Sakaldeep Yadav v. The State Of Bihar

Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 2 undergone by the appellants in course of trial was ordered to be set off and furthermore, in default of payment of fine, the appellants were sentenced to undergo three months each simple imprisonment. The learned Additional Sessions Judge also directed that rupees three thousand out of the aforesaid fine amount would be paid to the informant as compensation. No separate sentence under Sections 147/323 of the Indian Penal Code was awarded to the appellants.

2. On 28.05.1993 at about 01:00 P.M. informant Prithvi Kumar Yadav (P.W.3) gave his ferdbeyan to A.S.I of N.T.P.C. Police Station to this effect that on the same day at about 08:00 A.M. while he was going to attend his duty and reached near the gate of labour colony his co-villagers Sakaldeep Yadav, Chamak Lal Yadav, Kishore Yadav, Jaikant Yadav, Ritlal Yadav, Jairam Yadav, Hari Yadav, Manager Yadav and Mehi Lal Yadav came there and started abusing him. He forbade them to do so but Sakaldeep Yadav hurled one bhala blow which hit on his head as a result of which blood started oozing out from his head. The rest persons started assaulting him with lathi, danda, fists and slaps. He raised alarm which attracted Jagdish Yadav who came to his rescue but he was, too, assaulted by the aforesaid persons with lathi. He further stated that Chamaklal Yadav caught his hand whereas Kishore Yadav and Sakaldeep Yadav started pressing his neck. He again raised alarm which attracted Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 3 Indradeo Yadav and others who saved his life.

3. On the basis of aforesaid ferdbeyan, Kahalgaon P.S. Case No. 142 of 1993 under Sections 147, 148, 149, 323, 324, 307 and 504 of the Indian Penal Code was registered and on the same day, formal first information report under the above stated sections was drawn up against the aforesaid persons. The matter was investigated by the Investigating Officer and after completion of investigation, Investigating Officer submitted charge sheet for the offences under Sections 147, 148, 149, 323, 504, 307 of the Indian Penal Code against all the above stated persons. On being receipt of the charge sheet, cognizance was taken and the case was committed to the court of sessions, in usual way.

4. The appellants and six other accused were charged for the offences punishable under Sections 147, 307/149 of the Indian Penal Code. All the aforesaid persons denied the charges and claimed to be tried.

5. In course of trial, altogether, six prosecution witnesses were examined and the prosecution also proved the entire ferdbeyan along with signature of P.W.3 as Exhibit-1, injury report of P.W.3 as Exhibit-2 and formal first information report as Exhibit-3.

6. The statements of appellants and other accused persons were recorded under Section 313 of the Code of Criminal Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 4 Procedure in which they reiterated their innocence. No evidence was adduced by the appellants and other accused in support of their defence.

7. Learned trial court having relied upon the evidences adduced on behalf of the prosecution passed the impugned judgment of conviction and sentence order in the manner as stated above.

8. Learned counsel appearing the appellants challenged the impugned judgment of conviction and sentence order submitting that the finding of the learned trial court is erroneous and the learned trial court passed the judgment of conviction on the basis of surmises and conjectures. He further submitted that there was previous enmity between the parties but learned trial court failed to appreciate the aforesaid fact. He further submitted that Exhibit-2, the injury report of P.W.3, does not corroborate his statement and, therefore, the appellants were entitled to get the benefit of doubt but learned trial court could not appreciate the aforesaid fact in right perspective.

9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that not only P.W.3 but other prosecution witnesses also supported the factum of assault and the doctor found injury on the person of P.W.3 and, therefore, prosecution succeeded to Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 5 prove its case beyond all shadow of reasonable doubts.

10. As many as six prosecution witnesses were examined. Out of the aforesaid prosecution witnesses, P.W.1, Awadhesh Pd. Yadav, P.W.2, Indradeo Yadav and P.W.4, Jagdish Yadav are witnesses on the point of assault and they claimed themselves to be an eye witness of the alleged occurrence. P.W.3 is informant of this case. P.W.5, Rajendra Yadav has been declared hostile and stated that nothing was happened in his presence nor he had made any statement before the police.

11. P.W.6 is doctor who stated that on 28.05.1993 he was posted as doctor at Kahalgaon N.T.P.C. and on the same day, he examined P.W.3 and found following injuries on his person:- blunt injury to right elbow, abrasion on right hand, blunt injury to right forearm, cut injury on right ear and blunt injury on neck. This witness proved injury report as Exhibit-2. He admitted in his cross examination that injuries no. 1 to 4 were caused by fists, slaps and lathi whereas injury no. 5 might be possible by pressing the neck. He further admitted that he did not find any fracture on the person of the injured and, therefore, he did not give advice for X ray of the injuries. He further stated that injuries no. 1 to 4 were simple in nature but injury no. 5 was grievous in nature. He further admitted that he did not find any injury caused by pointed weapon on the person of P.W.3. Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 6 He further admitted that he did not mention this fact as to on which part of the neck of injured the injury was found. He further admitted that the above stated injuries are possible, if any person falls in his right direction from high place.

12. P.W.1, P.W.2, P.W.3 and P.W.4 stated that appellant Sakaldeep Yadav gave bhala blow causing injury on the head of P.W.3 but Exhibit-2, the injury report of P.W.3, shows that no injury of Bhala was found on the head of P.W.3. Moreover, P.W.6 admitted in his deposition that he did not find any injury caused by pointed weapon on the person of P.W.3.

13. Furthermore, P.W.1, P.W.2 and P.W.3 stated that appellants Sakaldeep Yadav and Kishore Yadav started pressing the neck of P.W.3 but P.W.4 stated that appellants Sakaldeep Yadav and Chamak Lal Yadav caught the hands of P.W.3 and only one Kishore Yadav started pressing his neck.

14. P.W.6 stated that blunt injury was found on the neck of the P.W.3 but he did not give any measurement of the aforesaid injury. This witness has neither stated about the length nor width of the aforesaid injury and furthermore, this witness neither advised for X ray of the aforesaid injury though he admitted that he did not find any fracture on the person of the P.W.3. Although, P.W.6 stated that injury no. 5 was grievous in nature but he did not give any Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 7 reason as to how he found the aforesaid injury grievous in nature. Furthermore, there is nothing in the statement of PW.6 or in Exhibit- 2, the injury report, to show this fact that injury no. 5 comes under the definition of grievous injury and, therefore, the statement of P.W.6 does not appear to be reliable and prosecution failed to prove this fact that any grievous injury was found on the person of P.W.3.

15. P.W.1 sated at para 17 of his cross examination that at the time of alleged occurrence Mihilal Yadav, Chamak Lal Yadav and Kishore Yadav were not carrying lathi in their hands whereas P.W.2 stated that except appellant, Sakaldeep Yadav, others were carrying lathi in their hands. This witness admitted that he is agnate of PW.3 and P.W.3 had filed case against the appellant, Sakaldeep Yadav prior to the present occurrence and the aforesaid case was lodged 10 to 12 years ago. PW.3 stated that after the occurrence when he regained his consciousness, he was taken to N.T.P.C. office where police came and recorded his statement. This witness proved his Ferdbeyan as Exhibit-1. He further stated that after recording his statement, he was taken to hospital where his treatment was done. He admitted in his cross examination that there was a proceeding under Section 107 of the Cr.P.C. between him and appellant, Chamak Lal Yadav. He also stated that he sustained bhala as well as lathi injury. There were four to five injuries on his person. Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 8 He also admitted that when having sustained injury he became unconscious, the accused persons were remained present there. He further admitted at para 18 of his cross examination that when the accused persons pressed his neck, he raised alarm and then the accused persons relieved him and after that he lost his consciousness. P.W.4 stated that he was cutting grass in labour colony on the alleged date of occurrence and saw the appellants and other accused having armed with lathi and bhala. He further stated that the appellant Sakaldeep Yadav gave bhala blow to P.W.3 and after that all the other accused assaulted him with lathi and having sustained injury he fell down on the earth and then his neck was pressed by one Kishore Yadav. He further stated that when he went to save the P.W.3 accused Jairam assaulted him with lathi and after that all the accused left the place of occurrence. He admitted that he is relative of P.W.3. He also stated that he was examined by the doctor but no injury report of this witness was produced by the prosecution before the trial court.

16. On perusal of above stated statements of prosecution witnesses, it would appear that there was no intervening circumstance to prevent the appellants to commit the murder of the PW.3 and the aforesaid fact is supported by the statement of P.W.4 who stated that after assault the appellants and other accused left the place of occurrence and apart from this, P.W.3 also admitted this fact Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 9 that when appellants, Sakaldeep Yadav and Kishore Yadav pressed his neck, he raised alarm and then the aforesaid appellants left him. Moreover, the allegation of pressing neck does not appear to be probable because it is not possible that two persons simultaneously would press the neck of a person. No doubt, the P.W.6 has found injury on the neck of the P.W.3 but as I have already stated that the aforesaid injury report does not inspire confidence to this Court because the aforesaid injury report was written by P.W.6 in very casual manner and he has not given any length or width of the injury said to be found on the neck of P.W.3. Furthermore, I find that only simple injuries have been found on the person of P.W.3 and, therefore, it can easily be said that the appellants and other accused had no intention to commit murder of the P.W.3. Although, it is true that to constitute an offence under Section 307 of the Indian Penal Code, the injury is not essential but in this case, it is specific case of the prosecution that appellants and other accused caused injuries to P.W.3 with intent to commit his murder but the injuries found on the person of P.W.3 do not suggest this fact that the aforesaid injuries were caused with an intent to commit the murder of P.W.3 and, therefore, it can easily be said that the appellants and other accused had no intention to commit the murder of P.W.3 and, thus, on the basis of aforesaid discussions, I am of the opinion that prosecution has Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 10 miserably failed to prove the charges under Sections 307/149 of the Indian Penal Code against the appellants and the learned trial court committed error in convicting the appellants for the offences punishable under Sections 307/149 of the Indian Penal Code.

17. So far as Sections 323/147 of the Indian Penal Code are concerned, almost all the material witnesses have supported the story of assault and also supported this fact that all the appellants and other accused had formed an unlawful assembly and in pursuance of the object of the aforesaid assemble they assaulted the P.W.3 and, therefore, I am of the opinion that prosecution succeeded to prove charge under Section 323/147 of the Indian Penal Code against the appellants and the learned trial court rightly convicted the appellants for the offences punishable under Sections 323/147 of the Indian Penal Code.

19. On the basis of aforesaid discussions, the conviction of the appellants under Sections 307/149 of the Indian Penal Code is set aside and the appellants are held to be guilty under Sections 323/147 of the Indian Penal Code and accordingly, they are convicted under the aforesaid sections.

20. So far as order of sentence is concerned, the appellants have been sentenced to undergo rigorous imprisonment for five years and fine of rupees two thousand each was imposed upon the Patna High Court CR. APP (SJ) No.251 of 2001 dt.05-02-2013 11 appellants under Section 307/149 of the Indian Penal Code but according to above stated discussions, the appellants have not been found guilty under Section 307 read with Section 149 of the Indian Penal Code and they have been found guilty only for the offences under Section 323 read with Section 147 of the Indian Penal Code. Admittedly, the other accused, who were found guilty under Section 323 of the Indian Penal Code, were released under Section 3 of Probation of offender Act after due admonition and, therefore, appellants are also released under Section 3 of Probation of Offender Act after due admonition.

21. Thus, on the basis of aforesaid discussions, this appeal stands dismissed with the aforesaid modification in sentence order. Patna High Court Dated 11-02-2013 SHAHZAD/N.A.F.R.