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2018 DIGILAW 1571 (PAT)

RAMCHANDRA YADAV v. STATE OF BIHAR

2018-10-04

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 23.01.2013 passed by learned Adhoc A.D.J. III, Gaya in Sessions Trial no. 173 of 2009 arising out of Tekari P.S. Case No. 104 of 2008 whereby the learned trial court convicted the accused Ramchander Yadav, Binod Yadav, Pramod Yadav, Mahendra Yadav and Upendra Yadav for the offence punishable under Sections 341 and 323 of the Indian Penal Code and sentenced them to undergo S.I. for nine months each under Section 323 of I.P.C., and S.I. for one month each under Section 341 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. The factual matrix of the case is that Tekari P.S. Case No. 104 of 2008 was instituted under Sections 341, 342, 323, 325 and 307/34 of the Indian Penal Code against accused Upendra Yadav, Ramchandra Yadav, Mahendra Yadav, Binod Yadav, and Pramod Yadav on the basis of written report of Sanjay Kumar Yadav S/o Harihar Yadav with the allegation, in succinct that on 29.07.2008 at around 01:00 PM, while the informant was ploughing his field and his father was making ridge on the field, in the meantime, Upendra Yadav, Ramchandra Yadav, Mahendra Yadav, Binod Yadav and Pramod Yadav armed with lathi, spade and garasa descended at his field and asked them to stop the work. On making protest by him, the aforesaid accused persons started assaulting him and his father indiscriminately by means of lathi and garasa and also extended threatening of dire consequences to him and his family. He tried to escape, but they assaulted him surrounding. The villagers present there intervened the occurrence. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid 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 A.D.J. III, Gaya for trial. 6. 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 A.D.J. III, Gaya for trial. 6. Charge against accused Ramchander Yadav, Upender Yadav, Mahender Yadav, Pramod Yadav and Binod Yadav was framed under Sections 307/34, 341, 342 and 323 of the Indian Penal Code. 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, Rajmani Devi as PW-1, Harihar Yadav as PW-2, Renu Devi as PW-3, informant Sanjay Yadav as PW-4, Ramadhar Yadav as PW-5, Vijay Yadav as PW-6, Brijnandan Yadav as PW-7 and Garjan Yadav as PW-8. Out of the aforesaid witnesses, PW-6 turned hostile. In documentary evidence, the prosecution has filed and proved only written report marked as Ext-1 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 innocent and falsely implicated in this case. The accused persons have neither adduced any ocular nor documentary evidence 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. 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 there is general and omnibus allegation levelled against the appellants for assaulting the informant and his father by means of lathi and garasa. 12. It is submitted by learned counsel for the appellants that there is general and omnibus allegation levelled against the appellants for assaulting the informant and his father by means of lathi and garasa. As per the witnesses account, the occurrence took place for four hours and as per the prosecution case, the accused persons assaulted the victims indiscriminately by means of lathi and garasa, so had the aforesaid occurrence taken place, the victims would have sustained several injuries on their person. But, as per account of informant PW-4 Sanjay Yadav and his father PW-2, PW-2 had sustained only three injuries one on head and two on hands while PW-4 sustained only one injury on his head which creates serious doubt about manner of occurrence and prosecution case as well. There is no eye witness of the occurrence. The witnesses examined in the case claiming themselves to be eye witness of the occurrence do not happen to be eye witnesses of the occurrence. It is further submitted that as per the witnesses account, the victims were rushed to the Tekari hospital to accord them medical aid and they remained there for 5-6 days, but neither any injury report has been brought on record nor author of the same has been examined by the prosecution. Hence, for want of injury report, the appellants cannot be convicted under Section 323 I.P.C. 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 land dispute. 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. 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 and his father, who happen to be the injured witnesses have supported the prosecution case and the other witnesses have also corroborated the prosecution case 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 altogether eight material witnesses in the case. Out of them, PW-6 has turned hostile and PW-2 Harihar Yadav and PW-4 Sanjay Yadav happen to be injured witnesses of the case and Sanjay Yadav also happens to be informant of the case. From perusal of testimony of PW-1, PW-3, PW-5, PW-7 and PW-8, it appears that they do not happen to be eye witnesses of the occurrence, though barring PW-5 Ramadhar Yadav, all have claimed to have witnessed the occurrence and have given the statement in consonance with the prosecution case. As PW-1 Rajmani Devi has stated in paragraph 2 of her examination-in-chief that the accused persons had arrived at her field and entered into scuffling with her husband and son and they also assaulted them, but she has not stated about assaulting the victims by means of lathi and garasa as per the prosecution case and as stated by the informant (PW-4) and PW-2. PW-3 Renu Devi has stated in paragraph 11 of her cross-examination that when she arrived at her field, her husband had fallen senseless by that time. Her father-in-law was in sense, but his both hands were broken, and he was unable to get up. The aforesaid statement of PW-3 Renu Devi indicates that she had arrived at the place of occurrence after sustaining injury by the aforesaid victims. Her father-in-law was in sense, but his both hands were broken, and he was unable to get up. The aforesaid statement of PW-3 Renu Devi indicates that she had arrived at the place of occurrence after sustaining injury by the aforesaid victims. i.e. after culmination of the occurrence and she had not seen the aforesaid occurrence of assault on the victims at the hand of the appellants. Moreover, in paragraph 13 of her cross-examination, she has stated that first of all she had arrived at the place of occurrence, then her gotni and mother-in-law had arrived there after hiatus of one minute. PW-1 Rajmani Devi happens to be mother-in-law of PW-3 Renu Devi. Thus, the aforesaid statement of PW-3 Renu Devi also goes to rule out witnessing of the occurrence by PW-1 as well. PW-1 Rajmani Devi has stated in paragraph 6 of her cross-examination that none of the villagers or her family members had arrived at the place of occurrence. The aforesaid statement of PW-1 also goes to rule out arrival of PW-3 and other witnesses at the Place of occurrence and witnessing of occurrence by them. 15. Pw-7 Brijnandan Yadav who happens to be brother of the informant has stated in paragraph 2 of his examination-in-chief itself that when he arrived at the place of occurrence, the accused persons had made the injured fallen in the field. In paragraph 8 of his cross-examination, he has further stated that before his arrival at the place of occurrence, his villagers had intervened the occurrence. Ramadhar, Binay, Ganesh had arrived there earlier to him and he found his father and brother fallen on the ground. The aforesaid statement of PW-7 goes to indicate that he arrived at the place of occurrence after culmination of occurrence and had not witnessed the occurrence as when he arrived there, he found his father and brother fallen on the field. He has stated that he had arrived there later to the villagers, namely, Ramadhar, Binay, Ganesh and Others, who had intervened the occurrence. But, as per the account of PW-1 Rajmani Devi, none of the villagers and her family members had arrived at the place of occurrence. Thus, the aforesaid statement of PW-1 and PW-7 also conjointly indicates him not the eye witness of the occurrence. 16. But, as per the account of PW-1 Rajmani Devi, none of the villagers and her family members had arrived at the place of occurrence. Thus, the aforesaid statement of PW-1 and PW-7 also conjointly indicates him not the eye witness of the occurrence. 16. Pw-8 Garjan Yadav though has claimed to have arrived at the place of occurrence and witnessed the occurrence but he does not happen to be eye witness of occurrence as as per account of PW-1 Rajmani Devi, none of the villagers had arrived at the place of occurrence at the time of occurrence and PW-5 Ramadhar Yadav has candidly stated in paragraph 1 of his examination-in-chief that at the time of occurrence, he was not present at his house. He had listened about wrangle between his gotiyas in which Harihar and Sanjay had sustained injury. In paragraph 5 of his cross-examination, he has also stated that he had not seen the occurrence rather listened, but the said witness has also not disclosed the identity and source of information and none has corroborated the factum of divulgence of the occurrence to him. Hence, the aforesaid statement of said witness is not admissible in evidence even as hearsay witness. 17. From perusal of testimony of PW-2 Harihar Yadav and informant PW-4 Sanjay Yadav, it appears that as per their account, they had sustained injury on their heads and both hands of Harihar Yadav were fractured which means that PW-2 had sustained three injuries, one on his head and one on each hand, and the informant had sustained only one injury i.e. on his head. But, PW-1 Rajmani Devi has stated in paragraph 6 of her cross-examination that the occurrence of assault took place for four hours and as per the prosecution case, the appellants were five in numbers and they were assaulting the victims by means of lathi and garasa indiscriminately. The aforesaid aspect of the case and account of witnesses creates serious doubt about the prosecution case as had the occurrence taken place for around four hours and the accused persons were five in numbers and assaulted the victims by means of lathi and garasa for four hours, the victims would have sustained several injuries including the grievous injury on their person, but the victims had sustained only three and one injury respectively in the aforesaid occurrence. The aforesaid statement of witnesses and aspect of the case also creates serious doubt about sanctity of the testimony of PW-2 and PW-4 though they happen to be injured witnesses of the case. 18. From perusal of record, it appears that FIR was lodged on the basis of written report of the informant on the same date of occurrence, but PW-1 Rajmani Devi has stated in paragraph 3 of her examination-in-chief itself that both the injureds had fallen senseless. They were rushed to the Tekari hospital by lifting and they were treated there and as per account of PW-2 Harihar Yadav as given by him in paragraph 3 of his examination-in-chief they were treated in Tekari hospital and they remained there for 5-6 days which means that the informant and his father both fell senseless sustaining injury and they were rushed to the Tekari hospital direct from the place of occurrence and remained there for 5-6 days. Then million dollar question arises as to how the informant lodged the case on the basis of written report on the date of occurrence itself within 4-5 hours of the occurrence while he was senseless by that time which goes to create serious doubt about the prosecution case and sanctity of the F.I.R. Moreover, informant PW-4 Sanjay Yadav has stated in paragraph 17 of his cross-examination that he had not got written written report as he was writhing in pain. The aforesaid statement of the informant also creates serious doubt about the prosecution case and sanctity of the F.I.R. 19. Pw-1 Rajmani Devi has stated in paragraph 6 of her cross-examination that there was dispute regarding partition of land between her husband and Ramchandra since before. PW-2 Harihar Yadav has stated in paragraph 6 of his cross-examination that the land dispute is pending with the accused persons since before and the informant PW-4 has stated in paragraph 12 of his cross-examination that a case under Section 107 was fought between them earlier. The aforesaid account of witnesses indicates that there is animosity between the parties 20. As per the prosecution case and witnesses account, the informant PW-4 and his father PW-2 sustained injuries on their head and his father on his both hands and his hands were fractured, they were rushed to Tekari hospital and got admitted there and they underwent treatment in the said hospital for 5-6 days. As per the prosecution case and witnesses account, the informant PW-4 and his father PW-2 sustained injuries on their head and his father on his both hands and his hands were fractured, they were rushed to Tekari hospital and got admitted there and they underwent treatment in the said hospital for 5-6 days. But, no injury report has been brought on record by the prosecution and doctor has also not been examined by the prosecution. Thus, inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence and for want of examination of doctor, the accused persons have been deprived of the opportunity of drawing the attention of the doctor towards the nature of injury sustained by the victims and for not bringing on record the injury report and examination of the doctor, the weapon used in the occurrence also, cannot be ascertained. 21. 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. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.