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2012 DIGILAW 1639 (PAT)

Shiv Shankar Yadav v. State of Bihar

2012-12-06

SHEEMA ALI KHAN

body2012
JUDGMENT S.A.Khan, J. 1. The sole appellant has been found guilty under Sections 307 and 459 of the Indian Penal Code and has been punished to undergo rigorous imprisonment for five years for each of the offences by the Additional Sessions Judge III, Darbhanga, in Sessions Trial No.68/1990. 2. Initially there were two accused in this case. Chintoo Yadav who was also an accused, has been acquitted by the learned Additional Sessions Judge from all the charges. 3. The Fardbeyan was recorded on 11.11.87 at 12 P.M. stating therein that the informant Ram Nandan Yadav woke up when he heard the sound of his milk-churning machine being removed. On waking up he saw one man lifting his machine. He caught hold of that person whom he identified as the appellant. Both of them had a scuffle in the angan. During this scuffle, the informant Ram Nandan Yadav fell on the ground and Shiv Shankar Yadav the appellant sat on his chest. In the meantime, the brother of the informant came to the place of occurrence. It is said that Anirudh Yadav inflicted a lathi blow on Shiv Shankar Yadav. The informant felt pain in his stomach and thereafter he fainted. He was taken to the hospital where he gave his fardbeyan. It is stated in the FIR that apart from his brother and bhabi, certain other villagers also came to the place of occurrence. 4. In this case seven witnesses have been examined. The informant has been examined as P.W.4 in this case. At the outset it may be stated that evidence of P.W.4 contradicts the case made in the FIR. As per the statement recorded in the fardbeyan where he has stated that Shiv Shankar Yadav was successful in throwing him on the ground and he did not see him actually inflicting the `chhura’ blow, rather he felt pain on stomach before losing consciousness, is in contradiction to the statement made in court. In court he has stated that there was a scuffle between them and that the appellant gave him a `chhura’ blow and he was assaulted by means of lathi on his shoulder. He does not speak of the assault by his brother on the appellant. During cross-examination, P.W.4 has stated that the appellant is his nephew as both of them come from common ancestors. He does not speak of the assault by his brother on the appellant. During cross-examination, P.W.4 has stated that the appellant is his nephew as both of them come from common ancestors. He has admitted that Chintoo has got the vacant land in front of their house recorded in his name by his uncle who had died issueless. The informant denies that both Shiv Shankar and Chintoo share a common angan. The statement of P.W.4 is contrary to the statements of P.W.1, and the I.O. P.W.7. Both P.W.1 and P.W.7 have asserted that Chintoo and the appellant Shiv Shankar are neighbours inasmuch as the house of the informant falls to the west of the house of Shiv Shankar Yadav. According to P.W.1, he came to the place of occurrence on hearing his brother calling for help and found both of them engaged in a fight. He claims to have assaulted Shiv Shankar Yadav who is said to have run away after the occurrence. He also claims to have witnessed the appellant inflicting `chhura’ blow on the stomach of his brother Ram Nandan Yadav. P.W.2 Draupadi Devi is the bhabi of the informant. She too came to the courtyard when she heard her brother-in-law calling for help. She claims to have seen the entire occurrence. P.W.3 has not seen the actual occurrence. He claims that he saw Chintoo and the appellant were running away from the place of occurrence. It would also be important to discuss the evidence of the I.O. who has stated that he found the milk churning machine lying on the chowki and has categorically stated that it is very heavy and it is not possible for one person to lift the said machine. 5. On a perusal of the whole evidence it would appear that the informant has changed the manner of occurrence and has tried to improve upon his case by giving a different version regarding the manner of assault. It would appear to this Court that there appears to be some sort of dispute between the parties with respect to the vacant land which has been recorded in the name of Chintoo Yadav father of the appellant. It would appear to this Court that there appears to be some sort of dispute between the parties with respect to the vacant land which has been recorded in the name of Chintoo Yadav father of the appellant. It would also appear that the story that the appellant had entered the house /hut of the informant to commit theft appears to be a completely concocted story in view of the fact that the I.O. has stated that it is not possible for a person to remove the milk-churning machine because of its weight. Therefore, the motive for entering into the premises belonging to the informant is quite unbelievable. 6. This Court will now examine the medical evidence and compare it with the ocular evidence. It has been pointed out that although the doctor P.W.5 claims to have examined the informant on 10.11.87 (wrongly typed as 10.11.87). The certificate has been issued four months thereafter, i.e on 3.4.88 (Ext.2). The injuries in the said medical report are three in number. All the injuries are incised wounds supposedly inflicted by sharp cutting weapon. Injury no.2 has been described as grievous in nature as it has pierced the stomach of the informant causing his guts come out of the stomach. It has been submitted that the injury report has been manipulated, as it has been submitted after a delay of four months. Moreover the ocular evidence does not explain the presence of three incised injuries. According to the informant and his brother P.W.3 Amiri Yadav, the informant had received only one `chhura` injury. The doctor does not mention any injury by hard blunt substance although it is specifically alleged that the informant was assaulted by lathi by Chintoo Yadav. It is apparent that the ocular evidence does not tally with the medical evidence. The doctor has been cross-examined and he has stated that the injuries are not recorded in the injury register of the hospital. He admits that he had issued the certificate on 3.4.88. On the basis of the aforesaid medical report and the examination of the doctor, it is submitted that the doctor could not have prepared the injury report after four months on the basis of his memory and it is, therefore, possible that the injury report is collusive. The circumstance certainly raises the suspicion in the mind of the Court. 7. On the basis of the aforesaid medical report and the examination of the doctor, it is submitted that the doctor could not have prepared the injury report after four months on the basis of his memory and it is, therefore, possible that the injury report is collusive. The circumstance certainly raises the suspicion in the mind of the Court. 7. Considering the facts that the informant has tried to change the manner in which the occurrence has taken place during the examination in court and does not fully corroborate with the allegations as made out in the FIR, and the circumstances in which the injury report was issued, this Court acquit the appellant giving him the benefit of doubt. 8. In the result, this appeal is allowed. The appellant is discharged from the liability of the bail bonds.