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2018 DIGILAW 1736 (PAT)

Rikesh Kumar Yadav v. State of Bihar

2018-11-28

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. 1. 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 dated 06.03.2013 and order of sentence dated 12.03.2013 passed by learned Adhoc Addl. Sessions Judge-IV, Katihar in Sessions Trial no. 265 of 2005 arising out of Katihar P.S. Case No. 284 of 2003 whereby the learned trial court convicted the accused Ramawtar Yadav and Rikesh Kumar Yadav for the offence punishable under Section 323 of the Indian Penal Code and accused Nilesh Yadav for the offence punishable under Sections 323 and 307 of the Indian Penal Code and sentenced them to undergo S.I. for six months each under Section 323 of the Indian Penal Code and further sentenced accused Nilesh Yadav to undergo R.I. for five years and also slapped him with a fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for one year under Section 307 of the Indian Penal Code. 3. The factual matrix of the case is that Katihar P.S. Case No. 284 of 2003 was instituted under Sections 147, 148, 149, 323, 324, 307, 436 of the Indian Penal Code against accused Ramawtar Yadav, Nilesh Yadav, Kumar Rikesh, Pikesh and Sushila Devi on the basis of fardbeyan of Sanjit Kumar Yadav S/o Late Ram Kishun Yadav recorded by A.S.I. A.K. Ghosh on 13.06.2003 at 13:05 hours in the emergency ward at Bed no. 6 at K.M.C.H., Katihar with the allegation, in succinct that on 13.06.2003 at around 08:30-08:45 AM, he got information at Sahid Chowk, Katihar about brawl in his house. On the said information, he immediately rushed to his house and found that Ramawtar Yadav assaulted his brother Bhopal Yadav by means of bamboo and he was writhing in pain, then he reached out to Ramawtar Yadav to know the reason of assaulting his brother by him, whereupon Ramawtar Yadav, Nilesh Yadav, Kumar Rikesh, Pikesh and Sushila Devi assaulted him and his brother-in-law Joshi George by means of khanti and bamboo. Nilesh Yadav assaulted on the left side and on the left front of the head of Joshi George by means of khanti and made him seriously injured. Sustaining injuries, he fell senseless. Nilesh Yadav assaulted on the left side and on the left front of the head of Joshi George by means of khanti and made him seriously injured. Sustaining injuries, he fell senseless. Nilesh Yadav also made him injured by assaulting on below his right knee and left the scene extending threatening of their eviction from the village. The aforesaid occurrence took place due to torching his house at 07:00 AM and on quizzing by his brother about reason of torching the house, assaulting him by the aforesaid accused persons. The bone of contention is said to be that Ramawtar Yadav has got executed land illegally in favour of his wife, namely, Sushila Devi which is in his possession for 25-26 years and want to evict the informant and his family from the aforesaid property. During the course of occurrence, accused Ramawtar Yadav also sustained injury by khanti blow given by his son. Tuntun Yadav and others witnessed the occurrence. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against accused Ramawtar Yadav, Nilesh Yadav and Rikesh Kumar Yadav under Sections 341, 323/34 of the Indian Penal Code. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence under Sections 147, 323, and 307 of the Indian Penal Code 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 Addl. Sessions Judge-IV, Katihar for trial. 6. Charge against the accused Ramawtar Yadav, Nilesh Yadav and Rikesh Kumar Yadav was framed under Sections 323 and 307 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 six prosecution witnesses namely, Tuntun Kumar Yadav as PW-1, informant Sanjit Kumar Yadav as PW-2, Jitendra Kumar Yadav as PW-3, Joshi George as PW-4, Dr. Shambhu Kumar Singh, who had examined the victims as PW-5 and I.O. Ashok Kumar Ghosh as PW-6. In documentary evidence, the prosecution has also 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. Shambhu Kumar Singh, who had examined the victims as PW-5 and I.O. Ashok Kumar Ghosh as PW-6. In documentary evidence, the prosecution has also 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. The accused persons also examined one witness, namely, Uttam Chandra Sah as DW-1 by way of ocular evidence and filed and proved several documents by way of 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 vital contradiction between the prosecution case and testimony of the informant and testimony of witnesses inter se regarding the manner of occurrence, assailant and injury sustained by the victims. The aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence. It is further submitted that there is animosity between the parties as the Title Suit was fought between the parties, and the prosecution party was directed to vacate the property rented out to it by the accused persons preceding to the case under hand and due to aforesaid animosity, the prosecution has falsely implicated the appellants in the case. It is also submitted that counter case bearing Katihar P.S. Case no. 283 of 2003 has also been lodged against the prosecution party by the accused Ramawtar Yadav and in the said case, the informant and others were convicted. Two independent witnesses, namely, Tuntun Kumar Yadav and Jitendra Kumar Yadav examined in the case have also failed to corroborate the prosecution case and no other independent witness, who had arrived at the place of occurrence as per the witnesses account has been examined by the prosecution and no plausible and convincing reason has been assigned by the prosecution for their non-examination. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy, convincing 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 other witnesses have also corroborated the prosecution case. The ocular evidence 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 four material witnesses in the case, namely, Tuntukn Kumar Yadav as PW-1, Sanjit Kumar Yadav as PW-2, Jitendra Kumar Yadav as PW-3 and Joshi George as PW-4. Out of them, PW-2 happens to be informant and PW-4 is the brother-in-law of the informant and both are said to be injured of the case. 15. From perusal of testimony of the PW-1 Tuntun Kumar Yadav, it appears that he has made an abortive bid to support the prosecution case by giving statement in his examination-in-chief in consonance to the prosecution case, but from perusal of his testimony, it appears that the contradiction between the statement of the said witness given before the court and that given before the I.O. under Section 161 Cr.P.C. has been taken by the defence in paragraphs 5 and 9 of his cross-examination regarding witnessing of the occurrence of assault upon the victims at the hand of appellants by the said witness and I.O. examined in the case as PW-6 has also corroborated the aforesaid contradiction between the statement of the said witness given before the court and that given before him under Section 161 Cr.P.C. regarding aforesaid material aspect of the case. Thus, the said witness appears to have taken altogether different stand before the court regarding the aforesaid material aspect of the case and his testimony does not appear to be worth credence and reliable and it does not inspire my confidence to hold the conviction of the appellants relying upon the same. 16. From perusal of testimony of PW-3 Jitendra Kumar Yadav, it appears that he does not happen to be eye witness of the occurrence as the said witness in paragraphs 1 and 2 of his examination-in-chief has stated that at the time of occurrence, he was at his shop. His brother Tuntun Yadav advented on his shop and called Ramawtar Yadav and started discussing regarding organizing Panchayati, then he went to his house to attend the call of nature. On regressing from his house, he witnessed brawl between Ramawtar Yadav and Sanjit Yadav. Rikesh Yadav, Pikesh Yadav and Nilesh Yadav were also with Ramawtar Yadav. He intervened the said brawl and thereafter he left his shop after shutting it down. Again when he regressed to the place of occurrence, he found blood on the chowky. On quizzing, Suresh Yadav divulged him about sustaining head injury by brother-in-law of Sanjit Yadav. From perusal of the aforesaid testimony of the said witness, it appears that after intervening some sort of feud between both the parties, he had left his shop by shutting it down and when he again regressed at the place of occurrence, he had found only blood on the chowky and on quizzing Suresh Yadav, he learnt about sustaining of head injury by brother-in-law of Sanjit Yadav. He has not whispered about witnessing assault by means of khanti and lathi to Sanjit Yadav and his brother in-law Joshi George at the hand of the appellants in the occurrence which means that he has not witnessed the occurrence of assault upon the aforesaid two victims at the hand of the appellants. Though, he has stated that he learnt about sustaining head injury by brother-in-law from Suresh Yadav, but said Suresh Yadav has not come forward to corroborate the factum of divulgence of the aforesaid occurrence to the said witness. Hence, the aforesaid statement of the said witness is not admissible in evidence even as a hearsay witness for want of corroboration. 17. Hence, the aforesaid statement of the said witness is not admissible in evidence even as a hearsay witness for want of corroboration. 17. So far as the testimony of the informant PW-2 is concerned, as per the prosecution case, only Nilesh assaulted below the right knee of the informant by means of khanti. But, in quite contradiction to the aforesaid prosecution case, the informant has stated that besides assaulting on his right knee by means of khanti by Nilesh, said Nilesh and his brothers also assaulted on his left temple. As per the prosecution case, Nilesh gave khanti blow on the left side and on the left front of the head of his brother-in-law, namely, Joshi George. But, in quite contradiction to the aforesaid prosecution case, he has stated in his examination-in-chief that Nilesh Yadav assaulted on the right back and right front of the head of his brother-in-law Joshi George by means of khanti. The aforesaid vital contradiction between the prosecution case and the statement of the informant regarding the manner of occurrence, assailant and the injury creates serious doubt about the aforesaid testimony of the informant. Moreover, the aforesaid occurrence of assaulting the informant by Nilesh and his brothers has not been corroborated by his brother-in-law Joshi George PW-4, who was present at the place of occurrence at the time of occurrence along with the informant as he had not whispered about giving any assault to the informant at the hand of Nilesh Kumar Yadav and his brothers during the occurrence rather he has stated in paragraph 3 of his examination-in-chief that sustaining injury he fell senseless and regained sense in K.M.C.H. In paragraph 8 of his cross-examination, he has further stated that first of all, he was assaulted and after sustaining injury, he fell senseless and regained sense in the hospital. Moreover, as per the prosecution case and the statement of the informant, Nilesh gave two khanti blow on the head of Joshi George. But, in quite contradiction to the aforesaid prosecution case and the statement of the informant, said Joshi George PW-4 has stated in paragraph 2 of his examination-in-chief about giving only single khanti blow by Nilesh on his head inflicting bleeding head injury to him. The informant has not stated about assaulting on his head by Nilesh Yadav by means of lathi. The informant has not stated about assaulting on his head by Nilesh Yadav by means of lathi. But, in quite contradiction to the aforesaid statement of the informant, said Joshi George has stated in paragraph 2 of his examination-in-chief that sustaining injury when he fell down, brothers of Nilesh gave lathi blow on his head. 18. As per the prosecution case and account of the informant, Nilesh Yadav gave khanti blow on his right knee. But, from perusal of the injury report and the testimony of the Dr. Shambhu Kumar Singh PW-5, it appears that doctor has found abrasion on the lateral aspect of right knee of the informant, simple in nature caused by hard and blunt substance. As per the prosecution case and the statement of the informant, Nilesh Yadav gave two khanti blow on the head of the informant, but doctor has found one lacerated cut injury over occipital area of scalp and lacerated injury on the frontal area of scalp and haematoma on occipital area all simple in nature caused by hard and blunt substance, which means that the doctor has not found any injury on the person of the aforesaid victims inflicted by means of khanti i.e. sharp cutting weapon rather by hard and blunt substance. Thus, the aforesaid inconsistent ocular testimony of the prosecution also does not stand corroborated by the medical evidence. 19. The informant PW-2 has stated in paragraph 13 of his cross-examination that Niranjan Yadav, Suresh Yadav, Vibhishan Yadav, Parmanand Yadav and Kailash Paswan had also witnessed the occurrence and PW-4 Joshi George has stated in paragraph 7 of his cross-examination that several persons were present at the place of occurrence. But, the aforesaid witnesses as named by the said witnesses, who happen to be eye witness of the occurrence have not been examined by the prosecution and no plausible and convincing reason has been assigned by the prosecution for their non examination. Hence, adverse inference is drawn against the prosecution and it creates serious doubt about the prosecution case. 20. Informant PW-2 has stated in paragraph 17 of his cross-examination that profuse blood had fallen on the earth from the head of Joshi. It was also fallen on his jeans pant and on the pant of Joshi. Hence, adverse inference is drawn against the prosecution and it creates serious doubt about the prosecution case. 20. Informant PW-2 has stated in paragraph 17 of his cross-examination that profuse blood had fallen on the earth from the head of Joshi. It was also fallen on his jeans pant and on the pant of Joshi. PW-3 Jitendra Kumar Yadav has stated in paragraph 2 of his examination-in-chief that when he regressed at the place of occurrence, he found blood on the chowky at the place of occurrence. But, I.O. PW-6 has not found any blood either on the ground or chowky at the place of occurrence. Moreover, I.O. in paragraph 3 of his cross-examination has also stated that he has also not mentioned in the diary that as to whether the injured had displayed him blood stained attire and they had accorded him blood stained attire. Thus, from perusal of the aforesaid testimony of the witnesses, it appears that objective evidence in the case has not been brought on record by the prosecution which also creates serious doubt about the prosecution case. 21. As per the prosecution case itself, after sustaining injury Joshi George fall senseless. PW-1 Tuntun Kumar Yadav has also stated in paragraph 2 of his examination-in-chief that sustaining head injury Joshi fell senseless, he rushed him to K.M.C.H. and Joshi George has stated in paragraph 7 of his cross-examination that sustaining injury, he fell senseless and regained the sense in the hospital in the evening. But, from perusal of the injury report of the aforesaid victim and testimony of the doctor, I find that the aforesaid victim was examined by the doctor on the very date of occurrence at 09:15 AM i.e. in the morning. But, doctor has not reported about finding the aforesaid victim senseless at the time of his examination. Hence, the aforesaid aspect of the case also creates serious doubt about the prosecution case. 22. But, doctor has not reported about finding the aforesaid victim senseless at the time of his examination. Hence, the aforesaid aspect of the case also creates serious doubt about the prosecution case. 22. As per the prosecution case, there is land dispute between the parties as as per the prosecution case, the accused Ramawtar Yadav had got the land executed in favour of his wife Sushila Devi which has been in possession of the informant for the last 25-26 years and he wants to evict him and his family from the aforesaid property and informant PW2 has stated in paragraph-12 of his cross-examination that Title Suit is pending between him and the accused Ramawtar regarding another land. From perusal of the aforesaid prosecution case and testimony of the informant, it appears that both parties are on inimical terms. Animosity cuts both the edges, but in view of the inconsistent ocular evidence of the prosecution regarding manner of occurrence, assailant and injury, non-corroboration of the ocular evidence by medical evidence, non-corroboration of the occurrence by any independent witness of the occurrence, not finding any objective evidence at the place of occurrence by the I.O., false implication of the appellants at the hand of the prosecution party due to aforesaid animosity cannot be ruled out. 23. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and complicity of the appellants in the occurrence by adducing convincing, cogent, consistent and worth credence 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 all 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.