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2013 DIGILAW 117 (PAT)

Sukhdeo Yadav v. State of Bihar

2013-01-24

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava. J. 1. Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 17-08-2001 passed by 1st Additional Sessions Judge, Gaya in Sessions Trial No. 179 of 1999/236 of 1993 by which and whereunder. He convicted the appellants for the offences punishable under Section 324 read with Sections-149 & 148 of the IPC and Accordingly, sentenced them to undergo rigorous imprisonment for three years under Section 324 of the Indian Penal Code and to undergo rigorous imprisonment for one year under Section 148 of the Indian Penal Code and ordered that both the sentences shall run concurrently. 3. The prosecution case, in brief is that PW 2 Balsharan Yadav gave his fardbeyan to A.S.I. of Atri Police Station on 23-03-1992 to this effect that on the same day at about 6.00 p.m. while he was near his field, she goat of Sukhdeo Yadav started grazing Rahar crop in his field upon which he ousted the aforesaid she goat from the field but Sukhdeo Yadav came there and started abusing him. PW 2 Balsharan Yadav returned to his home but at about 6.15 p.m. Birendra Yadav being armed with Saif Sukhdeo Yadav being armed with lathi Sanjay Yadav being armed with lathi. Birju Yadav being armed with lathi and Jamendra Yadav being armed with lathi. came there and Birendra Yadav gave Saif blow to Rajdeo Yadav which hit on the right hand of aforesaid Rajdeo Yadav as a result of which he sustained injury and after that. Birju Yadav gave gadansa blow on his leg whereas other persons assaulted him with lathi. The aforesaid occurrence was witnessed by Yogendra Yadav. Rajenera Yadav and others. After the aforesaid occurrence the injured were brought to hospital where treatment of the injured persons was done. 4. On the basis of aforesaid fardbeyan of the PW 2. Atri P.S. Case No. 35 of 1992 was registered for the offences under Sections 147, 148, 149, 353, 324 and 307 of the Indian Penal Code and. Accordingly, formal FIR was drawn against the appellants under the above said sections. 5. The matter was investigated by the police and after completion of the investigation. Atri P.S. Case No. 35 of 1992 was registered for the offences under Sections 147, 148, 149, 353, 324 and 307 of the Indian Penal Code and. Accordingly, formal FIR was drawn against the appellants under the above said sections. 5. The matter was investigated by the police and after completion of the investigation. police submitted charge sheet against the appellants for the offences under Sections 147, 148, 149, 323, 324, 325, 326 and 307 of the Indian Penal Code. Cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way. 6. All the appellants were put on trial and appellant No. 1 namely Sukhdeo Yadav, appellant No.2 namely Sanjay Yadav and appellant No.5 namely Jamendra Yadav were jointly charged for the offences punishable under Sections 147, 307/149 of the Indian Penal Code whereas appellant No. 3 namely Dhirendra Yadav was charged for the offences punishable under Sections 148, 326, 307 of the Indian Penal Code and appellant No.4 namely. Birju Yadav was charged for the offences punishable under Sections 148, 324 and 307 of the Indian Penal Code. All the appellants denied the charges and claimed to be tried. 7. To substantiate the charges levelled against the appellants prosecution examined. altogether three witnesses and also got exhibited formal FIR as Ext. 1 injury reports as Exts. 2 & 3. The statements of appellants were recorded under Section-313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced on behalf of the appellants in support of their defence. 8. The learned trial Court having analyzed the materials available on the record convicted and sentenced the appellants in the manner as stated above. 9. Learned counsel appearing for the appellant challenged the impugned judgment of conviction submitting that except two so-called injured persons of this case not a single independent witness has come forward to support the prosecution case. He further submitted that I.O. of this case has not been examined and non-examination of the I.O. has caused serious prejudice to the appellants. He further submitted that the doctor has also not been examined in this case and the learned Addl. Sessions Judge, himself. He further submitted that I.O. of this case has not been examined and non-examination of the I.O. has caused serious prejudice to the appellants. He further submitted that the doctor has also not been examined in this case and the learned Addl. Sessions Judge, himself. discarded the injury reports of injured persons of this case and therefore, in absence of non-examination of the doctor the appellants could not have been convicted for the offence punishable under Section 324 of the Indian Penal Code. It is further pointed out by him that the prosecution has miserably failed to prove not only the place of occurrence but also genesis of the occurrence. It is further contended by him that appellant No. 2 namely. Sanjay Yadav was juvenile at the time of alleged occurrence. So the learned trial Court has got no jurisdiction to convict the appellant No. 2 and the entire trial of the appellant No. 2 is vitiated. 10. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that both the injured persons of this case have categorically stated that it were appellants who assaulted them with deadly weapons. so the learned trial Court rightly convicted the appellants for the offences punishable under Section 324 read with Sections 149 and 148 of the Indian Penal Code. 11. Perusal of the impugned judgment reveals that at the time of pronouncement of the judgment the appellant No. 2 was found aged about 20 years and when his statement under Section 313 of the Cr.P.C. was recorded the learned trial Court assessed his age as 20 years. According to prosecution case the alleged occurrence took place in the year. 1992 and the statement of appellant No.2 under Section 313 of the Cr PC was recorded on 03-05-2001. i.e. after nine years of the alleged occurrence and In the year. 2001 the appellant No. 2 was found aged about 20 years. So, certainly he was juvenile at the time of alleged occurrence which is said to have taken place in the year. 1992. Therefore, I do agree with the submission of learned counsel for the appellants that the appellant No.2 was juvenile at the time of alleged Occurrence and trial of the appellant No.2 was illegal. 12. So, certainly he was juvenile at the time of alleged occurrence which is said to have taken place in the year. 1992. Therefore, I do agree with the submission of learned counsel for the appellants that the appellant No.2 was juvenile at the time of alleged Occurrence and trial of the appellant No.2 was illegal. 12. As I have already stated that only three prosecution witnesses have been examined and out of the aforesaid three prosecution witnesses. PW 3 is a formal witness who has proved formal FIR and injury reports. 13. PW 1 Rajdeo Yadav is said to be injured of this case and he stated in his deposition that appellant, Birendra Yadav assaulted him with Saif which hit on his right shoulder as a result of which, he sustained injury on his right shoulder. He further stated that when Balsharan Yadav (PW 2) came to his rescue, appellant, Birju Yadav gave gadansa blow on his right leg and thereafter, the other appellants assaulted Balsharan Yadav with lathi. 14. PW 2 Balsharan Yadav is another injured of this case. He deposed that she goat of the appellant. Sukhdeo Yadav was grazing his field and he ousted she-goat from his field and came to his home but appellants came at his house and appellant, Birendra Yadav gave Saif blow which hit on the hand of PW 1 and when he came to the rescue of PW 1, appellant Birju Yadav gave gadansa blow on his leg and other appellants assaulted him with lathi. He admitted in his cross-examination at paragraph-7 that Bishun was his uncle and Bishun had given some lands to the appellant. Sukhdeo Yadav who constructed his house on the aforesaid lands. 15. Admittedly, the doctor has not been examined and the injury reports of both the injured have been proved by a private person and therefore, appellants could not get an opportunity to challenge the veracity of contents of the aforesaid injury reports. The learned trial Court has convicted the appellants for the offence punishable under Section 324 of the Indian Penal Code but in absence of examination of the doctor, it was not possible for the trial Court to come to the conclusion as to what weapon was used in causing injuries to the injured, though the injured have stated that the appellants used Saif, gadansa, lathi. 16. 16. Admittedly, the I.O. has also not been examined in this case and non-examination of the I.O. has certainly caused serious prejudice to the appellants because appellants could not get an opportunity to draw the attention of I.O. towards this fact as to whether any grazing mark was found in the field of PW 2 or not? Moreover, except the statements of injured persons, not a single independent witness came forward to support the prosecution story and therefore, in the aforesaid circumstance. I am of the opinion that the appellants are entitled to get the benefit of doubt. 17. Admittedly, the alleged occurrence took place in the year 1992 and therefore, it would not be proper to direct the appellant No.2 to go before the juvenile Court and face trial afresh after a long gap. 18. On the basis of aforesaid discussions this Criminal Appeal is allowed and accordingly impugned judgment of conviction and sentence order dated 17-08-2001 are hereby set aside. The appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.