CRIMINAL APPEAL No.143 OF 1993 Against the judgment and order dated 15.5.1993 passed by Sri Surya Kant Mishra, Sessions Judge, Madhepura in S.T. No. 179/87. RAMDEO YADAV, SON OF SRI MANAGER YADAV, RESIDENT OF MAJARHAT, P.O. MAJARHAT, P.S.- SINGHESHWAR, DISTRICT- MADHEPURA. ----- Appellant Versus THE STATE OF BIHAR ----- Respondent For the appellant :- Mr. Ranjan Kumar Jha, Advocate Mr. Choudhary Prem Kumar Thakur, Advocate Mr. Sanjay Kumar Jha, Advocate For the State :- None. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. Out of the four accused persons, Ramdeo Yadav has been convicted under Sections 325 and 307 of the Indian Penal Code to undergo rigorous imprisonment for four years. The prosecution case is that on 27.10.1986, the informant Raj Kumar Yadav (P.W.6) along with his sons Rameshwar Yadav (P.W.3) and Gudar Yadav (P.W.5) were sleeping on a „Machan‟ in the „Gohal‟ (cattle shed) where it is alleged that he was assaulted by the accused persons by means of a Lathi. Specific case is that after the assault was 2 made, the sons of the informant woke up and chased the accused persons and were able to identify them in the lantern light which was burning in the „Gohal‟. The reasons for the occurrence as disclosed by the informant is that the informant, Raj Kumar Yadav and one Manager Yadav, father of the present appellant had purchased a piece of land jointly. Manager Yadav has sold his share of the land to Rasik Lal Yadav who was also made accused in this case along with his two sons. It is said that the son of the informant had gone to cut bamboos which resulted in hot exchange between Rasik Lal Yadav and his sons and the sons of the informant. At that time, it has been alleged that Rasik Lal Yadav threatened the informant and in pursuance of the threat it is alleged that the four accused persons came to his „Gohal‟ and assaulted him. It has been specifically stated that the informant Raj Kumar Yadav became unconscious as a result of the injuries he received and was taken to the hospital by his sons. There are three witnesses in this case. P.Ws. 3 and 5 are the sons of the 3 informant, Raj Kumar Yadav and P.W. 6 is the informant himself. P.W. 3 Rameshwar Yadav has stated that he woke up when his father was assaulted and he chased the accused persons. It is said that he identified them in the lantern light. P.W. 3 has also stated that he took his father to the hospital and on arrival of the police officer gave his statement and claimed that he has also signed the said statement. P.W. 5 Gudar Yadav on the other hand virtually does not support the participation of the appellant or any other person in the occurrence as he has specifically stated both in chief and cross examination that he could not identify the miscreants because it was dark. P.W. 6, the informant, has supported his case and has alleged that he woke up after receiving a „Lathi‟ injury on the head and was able to identify the appellant and the other persons who stand acquitted in this case. According to the informant he regained consciousness on 29.10.1986 i.e. a day after the occurrence and after regaining consciousness gave his „Beyan‟ before the 4 Investigating Officer which is the formal First Information Report in this case. The evidence of the witnesses have been attacked on several grounds. The submission is that P.W. 3 has contradicted himself on vital aspects in his evidence. P.W. 3 has stated in cross examination that he woke up after the injuries were inflicted on his father and he identified the miscreants who were running away from the place of occurrence. He has contradicted his earlier version and states that he saw Ramdeo Yadav, the appellant, inflicting an injury. It is, therefore, submitted on behalf of the appellant that this witness is trying to improve his case in Court and in fact the first statement made before the Investigating Officer on 28.10.1986 at the hospital which has not been brought on record should have been treated as the First Information Report. This statement would give the correct picture of the occurrence. The evidence of P.W. 3 has also to be seen in the context of what has been stated by P.W. 5 the other son of the injured P.W. 6. P.W. 5, Gudar Yadav the other son of the 5 informant, completely gives a go-bye to the story of identification as he has quite clearly stated that it was dark and it was not possible to identify the miscreants as there was no source of light in the „Gohal‟. There are certain glaring inconsistency in the evidence given by P.W. 3 and P.W. 6 inasmuch as P.W. 3 states that his father regained consciousness on 28.10.1986 whereas the informant has stated that he regained consciousness on 29.10.1986 perhaps to explain the delay in lodging this case. There was no reason why P.Ws. 3 and 5 did not inform the police regarding the manner in which the occurrence had taken place or disclose the names of the persons involved in the occurrence as according to P.W. 3, he identified the miscreants on the night of 27.10.1986 itself. Learned counsel for the appellant has also challenged the manner in which the occurrence has taken place. It has been submitted that it was virtually impossible for the miscreants to inflict the injuries in the manner in which it has been done. The place of occurrence is a „Machan‟ situated in a „Gohal‟. 6 The height of the „Machan‟ has been described by P.W. 6 as “5½ gkFk” which would be around 7 feet high. It is stated that it would be virtually impossible for the miscreants to climb on the „Machan‟ which is 7 feet high without disturbing the persons who were sleeping on the „Machan‟ and it would further be impossible to inflict this type of injury which the informant has received. The informant has received a bruise 3” x 3” on the right temporal region, three bruises on the scapular region and two bruises on the left and right wrist. These types of injuries could not have been inflicted on a person sleeping on a „Machan‟ which is not a permanent structure, in the presence of three persons on the „Machan‟. It would create more than a disturbance if three persons arrive all of sudden and begin to assault a man and as such it is submitted that the entire story regarding the manner of occurrence is questionable and unbelievable. The evidence of P.Ws. 3 and 5, both sons of the informant, who claim to be eye witnesses to the occurrence, and the evidence 7 of P.W. 6, the injured made after a delay does not inspire confidence. It is submitted that the allegation against the appellant, the son of Manager Yadav, is deliberate and he has been dragged into the case because of the fact that the appellant’s father and the informant Raj Kumar Yadav had jointly purchased a piece of land and sold his share of the land to a third party which led to differences between them. The third party to whom he sold the shares is Rasik who along with his sons were also made accused in this case. It has been argued that the name of Vir Bahadur, son of Manager Yadav has thus been dragged in this case, whereas Vir Bahadur had no concern or motive to assault the informant Raj Kumar Yadav as he was no longer interested in the land which was sold to Rasik as such there was no possible motive existing for the appellant to participate in the occurrence. On the other hand the informant Raj Kumar Yadav was aggrieved by the fact that the Manager Yadav had sold his share to a stranger. This Court also finds that the appellant is prejudiced by the fact that the 8 statement of P.W. 3 before the police prior to the lodging of the formal First Information Report has not been brought on record which would actually have gone a long way in disclosing the true manner in which the occurrence had taken place. Apart from these aspects of the matter, learned counsel also draws the Court’s attention to the statement of the informant where he has stated that the appellant had inflicted a ‘Lathi’ blow on the torso of the informant thereby giving a go by to the version that it was the appellant who had inflicted lathi injuries on head. Contradiction with respect to the identification between the two highly interested eye witnesses, who are also closely related to the injured person, creates doubt with respect to the veracity of the prosecution version and as such this Court cannot hold that the appellant was amongst the miscreants who was responsible for causing injury on the informant Raj Kumar Yadav. Learned counsel points out that the doctor has given an opinion that the injury on the head was grievous in nature, the doctor has 9 not stated any reason as to why he consider the injuries to be grievous, because bruises by themselves, do not disclose the extent of the damage caused by the injuries. The other injuries are simple in nature. After considering the entire materials on record, this Court has come to the conclusion that the prosecution has not been able to prove beyond doubt that the appellant was identified and recognized as one of the miscreants involved in the occurrence and this Court also disbelieves the manner in which the occurrence has taken place as impossible and as such the appellant is acquitted of the charges under Sections 307 and 325 of the Indian Penal Code. The appeal is allowed and the appellant is discharged from the liability of his bail bond. Patna High Court, The 31st of August, 2009 A.F.R./Sanjay (Sheema Ali Khan, J.)