9.1984. On the basis of the fardbeyan the formal FIR (Ext. No. 3) was drawn up and the case was registered against the appellants as well as Ram Nath Yadav and Singhasan Yadav. The injured persons were examined by Dr. Amrendra Narain Jha (PW 6). Investigation was taken up by PW 5, Jagdish Yadav. After completion of investigation the charge sheet was submitted under Section 307 besides some other sections of the Code against all the four accused persons including the appellants and finally the trial commenced after commitment. 4. The motive attributed behind the commission of high handed and illegal act of the miscreants including the appellants was that they were respondent persons having no regard for law and order and they always put hurdle and impediment to the informant in his agricultural operations and they also caused damage to their cultivation. 5. The appellants and other two accused persons, namely, Ram Nath Yadav and Singhasan Yadav were charged under Section 307 read with Section 34 of the Code for having assaulted PW 2. Laldeo Mahto with such intention and under such circumstance that if by that act, they had caused his death, they would have been guilty of murder. In short, they were charged for having attempted to kill him. They denied the charge and claimed to be tried. 6. The appellants did not enter to defence. However, from the trend of cross-examination of prosecution witnesses, written statement of the appellants and statements of the appellants recorded under Section 313 Cr PC the defence seemed to be that of total denial and false implication out of sheer enmity. 7. The learned Addl. Sessions Judge after taking the facts, circumstance and evidence brought on record into account found and held the appellants guilty and he convicted and sentenced them as stated above acquitting the accused Ram Nath Yadav and Singhasan Yadav vide the impugned judgment and order. 8. The appellants) being aggrieved by the judgment and order of conviction and sentence passed against them preferred this appeal. 9. 8. The appellants) being aggrieved by the judgment and order of conviction and sentence passed against them preferred this appeal. 9. Shri Jha, Learned senior counsel, appearing on behalf of appellants has assailed the impunged judgment and order of conviction and sentence by contending that it is bad in law and against the materials on records and the learned Court below committed grave error in convicting the appellants under Section 307 read with Section 34 of the Code for having attempted to kill PW 4 for which no charge was framed against them; that the eye witness account of the incident leading to infliction of assault on PW 4 in an attempt to kill him is not in consonance with medical evidence that the place of occurrence and the manner in which PW 4 was assaulted could not be proved by the prosecution that there was delay in lodging the FIR rendering the prosecution version doubtful; that the witnesses on where evidence conviction was based were relatives and interested ones and independent witnesses, out of whom two were named in the FIR were not examined by the prosecution as a result of which the appellants were put to serious prejudice and that the alleged motive attributed behind the commission of crime too was not proved. 10. The appellants were charged for having attempted to kill PW 2 Laldeo Mahto, the informant but they were convicted for having made an attempt on life of PW 4 Rajgir Mahto. A person/accused cannot be convicted under major section like Section 307 of the Code for having attempted to commit murder of the victim unless specific charge for the same has been framed against him. In the present case, learned Court below committed error of law in convicting the appellants for having attempted to kill PW 4 Rajgir Mahto for which no charge was framed against them. Shri Jha rightly contended that this grave error committed by the learned Court below vitiated the whole trial. 11. The Learned Addl. In the present case, learned Court below committed error of law in convicting the appellants for having attempted to kill PW 4 Rajgir Mahto for which no charge was framed against them. Shri Jha rightly contended that this grave error committed by the learned Court below vitiated the whole trial. 11. The Learned Addl. Sessions Judge tried to justified the appellants conviction without framing specific charge against them by making averment in the judgment impugned that there was evidence to the effect that PW 4 Rajgir Mahto was given a bhala blow on his abdomen and injury was found to be grevious in nature and the appellants were put question regarding infliction of spear blow causing previous injury on his abdomen and as such they could not be said to have been put to prejudice. I find myself not in a position to agree with the view of the learned trial Court. Moreover the recital in the judgment that the appellants while being examined under Section 313 Cr PC were put question regarding to kill him is against the records. The appellant were not put specific question that they in furtherance of their common intention attempted to kill PW 4 by assaulting him with Spear. Under the circumstance, it cannot be said that the appellants were not prejudiced and taken aback when they were convicted for making an attempt to kill PW 4 Rajgir Mahto for which no charge was framed against them. If the learned Court below felt that the appellants who were charged for having attempted to kill PW 2 Lal Deo Mahto were liable for having attempted to kill PW 4 Rajgir Mahto it ought to have amended the charge insteal of straightway convicting them for having made an attempt on life of PW 4 Rajgir Mahto without charge for the same having been framed against them. 12. The prosecution as well as the trial Court was of the view that the appellants intended to kill PW 4 Rajgir Mahto and in furtherance of their common intention they variously assaulted him. But the materials on record did not substantiate this version as would be evident from discussion made hereinafter. 12. The prosecution as well as the trial Court was of the view that the appellants intended to kill PW 4 Rajgir Mahto and in furtherance of their common intention they variously assaulted him. But the materials on record did not substantiate this version as would be evident from discussion made hereinafter. From the evidence of PW 2 Lal Deo Mahto PW 3 Doman Mahto and PW 4 Rajgir Mahto it would transpire that PW 4 was alone at his boring where as many as four miscreants including the appellants, all armed with Spear, Khanti, and lathi surrounded him whereafter he raised alarm attracting PWs 2 and 3 thereafter they first assaulted PW 2 and then PW 3 and last of all they assaulted PW 4. Had the appellants and their two associates (since acquitted) intended to kill PW 4 they would have assaulted and murdered him easily as he alone was surrounded by them and they would not have waited till arrival of PWs 2 & 3 and showering of assault on them. Even PW 4 did not say that the appellants intended to kill him for he said he could not say whether the miscreants had gone to his boring for committing theft of electric motor or for killing him. Under the circumstance, the appellants cannot be said to have intention to kill PW 4. 13. The eye witness account is not in consonance with the medical evidence. It was contended that it was mentioned in the FIR that the appellant Rajendra Yadav pierced Spear in abdomen of PW 4 and the appellant Yogendra Yadav dealt a khanti blow (with sharp edge thereof) on his chin (below lower lips) but the prosecution changed its version in course of trial inasmuch as PWs 2 & 3 said that Yogendra Yadav assaulted him with lathi portion of khanti. PW 4 was examined by Dr. A.N. Jha (PW 6) at about 4 a.m. of 25.9.1984 and found (I) bleeding injury 1/2" x 1/4" on lower part of lest lateral said of chest and (II) lacerated wound 1/2" x 1/4" x 1/4" on lower part of left side of face below lower lips the injury No. (ii) was said to be simple in nature caused by hard and blunt substance, however, no opinion in regard to injury No. (I) was given by the doctor. But surprisingly the doctor (PW 6) claimed to have made supplimentary-report on 11.10.1984 (Ext. No. 5/3) on the basis of discharge ticket granted to PW 4 by the PMCH Patna. He was not expected to have made report to the effect that injury was grievous in nature caused by sharp cutting weapon particularly when the entry regarding injury (Ext. No. 5/4) in the admission register made by Dr. Arbind Kumar Saran (PW 7) who examined PW 4 at about 6.3 p.m. on 25.9.1984 was silent on the nature of the injury and weapon used for causing the same. PW 7 found lacerated wound over the left costal margin in lateral part 1/2" x 1/4"x muscle deep and one stitched would about 3/4" long over the left side of fact. He admitted that he prepared injury report on 25.10.1984 on the basis of entry in admission register. He also admitted that the nature of the injuries and weapons used were not mentioned in the relevant register nor was X-Ray plate available before him. It is also in his cross-examination that in the admission register referred to above, there is no reference as to when the abdomen of PW 4 was opened. PW 7 proved discharge ticket (Ext. No. 6) said to have been written by Dr. Shyam Babu who was not examined. PWs 6 & 7 ought not to have given opinion in regard to the nature of injuries and weapons used on the basis of discharge ticket. It may be mentioned that relevant documents of the hospital were not brought on records to show when PW 4 was operated upon and what was found in course of operation. In absence of these papers it cannot be said on the basis of discharge ticket that the opinion regarding nature of injures given by doctors (PWs 6 & 7) it correct. Incidentally it may be mentioned that PW 4 said he was treated at Patna Hospital for about ten days and there after he did not feel well and as such he got himself discharged from the hospital.He did not speak of his undergoing operation. 14. Incidentally it may be mentioned that PW 4 said he was treated at Patna Hospital for about ten days and there after he did not feel well and as such he got himself discharged from the hospital.He did not speak of his undergoing operation. 14. Under the circumstance, the contention put forward on behalf of appellant that eye witness account of the incident leading to assault on PW 4 is inconsistent with medical evidence or in other words the medical evidence does not support the prosecution version seems to be well founded. 15. PW 4 Rajgir Mahto stated that the hutment in which he was assaulted had an area of 5x5 cubits. The Investigation Officer (PW 5) did not measure length and with of the hutment. From evidence of PW 5 it transpires that the hutment was made of straw (Plas). He found a thrasher machine, electric pumping set machine and a Chauki in the hutment. As many as four miscreants armed with Spear. Khanti and lathi entered into it and assaulted PW 4, Keeping in view small size of the hutment made of straw certain trampling marks and disturbance to straw with which it was built, blood on the ground as well as blood stain on walls were expected at the place of occurrence particularly when is has come in evidence that there was profused bleeding from the injuries of PW 4 and blood had fallen on the ground. But nothing of this sort was found by the IO. In the facts and circumstances, it cannot be said that the prosecution proved that incident leading to assault on PW 4 took place at that time and place of occurrence and in the manner alleged by it. 16. The delay in lodging the information with the Police was also highlighted at the Bar. The occurrence took place at about 8 p.m. on 24.8.1984. The fardbeyan of PW 4 was recorded at 8 p.m. on 25.8.1984 at Bikram Hospital. Obviously delay occurred in lodging the FIR. PW 4 Rajgir Mahto stated in his examination-in-Chief that after the incident the injured persons including himself were taken to Bikram Police Station and he narrated the incident and he also disclosed the names of miscreants including the appellants to the Sub-inspector of Police but that version of prosecution story was suppressed and not brought on records. PW 4 Rajgir Mahto stated in his examination-in-Chief that after the incident the injured persons including himself were taken to Bikram Police Station and he narrated the incident and he also disclosed the names of miscreants including the appellants to the Sub-inspector of Police but that version of prosecution story was suppressed and not brought on records. The investigating officer (PW 5) said he got wireless message from Bikram Police Station on 25.9.1984 and then he proceeded to Bikram and he recorded fardbeyan of PW 4 at Bikram Hospital at about 8 a.m. Wireless message was not produced in the Court. When the injured including PW 2 Lal Deo Mahto and PW 4 Rajgir Mahto had been at Bikarm Police was expected to have recorded fardbeyan of any of the injured and thereafter PW 5 who longed to Ranitalab Police Station could have been entrusted with the task of investigation particularly when the place of occurrence situated within Ranitalab Sub-Police Statioin under Bikarm Police Station where the case was ultimately to be registered as no case was registered at Ranitalab Sub-Police Station. It does not stand to be reason as to why Bikarm Police Station instead of recording fardbeyan sent wireless message to PW 5 at Ranitalab Police Station. All this instilled doubt in genuineness of the prosecution case. 17. In this case, three witnesses PWs 2, 3 & 4 were examined on the point of occurrence. PW 2 is the son of PW 5 while PW 3 is brother of PW 4. It is obvious that all the three witnesses are relatives and interested witnesses. It is true that even evidence of relative witness if after close scrutiny is found to be above board and wholly reliable can form the basis of conviction but in the case at hand the evidence of PWs 2, 3 & 4 considered together with delay in lodging the FIR and medical evidence and non-examination of two FIR named eye witnesses, Surendra Mahto and Naresh Mahto plus a number of villagers such as Kamta Mahto, Duthan Mahto, Jagannath Mahto and others who had arrived at the scene soon after infliction of assault on the victim cannot be said to be free from taint and infirmity and the same cannot be said to be wholly reliable. There is substance in the contention that evidence of PWs 2, 3 & 4 examined in the case cannot form the basis of the conviction of the appellants. 18. The motive attributed behind the commission of crime as recited in the FIR was that the appellants and their associates caused hindrance and hurdle to the informant in carrying out his agricultural operation but no iota of evidence on this point was brought on record not was even suggestion to that effect put to any of the witnesses. On the contrary while PWs 2, 3 & 4 were silent on the alleged motive, PW 3 stated that reason for commission of crime was the fact that the appellants and their associates were committing theft of his electric motor, PW gave entirely new dimention to the motive attributed behind the commission of the offence. It is true that the motive has no role to play in criminal cases but once motive is alleged it has got to be proved. But in the instant case, the alleged motive and genesis of occurrence remained unproved. 19. The evidence on infliction of assault on PWs 2 & 3 and involvement and participation of the accused Ram Narain Yadav and Sinhasan Yadav was divergent and inconsistent and even contradictory. The accused Ram Narain Yaday and Sinhasan Yadav were already acquitted by the learned Court below. No charge was framed for infliction of assault on PW 3. The appellant were not held guilty for having attempted to kill PW 2 for which they were charged. Under the circumstances, evidence on these points need not be discussed. 20. It is also to be borne in mind that the Incident took place as far back as in the year 1984. The appellants have been running to courts for above 17 years. They have already suffered tremendous hardship and harassment and they underwent jail terms for some days during investigation. Under the circumstances, even if it is assumed for the sake of argument that the materials on records established commission of offence of causing simple hurt to PWs. 2 & 4 though there is no ground for such assumption it is not deemed just, proper and expedient in the interest of justice to convict the appellants therefore after such a long span of time elapsed since the date of occurrence. 21. 2 & 4 though there is no ground for such assumption it is not deemed just, proper and expedient in the interest of justice to convict the appellants therefore after such a long span of time elapsed since the date of occurrence. 21. In view of what has been stated and observed in the preceding paragraphs it is to be held that the prosecution could not bring home the charge levelled against the appellants beyond the reasonable doubt and as such they deserve to be acquitted. 22. In the result the appeal succeeds and the same is allowed The impugned judgment and order of conviction and sentence stands set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Let them be directed to be discharged from their respective bail bonds.