Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.429 of 2013 ====================================================== 1. Sanjai Yadav S/O Late Saryu Narain Yadav Resident Of Village Jagan Kitta, P.S. Dhoraiya, District Banka. 2. Sikandar Yadav S/O Late Lalit Yadav Resident Of Village Jagan Kitta, P.S. Dhoraiya, District Banka. 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioners : Mr. Subodh Prasad, Adv. For the State : Mr. T. N. Thakur, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 4 18-07-2013 Heard learned counsel for the petitioners as well as learned APP for the State. 2. Petitioners have challenged judgment dated 28.09.2004 passed by learned Chief Judicial Magistrate, Banka in G.R. Case No. 783 of 1996 whereby and whereunder petitioner Sanjai Yadav was convicted and sentenced for an offence punishable under Sections 325, 323 IPC while petitioner Sikandar Yadav was held guilty for an offence punishable under Sections 323, 324 IPC as well as judgment dated 27th of April, 2012 passed by 1st Additional Sessions Judge, Banka in Cr. Appeal No. 151 of 2004 whereby and whereunder conviction and sentence recorded against petitioner, Sanjay Singh for an offence punishable under Sections 325 IPC was set aside while R.I. for six months inflicted
Legal Reasoning
Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 2 by the learned trial court under Section 323 IPC was maintained. In likewise manner the sentence against petitioner Sikandar Yadav R.I. for six months under Section 323 as well as R.I. for two years under Section 324 inflicted by the learned trial court was maintained. Hence, this revision application. 3. Informant, Buddhu Yadav forbade Ambika Yadav on account of having his cattle lying in the field of informant and were grazing maize crops, an altercation took place during midst of which Sikandar Yadav, Sanjai Yadav, Pankaj Yadav armed with Lathi, Bhala and Garasa came and Sikandar Yadav gave him a Garasa blow on his head causing injury on account of which he became unconscious. Informant’s wife Sansaro Devi and sons, Rajendra Yadav, Anant Yadav as well as Krishna Yadav rushed to rescue him during course of which Sansaro Devi was given Bhala blow by Sanjai Yadav on her left hand while remaining assaulted his sons with Lathi. 4. On the basis of aforesaid written report, Banka P.S. Case No. 54/1996 was registered under Sections 341, 323, 324/34 IPC and after concluding the investigation charge-sheet was submitted under Sections 323, 341, 307, 325, 504/34 of the IPC and on account thereof the case was committed to the court of sessions wherefrom the case was sent to the court of learned Chief Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 3 Judicial Magistrate in terms of Section 228(1) (a) of the Cr.P.C. vide order dated 05.09.1997 where the trial commenced and concluded holding all the petitioners including Ambika Yadav and Pankaj Yadav who were let off on bond for maintaining peace and good behaviour for a period of one year in accordance with Section-4 of the provision of Offender’s Act, while against these two petitioners substantial sentence has been passed and found concurred at the appellate stage also though with certain modification. 5. It has been submitted on behalf of the petitioners that the successive judgments passed by the learned courts below are cryptic and during consideration thereof, wrong procedure has been adopted. It has also been submitted that none of the independent witnesses have been examined in this case. Not only this, the other sons of informant, namely, Anant Yadav and Krishna Yadav were not at all examined and the prosecution had not explained the same. It has also been submitted that right from beginning the prosecution insisted that all the sons namely, PW-1, Rajendra Yadav, Anant Yadav and Krishna Yadav (not examined) were assaulted at the hands of the accused, however, is not found supported with the evidence of doctor P.W.7 and in the aforesaid background, it has been submitted that there has been suppression Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 4 of real genesis as well as manner of occurrence. At present moment, it has also been submitted that from the evidence of DWs-1 and 2 coupled with the exhibits made on behalf of defence, it is apparent that on the same day and at same place the prosecution party had assaulted the accused persons and for that a counter case was instituted. It was the case of the defence that informant had laid down thorns on the road causing inconvenience to the mass in general for which protest was made on their behalf on account of which the prosecution party assaulted. The I.O. PW- 6 during examination-in-chief itself under paras-7 and 8 had found remittance thereof. That means to say the version of the defence was more probable than the prosecution version. 6. It has also been submitted that the prosecution knowingly and intentionally had suppressed the aforesaid theme although from the evidence of PW-3, Sansaro Devi, the presence of counter case has been admitted and on account thereof, it could basically be inferred that prosecution has not come with the clean hands and on the basis thereof, it was a fit case of acquittal. It has further been submitted that there is glaring defect persisting on the record on account of non appreciation of aforesaid admitted fact by the learned trial court as well as learned appellate court, therefore, the successive judgments should be struck down by Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 5 invoking revisional jurisdiction. 7. On the other hand learned APP opposed the prayer and while supporting the finding arrived at by the successive courts submitted that prosecution is not under obligation to explain each and every hypothesis so raised on behalf of defence. No injury report has been exhibited on behalf of defence to suggest that during course of so called scuffle as alleged the defence had really sustained injury at the hands of the prosecution party and in likewise manner, it has also been submitted that that the evidence of PW-6, the I.O. is not going to support the case of the defence. It has further been submitted that it is not the quantity rather quality of the evidence which matters while dealing with the criminal cases and from the evidence so adduced on behalf of prosecution, it is apparent that PWs 1, 2 and 3 have been consistent on the point of occurrence supported with medical evidence of PW-7 and by the objective finding of the I.O. PW-6. As such, the judgments impugned are fit to be confirmed. 8. Perused the record. From perusal of the record, it is apparent that all the accused persons including these two petitioners have been charged for an offence punishable under Sections 323, 325 and 504 of the IPC. 324 IPC is not a lesser offence of 325 of the IPC whereunder Sikandar Yadav has been Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 6 convicted and sentenced. Therefore, the conviction recorded by the learned trial court and approved by the appellate court on that very score are wrong and illegal. 9. So far conviction recorded for an offence punishable under Sections 323 of the IPC against petitioner Sikandar Yadav, it is evident that right from Ext-1, there is specific allegation against him that he had inflicted Garasa blow on the head of the informant, Buddhu Yadav (PW-2). Neither PW-1 nor PW-3 had asserted that Sikandar Yadav had inflicted injury or assault over their persons. None of the charges consists of the aid of Section 34 of the IPC, as such, individual liability, in the aforesaid background has to be taken into consideration. 10. Now coming to the allegation attributed against the petitioners Sanjai Yadav, it is apparent that he was alleged to have given Bhala blow over the person of PW-3, Sansaro Devi. From the evidence of PWs-1, 2 and 3 there is consistent version that Sansaro Devi had sustained Bhala injury at the hands of petitioner, Sanjai Yadav. PW-7 while examining PW-3 has found a lacerated wound 2”x1” on the forearm left side caused by hard and blunt substance. As such, though the charge stands for an offence punishable under Sections 323 IPC, the doctor had opined sustaining injury by hard and blunt substance but the fact remains Patna High Court CR. REV. No.429 of 2013 (4) dt.18-07-2013 7 that all the material witnesses PWs-1, 2 and 3 coupled with the written report (Ext-1) clearly suggests that PW-3 was a victim of Bhala blow which is a sharp pointed weapon. In case of inconsistency amongst ocular as well as medical evidence, preference has to be in favour of ocular evidence and on that score, it could be said that PW-3 had sustained Bhala injury. Unfortunately, no charge under Section 324 IPC is on the record and on account thereof, the charge under Section 323 of the IPC against petitioner, Sanjai Yadav is also found to be not substantiated. 11. Consequent thereupon, the findings recorded by the
Decision
learned successive courts are set aside. The petition is allowed. 12. Since the petitioners are in custody, they are directed to be released forthwith if not wanted in any other case. perwez (Aditya Kumar Trivedi, J)