Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1882 (PAT)

Munna Yadav v. State Of Bihar

2007-12-11

GHANSHYAM PRASAD, SHYAM KISHORE SHARMA

body2007
Judgment Ghanshyam Prasad, J. 1. All the four Appellants have challenged their conviction and sentence dated, 12.09.2002 rendered by the Fast Track Court No. 1, Gaya in Sessions Trial No. 23 of 2002/451 of 1993. Appellant Ram Bhajan Yadav has been convicted u/s. 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and rest three Appellants have been convicted u/s. 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 2. Prosecution story in brief is that on 25.10.1992 at about 6.00 PM the informant Nand Kumar Yadav (PW 6) along with his father and other family members was sitting at Darwaja of his house. In the mean time Appellant Munna Yadav in drunken state came from the side of Bela Bazar and began to hurl abuses upon them. The informant and his family members protested, upon which Munna Yadav began to scuffle with them and also made noises. Thereupon, other Appellants armed with lathi and fasuli came and assaulted the prosecution party, as a result the father of the informant, Tuhal Yadav, brother Mahendra Yadav received injuries. Tuhal Yadav received serious injury on his head and became unconscious. 3. Both the injured were brought to PHC, Belaganj. The Police of Belaganj came and recorded the fard beyan (Exh. 4) of the informant and registered case against the Appellant u/s. 307 of the Indian Penal Code along with other sections of the IPC. However, after few hours Tuhal Yadav died in the hospital in course of treatment, thereafter, Sec. 302 of the Indian Penal Code was added. PW 7 Dr. Ram Bhajan Chaudhary, Medical Officer of the PHC, Belaganj initially examined the deceased as well as Mahendra Yadav (PW 2). After death late Dr. Kapildev Prasad of MMCH held autopsy upon the dead body and issued post mortem report (Exh. 3). PW 9 Ramjee Singh the then ASI of Belaganj P.S. investigated the case and submitted charge sheet against six persons including the Appellants. 4. Six accused persons including these four Appellants and Budh Ram Yadav and Ram Naresh Yadav put on trial, however, after trial the above named two accused persons have been acquitted. 5. In course of trial, the prosecution examined nine witnesses including the informant as PW 6 Nand Kumar Yadav, the Doctor, who initially examined the deceased, as PW 7. Dr. Six accused persons including these four Appellants and Budh Ram Yadav and Ram Naresh Yadav put on trial, however, after trial the above named two accused persons have been acquitted. 5. In course of trial, the prosecution examined nine witnesses including the informant as PW 6 Nand Kumar Yadav, the Doctor, who initially examined the deceased, as PW 7. Dr. Ram Bhajan Chaudhary and the I.O. as PW 9 Ramjee Singh. 6. The defence is total denial of the occurrence and plea of innocence. According to them, real fact is that while the Appellant Munna Yadav, on the alleged date and time of occurrence, was returning to his house, the informant, the deceased Tuhal Yadav, Mahendra Yadav and his other family members brutally assaulted him and when on hulla his other family members came they were also assaulted by the prosecution party. The villagers assembled and saved the life of the Appellants and their family members. Further defence is that the Appellant Munna Yadav lodged a Police case being Belaganj PS. Case No. 92 of 1992 against the prosecution party and thereafter, the prosecution in retaliation, in Order to save their skin filed this false case against the Appellants. In support of their defence one witness DW 1 Umar Daraj Ahmad, the Mukhiya of the village has been examined. The defence has also brought on record several documents including the fard-beyan of Belaganj RS. Case No. 92 of 1992 as Exh. A and injury report of five injured persons as Exh. B series (Exh. B to B/4). 7. The learned Counsel for the Appellants challenged the Judgment in question mainly on the ground of non explanation and suppression of the injures on the person of the Appellants and their family members said to be inflicted in the alleged occurrence. It is submitted that omission on the part of the prosecution to explain the injury on the person of the Appellants would clearly show that prosecution have not come to the Court with true version including genesis and manner of the occurrence. It is further submitted that the facts and circumstances and nature of injuries on the person of the Appellants would clearly go to show that the defence party might have inflicted injuries to the deceased in exercise of their right of self defence and, therefore, they are entitled to be given benefit of doubt. It is further submitted that the facts and circumstances and nature of injuries on the person of the Appellants would clearly go to show that the defence party might have inflicted injuries to the deceased in exercise of their right of self defence and, therefore, they are entitled to be given benefit of doubt. For above submissions learned Counsel for the Appellants has relied upon three decisions of the Apex Court Ram Phal and Ors. V/s. State of Haryana, AIR 1993 SC 1979 , Subramani and Ors. V/s. State of Tamil Naduand, 2002 7 SCC 210 , James Martin V/s. State of Kerala, 2004 2 SCC 203 . 8. On the other hand the learned Counsel for the State Mr. Lala Kailash Bihari Prasad fully supported the Judgment in question submitted that the prosecution is not obliged to explain injuries upon the accused in all cases particularly when the evidence is clear, cogent and sufficient to fasten guilt upon the accused. It is further submitted that in this case also there is sufficient evidence to prove the guilt of the Appellants and, therefore, it is of no consequence. Learned Counsel for the State has relied upon two decisions of the Apex Court Rajendra Singh and Ors. V/s. State of Bihar, AIR 2000 SC 1779 and Laxman Singh V/s. Poonam Singh and Ors., AIR 2003 SC 3204 . 9. Neither the informant, PW 6, nor any witness for prosecution has admitted about the injuries to the Appellants or their family members. PW 6 in cross examination para 2 has denied about the defence suggestions with regard to injuries to the Appellants, similarly PW 2 Mahendra Yadav the injured in cross examination, has denied about the injuries to the Appellants. However, evidence of Doctor PW 7 Dr. Ram Bhajan Chaudhary and I.O. PW 9 Ramjee Singh confirms that four persons including the Appellants from the side of the defence received injuries in the alleged occurrence. 10. PW 9 is the I.O. of both the cases. Paragraph 5 of his examination-in-chief would go to show that he inspected the place of occurrence as shown by PW 5 Kamla Devi, wife of one of the victim namely, Mahendra Yadav. In paragraph 7 of the evidence details of the place of occurrence have been given. 10. PW 9 is the I.O. of both the cases. Paragraph 5 of his examination-in-chief would go to show that he inspected the place of occurrence as shown by PW 5 Kamla Devi, wife of one of the victim namely, Mahendra Yadav. In paragraph 7 of the evidence details of the place of occurrence have been given. It goes to show that the occurrence took place on Kachhi road situated in front of the one of the accused namely, Budh Ram Yadav (since acquitted). Towards south of the place of occurrence there is house of the deceased. It further appears that Marpit took place between both the parties in which some persons from both the sides received injuries. The paragraph 10 of the cross examination of this witness would further go to show that on 25.10.1992 at 20.35 he recorded fardbeyan of the Appellant Munna Yadav in PHC Belaganj and Registered Case Bearing No. 92 of 1992 (Exh. A). Paragraph Nos. 17,18,19 and 20 of the cross examination would go to show that he found 5 persons injured from the side of the defence including the Appellants and accordingly issued requisition to the Doctor for medical examination which are Exh. B to B/4. Paragraph 11 of the evidence would go to show that after investigation he also submitted charge sheet in Counter case Bearing No. 92 of 1992 against the informant, deceased and others. 11. PW 6 Dr. Ram Bhajan Chaudhary is the person who not only examined the deceased but also examined the Appellants and one Pyari Devi on the same date and time in PHC, Belaganj. In cross examination Paragraph Nos. 4,5,6,7,8,9 and 10 details of the injuries inflicted upon the above Appellants as also on Pyari Devi, wife of the Appellant Ram Bhajan Yadav, have been mentioned. On perusal of it, it appears that this witness found as many as six serious injuries including dangerous to life on the person of Appellant Munna Yadav, one each sharp cutting injury, dangerous to life on head of the Appellants Birendra Yadav, Ram Bhajan Yadav and Tunna Yadav and three injuries on the person of Pyari Devi. 12. From the evidence of PW 6 it is quite clear that five persons from the side of the deceased including the Appellants received injuries out of them four (these Appellants) had serious injuries which were found dangerous to their life. 12. From the evidence of PW 6 it is quite clear that five persons from the side of the deceased including the Appellants received injuries out of them four (these Appellants) had serious injuries which were found dangerous to their life. It also appears from the evidence of the I.O., PW 9, who investigated both the case and counter case, that the occurrence took place on road (Gali) situated in front of the house of the one of the accused Budh Ram Yadav in which some persons from the sides of both the parties received injuries. One of them Tuhal Yadav succumbed to injury. 13. The evidence of PW 1 and 2 would also go to show that the occurrence took place between the parties due to land dispute. PW 1, in paragraph 2, of his cross examination has stated that both the parties have their land at one place and the occurrence took place for irrigation of their lands. PW 3, in chief, has stated that both the parties have their lands contiguous to each other and occurrence took place due to land dispute. 14. Now come to the main contention of the learned Counsel for the Appellants. From the decision cited by both the parties it is quite apparent that there is a consistent view that omission to explain the injuries on the person of the accused is a serious infirmity which leads to draw certain adverse inference against the prosecution case. On this point, I am tempted to refer the decision of the Apex Court rendered in Subramanis case. In paragraph 26 of the Judgment the Apex Court has held as follows: "Mr. Balakrishnan then submitted that it is not clear as to who started the assault. The prosecution chose to suppress the genesis and the origin of the occurrence and presented a distorted version before the Court. The prosecution feigned ignorance about the injuries suffered by the Appellants. It is well settled that the onus which rests on the accused person u/s. 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is well settled that the onus which rests on the accused person u/s. 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. In the instant case, though the Appellants had suffered injuries on vital parts of the body, even though simple, the prosecution failed to give any explanation for such injuries. We are not persuaded to accept the submission of learned Counsel for the State that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version. It may welt be that the prosecution witnesses were lying on a material point and, therefore, render themselves unreliable, or it may be that the defence version explaining the injuries on the person of the accused is probably the true version of the occurrence which certainly throws a serious doubt on the prosecution case. In these circumstances and having regard to the findings recorded by the High Court, we are satisfied that the Appellants were fully justified in defending their possession as well as their person, having regard to the fact that they were assaulted by the members of the prosecution party who were the aggressors and who had trespassed upon the land which had been in continuous possession of the Appellants for over 50 years. They had not exceeded their right of private defence of property and person because the facts and circumstances justify their entertaining a reasonable apprehension that grievous hurt may be caused to them, if not death, by the assailants." 15. The decisions cited on behalf of the State also support the above principle laid down in the above Judgment with slight variation. The decisions cited on behalf of the State also support the above principle laid down in the above Judgment with slight variation. In above decision rendered in Rajendra Singhs case the effect of non explanation of injuries on the person of accused has been considered in depth and in paragraph 3 it has been held as follows: So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused person which is established to have been caused in course of the occurrence then certainly the Court looks at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. 16. Almost similar view has been expressed in Laxman Singhs case. In paragraph 7 it has been held as follows: "The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are found on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non explanation of the injuries sustained by the accused at about the time of occurrence of in the course of altercation is a very important circumstances. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injures." 17. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injures." 17. Thus from the above decisions of the Apex Court it is quite clear that non-explanation of minor and superficial injuries on the person of the accused is of no consequence but in case of serious and dangerous injuries inflicted on accused in course of same altercation is a serious infirmity and hence, the Court can draw following two inference: (i) That the prosecution has suppressed the genesis and origin of the occurrence and thus, not come before the Court with true version, (ii) That the witnesses are lying on material points and, therefore, their evidence is unreliable. 18. In the present case it has also been noticed that at least these four Appellants received serious and dangerous to life injuries on their person in course of altercation in question and, therefore, Court is obliged to draw above inferences against the prosecution case. 19. The other submission of the learned Counsel for the Appellants has also got merit which entitles the Appellants to get benefit of doubt. The question is availability of the right of private defence. It is true that the Appellants have not taken plea of right of private defence in so many words, however, it is well settled law that it is not necessary for the accused to specifically plead the right of private defence and if the circumstances show that right of private defence was a legitimate exercise, it is open to the Court to consider such plea. 20. In this case, as said above, from the side of defence five persons including the Appellants received injuries. Four persons received injuries dangerous to life. From the side of the prosecution the deceased Tubal Yadav received one injury on head, grievous in nature, and his son Mahendra Yadav received one injury, simple in nature. The place of occurrence was in front of the house of one of the accused. 21. The learned Counsel for the Appellant has rightly relied upon the decisions of the Apex Court reported in AIR 1993 SC 1979 . Almost similar is the fact in both the cases. The place of occurrence was in front of the house of one of the accused. 21. The learned Counsel for the Appellant has rightly relied upon the decisions of the Apex Court reported in AIR 1993 SC 1979 . Almost similar is the fact in both the cases. In paragraph 3 of the Judgment it has been held as follows: In this appeal learned Counsel submits that the prosecution has not explained so many injuries on the accused persons and therefore, they have not come out with the whole truth as to the genesis of the occurrence and on the other hand the plea of the accused that they inflicted injuries on the deceased in exercise of their right of self defence must be accepted and they should be given the benefit of doubt, In this context it has to be noted that as a matter of fact, the accused went to the Police earlier and informed about the occurrence. It is unfortunate that the deceased though received only one injury dies as the same resulted in the fracture of skull bones Having regard to the specific plea put forward by the accused u/s. 313 of the Code of Criminal Procedure there is no reason why it should be rejected outright. In this context, it has to be noted that the accused need not establish their right beyond all reasonable doubt. It is enough if a reasonable doubt arises on examination of the probabilities of the case. In the instant case we have seen that the accused persons received fairly number of injures. Some of them, were on vital parts. The prosecution has no plausible explanation. In such a situation, the plea put forward by the accused appears to be quite probable and, therefore, it cannot be rejected. The next question is whether they have exceeded the right of private defence. Only one overt act is attributed to A-1. It is clear that he inflicted only one injury and dealt one blow on his head. Therefore, in such a situation, it cannot be said that the act of A-1 is not in conformity with the limitations laid down in Sec. 100 of the Indian Penal Code. In the result we give the benefit of doubt to all the accused as such. We are of the view that they have not exceeded the right of self-defence. The appeal is allowed. In the result we give the benefit of doubt to all the accused as such. We are of the view that they have not exceeded the right of self-defence. The appeal is allowed. If the Appellants are on bail, their bail bonds shall stand cancelled. The sentences of fine are also set aside." 22. Thus, in the facts and circumstances of the case, I am of the view that plea of right of defence raised by the Appellants is also fit to be accepted and therefore, they are entitled to get benefit of doubt. 23. For the reasons mentioned above this appeal is allowed and accordingly, the Judgment and sentence in question is hereby set aside. The Appellant No. 4 Ram Bhajan Yadav who is in jail is directed to be released at once, if not wanted in any other case. Other Appellants are on bail. They are discharged from the liabilities of their respective bail bonds.