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2018 DIGILAW 1410 (PAT)

BIGAN YADAV v. STATE OF BIHAR

2018-09-05

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellants, learned Amicus Curiae Mr. Amrit Anunay and learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 07.12.2012 and order of sentence dated 11.12.2012 passed by 1st Additional District and Sessions Judge, Jamui in Sessions Trial No. 41 of 2010 arising out of Jamui P.S. Case No. 14 of 2009, whereby the learned trial court acquitted Mahesh Yadav, Faudi Yadav, Shailendra Yadav, Tukan Yadav, Arvind Yadav, Usha Devi and Nirmala Devi from the offence registered under Sections 147, 148, 149, 307, 379, 504 and 506/149 of the Indian Penal Code and Section 27 of the Arms Act and convicted the accused Phulo Yadav, Bigan Yadav and Umesh Yadav for the offence punishable under Sections 147, 148 and 307/149 of the Indian Penal Code and the accsued Prasadi Yadav and Praveen Yadav for the offence under Sections 147 and 323 of the Indian Penal Code and sentenced Phulo Yadav, Bigan Yadav and Umesh Yadav to undergo R.I. for three years and also slapped them with fine of Rs. 500/- each and in case of default of payment of fine, to further undergo S.I. for one month each and no separate punishment was awarded under Sections 147, 148 and 149 of the Indian Penal Code and released the accused Prasadi Yadav and Praveen Yadav on probation on furnishing bond for maintaining peace and tranquility and good conduct for a period of one year under Sections 147 and 323 of the Indian Penal Code. 3. 3. Factual matrix of the case is that Jamui P.S. Case No. 14 of 2009 was instituted under Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504 and 506 of the Indian Penal Code and Section 27 of the Arms Act against the accused persons namely Phulo Yadav, Bigan Yadav, Arvind Yadav, Prasadi Yadav, Mahesh Yadav, Umesh Yadav, Praveen Yadav Shailendra Yadav, Urmila Devi, Usha Devi, Tukan Yadav and Faudi Yadav on the basis of the written report of Bhola Yadav, Son of Santoshi Yadav with the allegation in succinct that on 17.01.2009 at 10:00 AM, Phulo Yadav, Bigan Yadav, Arvind Yadav, Prasadi Yadav, Mahesh Yadav, Umesh Yadav, Praveen Yadav Shailendra Yadav, Urmila Devi, Usha Devi, Tukan Yadav and Faudi Yadav armed with lathi, bhala, farsa, khanti, bhujali and pistol descended at the field located adjacent to his house and made query about preparation of cow dung cakes there. On replying by his nephew Vijay Yadav about preparation of the cow dung cakes at his own land, all the accused persons surrounded Vijay Yadav with intention to do away with his life and Phulo Yadav assaulted on his head, chest, leg and waist by means of khanti and made him badly injured. When Sabo Devi, Bhola Yadav, Malti Devi, Sabiya Devi and Paro Devi rushed in his rescue, then Bigan Yadav assaulted on the nose of Sabo Devi by means of farsa inflicting cut injury on her neck. Tukan Yadav and Arvind Yadav assaulted on her leg and back by means of lathi while Umesh Yadav assaulted on the right side of the back and shoulder of the informant Bhola Yadav by means of bhujali and Prasadi Yadav, Praveen Yadav and Shailendra Yadav assaulted Malti Devi, Sabiya Devi and Paro Devi by means of lathi. Phulo Yadav snatched the mobile and golden chain of Vijay Yadav while wife of Bigan Yadav snatched golden ear ring of Malti Devi and wife of Phulo Yadav snatched silver locket of Sabo Devi. Thereafter accused Mahesh Yadav resorted firing in the course of retreat and extended threatening of dire consequence in case of lodging case. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the aforesaid accused persons. 5. Thereafter accused Mahesh Yadav resorted firing in the course of retreat and extended threatening of dire consequence in case of lodging case. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the aforesaid accused persons. 5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of 1st Additional District and Sessions Judge, Jamui for trial. 6. Charge against the accused persons was framed under Sections 147, 148, 323, 341/149, 342/149, 504, 506 and 307/149 of the Indian Penal Code and Section 27 of the Arms Act. Further charge against the accused persons namely Phulo Yadav, Urmila Devi and Usha Devi was framed under Section 379 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether four prosecution witnesses, namely, Malti Devi as PW-1, Vijay Kumar Yadav as PW-2, informant Bhola Yadav as PW-3 and Dr. Vijay Kumar as PW-4. Three more witnesses have been examined by the court, namely, Sabo Devi as CW-1, Sabia Devi as CW-2 and Paro Devi as CW-3. The prosecution has filed and proved several documents by way of documentary evidence. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of their case in ocular evidence, accused persons examined one witness namely Vikash Kumar as DW-1 and in documentary evidence, they filed and proved the registered sale deed executed by Chando Rabidas in favour of Tukan Yadav marked as Exhibit-A and signature of the witnesses Bhushan Singh and Kailu Yadav on the said sale deed marked as Exhibit-A/1 and A/2 respectively. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellants and learned Amicus Curiae that F.I.R. in the case was lodged on 17.01.2009 but the same was sent to the court of CJM, Jamui on 19.01.2009 albeit P.S. is located barely at a distance of 1 Km from the court and no explanation has been assigned by the prosecution for the aforesaid delay, hence the aforesaid delay in sending the F.I.R. to the Court creates serious doubt about the prosecution case. It is further submitted that there is vital contradiction between the testimony of the witnesses about assault, part of the person sustaining injury, weapon used in assault, assailant and the manner of occurrence. As per the prosecution case, victim Vijay Yadav was assaulted by means of khanti while Bhola Yadav was assaulted by means of bhujali and sabo devi was assaulted by means of farsa, but the doctor has not found any sharp cut injury on the person of the aforesaid victims rather injuries found by the doctors are simple in nature and caused by hard and blunt substance. Thus, the inconsistence ocular evidence of the prosecution does not stand corroborated by the medical evidence. It is further submitted that all the witnesses examined by the prosecution and CWs happen to be family members and as per the witnesses' account, number of persons had arrived at the place of occurrence listening hulla, but none of them has been examined by the prosecution and no plausible explanation has been assigned by the prosecution for their non-examination, hence it creates serious doubt about the prosecution case. It is further submitted that I.O. has not been examined by the prosecution and due to non-examination of the I.O., great prejudice has been caused to the defence as objective evidence could not be brought on record. It is further submitted that I.O. has not been examined by the prosecution and due to non-examination of the I.O., great prejudice has been caused to the defence as objective evidence could not be brought on record. It is also submitted that admittedly there is land dispute between the parties as the property in question was purchased by Tukan Yadav from Chando Rabidas which was intended to be purchased by the accused persons which led animosity between the parties and due to the aforesaid animosity, prosecution party has falsely implicated the appellants in the false and concocted case. Thus the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts against the appellants by adducing trustworthy and reliable evidence. Hence the appellants are entitled to be acquitted. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the learned trial court after correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this criminal appeal is shorn of merit and is liable to be dismissed. 14. As per the prosecution case as alleged in the written report, Phulo Yadav assaulted on the head, chest, leg and waist of Vijay Yadav by means of khanti and made him inured, but in quite contradiction to the aforesaid prosecution case, informant has stated in his examination-in-chief that Phulo Yadav assaulted on the head of Vijay Yadav by means of khanti and other accused assaulted him by means of lathi inflicting injury on his hand, leg and back while PW-1 Malti Devi has stated in her examination-in-chief that Phulo Yadav assaulted on the head and leg of Vijay Yadav by means of khanti. PW-2 Vijay Kumar Yadav has stated that Phulo Yadav assaulted on his head, back, leg and stomach by means of khanti. CW-1 Sabo Devi has stated in her examination-in-chief that Phulo Yadav assaulted on the head of Vijay Yadav by means of khanti sustaining injury he fell down. Then Phulo, Praveen, Arvind and Tukan assaulted him by means of lathi and paina climbing on his chest. CW-2 Sabia Devi has stated in her examination-in-chief that Phulo assaulted Vijay Yadav by means of khanti. He fell down sustaining injury. Then Phulo, Praveen, Arvind and Tukan assaulted him by means of lathi and paina climbing on his chest. CW-2 Sabia Devi has stated in her examination-in-chief that Phulo assaulted Vijay Yadav by means of khanti. He fell down sustaining injury. Then Phulo, Bigan and all other accused persons assaulted him climbing on his chest. CW-3 Paro Devi has stated in her examination-in-chief that only Phulo Yadav assaulted on the head of Vijay Yadav by means of khanti. Thus there appears to be vital contradiction regarding manner of occurrence, part of the body selected for assault, weapon used in the assault and assailant of the assault made on Vijay Yadav between the prosecution case and the testimony of the informant and between the testimony of the witnesses inter se. As per the witnesses' account, Phulo Yadav assaulted Vijay Yadav on his head and other parts of the person by means of khanti but from perusal of the testimony of the Dr. Vijay Kumar (PW-4) who had examined the victim and the injury report, it appears that the doctor has found ecchymosis with swelling on left side of the chest, swelling with ecchymosis on left thigh and complain of pain in the head with nausea and vomiting on the person of the victim Vijay Yadav. Aforesaid injury has been opined by the doctor as simple in nature caused by hard and blunt substance. Thus the doctor has not found any sharp cut injury allegedly inflicted by means of khanti on the person of the aforesaid victim. Thus aforesaid inconsistent ocular evidence of the prosecution does not stand corroborated by the medical evidence regarding assault made on the victim Vijay Yadav. 15. As per the prosecution case as alleged in the written report, Bigan Yadav assaulted on the nose of Sabo Devi by means of farsa slitting her nose while Tukan Yadav and Arvind Yadav assaulted on her leg and back by means of lathi but in quite contradiction to the aforesaid prosecution case, informant (PW-3) has stated in his examination-in-chief that all the accused persons assaulted Sabo Devi by means of lathi. PW-1 Malti Devi has stated in her examination-in-chief that the accused persons also assaulted Sabo, Paro and Sabia. PW-1 Malti Devi has stated in her examination-in-chief that the accused persons also assaulted Sabo, Paro and Sabia. PW-2 Vijay Yadav has stated in his examination-in-chief that Bigan assaulted on the nose of Sabo Devi by means of farsa while Praveen and Tukan assaulted on her back and leg by means of lathi. CW-1 Sabo Devi has stated in her examination-in-chief that when she rushed in the rescue of Vijay, Shailendra assaulted on her wrist by means of paina. CW-2 Sabia Devi in her examination-in-chief has not stated about any assault made on the person of Sabo Devi by any accused person. CW-3 Paro Devi has stated in her examination-in-chief that when Sabo Devi rushed in rescue of Vijay Yadav, Prasadi, Praveen and Shailendra assaulted her. Thus from perusal of the F.I.R. and testimony of the aforesaid witnesses, it appears that there is vital contradiction regarding the manner of occurrence, assault, weapon used in the assault, part of the body selected for assault and assailant regarding assault made on Sabo Devi between the prosecution case and the testimony of the informant and between the testimony of the witnesses inter se. From perusal of the medical evidence i.e. injury report and testimony of the Dr. Vijay Kumar (PW-4), it appears that the doctor has found swelling with abrasion on dorsum of right hand and complain of pain in whole body on the person of the victim Sabo Devi. Aforesaid injury has been opined by the doctor as simple in nature caused by hard and blunt substance. The doctor has not found any slit injury on her nose. Thus the aforesaid inconsistent ocular evidence regarding assault made on Sabo Devi also does not stand corroborated by medical evidence. 16. Likewise, as per the prosecution case as alleged in the written report, Umesh Yadav assaulted on the right side of the back and shoulder of the informant Bhola Yadav by means of bhujali, but in quite contradiction to the aforesaid case, informant (PW-3) has stated in his examination in-chief that Umesh assaulted on his shoulder only by means of bhujali while PW-1 Malti Devi has stated in her examination in-chief that when Bhola Yadav rushed in rescue of Vijay Yadav, Bigan Yadav and Umesh Yadav assaulted him by means of bhujali and farsa. PW-2 Vijay Kumar Yadav has stated in his examination-in-chief that Umesh Yadav assaulted on the left side of the chest of Bhola Yadav by means of farsa. CW-1 Sabo Devi has stated in her examination-in-chief that Umesh Yadav assaulted Bhola Yadav on his dhauna by means of bhujali. CW2 Paro Devi has stated in her examination-in-chief that Umesh Yadav assaulted on the back of Bhola Yadav by means of farsa. Thus from perusal of the written report and aforesaid testimony of the witnesses, it appears that there is vital contradiction between the prosecution case and testimony of the informant and between the testimony of the witnesses inter se regarding the assault, manner of occurrence, weapon used in the assault, part of the body selected for assault, assailant regarding the assault made on the informant. From perusal of the medical evidence, it appears that the doctor has found one lacerated wound with blood clot on the left side back of head and upper part of left side of back and abrasion on the left lower back on the person of the informant. Aforesaid injuries have been opined by the doctor as simple in nature caused by hard and blunt substance. Doctor has not found any injury allegedly inflicted by means of bhujali and farsa on the person of the informant. Thus, the aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence regarding alleged assault made on the informant by the accused persons. 17. As per the prosecution case, Prasadi Yadav, Praveen Yadav and Shailendra Yadav assaulted Sabia Devi by means of lathi, but in quite contradiction to the aforesaid prosecution case, informant has stated in his examination-in-chief that when his wife Sabia Devi rushed in rescue of Vijay Yadav, Bigan assaulted on her nose by means of farsa while Tukan Yadav and Arvind Yadav assaulted her by means of lathi. While Sabia Devi (CW-2) has stated in her examination- in-chief that only Bigan assaulted on her nose by means of farsa inflicting injury on her nose and PW-1 Malti Devi has stated that Bigan Yadav assaulted on the nose of Sabia Devi by means of farsa inflicting slit injury on her nose and Tukan Yadav assaulted on her nose by means of lathi. PW-2 Vijay Kumar Yadav has not stated about any assault made on the person of Sabia Devi by any accused person. PW-2 Vijay Kumar Yadav has not stated about any assault made on the person of Sabia Devi by any accused person. CW-1 Sabo Devi has stated in her examination-in-chief that only Bigan assaulted on the nose of Sabia Devi by means of farsa inflicting slit injury on her nose, but Paro Devi (CW-3) has stated in her examination-in-chief that only Bigan assaulted on the nose of Sabia by means of bhujali inflicting slit injury on her nose. Thus from perusal of the prosecution case and testimony of the informant and other witnesses, it appears that there is vital contradiction regarding the manner of occurrence, assault, weapon used in the assault, part of the body selected for assault and the assailant regarding the assault made on Sabia Devi between the prosecution case and the statement of the informant and between the statement of the witnesses inter se. From perusal of the medical evidence, it appears that the doctor has found one lacerated wound on the bridge of nose with blood clot, swelling with ecchymosis on left leg with abrasion over it and complain of pain in the whole body of the victim. Aforesaid injuries have been opined by the doctor as simple in nature caused by hard and blunt substance. Doctor has not found any sharp cut injury on the nose of Sabia Devi as alleged by some witnesses. Thus, the aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence regarding assault made on Sabia Devi. 18. From perusal of the record, it appears that the aforesaid witnesses examined by the prosecution happen to be informant and his family members. No independent witness has been examined by the prosecution in corroboration of the aforesaid prosecution case and no plausible and convincing explanation has been assigned by the prosecution for non-examination of the independent witness. Though as per PW-1, large number of people rushed there responding hulla immediately after the occurrence and as per the account of the informant, 25-30 person had congregated at the place of occurrence at the time of occurrence. Though as per PW-1, large number of people rushed there responding hulla immediately after the occurrence and as per the account of the informant, 25-30 person had congregated at the place of occurrence at the time of occurrence. It is settled principal of law that testimony of the interested witness should not be discarded out rightly rather it should be scanned and scrutinized cautiously and carefully, but on careful and cautious scrutinizing of the testimony of the aforesaid interested witnesses, I find that there is vital contradiction between the testimony of the witnesses regarding the assault, manner of occurrence, weapon used in the assault, assailant, etc. as discussed by me hereinabove which also does not stand corroborated by the medical evidence or by any independent witness of the occurrence. Hence, the aforesaid uncorroborated testimony of the interested witnesses does not appear to be worth credence and reliable and does not inspire my confidence to hold conviction of the appellants relying upon the same. 19. From perusal of the record, it appears that the occurrence is said to be of 17.01.2009 at around 10 AM and F.I.R. was lodged on 17.01.2009 at around 11:30 AM, but said F.I.R. was sent to the Court on 19.01.2009. Prosecution has not assigned any plausible and convincing reason for the aforesaid delay in sending the F.I.R. to the Court giving ample opportunity to the prosecution party to manipulate and concoct the case against the appellants. Hence the aforesaid delay in sending the F.I.R. to the court creates serious doubt about the prosecution case. 20. As per the witnesses' account, blood was fallen at the place of occurrence, on the attire of the victims and on the rickshaw by which the victims were rushed to the hospital, but I.O. has not been examined by the prosecution and due to non-examination of the I.O., great prejudice has been caused to the defence as the objective evidence could not be brought on record. 21. Informant (PW-3) has stated in Para-6 of his cross-examination that there is land dispute between them and accused persons since the time of his father. He has further stated in para-10 of his cross-examination that grand-father of accused Phulo Yadav namly Narayan Yadav had lodged Jamui P.S. Case No. 197 of 1982 against his father, him, his brother, Mahendra, Latan and Asharfi Yadav. He has further stated in para-10 of his cross-examination that grand-father of accused Phulo Yadav namly Narayan Yadav had lodged Jamui P.S. Case No. 197 of 1982 against his father, him, his brother, Mahendra, Latan and Asharfi Yadav. A case under Section 107 I.P.C. was also fought between them and the accused persons vide case no. 37/83. PW-1 Malti Devi has stated in para-19 of her cross-examination that there is dispute between the parties regarding the property in question. CW-1 Sabo Devi and CW-3 Paro Devi have stated in Para-11 and Para-5 of their respective cross-examination that there is animosity of the prosecution party with the accused persons but they cannot tell the period of the aforesaid animosity. Aforesaid testimony of the witnesses candidly indicates that there is animosity between the prosecution party and the appellants. CW-3 Paro Devi has stated in Para-9 of her cross-examination that accused Tukan Yadav had purchased land from Chando. They had also intended to purchase the said land from Chando. Thus purchase of the property in question by Tukan Yadav from Chando also led to animosity and grudge between the parties. Animosity cuts both the edge. But in view of the contradiction between the prosecution case and the testimony of the informant, between the testimony of the witnesses inter se regarding manner of occurrence, assault, injury, assailant, etc., non-corroboration of the aforesaid ocular evidence by medical evidence or independent witness and unexplained delay in sending the F.I.R. to the Court, false implication of the appellants in the occurrence at the hand of the prosecution party due to animosity cannot be ruled out. 22. In view of the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate its case by adducing trustworthy, reliable, convincing and cogent ocular and documentary evidence beyond all reasonable doubts. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellants are acquitted from the charges levelled against them. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly, this appeal is allowed. 23. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Mr. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly, this appeal is allowed. 23. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Mr. Amrit Anunay and the learned Amicus Curiae be paid prescribed fee by the Patna High Court Legal Services Committee.