Criminal Appeal (SJ) No.170 of 1995 Against the judgement of conviction and order of sentence dated 21st August, 1995 passed by 2nd Additional Sessions Judge, Purnea in Sessions Trial No.186 of 1989. 1. SATYA NARAYAN YADAV @ SATTO YADAV & 2. UMESH YADAV @ UMESH KUMAR YADAV --------------Appellants. Versus STATE OF BIHAR---------------Respondent ------ For the appellants:- S/Sri Rakesh Kumar Sinha & Anuj Prakash, Advocates. For the State:- Sri Ajay Mishra,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present appeal is directed against the judgement dated 21st,August 1995 passed by learned 2nd Additional Sessions Judge, Purnea in Sessions Trial No.186 of 1989 by which the two appellants were found guilty of committing offence under Section 304II read with Section 34 IPC and by the order of sentence passed on the same day, the two appellants were directed to suffer rigorous imprisonment for ten years each. 2. The FIR of the case is based on the written report, Ext-4 of P.W.5, which as per P.W.5, was scribed by his cousin Guneshwar Yadav(P.W.5, paragraph-6). It was stated in Ext- 4 that one of the fields of the informant was 2 situated north of the Banmankhi Block Office and paddy crop was standing over it. Bijay Yadav, the deceased and the son of the informant, had gone to see the plot at 5 A.M. on 24.09.1984 and found that appellant Satya Narayan Yadav was grazing his paddy crops by two bullocks and three cows. Not only the deceased ousted the cattles from the field but drove them also to take them to the police station. The appellant Satya Narayan Yadav came and abused him. When the deceased had reached near the culvert situated west of the block headquarters and north of the Chowk the two appellants along with Jagdeo Yadav(since dead)came there and assaulted the deceased with lathi and rescued the cattles. 3. On the basis of the written report Ext-4, Banmankhi P.S.Case No.190 of 1984 under Section 323 IPC and Section 24 of the Cattle Trespass Act was registered and the same was investigated into which, ultimately, ended in submission of the chargesheet against three accused, namely, the two appellants and deceased accused Jagdeo Yadav. It appears that Jagdeo Yadav died before the trial was taken up and as such the two appellants were charged under Section 304/34 IPC. 3 4. There does not appear any definite defence taken by the appellants except that of their absence at the time of occurrence and plea of false implication due to various reasons. 5. In support of the charge, the prosecution examined as many as seven witnesses out of whom P.W.6 Ramkrishna Yadav was tendered. As regards other witnesses, P.W.2 Surya Narain Yadav was the only witness who gave eye witness account of the occurrence. Other witnesses, like, P.Ws.1, 3, 4 and 5 deposed not as an eye witnesses. However, P.Ws.4 and 5 stated before the court that they had been informed by P.W.2 Surya Narain Yadav about the occurrence and the manner in which the deceased Bijay Yadav had been assaulted by the accused persons and, accordingly, both P.Ws.4 and 5 had accompanied P.W.2 to the place of occurrence where they found Bijay Yadav lying on the ground and they along with others picked him up to take him to Dr. Amrendra Kumar (not examined)from whose clinic the deceased was taken to Patna and was admitted in the clinic of Dr.Ramesh Chandra. The records of treatment by Dr. Ramesh Chandra have been marked Ext-2 series. The witnesses have further stated that Bijay Yadav died in Patna 4 and it appears that his dead body was brought to Purnea where Court witness no.1 Dr. Indra Prasad Bhagat held post-mortem examination upon it and submitted report Ext-8. The Investigating Officer was not examined. 6. The learned trial Judge relied upon the solitary evidence of the eye witness, P.W.2 Surya Narain Yadav by noting that he was not inimical to the accused persons, that he had given a good and acceptable reason for his presence at the place of occurrence and further that his evidence was inspiring confidence and, thus, went on to convict the appellants on the basis of the solitary evidence of P.W.2 holding that the charge under Section 304 part-II/34 IPC was duly established by evidence adduced on record. 7. It was contended by Sri Rakesh Kumar Sinha, learned counsel appearing for the appellants that there were some conflicting statements made by the witnesses as regards their presence or presence of other witnesses at the place of occurrence. It was contended that the FIR cited Minti Goswami as a witness but Minti Goswami was not deposing as an eye witness nor the court was placing reliance upon 5 his evidence for drawing sustenance to the charges. It was contended that the solitary eye witness had stated that the deceased had become unconscious but P.W.4 Yadunandan Yadav who was the full brother of the deceased claimed having come to the place of occurrence with P.W.2 to find the deceased conscious and talking and that he further pointed out to P.W.4 the names of the accused persons. It was also contended that the investigating officer was not examined and as such there was no evidence on the genesis of the occurrence. 8. Sri Ajay Mishra, learned counsel appearing for the State has submitted that P.W.2 has been relied upon on account of inspiring confidence of the court below who had the occasion of seeing him in the witness box and that the record made by the learned trial Judge about his trustworthiness must not be rejected or be doubted. It was contended that the reason for assaulting the deceased had been established and the manner of assault stated by P.W.2 gets corroborated by the evidence of court witness no.1 Indra Kumar Bhagat and the contents of Ext- 8 the postmortem report. It was contended that the description of the state of skull of the 6 deceased by C.W.1 Dr. Indra Kumar Bhagat clearly exhibited the intent and knowledge of the appellants of being aware that what it could have been the ultimate result of the assault they had hurled upon the deceased. It was, as such, contended that the judgment and order of sentence do not require interference from this Court. 9. Trustworthiness of a solitary eye witness has been recognized as sufficient material for basing conviction by courts. Trustworthiness is the hallmark and that is to be judged from one solitary aspect of the deposition of such a witness when he is found withstanding the test of cross-examination and thereby, his evidence in its totality does not get eroded so much so as to lose its impact and value. This is the solitary hallmark to adjudge the trustworthiness of such a witness, if he has come to claim that he had seen the particular occurrence. The evidence of a witness gets tainted on account of many circumstances. If the witness appears deeply inimical and if he is found motivated to make false statement or appears purposely introducing facts which were very material as regards the proof of charges 7 with the only motive of ensuring the conviction of the accused, then in that case, the evidence of such a witness has to be rejected. Other hallmark for rejecting the evidence of a witness could be the reason which the witness states before the court as regards his presence on or around the place of occurrence so as to seeing it. If the court finds that the witnesses have given a very convincing and purposeful reason for their presence on or around the place of occurrence, then it may be very difficult for the court to outrightly reject the evidence of such a witness. 10. As regards the evidence of P.W.2 Surya Narain Yadav, what I find from the record of his deposition, which is available on the trial court record in its original, is that the witness was tested very seriously by putting questions on all aspects of the occurrence. His presence was attempted to be impeached and for that purpose, certain questions were put to P.W.2 in paragraph-8 as regards the location of his field where the witness has claimed to go to see. The witness has stated that the field in which the accused persons were grazing the standing paddy crop was located 100 yards north- 8 west of his field. He was initially put a question as to what was the purpose of going so early to the field and P.W.2 stated that the grazing of crops by animals had become so rampant that he felt it wise to be at his field so as not to allow the field to be grazed(P.W.2 paragraph-9). As regards the grazing of the field in question, i.e., the field of the deceased, the witness was cross-examined in paragraph-10 and he has stated that the grazing was going on from before he had arrived at the place of occurrence and he had seen the animals grazing the crop in the field of the deceased. As regards the genesis and manner of occurrence, P.W.2 was tested by being put questions in paragraphs-11, 12, 13 and 14 and on perusal of the statements of the witness in those paragraphs, what I find is that Bijay Yadav initially raised hullah and, thereafter, he had started driving the cattles for taking them away and the witness stated following him. This does not appear an unnatural conduct of P.W.2 where the illegal grazing of crop by cattles could be so rampant and one dares takeing the step of taking the cattles into his custody so as to taking them to police station. The natural 9 curiosity arising out of such situations must make a person to follow the further events. When the deceased had reached near the culvert, P.W.2 stated the accused persons came there from their house so as to rescuing the cattle. 11. The learned trial Judge has noted and it is evident from the deposition sheet of P.W.2 also, that P.W.2 was an independent witness, having no alliance nor any illwill towards any one on either of the sides. He was, firstly, a person who had gone to safeguard his own crop and had become curious onlooker to the events which had taken place within his sight or which had to happen just thereafter. He does not appear to me motivated by any reason or ill-will to come into the witness box so as to deposing falsely for procuring a conviction against the appellants. These are some of the hallmarks, the court was identifying so as to placing reliance upon the evidence of P.W.2 and I fully endorse the approach of the trial court and uphold its views as regards the trustworthiness of P.W.2. 12. It is not that it could be said to be a case of solitary witness, it might be a case that others had not seen the occurrence of the real assault being administered to Bijay 10 Yadav, but all witnesses including Minti Goswami(P.W.1)and P.Ws.4 and 5 have stated that when they reached there, they found Bijay Yadav was lying on the ground in an injured condition. There might be some flaw as was pointed out by the learned counsel appearing for the appellants in the evidence of P.W.4 when he was stating that he found the deceased conscious and speaking, but it is too well-known to be pointed out that witnesses who are related to a deceased often, under some psychological pressure, make certain statements which are false and that they do only with a view to ensure that their evidence is not rejected from any angle of reasoning. May be that the real brother of the deceased, i.e., P.W.4 Yadunandan Yadav was over conscious while deposing in court below so as to introducing a rank false statement as regards the deceased being conscious and making the statements, but for that reason or on that account, the evidence of P.W.4 could not be rejected, firstly, because if he had been deposing falsely he could have projected himself as an eye witness. But, that he did not do it. He was simply telling the trial court that he was informed by P.W.2 about 11 the occurrence which fact is supported by P.W.2 Surya Narain Yadav and P.W.5 Singheshwar Yadav, the father of deceased and both P.Ws.4 and 5 stated that they accompanied P.W.2 up to the place of occurrence to find Bijay Yadav lying unconscious. P.W.3 Ramchandra Choudhary is not an witness on those facts which have been stated by P.Ws.1, 4 or 5 but had simply stated that he was at his welding shop which was situated at the Chowk, he saw P.W.2, P.W.4 and P.W.5 carrying Bijay Yadav and they took him to the clinic of Dr. Amrendra. There is no denial even by throwing a suggestion to any of the witnesses that Dr. Amrendra was not consulted initially. There is no denial further that Dr. Ramesh Chandra had treated the deceased at Patna and the deceased died there. Thus the evidence was considered holistically and concretely which proves that Bijay Yadav was assaulted and as such he succumbed to his injuries. 13. The injuries which were found by C.W.1 Dr. Indra Prasad Bhagat could sufficiently indicate as to how massive the blows had been. I could not go to the whole description as narrated by Dr. Bhagat while deposing in court as C.W.1 but could simply refer to the part of 12 his evidence that on opening the scalp durra and brain covering was massively laceration with haemotoma which was present at multiple places. C.W.1 was of the opinion that the death was due to massive fracture of skull leading to multiple brain injuries and further leading to shock and cardio-respiratory failure. Massive laceration and massive fracture of skull bone into multiple pieces could probably fit in the story told by P.W.2 that the appellants were dealing multiple lathi blows upon the deceased after having surrounded him near the culvert. 14. It is true that the investigating officer was not examined that gave a very sound reason for the learned counsel to submit that the genesis of the occurrence was not established. However, P.W.2 stated in paragraphs-9 and 10 that the standing crop in the field in question had been grazed by cattles belonging to the accused persons. He is very specific in paragraph-9 when he was pointing out the grazing was in an area of two and a half kathas. The investigating officer could also have been a witness to this fact as is the evidence of P.W.2. When he had seen the field and had estimated the area which had been grazed 13 by animals then the genesis appears established satisfactorily. 15. The deceased had arrived on account of the act of trespass committed by the accused persons by their animals to take them in custody. He had a right to take recourse to law after having driven the cattle so as to taking them to police station. The act of the accused persons had rescue the cattles could not be upheld. That probably gives the reason as to why the accused persons had assaulted the deceased as massively as was found by C.W.1 Dr. Indra Prasad Bhagat. The very act of rescuing the lawfully captured animals by the deceased could not be done lawfully and giving massive blows and further compounds the defence of the appellants as regards their plea of false implication or non-partition. 16. After having considered the evidence and after going through the reasons assigned by the learned trial Judge while recording the conviction and passing the sentence upon the two appellants I find that the same could have the only outcome which was reached by the learned trial Judge, and as such, there is no reason for interference by this 14 court in the impugned judgment and order of sentence. 17. In the result, the appeal fails and the same is hereby dismissed. The two appellants are on bail. Their bonds are cancelled and they are directed to serve out sentence, if remaining to be served. Patna High Court, Dated, the 20th of June, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)