CRIMINAL APPEAL No.226 OF 1993 Against the judgment and order dated 31.7.1993 passed by Sri P.K.Singh, 3rd Addl. Sessions Judge, Siwan in S.Tr.No. 212/1989. RAJA RAM YADAV & ANOR.---------------------------------Appellant Versus STATE OF BIHAR--------------------------------------Respondents For the appellants : Mr. Ranbir Singh, Amicus Curiae For the respondent : A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. REKHA KUMARI Rekha Kumari,J., This appeal is directed against the judgment dated 31.7.1993 passed by the 3rd Addl. Sessions Judge, Siwan in S.Tr.No. 212/1989 whereby he has convicted the appellant Rajaram Yadav for the offence under sections 326 and 379 I.P.C. and the appellant Lalbabu Yadav under section 325 I.P.C. and has sentenced the appellant Rajaram Yadav to undergo R.I. for five years and fine of Rs. 1000/- and in default to undergo R.I. for one year for the offence under section 326 I.P.C. and R.I. for one year for the offence under section 379 I.P.C. and has sentenced Lalbabu Yadav to undergo R.I. for three years and a fine of Rs. 1000/-, in default to undergo R.I. for one year for the offence under section 325 I.P.C. 2. The prosecution case, in brief, is that on 18.4.1989 in the morning at 6 A.M. the informant was returning to his house after attending the call of nature when he saw appellant Lalbabu Yadav and his brother appellant Rajaram Yadav quarreling with Manoj Kumar over keeping of Bhusa (fodder). The appellant Raja Ram Yadav was protesting on the ground that the litigation was going on in respect of the place where Bhusa was being kept. It was further alleged that the informant told him not to quarrel in the morning time. On this, appellant Lalbabu Yadav fell him down on the ground and the appellant Rajaram Yadav hurled a garasa blow aiming at his neck. He (informant) received injury on his head. He raised alarm and the appellant Rajaram Yadav took out Rs. 255/- from his pocket and wrist watch and they fled away. It is also 2 said that the informant had shank a hand-pipe for the purpose of irrigation. The appellant Rajaram had asked him for water from that hand-pipe for irrigating his maize field. The informant told him to take water after his (informant’s) field was irrigated. The appellant on this had become annoyed and this was the reasons for assault. 3. The appellant Rajaram Yadav was charged u/ss 307 and 379 I.P.C. and the appellant Lalbabu Yadav was charged u/s 307/34 I.P.C. Both pleaded not guilty to the charges. Their defence, as gathered from the suggestions given to the informant and the documents filed, is that no occurrence as alleged took place. There is a land dispute between the informant and the appellants and in order to put pressure on them this case has been falsely instituted and that on the date of occurrence at 6 A.M. the informant and others assaulted the appellants and Kalawati Kumari for which the appellant Rajaram Yadav has filed a case. 4. The prosecution examined nine witnesses to prove its case. P.W.1 Bacha Prasad is a formal witness and has proved the fardbeyan (Ext.1) of this case. P.W.2 Bacha Tiwary , P.W.3 Sheo Shankar Yadav, P.W.4 Kauleshwar Prasad are the eye witnesses to the occurrence. P.W.5 Ram Kewal Prasad is the informant. P.W.6 Girish Chandra Shrivastava is a formal witness and has proved the formal F.I.R. (Ext.2). P.W.7 is Manoj Kumar. P.W.8 is Dr. Baleshwar Prasad, who has examined the injured. P.W.9 Ramanuj Singh, A.S.I., is the I.O. of the case. 5. The appellants have examined D.W.1 Asharfi Thakur, who has proved the signature (Ext.A) on the above fardbeyan of the appellant Rajaram Yadav. D.W.2 Madan Singh is another formal witness who has proved the fardbeyan (Ext.B). D.W.3 Chandradeo Narayan is a witness who has proved the endorsement (Ext.B/1) on the fardbeyan (Ext.B) showing that the fardbeyan was forwarded for registering a case. 3 6. Learned trial court after considering the evidence on record convicted the appellants under sections 326, 324, 379 I.P.C. and sentenced them as mentioned above. 7. The point for determination before this Court is whether the learned trial court was justified in convicting and sentencing the appellants as mentioned above. 8. Learned Amicus Curiae appointed for the appellants submitted that the witnesses are either inimical or interested and hence, on their evidence, the prosecution case cannot be held to have been proved. The evidence of the doctor also does not show that the informant had sustained any grievous injury. Therefore, there should not have been any conviction for grievous hurt even if the prosecution case is believed. 9. In order to appreciate the above submissions, I have gone through the entire evidence. 10. P.W.5 the informant has deposed that on 18.4.1989 at 6 A.M. he was returning after easing himself and when he reached the Bhuskul of Manoj Kumar, he saw that Manoj was keeping fodder and the appellants were protesting and an altercation was going on. He told them not to quarrel in the morning time. On this the appellant Lalbabu Yadav asked to kill him saying that he (P.W.5) was supporting his opposite party in the settlement case before the L.R.D.C. and the appellant himself threw him down on the ground. The appellant Rajaram Yadav gave a farsa blow which hit him on his head. He has also stated that Rajaram took out Rs. 255/- and a wrist watch from his pocket. His evidence also is that the blood was oozing out from his wound and so the same was banded and he was taken to the police station where his fardbeyan was recorded. He was then sent to the hospital. 11. The informant has further stated that as he did not allow the appellant Rajaram Yadav to irrigate his field from the water of his hand-pump and as he used to make pairvi against the appellant in the land settlement case before the Anchal Adhikari, the occurrence took place. He has also stated that the occurrence 4 had taken place on the land which was in the share of Manoj Kumar and that the appellant Rajaram Yadav has filed a case in respect of that land in which he (informant) has also been made party. 12. P.Ws. 3, 4 and 7 have supported the prosecution case and have stated about the assault and theft by the appellants in the same manner as the informant. They have stated that the appellant Lalbabu Yadav threw the informant down and then Rajaram Yadav gave Garasa blow hitting the head of the informant. 13. Among the above witnesses, though the informant is an interested witness, he is the injured and therefore, most competent witness. The fardbeyan (Ext.2) corroborates the testimony of this witness in material particulars. The fardbeyan was recorded on the date of occurrence at 11.30 A.M. at P.S. Therefore, the fardbeyan was recorded promptly and there was no chance of concoction in it. The evidence of the informant as already mentioned is that the appellant Rajaram has filed a case in respect of the P.O. land in which he was also made a party. But for this enmity, the evidence of this witness cannot be disbelieved when it is otherwise trust worthy. He has also admitted that the appellant has filed a case against him and others in respect of an occurrence said to have taken place on the same date and time. The fardbeyan (Ext.B) also shows that the informant was an accused in that case filed by the appellant Rajaram Yadav, but that fardbeyan was recorded on 18.4.1989 at 6.15 P.M. much after recording of the fardbeyan of the informant. So, it cannot be said that the informant filed this case in order to save himself from the case filed by the appellant. 14. The informant in his evidence has stated that he did not assault Rajaram Yadav, Lalbabu Yadav and Kalawati Kumari. There is also no evidence that the appellants or Kalawati Kumari had received injury during the course of occurrence. P.W.3, on the other hand, has stated that no body had received any injury on the side of the appellants. No injury report has also been filed to show that they had received any injury. Therefore, though there is 5 allegation in the fardbeyan (Ext.B) of assault on the appellant, the same has not been proved and the prosecution is not obliged to explain any injury on the appellant and it cannot be said that the occurrence did not take place in the manner as alleged. 15. As regards the other witnesses, P.W.3 has admitted that he is an accused in the above case filed by the appellant. He is also a brother of the informant. Hence, he is in-deed an interested witness and is inimical towards the appellant. But mere interestedness and enmity are not sufficient to discard the evidence of any witness. The only safeguard is that the evidence of such witness should be scrutinized cautiously. On close scrutiny of the evidence of this witness, there appears nothing to discredit him. He belongs to the P.O. village and according to him, on hulla he had reached the P.O. So, his presence at the P.O. is not unnatural. He is accused in the case filed by the appellant, his presence at the P.O. is also not denied by the appellant. 16. P.W.4 has admitted that he is Pattidar of the informant but there is nothing else in his evidence to discard his testimony. He has denied that he had any land dispute with the appellants. His evidence shows that he was at his Baithaka near the P.O. Therefore, his presence at the P.O. is also natural. His name is also mentioned in the fardbeyan as witness. So, he appears to be a trust worthy witness. 17. P.W.7 Manoj Kumar is also a very important witness. There is nothing in his evidence to disbelieve his testimony. His evidence shows that the informant is related to him as uncle but as already stated this is no ground to disbelieve him. He has admitted that there was a case in the court of D.C.L.R. regarding the place of occurrence between his father and the appellants and that the informant used to make pairvi in that case. It is, therefore, also obvious that there was reason for the appellants to quarrel with this witness and assault the informant on intervention. 6 18. Hence, though the above eye witnesses are interested or inimical, they appear to be natural and reliable witnesses. 19. It may be mentioned that P.W.2 Bacha Tiwary has also claimed to have seen the occurrence, but it appears from the evidenced of the I.O. that he had given a hearsay account of the occurrence. Hence, his evidence on the point of actual occurrence is not taken into account. But from his evidence coupled with the evidence of other witnesses there cannot be doubt that he had also reached the P.O. and saw the informant injured. 20. The evidence of the doctor (P.W.8) is that on 18.4.1989 at Tarwara Primary Health Centre he had examined Ram Kewal Prasad (informant) and found the following injuries on his person : (i) Sharp cut wound on the right side of head 3”x 1/6”x bone deep with profuse bleeding caused by sharp cutting weapon. The wound was grievous. (ii) Bleeding from the nostril of right side. Wound was 1/8”x 1/6”x 1/10” at the site of little’s area caused by hard and blunt substance, may be by thrashing on hard ground. The injury was grievous. (iii) Swelling on right side of face 3”x 2”x ½” caused by hard and blunt substance may be by dashing down on ground. The injury was simple. 21. The evidence of the doctor, hence, corroborates the testimony of the eye witnesses. The evidence of the eye witnesses is consistent that the appellant Rajaram Yadav gave a garasa blow causing the injury on the head of the informant. Their evidence also is that prior to that, the appellant Lalbabu Yadav felled him (informant) down on the ground. P.W.5 has also stated that on account of falling on the ground, blood had come out of his nostril. P.W. 3 has also stated that as the appellant had felled 7 the informant on the ground, his face had swollen and blood came out of nostril. 22. It may, however, be mentioned here that the doctor has stated that the age of injuries was within six hours, but he has not given the time of examination of the injured. So, from the evidence of the doctor, it is not clear when the injured had sustained the above injuries. But as the evidence of the eye witnesses is clear that the occurrence causing the above injuries had taken place on 18.4.1989 at 6 A.M., even in the absence of time of examination given by the doctor, it can be taken that the above injuries on the informant were caused during the alleged occurrence. 23. The evidence of P.W.9 (I.O.) is that on 18.4.1989 the informant had come to Gautam Budha Nagar P.S. in injured condition and he recorded his fardbeyan and then he recorded his further statement and thereafter the informant became unconscious and he sent the informant to hospital. His evidence also is that he then visited the place of occurrence. The P.O. was Palani of Manoj Kumar in village Mohammadpur Patti about 20 yards south of the house of Rajaram Yadav. The fodder room of Manoj Kumar is at a distance of 12 yards north of this place. The evidence of P.W.2 also is that the P.O. is the land of the informant and the accused persons, and on that land, on the portion which is in the share of Manoj Kumar, the occurrence had taken place. P.W.5 also stated to the same effect. Therefore, the P.O. is also established. 24. It may further be mentioned that the evidence of P.W.5 is that the blood had fallen on the ground but the I.O. has stated that he did not find any blood or trampling mark on the P.O. but simply because the I.O. did not find any blood at the P.O. in view of unimpeachable evidence of the eye witnesses it cannot be said that the occurrence did not take place at the alleged P.O. 25. In view of the above discussions, it is clear that the above eye witnesses are reliable witnesses and their evidence finds corroboration from the evidence of the doctor and the I.O. 8 I, hence, agree with the learned trial court that the prosecution has been able to prove that on the alleged date the appellant Lalbabu Yadav threw the informant down on the ground and the appellant Rajaram Yadav gave garasa blow on him causing injury on his head in the manner as alleged. 26. It has already been shown that the doctor has opined that the injury on head caused by sharp cutting weapon and the injury on nostril caused by hard and blunt substance were grievous in nature. It appears that the trial court in view of the opinion of the doctor has convicted the appellant Lalbabu Yadav under section 325 I.P.C. and the appellant Rajaram Yadav under section 326 I.P.C. 27. The evidence of the doctor, however, shows that there was no fracture of bone nor any bone was cut but as there was profuse bleeding, he was of the opinion that the injury on the head was dangerous to life. As regards the bleeding injuries on the nostril he has not stated that how he termed it grievous. But as there was bleeding from nostril, perhaps for this reason, he opined this injury also grievous. But though the doctor found profuse bleeding from the injury on head and bleeding from the nostril and his evidence shows that the injured was unconscious, the evidence of the informant is that after the occurrence he was taken to the police station, where he gave his statement and thereafter he became unconscious. The evidence of the I.O. is that he did not find any blood at the P.O. Therefore, it is evident that there was no imminent danger to the life of the informant. The court would consider, in legal sense, only those wounds as grievous, in which the danger is imminent. Modi in his Medical jurisprudence has also stated that the danger to life should be imminent before the injuries are designated “dangerous to life”. Hence, it appears that in fact none of the injuries was grievous and the appellant should not have been held guilty for causing grievous hurt. 9 28. It may also be mentioned here that though the witnesses have stated that the appellant Rajaram Yadav took out money and wrist watch from the pocket of the informant, it is most unlikely that the informant would take money in his pocket when he was going to relieve himself in the morning. It is also most unlikely that in the view of several witnesses, the appellant would waste time in taking away money or wrist watch from the possession of the informant and not flee immediately. Therefore, it is quite doubtful that the appellant Rajaram Yadav had committed any theft. The trial court should not have convicted the appellant on this count. 29. Thus, considering all the facts, evidence and circumstances, it appears that the prosecution has proved the charge under section 324 I.P.C. against the appellant Rajaram Yadav and charge under section 323 I.P.C. against the appellant Lalbabu Yadav. The conviction against the appellants hence is modified to that extent. The conviction under section 379 I.P.C. against the appellant Rajaram Yadav is also set aside. 30. As regards sentence, as the occurrence had taken place 19 years ago, it would not be proper to send the appellants to jail custody for the above offences. Hence, the period of imprisonment awarded against the appellant Rajaram Yadav is reduced to the period already in custody during investigation and thereafter. The sentence of fine against him is, however, maintained. The sentence passed against the appellant Lalbabu Yadav is reduced to fine in place of imprisonment and he is directed to pay a fine of Rs.1000/- and in default to undergo S.I. for six months. The trial court would issue notice for the payment of fine amount and the appellants would deposit the amount within two months from the date of receipt of notice. 31. In the result, with the above modification in conviction and sentence the appeal is dismissed. 32. Before parting, the Court extends his gratitude for the valuable assistance rendered by the learned Amicus Curiae in 10 disposal of this appeal. The professional fee of the learned Amicus Curiae shall be paid by Patna High Court Council of Legal Aid and Advise. ( Rekha Kumari,J.) PATNA HIGH COURT Dated, the 22nd May,2008 N.A.F.R./Surendra.