CRIMINAL APPEAL No.294 OF 1993 Against the judgment of conviction and order of sentence dated10th September, 1993 in Sessions Trial No. 568 of 1985/95 of 1986 by Sri Banwari Lal Srivastava, 5th Additional Sessions Judge, Gaya. ********* 1. BIGAN YADAV S/O LATE BUDHAN YADAV 2. MOTI YADAV S/O LATE BUDHAN YADAV 3. CHANDRADEO YADAV @ CHANDER YADAV S/O MOTI YADAV 4. CHANDESER YADAV @ CHANDESHWAR YADAV S/O BIGAN YADAV 5. BAUDH YADAV @ BODH YADAV S/O BIGAN YADAV ALL RESIDENT OF VILALGE- DAHOOR, P.S.- KONCH DISTRICT- GAYA …………………………………………….. APPELLANTS Versus STATE OF BIHAR ……………………………….RESPONDENT ************* For the Appellants :- Mr. Dhirendra Kumar Sinha, Advocate For the State :- Mr. Ali Mozaffar, APP ******************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. The above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 10.9.1993 passed by the learned 5th Additional Sessions Judge, Gaya in Sessions Trial No. 568 of 1985/95 of 1986 whereby all the appellants have been convicted under sections 304 Part I of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment of eight years. The appellants have further been 2 convicted under section 147 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three months. Further the appellant Baudh Yadav @ Budh Yadav has been convicted under section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant Chander Yadav @ Chandeshwar Yadav has further been convicted under section 323 IPC and has been sentenced to undergo rigorous imprisonment for two months. It was ordered that all the sentences would run concurrently. Prosecution case relates to an occurrence dated 17.6.1984 at about 10.30 A.M. when the informant’s cousin Mungeshwar Yadav had called a Amin, Gopal Yadav, for measuring a piece of land, then at that very time, the accused persons having lathis in their hands forming a mob came over the land and obstructed the measurement. Informant’s cousin Mungeshwar Yadav asserted that the measurement would be done by Amin then an altercation took place between the accused and the informant’s cousin. Thereafter, accused persons assaulted Mungeshwar and informant with lathi. Kheman Yadav son of Anoop Yadav, Ram Pravesh Yadav son of Ghanshyam Yadav intervened but they also received assault at the hands of the accused persons. Witnesses Mungeshwar Ravidas, Nepali Ravidas and Ram Baran Ravidsas witnessed the occurrence. After these happenings the informant and others went to the District Board Hospital, Ismailpur for their treatment. In the afternoon of 17th June, 1984 the statement (Ext-1) of the informant was recorded by 3 the A.S.I. R. K. Singh of Konch Police Station which has resulted in formal FIR (Ext-4) under sections 147, 323 of the Indian Penal Code. In course of investigation Mungeshwar died in the Anugrah Narayan Magadh Medical College Hospital, Gaya. After receipt of the post mortem report and injury reports of other accused persons, Chargesheet was submitted under sections 147, 148, 149, 323, 325, 307 and 304 of the Indian Penal Code against the appellants and one Budhan Yadav who died when the trial was pending before the court concerned. After submission of Chargesheet cognizance was taken and the case was committed to the court of Sessions where charges were explained to the accused persons. They pleaded not guilty and preferred to face the trial. Their defence was of false implication and also that at 10.00 AM on 17th June, 1984 the prosecution party armed with lathis, Bhala and Garansa pounced upon the house of the accused Chandradeo Yadav. Baleshwar Yadav assaulted with Garansa on the head of Mungeshwari Devi, Nathun Yadav assaulted Budhan Yadav with Bhala. Other accused persons were also assaulted. Persons have received injuries at the hands of the accused persons. Chander Yadav and other injured persons went to District Board Hospital, Ismailpur where fard-beyan was recorded at 1.00 P.M. on 17.6.1984 which has resulted into registration of FIR of Konch P.S. case No. 72 of 1984 under sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. Injured persons were examined and injury reports (Ext-E series) were issued. In that case also 4 Chargesheet (Ext-C) was submitted. Before the trial court the prosecution has examined 11 witnesses in support of its case. They were Nepali Ravidas (PW 1), Mungeshwar Ravidas (PW 2), Ram baran Ravidas (PW 3), Kheman Yadav (PW 4), Ram Pravesh Yadav (PW 5), Gopal Yadav (PW6), Balkeshar Yadav (PW 7), Dr. M. K. Singh (PW 8), Dr. Basant Kumar Singh (PW 9), Mansoor Alam (PW 10) and Hirawan Yadav (PW 11). PWs 8 and 9 are the doctors who have conducted post mortem examination and examined other injured persons. PW 10 is the I. O. PW 6 is the Amin who has not deposed as eye witness. PW 11 Hirawan Yadav is the full brother of Mungeshwar Yadav who is also not an eye witness to the occurrence. The material witnesses are PWs 1, 2, 3, 4, 5 and 7. PWs 1, 2 and 3 are named witness of the FIR whereas the injured witnesses are PWs 4, 5 and 7. The case has resulted when an Amin named Gopal yadv PW 6 was called for measuring a land. At that very time, the accused variously armed came over the land and tried to obstruct the measurement which resulted in an altercation between the accused persons on one side and informant and his persons on other side. The land has been described by PW 7 namely, the informant who has stated that two khathas of land was situated to the east of Pind and his cousin Mungeshwar Yadav had got two khathas of land at the distance of two bamboos from the Pind. Accused Baudh Yadav has got land near that Pind. One Baijnath has got ten khathas of land there. PW 1 has stated that the 5 land which was to be measured is at a distance of four bamboos from his house and Mungeshwar has got his land close to it. According to the PW 1 when the accused were cutting the Pind then measurement had become a necessity. The measurement could not be completed because of altercation between two sides. The I. O. has found a Pind measuring 15 feet in width near the place of occurrence. According to him, to the west of the Pind the lane of Budhan Yadav is situated and towards the east of Pind the land of Kheman ydav was there. I. O. has found the grass grown near the Pind trampled. Attention was drawn towards the defence of the appellants that the Pind was not in dispute so genesis of the occurrence has not been proved. In this regard evidence of the witnesses are there. In paragraph 3 PW 7 has stated with regard to dispute between the parties regarding the existence of Pind. Therefore, the existence of Pind is not in dispute. Charge on the accused persons was under section 307 of the Indian Penal Code that they tried to commit murder of Balkeshwar, Kheman and Ram Pravesh Yadav. Though PWs 2 and 3 have stated about the time to cause death but it is difficult to draw any inference about the existence of the intention to cause death. The court was rightly of the view that charge under section 307 IPC was not proved. With regard to charge under section 325 of the Indian Penal Code of causing grievous hurt to Balkeshwar Yadav the 6 evidence of Balkeshar Yadav has to be read with the evidence of PW 9. The doctor has found one lacerated wound on the right side of scalp 2” 1/2” x scalp deep. The doctor also found swelling on lady finger. According to the doctor, injury no. 1 was simple but X- ray plate of injury no. 2 reveals fracture of base of 4th left metacarpal and dislocation of 5th metacarpal phalangial joint. According to the opinion of the doctor the injury was grievous in nature. The informant in his fard beyan has not detailed about the person who was responsible for causing grievous injury but if the evidence of PW 7 is read with his fard beyan then it comes that the assault by Chandradeo Yadav was by lathi at the head and he was also assaulted by lathi but it was on finger and this caused fracture of right finger. Though name of assailant was not given by the PW 1 as to who has caused grievous injury on the person of the informant but in paragraph 3 he has stated that Balkeshwar, Kheman and Ram Pravesh Yadav were also assaulted with lathi. In paragraph 4 PW 2 has stated that Chander and Baudh Yadav assaulted the informant with lathi and this caused fracture to the finger. PW 3 in paragraph 3 has mentioned that Chander Yadav assaulted the informant on his head whereas Baudh Yadav assaulted with lathi at the finger. In paragraph 2 PW 4 named Chandesar Yadav and Baudh Yadav as the assailants of informant. In paragraph 3 the PW 5 stated that accused Chandeshwar Yadav assaulted the informant with lathi whereas accused Baudh Yadav assaulted with lathi at the finger and caused fracture. The evidence with regard to causing grievous 7 assault is against Baudh Yadav who has given a lathi blow on left finger which caused fracture. The oral evidence is supported by the medical version of PW 9 according to him, one of the injury was grievous. All the witnesses are consistent that this was caused by Baudh Yadav so his conviction under section 325 of the Indian Penal Code is proved. Other injured witnesses Kheman Yadav and Ram Pravesh Yadav were examined by the doctors. PW 9 has examined Kheman Yadav and has found one lacerated wound on the right side of the scalp 2”x1/2”x scalp deep and the doctor found contusion on the right thigh above knee 5”x1” area and the injuries are simple in nature caused by hard and blunt substance. PW 9 examined Ram Pravesh Yadav and found one injury on leg which was 1/4”x1/4”x muscle deep and the nature of the injury was simple caused by hard and blunt substance. The medical evidence coupled with ocular version of the witnesses have supported and proved the injuries of Kheman Yadav and Ram Pravesh Yadav. This fact has been stated by the PW 1 in paragraph 3, PW 2 in paragraphs 3 and 5, PW 3 in paragraph 2, PW 4 in paragraph 3, PW 5 in paragraph 2, PW 7 in paragraph 3. Therefore, Charge under section 323 against Chander @ Chandeshwar Yadav is established. With regard to Charge under sections 302/149 IPC for voluntarily causing death of Mungeshwar Yadav in prosecution of the common object the fard-beyan (Ext-1A) is being considered firstly. The FIR was registered under section 323 of the Indian Penal Code 8 and according to PWs 1 and 4 accused Began and Moti gave lathi blows on the head of Mungeshwar who fell down on the ground. There is no evidence that the assault upon Mungeshwar Yadav was by others also. PW 7 has stated about the assault by Bigan Yadav and Mothi upon Mungeshwar Yadav. PWs 2, 3, and 5 have supported the assault but allegation is that only two lathi blows were given on the head of Mungeshwar Yadav who fell down and when he fell down then he was assaulted by others. Mungeshwar Yadav was medically examined by PW 9 and the doctor has found following injuries:- (i) “Lacerated wound on mid scalp, two in number side by side each 1”x1/2” bone deep with haematoma. The patient was found in unconscious status and his condition was deteriorating day by day. He was referred to Medical College for further treatment. The X’ray plate of the injuries showed that there was fracture of partital bone with depression. The injury in the opinion of the doctor was grievous in nature and was also dangerous to life.” PW 8 has conducted post mortem examination on 1.7.1984 on the dead body of Mungeshwar Yadav and has found the following injuries:- (i)“Two lacerated wound each of approximate sixe 1 1/4” X 1/4“ x bone deep on left parietal region of scalp on dissection of the part underlying tissues were infiltrated with blood and blood clots. There was fracture of left parietal and frontal bone of skull. The brain was grossly conjusted (ii) There was abrasion of size 4”x1/2” over front of right 9 lower part of chest and right heap. The doctor who has conducted post mortem has opined that injury no. 1 was grievous in nature and dangerous to life whereas injury no. 2 was simple one. The post mortem report (Ext- 20) has thus supported the injuries upon the deceased. The witnesses have supported the factum of injuries. Submission of the learned counsel for the appellants is that there were no corroboration of the fard-beyan by the evidences of the informant and also that the witnesses have given different versions with regard to the occurrence. It does not appear that eye witnesses have contradicted to each other because they are almost consistent. The statements of the eye witnesses were recorded by the I. O. and statement recorded by the I. O. is more or less similar to the evidence given before the Court. Learned counsel for the appellants further submits that the injuries on the other side were not explained. So it has proved fatal for the prosecution. Prosecution has to prove its case against the appellants beyond all reasonable doubts. The injury reports which were brought on record were not explained. So in view of the aforesaid facts the prosecution case fails. It was upon the prosecution to prove the charges beyond all reasonable doubts. Definitely, it is the duty of the prosecution to explain the injuries on the persons of the accused if it has been shown that the accused persons have sustained injuries on the same date, time and place of occurrence. Exhibit shows that the occurrence took place at 10 the house of Chander Yadav and if Ext-1A is considered then it comes that the occurrence is at the Pind which is outside the village. Place of occurrence detailed in the Ext-1/A and Ext-F are not the same rather these are different. So adverse inference in the facts and circumstances of the case cannot be taken in the present case. The prosecution was not bound to explain the injuries found on the persons of the accused because the injuries were caused at different place and not at the same place about which the appellants faced trial. Ext-A is the fard-beyan of Mungeshwar Yadav which was recorded by the doctor at Medical College in which he has given a different story of occurrence. The said fard-beyan was sent to police station which resulted in FIR of Konch P.S. Case No. 178 of 1984 under sections 323, 324 and 307 of the Indian Penal Code. Subsequently this fard beyan was cancelled on the petition of the I. O. (Ext-6). This fact has been brought on the record by the PW 11 who has stated that his brother Mungeshwar Yadav has remained unconscious in the hospital and never gave any fard-beyan to the police. If the statements of PWs 7 and 11 are considered then it is apparent that no fard beyan was given by Mungeshwar Yadav. Charge under sections 302/149 of the Indian Penal Code was not proved because the prosecution has not able to explain that it was caused with intention or knowledge rather the court found only case under section 304 Part I of the Indian Penal Code but the entire evidence is accepted then it appears that the charge with regard to section 302 IPC which was converted under section 304 Part I of the 11 Indian Penal Code has also not been proved beyond all reasonable doubts and at best it can be inferred from the evidence that the occurrence was done but without intention to cause death or such fatal injury which was caused likely death. Conviction under section 304 Part I of the Indian Penal Code was not justified it would proper to convict the appellant under section 304 part II of the Indian Penal Code. Accordingly, the judgment of conviction to the appellants under section 304 Par I is modified to the conviction under section 304 II of the Indian Penal Code. However, considering the fact that this is an old appeal and the case is of the year 1984 and more than 25 years have passed and the appeal is also pending since last 16 years, in my view the sentences require modification. It is accordingly, modified to the extent that the period undergone by the appellants during trial and appeal shall be deemed to be sufficient for the ends of justice. In the result the instant appeal is dismissed with the modification in the order of conviction and sentence. (Shyam Kishore Sharma, J.) Patna High Court, Patna 28th August, 2009 N.A.F.R./avin