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2014 DIGILAW 534 (PAT)

Ramkeshwar Yadav v. State of Bihar

2014-04-30

DHARNIDHAR JHA

body2014
JUDGMENT Appellant Ramkeshwar Yadav is the father of appellant Khabil Yadav. Appellant Ramkeshwar Yadav was indicted of committing offences under Section 307 read with Section 109 of the Indian Penal Code while appellant Khabil Yadav was charged with committing offence under Section 307 of the Indian Penal Code for being put on trial in Sessions Trial No. 349 of 1992. The judgment was delivered by Fast Track Court – III, Bhojpur on 4.6.2002 and the appellants were held guilty of committing the offences they had been charged with. When it came to passing sentence upon the appellants after hearing them under Section 235 of the Cr.P.C. the court appears not passing any sentence of Ramkehswar Yadav who had been convicted for committing offence under Section 307 read with Section 109 of the Indian Penal Code and passed sentence of rigorous imprisonment for seven years only against appellant Khabil Yadav. However on account of being convicted both the appellants have appealed to this Court against the impugned judgment. P.W. 4 the informant stated in his fardbeyan that he had gone to ease in the fields and while he was so doing he picked up the sound of some activities in his sugar cane field. He initially thought that some wild animals were there and out of curiosity he went inside the sugar cane field to find that appellant Khabil Yadav was cutting the sugar cane plants. He objected to and questioned the act of appellant Khabil Yadav who warned him of serious consequences upon which there was some exchange of hot words when appellant Ramkeshwar Yadav the father of appellant Khabil Yadav arrived there and he ordered to assault the informant whereupon appellant Khabil Yadav started giving blows with baisakhi, which is pointed out to be a weapon fixed into a lathi, having sharp cutting edges. The blows were severe and several both so much so that the informant alleged having lost his consciousness and also having fallen down on the ground. 2. He was shifted to the hospital, where he was examined by P.W. 5 Dr. S.K.C. Singh who found the following injuries on the person of P.W. 4 – (I) An incised wound over front of neck measuring 4”x2”x2” with blood and blood clots. (II) Abrasion over left side of upper eyebrow measuring 1/2”x1/4”. 2. He was shifted to the hospital, where he was examined by P.W. 5 Dr. S.K.C. Singh who found the following injuries on the person of P.W. 4 – (I) An incised wound over front of neck measuring 4”x2”x2” with blood and blood clots. (II) Abrasion over left side of upper eyebrow measuring 1/2”x1/4”. (III) Incised wound on the front of left auxiliary fold of front side 2”x1/4”x muscle deep. (IV) Incised wound over left collar bone measuring 1”x1/2”x skin deep. (V). Abrasion over front of chest 1/2”x1/4”. The injuries in the opinion of P.W. 5 were simple in nature and injuries no. I, III and IV were caused by some sharp cutting weapon whereas injuries no. II and III could have been caused by some hard and blunt substance within six hours of the examination of P.W. 4 by P.W. 5. 3. The case was investigated into after institution of the FIR and the two appellants were sent up for trial which resulted in the impugned judgment. 4. I was taken through the evidence of witnesses by Shri Ram Chandra Singh, Advocate who submitted that the witnesses who were examined, like, P.Ws. 1 and 2 on their own evidence appears not to be eye witnesses. P.W. 3 Prem Niranjan Chaudhary had not supported the prosecution story and as such he was declared hostile. Thus the evidence of solitary witness, i.e., of P.W. 4 was the basis for convicting the appellants and it was not sufficient for passing the judgment of conviction by the learned trial judge. 5. On perusal of the evidence of P.Ws. 1 and 2 what I find is that P.W. 1 could never have seen the occurrence because he reached after hearing the hulla and the distance between his house and that of the field was somewhere around 30 – 35 Bans (bamboos) which could be measuring into over 600 cubits. In addition to the above, the distance between his house and the place of occurrence was intervened by many houses and fields. There were 4 – 5 houses and by the time P.W. 1 could have reached at the place of occurrence, it would not have been possible for him to see the occurrence. Besides, P.W. 1 was the full brother of the informant and he probably was coming to support the story on account of holding some interest in the result of the prosecution. Besides, P.W. 1 was the full brother of the informant and he probably was coming to support the story on account of holding some interest in the result of the prosecution. P.W. 2 Lal Mohar Chaudhary as may appear from his evidence in paragraph-4 could also not be an eye witness to the occurrence. He stated that when he reached the field he found Surendra Chaudhary was lying injured in the field. Thus as per P.W. 2 when he arrived at the field the occurrence was already over. I have already noted that P.W. 3 as a witness hostile to the prosecution charges. 6. So far as the evidence of P.W. 4 is concerned I have gone through it and I find him trustworthy. There was no previous enmity between the parties. Even the attempts which were made by the defence during cross-examination of P.W. 4 to suggest some ill-will of strained relationship, appears not probablized by any fact introduced by the cross-examination of P.W. 4 or by leading additional evidence. The field belonged to the informant is admitted when the defence was suggesting to him that P.W. 4 had given the field to the accused on share-cropping. This defence was not probablized by producing any material in that regard. As such, the sugar cane was raised by him as claimed by P.W. 4 in his evidence. P.W. 4 has stated that the appellant Khabil Yadav had cut only 5 – 6 plants of sugar cane when he reached there and attempted to obstruct the further damage to his crop which was only about four feet in height and which had been planted only 4 – 5 months prior to the occurrence. When the appellant started giving blows by using baisakhi as a lathi and the description of injuries which I have noticed a little bit earlier fully corroborates the manner of occurrence. Thus, what I find from the consideration of the evidence of P.W. 4 is that the manner of occurrence as also the genesis thereof were fully established by his evidence. The support to the prosecution story came from the evidence of P.W. 5 as regards its manner as P.W. 5 had recorded not less than three incised wounds on the person of P.W. 4. But those injuries were simple in nature. The support to the prosecution story came from the evidence of P.W. 5 as regards its manner as P.W. 5 had recorded not less than three incised wounds on the person of P.W. 4. But those injuries were simple in nature. The opinion of P.W. 5 did not indicate that the three injuries taken together or any of them could be dangerous to the life of P.W. 4. As such the finding of the learned trial judge that Khabil Yadav was guilty of committing offence under Section 307 of the Indian Penal Code appears not to be upheld. However by facts which had been established, Khabil Yadav appears committing an offence under Section 324 of the Indian Penal Code. So far as the complicity of appellant Ramkeshwar Yadav is concerned he does not appear having committed any overt act, but only to have remonstrated Khabil Yadav to assault the informant. In my considered view sometimes some additional allegations are added up with a view to roping in some senior or junior members of the family out of a sense of vengeance which motto very much occupies the minds of a victim of an offence. In that view of the matter I acquit Ramkeshwar Yadav of the charge he had been found guilty of. Moreover, he had not been sentenced in any manner by the trial Court. 7. Then the question is as to what sentence Khabil Yadav should be directed to undergo. In the light of Section 385 of the Cr.P.C. last proviso an appellate court should never pass an order of sentence in excess of the jurisdiction of the court which could have tried the offence if the appeal was against conviction. An offence under Section 324 of the Indian Penal Code is triable by a court of Magistrate of First Class who is empowered to inflict a sentence in the maximum of three years. The occurrence had taken place in the year 1991 and the conviction was recorded on 4.6.2002. This appeal has been taken up for hearing by this Court after more than 12 years. The appellant should have remained in constant agony of being convicted and should also have felt the fear of his conviction being upheld by this Court. The occurrence had taken place in the year 1991 and the conviction was recorded on 4.6.2002. This appeal has been taken up for hearing by this Court after more than 12 years. The appellant should have remained in constant agony of being convicted and should also have felt the fear of his conviction being upheld by this Court. Taking this circumstance together, I am of the opinion that the appellant should be sentenced to the period already undergone by him but he should also be directed to pay a fine of Rs. 5000/- as sentence. If the fine is not paid then in that case the appellants shall have to undergo rigorous imprisonment for six months. In case the fine is realized the same shall be paid to the informant or next of his kins as compensation under Section 357 of the Cr.P.C. 8. The appeal is partly allowed on account of acquitting Ramkeshwar Yadav and is dismissed with the modification in the order of conviction and sentence as regards appellant Khabil Yadav. Appeal partly allowed.