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2014 DIGILAW 388 (PAT)

Ram Sushila Yadav v. State of Bihar

2014-03-28

DHARNIDHAR JHA

body2014
JUDGMENT : DHARNIDHAR JHA, J.:–Four accused persons were put on trial by the learned Presiding Officer of Fast Track Court-1, Buxar after being charged with committing offences under Sections 436 and 307 read with Section 34 of the Indian Penal Code in Sessions Trial No. 324 of 1986. By judgment of conviction dated 15.10.2001, the accused persons were acquitted of the charges under Sections 436 and 307 of the Indian Penal Code, but were held guilty of committing the offence under Sections 324/34 of the Indian Penal Code. They were heard under Section 235 of the Code of Criminal Procedure on sentence on the same day and each of them was directed to suffer rigorous imprisonment for two years. 2. The four convicted persons preferred the present appeal jointly. However, appellant Keshav Yadav was reported dead and the appeal as for him was ordered to be abated on 25.03.2014, leaving the appeal only for and on behalf of appellants Ram Sushila Yadav, Ashok Yadav @ Ashok Kumar Yadav and Kamala Yadav. 3. The prosecution story emanates from the Ferdbeyan of Daduljee Pathak, PW 4, recorded on 1.4.1985 at 8:30 A.M., in which he stated that he left his house with his herd of cows for grazing them and when he had reached south of the Khalihan of Inderdeo Yadav, PW 1 and near the granary of one Ram Pravesh Yadav, he found that the said granary was afire. He further found that the four accused were standing there, out of whom appellant Ram Sushila Yadav and deceased appellant Keshav Yadav were armed with rifles whereas the remaining two appellants Kamala Yadav and Ashok Yadav were having pipe guns in their hands. No sooner the accused persons had seen the informant, Ram Sushila Yadav and Keshav Yadav, the two accused, gave order that the informant be killed as he was the grand son of Jamuna Pathak. The informant attempted to run away but three shots were fired in his back; out of which one fired by deceased appellant Keshav Yadav hit him in his right thigh and he fell shouting which attracted the witnesses PW 1 Indradeo Yadav, PW 2 Dharamdeo Yadav and PW 3 Hira Yadav. The informant stated that he firmly believed that the granary of Ram Pravesh Yadav could also have been set on fire by the accused persons. 4. The informant stated that he firmly believed that the granary of Ram Pravesh Yadav could also have been set on fire by the accused persons. 4. As regards the cause for committing the offence, it was stated by PW 4, the informant, that there was a land dispute between the parties and for that reason he had been shot at. 5. As may appear from the evidence of PW 6 S.I. Dilip Kumar, who had taken up investigation after drawing up the F.I.R. (Ext. 5) on the basis of the Ferdbeyan (Ext. 3), he had reached at the place of occurrence after having picked up a rumour that two factions of the village had fought with each other and on reaching there he met Daduljee Pathak, PW 4, and recorded his Ferdbeyan. Thereafter, he examined the person of PW 4 and found him bearing injuries on two parts of his right thigh in respect of which he prepared an injury report and sent the injured PW 4 Daduljee Pathak for treatment to Simri Hospital. PW 6 thereafter inspected the place of occurrence and recorded statements of the witnesses. Besides, he during the course of inspection of the place of occurrence had seized some blood-stained soil from the place of occurrence by preparing the seizure memo (Ext. 4). The Investigation Officer had also found the granary, made up of thatch materials, burnt and took into his custody some of the burnt up thatch materials and prepared the seizure memo in that behalf. 6. PW 6 searched the house of the accused persons and during such search of the house of deceased appellant Keshav Yadav, he recovered a rifle of .315 bore bearing no. AB83/2868 and seized the same by preparing the seizure memo (Ext. 4/1). Another rifle bearing no. AB80/0504 was recovered on search from the house of appellant Kamla Yadav and the seizure memo in that respect was prepared which was marked by the trial court as Ext. 4/B. The Investigation officer, after closing up the investigation, sent up the accused persons for trial which ended in the impugned judgment. 7. The defence of the appellants was that they had been falsely implicated on account of chronic litigation between the parties and, in fact, no occurrence of the description had ever taken place and the whole facts were fabricated. 8. 7. The defence of the appellants was that they had been falsely implicated on account of chronic litigation between the parties and, in fact, no occurrence of the description had ever taken place and the whole facts were fabricated. 8. During the course of the trial, the prosecution examined a total number of six witnesses while the defense produced two witnesses. PWs 1, 2 and 3, i.e. Indradeo Yadav, Dharamdeo Yadav and Hira Yadav respectively were named in the F.I.R. as persons, who had seen the occurrence, and they had been examined in support of the evidence of PW 4, the informant, Daduljee Pathak. PW 5 Dr. C.M. Singh was one of the members of the Board of Doctors which was constituted, as per his evidence, by the Deputy Superintendent of Sub-divisional Hospital, Buxar and he had examined PW 4 with other members of the Board which was headed by the very Deputy Superintendent who had constituted the Board and had issued Ext. 2, the medical report, containing the descriptions of the injuries and the opinion of the doctors. It has already been noted that the case was investigated into by the Investigation Officer PW 6 S.I. Dilip Kumar. 9. So far as the defense evidence was concerned, DW 1 was Dr. Krishna Kumar Ojha, who had first attended on the injured PW 4 in Primary Health Centre, Simri where he was posted as Medical Officer Incharge and had issued the certificate, Ext. A. DW 2 was one Ram Dayal Dubey who had tendered in evidence the injury reports issued by PW 6 for obtaining the injuries of PW 4 after examining him in the Primary Health Centre, Simri by DW 1 Dr. Krishna Kumar Ojha. 10. I was taken through the evidence of the witnesses by the learned counsel appearing on behalf of the appellants. It was submitted that PWs 1, 2 and 3, on the very strength of their own evidence, could not be said to be eye witnesses to the occurrence as regards shots being fired at the deceased by the accused persons. 10. I was taken through the evidence of the witnesses by the learned counsel appearing on behalf of the appellants. It was submitted that PWs 1, 2 and 3, on the very strength of their own evidence, could not be said to be eye witnesses to the occurrence as regards shots being fired at the deceased by the accused persons. It was further contended that their evidence itself indicated that they were related to each other and they had further admitted, as may appear from the evidence of PW 3 in para 2, that the appellants Ram Sushila Yadav and Kamla Yadav had lodged criminal cases of theft and robbery against the witnesses which were very much pending trial at the time of the incident. Submission was that the solitary evidence of Daduljee Pathak was not trustworthy and the evidence of PW 2 in para 2 indicated, as appears natural also, that a huge number of co-villagers had been attracted to the scene of occurrence and had probably seen the occurrence but none of them came forward to support the prosecution charge. One of the most serious contentions raised by the learned counsel appearing for the defence was that there were two conflicting medical opinions – one rendered by PW 5 Dr. C.M. Singh who was one of the members of the Board and the other rendered by DW 1 Dr. Krishna Kumar Ojha who had attended on the injured when he was sent for medical examination by the police and the opinions as regards the nature of the weapon as also the nature of the injuries were quite at variance with each other, making the whole prosecution story doubtful requiring the prosecution case to be rejected in its entirety. 11. Sri Sujit Kumar Singh, learned Additional Public Prosecutor, was strongly supporting the judgment impugned herein and was submitting that the trial court was showing extreme leniency in acquitting the accused persons of charges under Sections 436 and 307 of the Indian Penal Code and was rather misappreciating the evidence for passing an order of acquittal as regards charges under Sections 436 and 307 of the Indian Penal Code. Sri Singh was further submitting that the facts of the case as produced through the witnesses merited acceptance by the court and there was no scope for interference by this Court with the impugned judgment. 12. Sri Singh was further submitting that the facts of the case as produced through the witnesses merited acceptance by the court and there was no scope for interference by this Court with the impugned judgment. 12. Interestedness and relatedness are two different things. A person may be related to the victim of an offence, and he still may not be interested in the case. Legally speaking, merely being related to the victim of the offence may not be the enough reason to discard the evidence of a witness. For discarding the evidence of such a witness, what is required of the defence is that it should point out to the court for not accepting the evidence of such a witness that he was not only related but was deeply interested in the case he had deposed in either in favour of the informant, as may be in a criminal case, or in favour of the plaintiff, as may be in a civil suit, with the serious motive of influencing the outcome or result of the case or the suit. If the witness is shown interested in the above manner with the ultimate outcome of a criminal case or a civil suit and he is shown to have deposed with the motive of influencing the ultimate result of the litigation, then only he could be said to be an interested witness. Relationship could be existing and, on that account also, a witness could be a very natural witness. To illustrate, if an occurrence is taking place inside the premises of a house, most of the family members of the head of the family or the victim of the offence residing inside the house, could be the natural witnesses and merely because they were related to the victim of the offence, their evidence could not be discarded. Even in a case of a witness being interested in the manner as I have just pointed out, the rule of prudence is not that the evidence of such a witness should be rejected; rather what the court is required to do in such a situation is to approach the evidence of such an interested witness with great care and caution and to find out as to whether the witness was inspiring its confidence. 13. 13. Going by the above principle of appreciation of evidence, what this Court wants to point out first is that there is no dispute that the witnesses, like, PWs 1, 2 & 3 were related to each other. They were not the caste men of the informant. The three witnesses were belonging to a different caste as may appear from their title, while the informant PW 4 was belonging to a different caste. Thus, the witnesses could not be said to be related to the informant. What then appears is as to why the witnesses could be coming forward to support the charge which was slapped upon the accused persons by a person who could not be belonging to their own caste because in the caste ridden society of Bihar it should also be a question to be gone into by courts as to why three persons belonging to a different caste should come out in support of a case propounded by a person of another caste. Here was the need felt by this Court to launch itself on an enquiry as regards the real reason for the witnesses for coming forward to depose against the accused persons. I have already referred to, while enumerating the arguments of the learned counsel for the appellants, that PW 3 in para 2 had admitted that appellant Ram Sushila Yadav had lodged a case against him and others for cutting away a tree; while deceased appellant Keshav Yadav had filed a case of robbery against him and other accused persons. The witness has further admitted that those two cases were very much pending at the time of the occurrence. As may appear from the evidence of PW 3 in the same para 2, PW 2 Dharamdeo Yadav was his own brother while PW 1 Inderdeo Yadav was his cousin. Thus, the three witnesses being brothers between them, were also carrying some personal reasons for coming forward and deposing against the appellants as they appeared nursing a grudge on account of being prosecuted in two different criminal cases by the appellants. The witnesses might not have been friends of the informant, but they were definitely the foes to the appellants. Thus, the three witnesses being brothers between them, were also carrying some personal reasons for coming forward and deposing against the appellants as they appeared nursing a grudge on account of being prosecuted in two different criminal cases by the appellants. The witnesses might not have been friends of the informant, but they were definitely the foes to the appellants. They, in my opinion, were having an opportunity of settling scores without directly filing or launching any prosecution against the appellants, rather they appear doing so merely by supporting PW 4, who had launched the prosecution against the appellants. It is also a behavioral trait in the rural areas that one often finds that persons who are inimically disposed towards someone could be helping out a person who happens to be pitted against his enemy and this appears to be a cut and dried case of “Your Enemy being My Enemy” and as such coming out in help of the enemy of the enemy. This is one feature of the evidence of PW 3 which has put this Court on alert as regards appreciating their evidence. 14. While being taken through the evidence of these three witnesses, PWs 1, 2 & 3, the very first line of their individual evidence in their examination-in-chief could be important for evaluating the merit of their individual evidence. PW 1 was stating in para 1 of his examination-in-chief that after having heard the sound of gunshot, he came out of his house and found that the accused persons were going away and they were carrying rifles and country made guns. PW 1, as such, does not say that he had seen any of the appellants firing shots after one or the other or the appellants had remonstrated them to do so. Likewise, the evidence of PWs 2 and 3 in the same part of their evidence, i.e., examination-in-chief, gave the same line of evidence that when they came out after picking out the sound of gunshot, they found the four accused persons going away from there carrying fire arms. PW 3 Hira Yadav wsas stating an additional fact that when he reached at the place of occurrence, he found Daduljee Pathak lying injured on the ground and this again concretizes the inference that he had also not seen the main part of firing the shots. PW 3 Hira Yadav wsas stating an additional fact that when he reached at the place of occurrence, he found Daduljee Pathak lying injured on the ground and this again concretizes the inference that he had also not seen the main part of firing the shots. Thus, the evidence of PW 4 Daduljee Pathak remains the solitary evidence upon which the judgment of conviction has to be tested. Daduljee Pathak, the informant, had reproduced the same facts which he had stated in his Ferdbeyan and had assigned the same weapons and roles to the four appellants as he did in it. He had stated that on orders being given by appellant Ram Sushila Yadav that PW 4 be killed as he was the grand son of Jamuna Pathak, the deceased appellant Keshav Yadav, Kamla Yadav and Ashok Yadav @ Ashok Kumar Yadav fired from their respective weapons at PW 4 because some litigation for immoveable properties was pending between the accused persons and his grand father. The informant stated that 3 shots were fired at him in his back when he was running for regaining safety and he was hit in his thigh. The witness was cross-examined on the very genesis of the occurrence which was that he had emitted from his house with his herd of cows and what appears that he had admitted that he had never grazed any cow prior to that day and the place to which he was leading his herd of cows was situated at half a kilometer from the place of occurrence. It appears extremely unnatural that a person who had never grazed his cows should come out on one particular day in his life to graze the animals. This raises a doubt as regards the claim of PW 4 on the reason of coming out of his house and being hit by gun shots. As regards the evidence of PW 4 on the manner of occurrence, that is, of firing shots by the accused persons, his very evidence indicates that he was running for regaining safety and it was during that course that the shots were fired at him. He has specified the shots being fired by the three accused, namely, Keshav Yadav (since dead), Ashok Yadav @ Ashok Kumar Yadav and Kamala Yadav. He has specified the shots being fired by the three accused, namely, Keshav Yadav (since dead), Ashok Yadav @ Ashok Kumar Yadav and Kamala Yadav. It appears very unnatural that a man while running for his life and while he was being fired at, in that situation, he could be seeing as to who was firing the shots while standing quite behind him. This is the reason that the defense appears putting a very direct question to him as to how could he see and identify the accused persons and he said that he had seen the accused persons while he was running which appears stated by him at page 4 of his deposition which is in para 1. That very line in the evidence of PW 4 renders the witness not believable. 15. The other aspect of the evidence of prosecution which was highlighted before me was the examination of PW 4 by DW 1 in the Primary Health Centre, Simri who did not find any gunshot injury and further examination of PW 4 by the Board of Doctors which was reporting that the two injuries which were found upon the right thigh of PW 4 were caused by fire arms. While perusing the evidence of PW 5 and DW 1, what surprises the Court the most was that there was no material placed on record as to why the Board was constituted. Whether there was any motion or complaint from the informant or anybody interested in the incident so as to challenging the report issued by the DW 1 who had the opportunity of examining PW 4 at the first instance. PW 5 was cross-examined very seriously on these issues. He was put a question as to whether there was an order from the Civil Surgeon or from the Chief Judicial Magistrate regarding the constitution of the Board of Doctors for re-examining PW 4 by that Board and then to render the opinion as regards the weapon causing the injuries and the nature thereof. PW 5 was stating that he was not aware as to whether there was any order either from the Civil Surgeon or from the Chief Judicial Magistrate, but he was sure about it that the Deputy Superintendent of the Hospital had constituted the Board. PW 5 was stating that he was not aware as to whether there was any order either from the Civil Surgeon or from the Chief Judicial Magistrate, but he was sure about it that the Deputy Superintendent of the Hospital had constituted the Board. The other aspect of formation of the Board which has some elements of surprise is that the Deputy Superintendent was the authority who had constituted the Board and he was not thinking it improper that he should chair the Board himself and then to ensure the examination of the injured and rendering of the opinion. In ordinary circumstances and in fairness, it was expected that if the Deputy Superintendent had been influenced – as he appears to be – so as to directing the formation of the Board, then he should have kept himself aloof of that Board as regards the examination of the injured by it. Moreover, as appears undisputed from the very evidence of PW 5 Dr. C.M. Singh, PW 4 had already been examined by the Medical Officer of the Primary Health Centre, Simri, i.e., DW 1. The medical report rendered by DW 1 was also before the Medical Board. This is the statement of PW 5 in cross-examination but curiously enough no reference appears made by the Board in its report as to under what aspects and for which medical data the Board was taking a view completely different from DW 1 or, in other words, how DW 1 could be said to have faltered in rendering his opinion. It was expected, in my opinion, by the members of the Board to at least have considered the reasons given by DW 1 or at least they should have invited his opinion by asking him to appear before them and then to have given their own reasons based on medical data so as to reaching a conclusion different from that which was rendered by PW 5 and DW 1. DW 1 did not find the two injuries caused by gunshots. In the opinion of the DW 1, the first injury was a stab-wound with blood clots and red margins measuring ½” x ½” x 3” on the back and lateral aspect of right thigh which was caused by a sharp pointed weapon. Likewise, injury no. DW 1 did not find the two injuries caused by gunshots. In the opinion of the DW 1, the first injury was a stab-wound with blood clots and red margins measuring ½” x ½” x 3” on the back and lateral aspect of right thigh which was caused by a sharp pointed weapon. Likewise, injury no. 2, an incise wound with blood clots was measuring ½” x ¼” x 3” on the anterior aspect of right thigh, was also caused by some sharp pointed weapon. As regard the third injury, an abrasion with redness of the dimension of 2” x 1” on the left thigh, DW 1 opined that it could have been caused by some hard and blunt substance. For taking a view different from that of DW 1, it was extremely desirable that sufficient medical data buttressed with reasons should have been provided by the Board. What appears is that merely because there was a diameter in the two injuries, the Medical Board was of the opinion that it could be a fire arm wound. There was no pellet or any missile or part thereof found lodged in the injuries. DW 1 had also opined that the injuries had been caused by a sharp pointed weapon. A sharp pointed weapon would always cause an injury which would have a diameter and if by reading the diameter as the only feature of the fire arm wound, the Board was jumping to a particular opinion, then the Court regrets, the opinion could not be utilized for rendering a judgment as a valid piece of evidence corroborating in nature. There was no reason for the court below not to consider and contrast the evidence of DW 1 with the evidence of PW 5 and then to judge as to whether the manner of occurrence, that is, causing injuries by firing gunshots, has really been established or not. 16. The other aspect which has carried weight with this Court is that the medical report (Ext. A) formulated by DW 1 was very much in the custody of the prosecution, but that was never produced before the trial court. The doctor DW 1 was a witness who should have been examined by the prosecution. However, what appears is that the prosecution was giving up its own witness Dr. Krishna Kumar Ojha without any justifiable reason. A) formulated by DW 1 was very much in the custody of the prosecution, but that was never produced before the trial court. The doctor DW 1 was a witness who should have been examined by the prosecution. However, what appears is that the prosecution was giving up its own witness Dr. Krishna Kumar Ojha without any justifiable reason. The Court wants to point out that the duty of the Public Prosecutor is not to produce the evidence only in support of the charges; rather the Public Prosecutor, being an officer of the Court representing the State, represents the subjects also and he is supposed to assist the Court in reaching the conclusion just and proper in fair administration of justice. As such, if the evidence was suppressed by the Public Prosecutor or it was not produced by the Public Prosecutor, it was a case in which the court below ought to have drawn adverse inference against the State. Now that the defense itself had produced the doctor and had brought on record his report which this Court has considered legitimate to be considered for judging the facts of the case, what this Court finds is that there being two conflicting medical opinions coming from the same source, that is, the prosecution; there was a cause to doubt as regards the manner of occurrence and use of weapons on the basis of which the accused persons deserve to be acquitted by giving benefit of doubt. 17. The learned trial judge appears missing quite substantially some of these important features of evidence and appears falling in serious error of judging the facts improperly. Wrong appreciation of facts or evidence is alone to vitiate the judgment as perverse. That being the position, the appeal merits to be allowed and it is, accordingly, allowed. The judgment of conviction and the order of sentence passed upon the appellants is hereby set aside. They are acquitted of the charge they had been found guilty of. The three appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. ?