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2001 DIGILAW 842 (PAT)

Prayag Narayan Yadav v. State Of Bihar

2001-09-06

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The appellant Barfi Yadav was convicted and sentenced to undergo rigorous imprisonment for four years under Sec. 307 of the Indian Penal Code (hereinafter to be referred to as "the Code"). The appellants prayag Narain Yadav and Chandra Yadav were convicted and sentenced to undergo rigorous imprisonment for one and a half years each under Sec. 324 of the Code and all the three appellants were convicted and sentenced to undergo rigorous imprisonment for three years each under Sec. 27 of the Arms Act, both the sentences in respect of all the appellants having been ordered to run concurrently, acquitting the appellants and other accused persons of the charge under Sec. 307, read with Sec. 149 of the Code, vide the judgment and order dated 3-5-1990 passed by the 3rd Additional Sessions Judge, Nawada in Sessions Trial No. 152 of 1984. 2. The prosecution case as unfolded in the FIR and the evidence of the prosecution witnesses was, in short, as follows: At about 9.10 p.m. on 11-11-1978, the informant Krishnadeo Prasad (PW 8) after taking meal went to his cabin to keep watch over his electric pumping set. While he was at a distance of about 75 yards from the cabin he saw that the door of the cabin was opened and certain miscreants were removing his electric motor. Amongst the miscreants identified by the informant were the appellants as well as Yogendra Yadav, Kishore Yadav, Bimal Yadav, Pravesh Yadav and Chandrika Yadav. PW 8 protested against the removal of his electric motor, whereupon appellants Prayag Narayan Yadav and Barfi Yadav dealt garasa blows on his head and Yogendn, Yadav and Pravesh Yadav showered lathi blows on him. Took Narayan Madto (PW 6), Sadhu Sharan Mahto (PW 5), Karamchand Mahto (PW 4) and Parmeshwar Mahto (PW 7) after hearing the alarm and sound of firing, reached the scene of the incident. PWs 5 and 6 got ready to intervene to save the informant but to their utter dismay and surprise, they were also assaulted by Yogendra Yadav and Pravesh Yadav with lathi. The appellant prayag Narain Yadav resorted to firing. The shot fired by him hit Krishnadeo Prasad (PW 8) as a result of which he sustained injury on his left arm. The appellant Chander Yadav also opened fire causing gun shot injury to both PWs 5 and 6. The appellant prayag Narain Yadav resorted to firing. The shot fired by him hit Krishnadeo Prasad (PW 8) as a result of which he sustained injury on his left arm. The appellant Chander Yadav also opened fire causing gun shot injury to both PWs 5 and 6. A number of villagers arrived at the place of occurrence and they also witnessed the incident leading to assault on the victims. Thereafter the appellants and their associates retreated taking away the electric motor pump and its accessories. 3. On the day following at about 8.45 a.m. Ramneh Singh, Sub-Inspector of Police (PW 13) recorded the fardbeyan (Ext. 3) of the informant at State Dispensary, Hasua on the basis of which the formal FIR (Ext. 4) was drawn up and Hasua P.S. Case No. 7 of 1978 giving rise to the instant case was registered. PW 13 took up investigation, he recorded the statements of the witnesses inspected the place of occurrence and after completing investigation submitted charge-sheet and finally the trial commenced after commitment. 4. The appellant did not enter into defence. However, a certified copy of the judgment of Patna High Court delivered in Cr. Appeal No. 585 of 1982 (Ext. A) was brought on record, From the trend of crossexamination of prosecution witnesses as well as the statement of the appellants recorded under Section 313 Cr. P.C. and the contents of Ext. A, the defence seemed to be that of total denial and false implication out of sheer enmity. 5. The learned Additional Sessions Judge after taking the facts circumstances and evidence brought on records into account found and held the appellants guilty and he convicted and sentenced them as stated above, acquitting the accused Kishore Yadav, Bimal Yadav, Pravesh Yadav, Yogendra Yadav and Chandrika Yadav of all the charges levelled against them vide the impugned judgment and order. 6. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the instant appeal. They assailed the impugned judgment and order of conviction and sentence by contending that it is not based on law and facts and It is against the evidence available on the record; that the genesis of the occurrence. 6. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the instant appeal. They assailed the impugned judgment and order of conviction and sentence by contending that it is not based on law and facts and It is against the evidence available on the record; that the genesis of the occurrence. i.e. removal of electric motor from the cabin of the informant was not proved rendering the prosecution case doubtful; that the eye witness account of the incident leading to assault on the victims was not in consonance with the medical evidence and that all the witnesses came from the same family and they were highly interested witnesses and their evidence must be viewed with suspicion particularly when none of the independent villagers who had arrived at the scene of occurrence came forward to support the allegations levelled against the appellants. 7. On perusal of the contents of the FIR and the evidence of the witnesses it would transpire that the miscreants including the appellants entered into the cabin of the informant with a view to commit theft of his electric motor pump with its accessories. PWs. 5. 6. 7 and 8 stated that they saw Bimal Yadav and Kishore Yadav taking away the electric motor pump from the cabin of the informant. PW 8. the informant stated that when he arrived near his cabin he saw the appellants and other miscreants taking away the electric motor with its accessories and thereafter he raised alarm. The witnesses such as PWs. 5, 6 and 7 arrived at the place of occurrence after hearing alarm and sound of firing. It has come in the evidence of the witnesses that their houses situated at a distance of about 300 yards away from the place of occurrence. It is highly unlikely that the appellants and other miscreants were removing and taking away heavy electric motor with its accessories from cabin till the arrival of the villagers including PWs 5, 6 and 7. The miscreants were not expected to carry away the heavy machinery in presence of several villagers. It was still more improbable that only two persons namely Kishore Yadav and Bimal Yadav had taken away the motor even after they were seen carrying away the machine by several villagers. 8. The Investigating Officer in course of inspection did not find electric motor pump in the cabin. It was still more improbable that only two persons namely Kishore Yadav and Bimal Yadav had taken away the motor even after they were seen carrying away the machine by several villagers. 8. The Investigating Officer in course of inspection did not find electric motor pump in the cabin. The circumstances are eloquent of the fact that the electric motor appears to have been removed from the cabin either before the incident or after taking place of occurrence but before inspection made by the Investigating Officer. 9. The informant Krishnadeo Prasad (PW 8) stated that as the miscreants broke into the cabin. there was mark of violence on the door plank and the door of the cabin as well and the chain for locking the door was also broken. However this assertion of the informant was negatived by the Investigating Officer (PW 13), for he found no mark of violence or broken door or chain in course of inspection of the place of occurrence. The objective findings of the Investigating Officer belied the prosecution version asserted by PW 8 and other witnesses. That the electric motor pump was removed by the miscreants by breaking into the cabin. The learned Additional Sessions Judge also observed that the story of theft of electric motor pump appeared to be absurd and unnatural. Thus, obviously the genesis of occurrence could not be proved rendering the prosecution case doubtful. 10. As regards infliction of assault on the victims it is to be stated that the appellants and their associates Yogendra Yadav and Pravesh Yadav took active part in assault. The appellant Barfi Yadav inflicted garasa blow on the informant and Yogendra Yadav and Pravesh Yadav inflicted indiscriminate lathi blows on him as per prosecution version. They were also said to have assaulted (PWs 5 and 6). Though. PW 5 tried to depose as eye witness, he could not be believed to be an eye witness even by the Court below. The informant was said to have sustained several injuries caused by lathi blows but the doctor (PW 10) found only one abrasion on his right shoulder. Both Yogendra Yadav and Pravesh Yadav were said to be the authors of assault on the informant. In view of presence of a single injury on his person, it could not be said which of the two assailants was answerable for infliction of assault on him. Both Yogendra Yadav and Pravesh Yadav were said to be the authors of assault on the informant. In view of presence of a single injury on his person, it could not be said which of the two assailants was answerable for infliction of assault on him. Similarly there was inconsistency and discrepancy in respect of infliction of assault by Yogendra Yadav and Pravesh Yadav on PWs 5 and 6. The learned Court below rejected the prosecution version regarding Yogendra Yadav and Pravesh Yadav being the assailants of PWs 5, 6 and 8. 11. The victim Sadhu Sharan Mahto (PW 5), took Narayan Mahto (PW 6) and the informant Krishna Deo Prasad (PW 8) were examined by the doctor Amarnath Gupta (PW 10). He found an incised wound an abrasion, a penetrating injury and a laceration on the person of PW 8. Two injuries one on the left hand and the other on back of upper arm were said to have been caused by fire arm. Though PW 8 did not say that he sustained gun shot injury on his back surprisingly enough the doctor found such injury on his back. It does not stand to reason as to how the doctor reported that there was gun shot injury on his back when there was complete absence of ocular evidence on this point. PW 10 also found one injury caused by gun shot on person of each of PWs 5 and 6. The age of injury found on the person of PW 8 was in the opinion of the doctor within 24 hours from the time of his examination. The doctor did not express any opinion in regard to the age of the injury found on the person of PWs 5 and 6. The injury reports were Exts. 2, 2/1 and 2/2. 12. The doctors reports speak of X-ray plates, PW 10, the doctor referred to X-rays of injuries. He came to the conclusion regarding pellets embedded beneath the injuries on the basis of X-ray plates. The learned Court below admitted the X-ray plates and marked them matertal Exts., 1 to 1/2, without their having been legally proved. No technician or doctor come forward to prove the X-ray plates. They do not bear the names of injured. It is not established where and by whom X-rays were taken. The learned Court below admitted the X-ray plates and marked them matertal Exts., 1 to 1/2, without their having been legally proved. No technician or doctor come forward to prove the X-ray plates. They do not bear the names of injured. It is not established where and by whom X-rays were taken. It could not be proved that X-ray plates in question were in respect of injuries allegedly found on the persons of the victims and as such no reliance on X-ray plates and consequently on evidence of witness (PW 10) can be placed. 13. The evidence of doctor has been subjected to serious criticism. He claimed to have examined all the three injured persons on 12-11-1978, but curiously enough injuries reports were prepared by him on 14-11-1978. In his cross-examination, the doctor stated that he examined the victim on 12-11-1978 and, he prepared injury reports on 14-11-1978. He admitted that he had not specifically mentioned in the injury reports that he examined them on 12-11-1978 even though the date of examination of the injuries was required to be written in the injury reports. He also admitted that normally he used to mention the date of examination in the injury report at the time he examined the injured. It is also in his crossexamination that the age of the injury was estimated and ascertained at the time of preparation of injury report. He admitted that he did not mention the age of injury in his reports in respect of PWs 5 and 6. There is also cutting and over writing on the date. On the signature of the doctor on injury report (Ext. 2), which is in respect of PW. 8. The injury slips prepared by the Investigating Officer were Exts. 5. 5/1 and 5/2. The injury slips in respect of PW5 Sadhu Sharan Mahto was clear and legible written with ink while the injury slips in respect~ of PW 6. Narayan Mahto and Krishna Deo Prasad seem to have been written with dot pen. The writings are not legible. The injury slip Ext. 5 bears the date 12-11-1978 written in ink while the date on the injury slip Ext. 5/1 was written with dot pen. The statement of the doctor made in his cross-examination, cuttings and over writings on injury reports (Exts. The writings are not legible. The injury slip Ext. 5 bears the date 12-11-1978 written in ink while the date on the injury slip Ext. 5/1 was written with dot pen. The statement of the doctor made in his cross-examination, cuttings and over writings on injury reports (Exts. 2 and 2/2), assertion of the doctor that he examined the injured on 12-11-1978, but he prepared his reports on 14-11-1978 and non-furnishing of any satisfactory explanation for examination of the victim on 12-11-1978 and submission of injury report on 14-11-1978 considered together with the manner in which the Investigating Officer prepared injury slips (Ext. 5 series) must be said to have instilled suspicion in the prosecution version regarding the time and place of occurrence and the manner in which assault was inflicted on the victims. 14. Admittedly PWs 5, 6, 7 and 8 were brothers and cousins among themselves and as such they can well be branded as relatives and interest witnesses. Though of course the settled principle of law is that the evidence of relatives and interested witnesses can be accepted and conviction can be based thereon provided it after a careful and cautious scrutiny is found to be wholly reliable. But in view of the facts and circumstances attending to the case at hand the evidence of the aforesaid prosecution witnesses cannot be said to be above board and it would not be just proper and expedient in the interest of justice to base conviction thereon for the reasons stated hereinafter. 15. PW 4 Karamchand Mahto stated that he reached the place of occurrence after hearing the sound of firing. According to him, he and the informant Krishna Deo Mahto were sleeping together in their house and when he reached the place of occurrence there was none excepting the miscreants including the appellants. He thus excluded presence of all other witnesses including the informant at the time and place of occurrence. There is in evidence that the house of Gopi Mahto, Bishun Mahto, Sadhusharan Mahto and Prasad Mahto situated in between the cabin and the house of the informant. He thus excluded presence of all other witnesses including the informant at the time and place of occurrence. There is in evidence that the house of Gopi Mahto, Bishun Mahto, Sadhusharan Mahto and Prasad Mahto situated in between the cabin and the house of the informant. It was rightly contended on behalf of the appellants that it was quite natural that the aforesaid persons would have arrived at the place of occurrence and after hearing the sound of firing and as such they could have been competent witnesses on the point of occurrence, but none of them was examined by the prosecution nor was there any explanation for their non-examination. 16. PW 4 stated that Chatradhari Mahta (PW 1), Munshi Mahta (PW 2) and Bishun Mahta (PW 3) had also rushed to the place of occurrence. They were also said to be the eye-witnesses in the FIR. but none of them spoken even a single word in support of the prosecution case. 17. PWs 4, 5, 6 and 7, all admitted in their cross-examination that Sahdeo Mahto, who happened to be the brother of PW 4 and cousin of PW8 was convicted under Sec. 302 of the Code and in that case the appellant prayag Narayan Yadav alias Prayag Narayan Mahto was a prosecution witness and his conviction was upheld by this Court in Cr. Appeal No. 585 of 1982, vide the certified copy of the judgment (Ext. A). 18. Learned counsel appearing on behalf of the appellants submitted that since Sahdeo Mahto was convicted and sentenced to undergo life imprisonment in pursuance of the evidence of the appellant Prayag Narayan Yadav and others and he was still serving out the sentence and hence due to animosity and grudge between the prosecution party and the appellants and other accused persons, who all belong to the same family, the appellants had been falsely implicated on the basis of the got up and manufactured injury reports by bringing the Medical Officer in his collusion and conspiracy. The submission seems to be well founded. 19. In view of the facts, circumstances and evidence discussed and the observations made in the preceding paragraphs, it is to be held that the prosecution could not bring home the charges levelled against the appellants beyond all reasonable doubts. The appellants at least deserve to be extended the benefit of doubt. 20. The submission seems to be well founded. 19. In view of the facts, circumstances and evidence discussed and the observations made in the preceding paragraphs, it is to be held that the prosecution could not bring home the charges levelled against the appellants beyond all reasonable doubts. The appellants at least deserve to be extended the benefit of doubt. 20. For the reasons stated above, the appeal is allowed and the impugned judgment and order of conviction and sentence is set-aside. The appellants stand acquitted and discharged from the liability of their respective bail bonds.