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2018 DIGILAW 1551 (PAT)

JAGARNATH YADAV v. STATE OF BIHAR

2018-10-01

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellants and learned APP for the State on this Criminal Appeal. 2. This criminal appeal has been preferred against the judgment and order of conviction and sentence dated 22.01.2013 passed by learned Adhoc Additional Sessions Judge-I, Supaul in Sessions Trial no. 12 of 2006 arising out of Bhaptiyahi P.S. Case No. 17 of 2005 whereby the learned trial court convicted the accused persons namely, Jagarnath Yadav, Bijendra Yadav and Ravindra Yadav for the offence punishable under Sections 341, 323, 325, 307/34 of the Indian Penal Code and further convicted the accused Bijendra Yadav for the offence punishable under Section 27 of the Arms Act and sentenced them to undergo S.I. for one month each under Section 341 of I.P.C., R.I. for one year each under Sections 323/325 of I.P.C. and R.I. for five years each under Sections 307/34 of I.P.C. and further sentenced the accused Bijendra Yadav to undergo R.I. for two years under Section 27 of the Arms Act. All the sentences were directed to run concurrently. 3. The factual matrix of the case is that Bhaptiyahi P.S. Case No. 17 of 2005 was instituted under Sections 341, 323, 324, 379, 307/34 of the Indian Penal Code and Section 27 of the Arms Act against accused Jagarnath Yadav, Bijendra Yadav, Ravindra Yadav, Durga Nand Yadav, Tara Devi, daughter-in-law of Jagarnath Yadav, brother-in-law of Ravindra Yadav and one another unknown miscreant on the basis of written report of Dev Ram Yadav S/o late Rajendra Yadav with the allegation, in succinct that on 15.05.2005 at around 08:00 AM, informant was ploughing the land of his share, abruptly Jagarnath Yadav, Bijendra Yadav, Ravindra Yadav, Durga Nand Yadav, wife of Jagarnath Yadav, namely, Tara Devi and his daughter-in-law, brother-in-law of Ravindra Yadav and one another unknown miscreant descended at his field and daughter-in-law of Jagarnath Yadav furnished him arrow. They started assaulting him by means of lathi. Sustaining injury he fell down on the ground. Then on the order of Jagarnath Yadav, Bijendra Yadav resorted firing on his left leg. The accused persons also took away his pair of bull. 4. They started assaulting him by means of lathi. Sustaining injury he fell down on the ground. Then on the order of Jagarnath Yadav, Bijendra Yadav resorted firing on his left leg. The accused persons also took away his pair of bull. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against accused Bijendra Yadav, Jagarnath Yadav and Ravindra Yadav under Sections 341, 323, 325, 307/34 of I.P.C. and 27 of the Arms Act keeping the investigation pending against the other accused persons. 5. On receiving the charge-sheet 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 seisin of the learned Adhoc Additional Sessions Judge-I, Supaul for trial. 6. Charge against accused Bijendra Yadav, Jagarnath Yadav and Ravindra Yadav was framed under Sections 341, 323, 325 and 307/34 of the Indian Penal Code and further charge against the accused Bijendra Yadav was framed under Section 27 of the Arms Act. Charge was read over and explained to them by the court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses namely, Saburi Yadav as PW-1, Lakhan Yadav as PW-2, Bijendra Yadav as PW-3, Gajendra Yadav as PW-4, informant Dev Ram Yadav as PW-5, Yogendra Yadav as PW6, Dr. Virendra Kumar Sharma as PW-7 and I.O. Nawal Kishor Yadav as PW-8. Out of the aforesaid witnesses, PWs-1 and 2 turned hostile. In documentary evidence, the prosecution has filed and proved some documents in the case. 8. The 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 falsely implicated in this case due to land dispute. The accused persons have also examined one witness, namely, Laleshwar Kamat as DW-1 in ocular evidence while in documentary evidence, they have filed and proved certified copy of complaint petition No. 379C of 2005 in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph. 10. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned 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 the present 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 that in the written report, the accused persons are not said to have arrived at the place of occurrence at the time of occurrence armed with lathi or firearm rather as per the aforesaid written report, daughter-in-law of Jagarnath furnished him arrow bringing it from somewhere else. Thus, the accused persons were not armed with any weapon and the statement of the witnesses regarding assaulting the informant by means of lathi and firearm at the hand of the accused persons is subsequent development. It is further submitted that fire arm injury was inflicted on left leg of the informant i.e. on non-vital part which rules out the intention of the accused persons to do away with the life of the informant. It is further submitted that admittedly there is land dispute between the parties and the appellants have been falsely implicated in this case due to aforesaid land dispute to mount pressure upon them to grab their property. It is also submitted that there is vital contradictions between the testimony of the informant and written report regarding manner of occurrence, witnesses present at the place of occurrence etc. and the other witnesses do not happen to be eye witnesses of the occurrence. It is also submitted that as per the witness account, the bullet had passed through the leg, but doctor has not found any entry or exit wound on the leg of the informant which creates serious doubt about the prosecution case. Thus, the ocular evidence also does not stand corroborated by the medical evidence. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Thus, the ocular evidence also does not stand corroborated by the medical evidence. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and 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 informant has supported the prosecution case in toto and the other witnesses have also corroborated the prosecution case. Doctor has found the firearm injury and other injury on the person of the informant. Thus, the ocular evidence of the prosecution also stands corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed. 14. From perusal of record, it appears that to substantiate its case, the prosecution has examined six material witnesses in the case. Out of them, PWs-1 and 2 turned hostile. From perusal of testimony of the PW-3 Bijendra Yadav, PW-4 Gajendra Yadav and PW-6 Yogendra Yadav, it appears that though they have made an abortive bid to support the prosecution case by making their testimony in their respective examination-in-chief about assaulting the informant by the appellants by means of lathi and firearm and inflicting him fire arm injury, but, on scanning the testimony of the aforesaid witnesses, it appears that they do not happen to be eye witnesses of the occurrence. As as per the prosecution case, it is the informant, who was ploughing the field at the time of occurrence alone but PW3, PW-4 and PW6 have stated in their respective examination-in-chief that Gajendra Yadav (PW-4) along with informant Dev Ram Yadav were ploughing the field of the informant by means of their bull and plough. PW-6 Yogendra Yadav has stated in paragraph 2 of his cross-examination that when he arrived at the place of occurrence, he found Dev Ram Yadav falling on the eastern ridge of the disputed field. He was senseless by that time. PW-6 Yogendra Yadav has stated in paragraph 2 of his cross-examination that when he arrived at the place of occurrence, he found Dev Ram Yadav falling on the eastern ridge of the disputed field. He was senseless by that time. After his arrival there, Gajendra Yadav (PW-4), Siyaram Yadav and Bijendra Yadav (PW-3) had arrived there. He has further stated that when he arrived at the place of occurrence, there was none present there by that time and he had arrived there first of all. The aforesaid statement of PW-6 Yogendra Yadav candidly indicates two things firstly, that the said witness had not witnessed the occurrence of assault upon the informant at the hand of the appellants rather had found the informant lying senseless on the eastern ridge of the disputed field on his arrival meaning thereby that PW-6 Yogendra Yadav had arrived at the place of occurrence after culmination of the occurrence and had not witnessed the assault upon the informant at the hand of the appellants. Secondly, he has ruled out witnessing of the occurrence by other witnesses such as PW-3 Bijendra Yadav and PW-4 Gajendra Yadav and Others as he has candidly stated that he had arrived at the place of occurrence first of all and after his arrival, the aforesaid witnesses had arrived there and as the said witness had arrived first of all at the place of occurrence and found the informant senseless and not witnessed the occurrence of assault on the informant at the hand of the appellants, then how the other witnesses, who had arrived later to his arrival there, would have seen the occurrence of assault upon the informant. Moreover, the aforesaid testimony of PW-6 Yogendra Yadav also rules out ploughing of the field of the informant by PW-4 Gajendra Yadav and witnessing of the occurrence by him. As as per the aforesaid account of PW-6, Gajendra Yadav was not present at the place of occurrence at the time of occurrence rather had arrived at the place of occurrence after his arrival there, after culmination of the occurrence of assault. 15. As as per the aforesaid account of PW-6, Gajendra Yadav was not present at the place of occurrence at the time of occurrence rather had arrived at the place of occurrence after his arrival there, after culmination of the occurrence of assault. 15. Pw-5, who happens to be the informant of the case though has supported the occurrence of assaulting him by the accused persons by means of lathi and also assaulting him by Bijendra Yadav by means of firearm inflicting injury in his left leg on the order of Jagarnath Yadav during the course of occurrence, but from perusal of testimony of the PW-4 Gajendra Yadav, it appears that the said witness in paragraph 1 of his examination-in-chief has stated that Dev Ram Yadav fell senseless, sustaining injury at the hand of the accused persons by means of lathi. Thereafter, Jagarnath Yadav slating him gave order to Bijendra Yadav to eliminate the informant, whereupon Bijendra Yadav resorted firing upon his left leg and the bullet passed through his leg. The aforesaid statement of PW-4 Gajendra Yadav goes to indicate that after sustaining lathi injury, the informant fell senseless and he would not have heard about giving order by Jagarnath Yadav to Bijendra Yadav to eliminate him and seen resorting firing by Bijendra Yadav upon his left leg by means of firearm. But, in quite contradiction to the aforesaid statement of PW-4 Gajendra Yadav, the informant has stated that when he fell down on the ground sustaining lathi injury, Jagarnath Yadav gave order to Bijendra Yadav to eliminate him, whereupon Bijendra Yadav resorted firing upon his left leg inflicting injury in his left leg. As per the prosecution case as adumbrated in the written report, it was the informant, who was ploughing the field at the time of occurrence alone but in quite contradiction to the aforesaid prosecution case, the informant has stated in his examination-in-chief that besides him, Gajendra Yadav was also ploughing his field. The aforesaid vital contradiction between testimony of PW-4 and PW-5 and prosecution case and testimony of informant creates serious doubt about the prosecution case and resorting firing by means of firearm on the left leg of the informant by Bijendra Yadav. 16. The aforesaid vital contradiction between testimony of PW-4 and PW-5 and prosecution case and testimony of informant creates serious doubt about the prosecution case and resorting firing by means of firearm on the left leg of the informant by Bijendra Yadav. 16. Pw-5 informant Dev Ram Yadav has stated in paragraph 18 and 19 of his cross-examination that five accused persons were armed with lathi and the accused persons assaulted him by means of lathi for 5-8 minutes, someone from frontal side while another from rear side, but doctor has found only three bruise injuries caused by hard and blunt weapon one is on right foot, second one is on right thumb and third one is on left thumb of the informant. The aforesaid statement of informant also does not stand corroborated by the medical evidence. As had the five accused persons assaulted the informant for 8 minutes by means of lathi, he would have sustained several grievous injuries on his person, but doctor has found only three bruise injuries caused by lathi on his person. As per account of PW-4 Gajendra Yadav as given by him in paragraph 1 of his examination-in-chief bullet passed through the leg of the informant, but from perusal of testimony of the doctor PW-7 as stated by him in paragraph 2 of his cross-examination it appears that he did not find any entry and exit wound. Thus, the aforesaid inconsistent ocular evidence of the informant and other witnesses do not stand corroborated by the medical evidence as well. 17. Pw-4 Gajendra Yadav has stated in paragraph 1 of his examination-in-chief that after sustaining lathi injury, the informant Dev Ram Yadav fell senseless at the place of occurrence. In paragraph 23 of his cross-examination, he has further stated that they rushed Deo Ram to the P.S. Bhaptiyahi in the state of senseless. From the P.S., they rushed him to the Supaul hospital where he regained sense after 24 hours. The informant PW-5 has also stated in paragraph 22 of his cross-examination that he remained senseless for 24 hours and regained sense in the Supaul hospital. In paragraph 24 of his cross-examination, he has further stated that he regressed to his house from hospital after eight days. The informant PW-5 has also stated in paragraph 22 of his cross-examination that he remained senseless for 24 hours and regained sense in the Supaul hospital. In paragraph 24 of his cross-examination, he has further stated that he regressed to his house from hospital after eight days. The aforesaid statement of PW-4 Gajendra Yadav and informant PW-5 candidly indicates that sustaining lathi injury, informant had fallen senseless and was rushed to Bhaptiyahi P.S. in the state of senseless, from where, he was rushed to Supaul hospital where he regained sense after 24 hours which means that informant was altogether senseless for 24 hours. But from perusal of record, it appears that FIR was lodged on the basis of written report of the informant written by Siyaram Yadav on the very date of occurrence three hours later to the occurrence. Informant has also stated in paragraph 25 of his cross-examination that he had given the statement to the police thrice. He had given statement on the date of occurrence itself at Bhaptiyahi P.S. and secondly in Suapul hospital after four days of the occurrence and thirdly, when the D.S.P. had arrived at his house. But, as the informant was senseless at the time of his rushing to the P.S. by the villagers and regained sense in the Supaul hospital after 24 hours, how he had given the statement before the police and got lodged the FIR within three hours of occurrence. Which creates serious doubt about the prosecution case and sanctity of the aforesaid FIR. PW-4 Gajendra Yadav has stated in paragraph 23 of his cross-examination that he had rushed Dev Ram Yadav to Bhaptiyahi P.S. in the state of senseless and he himself had divulged the occurrence to the S.I. at the P.S. The aforesaid statement of PW-4 given at the P.S. regarding the occurrence must be the First Information Report, but the aforesaid First Information Report has not been brought on record by the prosecution which also goes to create serious doubt about the prosecution case. 18. 18. It is the case of the prosecution that the accused persons including the appellants had arrived at the place of occurrence and committed the occurrence while the informant was ploughing the field and PW-4 Gajendra Yadav has stated in paragraph 16 of his cross-examination that 3-4 kathas of land had been ploughed at the time of occurrence, but PW-6 Yogendra Yadav has stated in paragraph 2 of his cross-examination that the paddy and moong crops were planted in the disputed land at the time of occurrence. The aforesaid statement of PW-6 indicates that there was paddy and moong crops standing at the place of occurrence i.e. the land was not barren and worth for ploughing, so how the informant was ploughing the disputed land at the time of occurrence and had ploughed 3-4 kathas of land at the time of arrival of the accused persons there which also goes to create serious doubt about the prosecution case. Though, I.O. (PW-5) in paragraph 1 of his examination-in-chief has stated that he found the field ploughed and several foot prints in the field, but as as per the aforesaid account of PW-6, the crops of paddy and moong were standing at the P.O. field, then how the I.O. had found the said field ploughed and foot prints in the said field which also goes to create serious doubt about the sanctity of the investigation and inspection of the place of occurrence by the I.O. 19. Pw-3 Bijendra Yadav has stated in paragraph 12 of his cross-examination that the blood oozed from the leg injury of the informant and had fallen on his lungi and the informant PW-5 Dev Ram Yadav has stated in paragraph 20 of his cross-examination that blood was fallen on the place of occurrence and it was drenched with the blood. In paragraph 27 of his cross-examination, he has further stated that the police had seized his blood stained attire and blood stained soil, but from perusal of testimony of the I.O., it appears that I.O. has not stated about finding any blood on the place of occurrence or on the attire of the informant or about seizure of any blood stained attire of the informant or blood stained soil at the place of occurrence. Thus, the aforesaid aspect of the case also creates serious doubt about the prosecution case. 20. Thus, the aforesaid aspect of the case also creates serious doubt about the prosecution case. 20. Informant has stated in paragraph 6 of his cross-examination that the disputed land is of 2 bigha 2 katha and both parties are claiming their right over it. PW-6 Yogendra Yadav has also stated in paragraph 2 of his cross-examination that both parties are claiming their right over the disputed land which is of 2 bigha 2 kathas. The aforesaid testimony of the informant and PW-6 indicates that admittedly there is a land dispute between the parties. 21. From perusal of record, it appears that there were altogether eight accused persons in the occurrence. Out of them, five were armed with lathi and Bijendra Yadav was armed with firearm and there was no intervening circumstance at the place of occurrence, but the informant has sustained only three bruise injury and one firearm injury on his left leg i.e. on the non-vital part of his person. As the accused persons were in such a large number and were armed with lathi and firearm and there was no intervening circumstance at the time of occurrence at the place of occurrence, then had the accused persons intended to do away with the life of the informant, they would have easily executed their intention, but they did not do so. The aforesaid aspect of the case goes to rule out any intention of the accused persons to do away with the life of the informant in the occurrence. Hence, no offence under Section 307 of the Indian Penal Code is made out. 22. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and worth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellants is set aside and the appellants are acquitted of the charges levelled against them giving them benefit of doubt. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.