1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Govt. Appeal (SJ) No.7 of 2007 Against judgment of conviction and order of sentence dated 24.1.2007 passed by Additional Sessions Judge XI, Patna, in Sessions Trial No. 1251 of 1998. ===================================================== The State Of Bihar ... .... Appellant Versus 1. Ranjit Sao, son of Hariom Sao 2. Jhulan Yadav, son of Chhavinath Yadav 3. Lalan Yadav, son of Brahm Deo Yadav 4. Sukesh Yadav, son of late Jehali Yadav All residents of Yogipur Mohalla, P.S. Patrakar Nagar, Kankarbagh, District Patna . ... .... Respondents with Criminal Revision No. 144 of 2007 Dr.Brahma Deo Prasad, son of late Sajiwan Prasad, resident of Yogipur Mohalla, P.S. Patrakar Nagar( Kankarbagh), District Patna, at present, Advocate, Patna High Court, Patna. .... .... Petitioner Versus 1. The State Of Bihar 2. Ranjit Sao, son of Hariom Sao 3. Lalan Yadav, son of Brahma Deo Yadav 4. Jhulan Yadav, son of Chhavinath Yadav 5. Sukesh Yadav, son of late Jehali Yadav All residents of Yogipur Mohalla, P.S. Patrakar Nagar( Kankarbagh), District Patna .... .... Opposite Parties with Criminal Appeal (SJ) No. 286 of 2007 Against the judgment of conviction and order of sentence dated 24.1.2007 passed by Additional Sessions Judge XI, Patna, in Sessions Trial No. 1251 of 1998. ===================================================== 1. Jhulan Yadava, son of Chabbi Nath Prasad Yadav 2. Lallan Yadava son of Brahmdeo Yadav 3. Sukesh Yadava son of Jehadi Yadav All residents of lMohalla Jogipur, P.S. Patrakar Nagar, District Patna ... .... Appellants Versus The State Of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 318 of 2007 Ranjit Kumar Sao son of Shri Hari Om Sao, resident of Mohalla Yogipur, Police Station Patakar Nagar( Kankarbagh) Town and District Patna .... .... Appellant Versus 2 The State Of Bihar .... .... Respondents ===================================================== Appearance : (In G. APP. (SJ) No. 7 of 2007) For the Appellant : Shri Dilip Kumar Sinha, A.P.P.. For the Respondent/s Shri Shakeel Ahmad Khan, Sr. Adv. Shri Sajid Salim Khan (In CR. REV. No. 144 of 2007) For the Petitioner : Dr. Brahmdeo Prasad( in person) Shri Rakesh Kumar For the Opp. Parties : Shri Shakeel Ahmad Khan, Sr. Adv. (In CR. APP (SJ) No. 286 of 2007) For the Appellants : Shri Shakeel Ahmad Khan, Sr. Adv. For the Respondent : Shri S.N.Prasad, A.P.P. (In CR. APP (SJ) No. 318 of 2007) For the Appellant : Shri Shakeell Ahmad Khan, Sr.Adv. For the Respondent : Shri S.N.Prasad, A.P.P. ===================================================== CORAM: HONOURABLESHRI. JUSTICE DHARNIDHAR JHA (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The two Criminal Appeals, i.e., Cr. Appeal Nos. 286 of 2007 and 318 of 2007 preferred by the convicts of Sessions Trial No. 1251 of 1`998 as also Criminal Revision petition No. 144 of 2007 filed by the informant P.W.1 and the Govt. Appeal No. 7 of 2007 arise out of judgment dated 24.1.2007 passed by the learned Additional Sessions Judge XI, Patna, in the above noted Sessions Trial. They were heard together and are being disposed of by the present common judgment. 2. Appellant Ranjit Kumar Sao was the only accused sent up by the police on the basis of Ext.1, the fardbeyan of P.W.1 Brahmadeo Prasad. The three appellants of Cr. Appeal No. 286 of 2007 were not sent up for trial by the police. The informant, P.W.1, filed a complaint petition (Ext.2) and after an inquiry under Section 202 Cr. P.C. the three appellants, 3 namely, Jhulan Yadav, Lalan Yadav and Sukesh Yadav were summoned by the Chief Judicial Magistrate, Patna, and their case was also committed to the court of Sessions as a result of which they were tried together which, lastly, ended in the impugned judgment. 3. The fact of the case is that the informant, who was the Deputy General Manager of the Bihar State Co-operative Bank, was coming on 18.9.1996 at about 5.30 P.M. by his scooter from his office to his house situated at Village Yogipur. When he reached near the house of one Hariom Sao on the road he saw that appellant Ranjit Kumar Sao was standing there with other five-six friends of his. P.W. 1 identified the four appellants and could not identify the other two or three. All the accused came in front of the scooter of P.W. 1 who was forced to stop the two wheeler. As soon as the two wheeler was stopped, it is alleged, appellant Ranjit Kumar Sao dealt a fasuli blow on the informant on his face as a result of which the informant fell down. Appellant Ranjit Kumar Sao along with other appellants and their unknown companions, thereafter, dealt incessant fasuli blows on different parts of the body of P.W.1. The informant attempted to fend himself by raising his two hands as a result of which his hands were also injured and he kept rolling on the ground while the appellants and their companions continued giving blows with fasuli. 4. It is stated that the informant recollected himself, got up and went towards his house to save himself, but fell down in the verandah of his house completely soaked in blood. 5. The police, on receipt of information came there and picked up the informant and admitted him to the emergency ward of Patna Medical College Hospital. The informant stated that he was not fully conscious, rather was half conscious on 18.9.1996, as such, could not give his 4 statement on that day and after having regained his consciousness fully, he gave his fardbeyan ( Exrt.1). 6. It was stated by P.W. 1 that in the year 1993 the three appellants, namely, Ranajit Kumar Sao, Lalan Yadav and Sukesh Yadav teased a girl for which the informant had chastised them and that had resulted in the informant being assaulted by the above named appellants as a result of which P.W. 1 had lodged Kaakarbagh P.S.Case No. 414 of 1993. It was stated that the appellants were pressurizing him to compromise the case for which P.W.1 was not ready as a result of which the occurrence had taken place. The informant stated that while he was driving home by the two wheeler, Harshit Narain Singh ( not examined) was the pillion rider and he was present at the time of occurrence. 7. On the basis of Ext.1, the F.I.R. of the case was drawn up and the investigation was undertaken by D.W. 2 Inspector Rambriksha Rajak who on that date was the Officer of Patrakarnagar Police Station. D.W. 2 stated that he received a wireless message about P.W. 1 being assaulted by some persons and he moved to the place of occurrence with his mobile patrolling party and found P.W.1 in an injured condition and when he questioned him about the name of his assailants, he gave the name of appellant Ranjit Kumar Sao and further stated that he should be shifted to the hospital for treatment. D.W.2 stated that he put the injured on his mobile vehicle and brought him to P.M.C.H. for treatment. He took up the investigation on 18.9.1996 itself but recorded the fardeyan ( Ext. 1) of P.W.1 on 19.9.1996 and thereafter recorded the statement of P.W. 3, Nirmala Devi, the wife of P.W. 1 on 19.9.1996 who did not state that she had seen the occurrence nor did she name any of the accused persons. He questioned many persons, namely, Mahendra Kumar, Punia Devi, Padam 5 Singh and Harshit Naraian Singh (all not examined). The case was supervised by Dy.S.P. D.W. 1 and finding materials sufficient only against appellant Ranjit Kumar Sao, sent him up for trial. 8. In cross examination, D.W.2 stated that while he was shifting P.W.1 to P.M.C.H. he wanted to know from him the details of the occurrence, but P.W. 1 stated that he was not in a fit state of mind and health to make statement and it will be made later. D.W.2 remained in P.M.C.H. up to 10 P.M. and till then no one was coming forward to give the details of the occurrence as to how it had occurred. D.W.2 stated that whenever he questioned P.W.1, he always stated that one Ranjait Kumar Sao and some others of his neighbourhood had assaulted him with fasuli and, accordingly, he recorded the statement of P.W.1 in paragraph 2 of the case diary, but did not record the fardbeyan of P.W.1 nor did he direct recording of station diary entry as regards the statement of P.W.1 Brahmadeo Prasad about the name of only one accused, i.e., appellant Ranjit Kumar Sao. D.W.2 has further stated in paragraph 2 of his evidence that he remained in P.M.C.H. up to 10 P.M as indicated by him, but nobody came to give any statement and that he arrested appellant Ranjit Kumar Sao from his house in the same night. He came to P.M.C.H. early in the morning on 19.9.1996 and recorded the fardbeyan of P.W. 1. 9. On being admitted into the emergency ward of P.M.C.H., P.W.1 was examined by P.W.2 Dr. Vimal Mukesh, who was the Surgeon on duty in the surgical emergency Ward of P.M.C.H. on 18.9.1996 from 2 P.M. to 10 P.M. He found the following injuries on the person of Bahmadeo Prasad, P.W. 1: 1. Clean incised wound over the posterior aspect of left shoulder muscle deep 8” vertical and 6” horizontal, bleeding present. 2. Clean incised wound over the right chin 2” long extending inside the 6 oral cavity causing disfigurement of face. 3. Incised wound over the upper lip through and through on the right side 1 ½” long causing disfigurement. 4. Clean incised wound parallel to injury no.2” long, extending into the left chin causing disfigurement. 5. Clean incised wound on the left side of the neck 10” long bone deep. 1 blood vessel severed.- 6. Clean incised wound parallel to injury no.5 10” long X skin deep. 7. Clean incised wound over the right side of chest below the nipple 5” long muscle deep bleeding profusely. 8. Clean incised wound right upper chest 5” long, muscle deep. 9. Clean incised wounds on right hand (a) incised wound on the base of little finger (b) incised wound on right thumb 1” long (c) right palm upper part 3” long 10. Left hand incised wounds (a) left wrist posterior aspect 6” long extending into the palm. (b) Tips of forefingers except thumb. (c) Clean incised wound left palm upper part 1” long 11. Clear incised wound on the forehead four in number each 1” long, bone deep 12. Clean incised wound below right eye 3” long muscle deep 13. Clean incised wound over the right ala of nose 1” long through and through causing disfigurement. In the opinion of P.W.2, injury nos. 2,3,4 and 13 ere grievous in nature on account of causing disfigurement of face of P.W.1. Injury nos. 5 and 6 were endangering life of P.W.1, as may appear from the very descriptions of those injuries and injury nos. 1 to 5 and 5 to 10 were simple in nature. However, all the injuries were caused by sharp cutting weapon, may be by a fasuli. Thus, there could be no doubt that injuries which were caused to P.W.1 were really dangerous to life individually and cumulatively as well. 10. In support of its case, the prosecution examined four witnesses which included the informant (P.W.1), his wife (P.W.3), the Doctor,(P.W.2) who examined P.W. 1, whose evidence I have just discussed and, lastly, Shri N.K.Agrawal, who was the Judicial Magistrate on the date of occurrence in civil courts, Patna, and was undisputedly residing as a tenant on the first floor of the house of P. W.1. I have already noted the evidence of the Investigating Officer of the case. 7 Besides, the Deputy Superintendent of Police, who was the Supervising Officer, i.e., D.W. 1, namely, Smt. Sangita Kumari was also examined. 11. It was contended by Shri Shakeel Ahmad Khan, learned counsel appearing on behalf of the appellants by referring to the evidence of witnesses that the first statement which was given to the police by P.W.1 was not containing any name except that of appellant Ranjit Kumar Sao. It is not that P.W.1 was not in a position to make statement as the evidence of the Investigating Officer clearly indicates that he talked to him on way to P.M.C.H. and repeatedly asked him to divulge the details of occurrence but he was not doing it. The evidence of the Doctor does not indicate that he had lost his consciousness and was not in a position to make any statement and regained his consciousness to speak and then only it was possible to record his fardbeyan by the police. It was contended that in fact, the informant was consulting his Advocate as he appears admitting in context to filing of the complaint petition for roping in the accused persons. It was contended that as a matter of fact even appellant Ranjit Kumar Sao was not the assailant of the informant and he had falsely been roped in the case. Contention also was that Harshit Narain Sigh who was allegedly the pillion rider on the same scooter by which P.W.1 was coming to his house, was not examined nor Padam Narain Singh who was also one of the tenants with P.W. 4 N.K.Agrawal, came to support the prosecution case. None of the persons of his neighbourhood who are said to have seen the occurrence had come forward to support any part of the occurrence. P.W. 3 Nirmala Devi, wife of P.W.1 could never be an eye witness as could be the case with P.W. 4 which was further compounded by not naming the three appellants other than appellant Ranjit Kumar Sao by the informant at the earliest and on repeated questioning. 8 12. Shri Brahmadeo Prasad, who was the informant of the case and who after having retired from service appears being enrolled as an Advocate, is practicing as an Advocate, appears in support of the Criminal Revision petition filed by him and made submissions himself. It was contended by Shri Prasad that it was not necessary to mention the names of the prosecution witnesses in the F.I.R. for making them competent witnesses and non-mentioning of the name of a witness could not make his evidence unworthy of credence. In support of his contention Shri Prasad referred to a decision reported in 2003(3) P.C.C.R. 142(SC) Raj Kishore Jha Vs. State of Bihar& Ors. Shri Prasad was contending that the police was dishonest and did not honestly investigate the case and that appears admitted by D.W.2 in paragraph 9 when he stated that he was directed by the Supervising Officer to submit charge sheet in respect of solitary appellant Ranjait Kumar Sao and while he was recording the fardbeyan, he did not make any inquiry from the informant as to why he was naming four persons in spite of having named only one accused Ranjit Kumar Sao in the first instance( D.W.2 paragraph 19). It was further contended that the Investigating officer did not approach Shri N.K. Agrawal, Judicial Magistrate, for recording his statement nor did he seize his blood stained clothes in spite of there being a direction from D.W.1, the supervising authority. It was contended that the witnesses were competent and they fully supported the prosecution story and, as such, the charges against all the accused persons stood established and the manner of occurrence together with the injuries which were found by P.W.2 indicated that the sentence passed upon the appellants was too lenient to be countenanced. 13. The learned Additional Public Prosecutor who appeared in the 9 two criminal appeals, namely, Shri S.N.Prasad submitted that initially not naming the three appellants except appellant Ranjit Kumar Sao might be on account of serious condition of the informant who was badly injured. Shri Prasad further contended that the investigation was defective and improper and for that the prosecution has never to suffer. Submission was that the conviction of the appellants was proper. 14. Shri Dilip Kumar Sinha, learned Additional Prosecutor appearing on behalf of the State in Govt. Appeal No. 7 of 2007(S.J.) urged that the sentence was inadequate in terms of the manner of occurrence and the injuries, as such, it required that at least life imprisonment could be the proper sentence. 15. While making submission Shri Shakeel Ahmad Khan, learned Senior counsel for the appellants was addressing on non-proof of the motive which was the act of teasing by appellants Ranjit Kumar Sao, Lalan Yadav and Sukesh Yadav, the three accused for which Kankarbagh P.S.Case No.414 of 1993 was registered. It appears admitted by the informant P.W.1 in his evidence, as may appear from paragraph 10, that the girl who had been teased had never complained to him nor had she been examined in the case. As such, the motive which was alleged against the appellants to hold them guilty appears not correct. The three appellants, namely, Ranjit Kumar Sao, Lalan Yadav and Sukesh Yadav were of course convicted on account of non-proof of the initial story of the prosecution regarding teasing of the girl, but the learned Magistrate was of course convicting the appellants and was releasing them under Section 360 Cr. P.C. as may appear from Ext. A, the copy of judgment delivered in that case. It was true that the judgment was passed subsequently but it has been admitted by P.W. 1 himself that after he was being pressurized 10 for compounding the offence for which he had filed the above noted Kankarbagh P.S.Case No.414 of 1993, he did not lodge a complaint to anybody about being pressurized to withdraw the prosecution. This fact has been admitted by P.W.1 in paragraph 10. Thus, what is found from the evidence of P.W.1 in paragraph 10 is that the fact that the appellants could be pressurizing him for withdrawing Kankarbagh P.S. Case No. 414 of 1993 appears not satisfactorily established and, as such, the motive for commission of the offence appears not established. 16. In a case of direct evidence it is not necessary for the prosecution to allege a motive. However, if it is alleged that any particular motive could have impelled the accused persons to commit the offence, then the prosecution was required to establish motive for commission of the offence also as any other fact. If I go by that particular principle, then it could be said that there is a major defect in the prosecution case. But, I find that there were as many as thirteen injuries recorded by P.W. 2 on the person of P.W.1 out of which at least two injuries were found endangering life and four others, like injuries no. 2,3, 4 and 14, were opined to be grievous in nature. At lest P.W. 1 had come forward to support the case, as such, it does not appear prudent in the present facts of the case, that ignoring the direct evidence the judgment be set aside merely on non- proof of the motive. 17. P.W. 1 has stated that while he was coming from his office and when he reached the house of one Hariom Sao, the accused persons who were standing there came in front of the scooter, compelling the informant to stop it. Appellant Ranjit Kumar Sao dealt a fasuli blow on the face of the informant as a result of which he fell down and thereafter all the accused persons dealt incessant blows with fasuli upon P.W.1. P.W.1 stated that he 11 raised his hands in his defence and his fingers were also cut. These injuries were found by P.W 2, the Doctor, as noted at Serial Nos. 9 and 10 of the injury report. P.W.2 was finding the palm and thumb of either of the hands of P.W. 1 bearing incised wounds. Even in absence of any evidence that the informant was raising his hands to fend himself, it could ordinarily be presumed that any one who was so badly brutalised by dealing incessant blows with such dangerous weapon like fasuli - which is a sharp cutting weapon used by toddy-tapers in cutting the palm trees for dripping toddy- one could be making all efforts to ward off of those blows which could have been inflicted upon him. This is the reason that the injuries were spread over right from the face of the informant up to his legs. There could not be any doubt as may appear from the evidence of P.W.1 alone that he was badly brutalized and was clearly intended to be killed by his assailants. There could not be any escape from that conclusion which appears from the evidence of P.W. 1. 18. However, as regards the evidence of P.Ws. 3 and 4 Smt. Nirmala Devi and Shri N.K. Agrawal, the Court finds that it is really not acceptable that Shri N.K. Agrawal, Judicial Magistrate, who was a tenant residing on the upper floor of the house of P.W. 1 could have seen the occurrence. Both P.Ws. 1 and 3 have stated that after hearing the cries of the couple, i.e., P.Ws. 1 and 3, Shri N.K.Agrawal and Padam Singh who were the tenants living up-stairs rushed down to find P.W.1 lying injured in the Verandah. This fact was stated by P.Ws 1 and 3 themselves. P.W. 3 Smt. Nirmala Devi was stating in paragraph 1 of her evidence that after her husband being assaulted and injured and came to his house fully soaked in blood, she gave a call to Patrakarngar Police Station but did not name any one in that information because she was wailing and weeping 12 which attracted N.K.Agrwwal (P.W. 4) and another tenant Padam Singh (not examined). The above fact has again been stated by P.W.3 Smt. Nirmala Devi in paragraphs 8 and 12 of her evidence, thus, making it quite clear that Shri N.K.Agrwal could have come down stairs at the verandah of the house of P.W.1 and P.W. 3 after having heard the cries of P.W. 3 who was crying after her husband had reached her house. Shri N.K.Agrawal did not say that he himself had seen the occurrence. He has also stated as may appear from the very first paragraph of his evidence that he heard the sound of weeping and wailing coming from the ground floor and when he came out, he found that P.W. 1 Brahmadeo Prasad was badly injured and he was bleeding from the injuries and when he made inquiries P.W.1 stated the names of the accused persons. But, that evidence of P.W. 4 that P.W. 1 had made statement before him also appears not truthful as it was admitted by P.W. 4 that the police could not come to record his evidence and further that he waited for the police to come to him for recording his evidence and he never felt going to the police himself for giving his statement informing it to record his statement.. This statement appears in the evidence of P.W.4 in Paragraphs 7 and 12. D.W.2 Inspector Rambriksha Rajak, who investigated the case stated in paragraph 7 of his evidence that he never recorded the statement of Shri N.K.Agrawal, Judicial Magistrate. In the light of the admitted fact that P.W.4 N.K.Agrawal had never given statement before the police, his evidence appears of no use and in fact is inadmissible. As such, his claim that he was told by P.Ws. 1 and 3 the names of the assailants appears not a material fact. 19. As regards the evidence of P.W. 3 Smt. Nirmala Prasad, she has claimed to be the eye witness to the occurrence by stating that while 13 she was taking a stall in her campus near her grill gate, she saw her husband being assaulted and injured. However, the criticism on her evidence is that she was not named in the F.I.R. and that was indicative of the fact that she had not witnessed the occurrence. The argument on behalf of the informant and the