Gholtu Yadav And Ors. Vs State

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2025:JHHC:21415-DB

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal No. 120 of 1997 (DB)

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( Against the judgment of conviction dated 5^th March, 1997 and order of sentence dated 11^th March, 1997, passed by learned Additional Sessions Judge 1^st , Godda in Sessions Trial No.249 of 1984/42 of 1988 )

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1.Gholtu Yadav

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2.Vinodi Yadav

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3.Mohan Yadav

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Sons of late Chokru Yadav

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4.Laxman Yadav son of Bhujangi Yadav

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5.Raghu Yadav son of Late Titku Yadav

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6.Dhuri Yadav son of Late Bongi Yadava

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7.Sheonath Yadav son of Damodar Yadav.

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8.Bishu Yadav son of Damodar Yadav

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9.Jainath Yadav alias Vidyanath Yadav son of Damodar Yadav.

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10.Sitaram Yadav son of late Kutai Yadav

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11.Naresh Yadav

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12.Suresh Yadav

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sons of late Pushu Yadav

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Appellants no. 1 to 3 are resident of village Ghat Dharmapur, appellant no. 4 is of village Pirozpur, appellant 5 and 6 of village Ghat Dharampur (Nabtoli) and appellants no. 7 to 12 of village Dharampur Mal (Garh), all of P.S. Mahagama, District: Godda.

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…. Appellants

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Versus

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The State of Bihar ….. Opp. Party

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Mr. A.K. Kashyap, Sr. Advocate Mr. Manoj Kumar Sah, Advoate For the State : Mrs. Priya Shrestha, Spl. P.P.

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C.A.V. on 08/07/2025 Pronounced on 01/08/2025

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Per Sujit Narayan Prasad, J.:

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1. Before proceeding further, it would be apt to mention herein that in compliance of the order passed by this Court, affidavit has been filed on behalf of respondentState, annexing therewith the letter of Officer-in-Charge, Mahgama Police Station, Godda issued vide Memo No. 63/2025 dated 29.01.2025, who after verification has found that out of the 22 appellants, only 12 appellants as named above, have been found to be alive, in support thereof, the copy of their Adhar Card with their signature/thumb impression has been annexed with the affidavit. Further, in support of the dead appellants, the death certificate and in absence thereof the certificate of Mukhiya has been annexed with the affidavit.

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2. Taking into consideration the pleading as made in the aforesaid affidavit, the Co-ordinate Bench vide order 07.07.2025 has abated the appeal against the said 10 appellants and the instant appeal is pending consideration for the surviving 12 above named appellants. For ready reference, order dated 07.07.2025 passed by this Court is quoted as under:

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Affidavit has been filed in pursuance to the order dated 09.01.2025 passed by Coordinate Bench of this Court regarding the live status of one or the other appellants.

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2. The details have been furnished in the said affidavit. Although Mr. Bhola Nath Ojha, learned Special Public

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Prosecutor appearing for the State, has submitted that some typographical error has crept up in paragraphs 2 and 3 of the affidavit in making reference of the names which is apparent from the face of Annexure-A Series available at page-7, therefore, he has prayed to allow him to press page7 only leaving aside the statement made at paragraphs 2 and 3 of the affidavit.

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3. It has been submitted by referring the name of Baiju Yadav (Appellant No.4), Bhujangi Yadav (Appellant No.6), Banarsi Yadav (Appellant No.7), Kavati Yadav alias Kitabi Yadav alias Kamati Yadav (Appellant No.9), Damodar Yadav (Appellant No.11), Rajendra Yadav (Appellant No.16), 2 Guresh Yadav (Appellant No.17), Dukhan Yadav (Appellant No.18), Hira Yadav alias Hari Yadav (Appellant No.21) and Chhabbu Yadav (Appellant No.22) that they have died, therefore, prayer has been made to abet the appeal so far as it relates to the aforesaid appellants.

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4. The aforesaid fact has not been disputed by learned senior counsel.

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5. No application by any of the legal heirs of the appellants abovenamed has been filed to pursue the matter on behalf of the abovenamed appellants.

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6. Since no application has been filed by the legal heirs of any of the aforesaid appellants, said to be died, as also considering Annexure-A as available at page-7 to the counter affidavit, the appeal is abetted so far as it relates to Baiju Yadav (Appellant No.4), Bhujangi Yadav (Appellant No.6), Banarsi Yadav (Appellant No.7), Kavati Yadav alias Kitabi Yadav alias Kamati Yadav (Appellant No.9), Damodar Yadav (Appellant No.11), Rajendra Yadav (Appellant No.16), Guresh Yadav (Appellant No.17), Dukhan Yadav (Appellant No.18), Hira Yadav alias Hari Yadav (Appellant No.21) and Chhabbu Yadav (Appellant No.22) is concerned.

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7. Mr. A.K.Kashyap, learned senior counsel has argued the matter but due to paucity of time argument could not be concluded.

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8. Let this matter be listed tomorrow, i.e., on 08.07.2025.”

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Prayer:

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3. The instant appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against judgment of conviction dated 5^th March, 1997 and order of sentence dated 11^th March, 1997, passed by learned Additional Sessions Judge 1^st , Godda in Sessions Trial No.249 of 1984/42 of 1988, by which the appellants have been convicted under Sections 148 of the Indian Penal Code and sentenced them to undergo RI for three years and the appellants have further been convicted under Section 307 r/w 149 IPC and sentenced to undergo RI for life. Appellants no. 1 to 3 have further been convicted under Section 302 of the Indian Penal Code and the appellants 4 to 12 have been convicted under Section 302/149 IPC and were sentenced to undergo imprisonment for life and all the sentences are ordered to run concurrently.

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Prosecution Case:

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4. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case

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5. The prosecution case, in brief, as per fardbeyan dated 16.08.1980, of the informant Suresh Yadav (P.W-5) is

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that one day prior to the date of occurrence, there was altercation between the informant and his uncle Chakru Yadav at Bagicha Bahiyar, on issue of depositing soil on the ridge. On 16.8.1980 in the morning, the informant alongwith his father named Bhukhru Yadav, brother named Naresh Yadav, maternal uncle( mama ) Sudan Yadav and Ludan Yadav were working in the field in Dhabara Bahiyar. The informant, Naresh Yadav and Sudan Yadav were uprooting seed of paddy. Bhukhru Yadav vas ploughing the field and Ludan Yadav was working with spade [Kudal]. Some other persons were also working in the vicinity. Then about 10.00 o’clock, Chakru Yadav, Paltu Yadav, Gholtu Yadav and others came armed with garashan, bhala, lathi, Spade forming an unlawful assembly. They cut the ridge of the field of the Informant. The informant party did not go there out of fear. Then Chakru Yadav exhorted why they did not obstruct in cutting the ridge. At this the Informant said that they did not object out of fear and to this Chakru Yadav questioned as to why he (the Informant) was talking with him the previous day. Then all the accused persons surrounded them and began to assault informant party with lathis, garansa and bhala. Sudan was assaulted by Chakru, Paltu, Gholtu, Vinodi and Sri Mohan with garasa on his hand, waist, back as a result 5

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Sudan Yadav fell down there. Baiju Yadav assaulted Bhukhru Yadav with garasa and other accused with lathi and he also fell down. Naresh was assaulted by Dasarath Yadav with garasa and others with lathi and he also fell down there. Dukhan Yadav assaulted Ludan Yadav with garasa and other accused assaulted with lathi. Accused Damodar Yadav, Shiv Nath Yadav, Bishu Yadav and Jay Nath Yadav assaulted informant with lathi. Then the accused fled away. Informant further stated that Sudan Yadav, due to injury, became unconscious. Injured Sudan Yadav and Naresh Yadav, on cot, and other injured went for Mahegama. Sudan Yadav was gasping, so, they came to Mahegama Hospital, but, as soon as they reached the hospital, Sudan Yadav died.

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6. On the basis of fardbeyan of informant, First Information Report being Mahagama P.S. Case No. 6 dated 16.08.1080 was registered under Sections 147, 148, 149, 341, 307, 324, 447 and 302 IPC. After completion of investigation, the I.O. submitted chargesheet against the accused persons and cognizance of the offence was taken against the aforesaid accused persons, which being exclusively triable by court of Sessions, case was committed to the Court of Sessions.

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7. On the above allegation, Gholtu, Vinodi and Sri Mohan were charged u/s-302 I.P.C for committing murder of 6

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Sudan Yadav. The rest persons who were facing trial has been charged under Section 302/149 I.P.C for committing murder of Sudan Yadav in furtherance of their common object. All the named accused persons were charged u/s-148 and 307/149 I.P.C for forming an unlawful assembly with deadly weapon, such as garasa, bhala and lathi and for attempting to commit murder of Bhukhru Yadav, Ladan Yadav, Naresh Yadav and Suresh Yadav.

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8. The accused persons pleaded not guilty and claimed to be tried, accordingly, trial was proceeded.

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9. During trial, in order to prove its case, the prosecution has examined altogether eight witnesses, namely, Haldhar Yadav [PW 1]; Haribol Yadav [PW 2]; Ludan Yadav [PW 3]; Ganesh Yadav [PW 4]; Suresh Yadav [PW 5], who is informant of the case; Naresh Yadav [PW 6]; Jagdish Yadav [PW 7] and Dr. Vasudeo Prasad Sinha [PW 8]. Out of that P.W 1 and PW 2 have been declared hostile.

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10. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had

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been found guilty and convicted, as stated above, which is the subject matter of instant appeal.

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Submission of the learned Senior counsel for the appellants :

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11. Mr. A.K. Kashyap, learned senior counsel assisted by Manoj Kumar Sah, learned counsel appearing for the surviving appellants has assailed the impugned judgment of conviction and order of sentence on the following grounds:

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I. Prosecution has miserably failed in proving the charge leveled against the appellants and learned trial court has committed error of law in evaluating and analyzing the evidence in coming to the conclusion.

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II. The learned trial court has failed to consider the value of the evidence of P.W 1 and P.W 2 and no reason has been assigned for their nonevaluation though they have been claimed as eyewitnesses by the informant.

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III. Further, the investigation in the case at hand has been done in a haphazardly manner and there are many discrepancies and inconsistency in the testimony of the witnesses in particular the testimony which is fatal to the prosecution case.

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IV. In the case at hand, neither the FIR nor the fardbeyan has been proved and exhibited.

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V. Furthermore, in order to prove the case falling under Section 302 IPC, the inquest report has not been brought on record. Further, in the case at hand neither the doctor, who conducted the Post Mortem was examined nor the Post Mortem report has been brought on record by the prosecution.

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VI. Even in the case at hand, no case under Section 307 IPC is made out even accepting the prosecution version to be true as the injury report of the injured shows that none of the injury is shown to be grievous in nature.

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VII. Further submission has been made even accepting the case of the prosecution to be true at best the case of the appellants falls under Section 323 IPC.

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VIII. In the case at hand, P.W. 1 and 2 have been declared hostile; P.W 8 is the doctor, a formal witness and rest other witnesses are interested witnesses. P.W. 5 Suresh Yadav, who is informant of the case, his statement is not systematic rather full of contradictions. P.W. 4, Ganesh Yadav, who is allegedly an eye witness, 9

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has stated in his cross-examination that he saw Chakru, Paltu, Titku and Dasrath on the one side and Sudan (deceased), Suresh, Naresh, Ludan, Jagdish and Bhokru on the other side and they were fighting but this witness has not stated anything regarding the appellants. P.W. 5, 6, and 7 are the full brothers as well as injured and they have presented a new story against the FIR.

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IX. Submission has been made that the statement of P.W. 3 was not recorded under section 161 Cr.P.C. and for the first time, he deposed before the trial court.

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X. Place of occurrence was not ascertained in want of sketch map and due to non-appearance of the Investigating Officer prejudice has been caused to the appellants/accused.

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XI. Neither the blood-stained earth from the place of occurrence nor the blood-stained cloths were produced and exhibited by the prosecution.

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XII. Further submission has been made that the prosecution withheld the material witnesses, namely, Sk. Allaudi; Sk. Chaugh alias Noor Mohammad; Sk. Gafoor; Jamuna Singh; Doctor

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R. Chanani, S.I. N. Mishra and M.N. Modi, 10

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although they were the charge-sheeted witnesses and the trial remained pending for 13 years.

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XIII. Submission has been made that though conviction of other appellants is by taking aid of Section 149 of the Indian Penal Code but there is no direct complicity to attract the ingredient of Section 149 IPC, as such Section 149 IPC will not be applicable so far other appellants are concerned.

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12. Learned counsel for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.

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Submission of the learned APP for the State:

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13. P er Contra , learned Additional Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of witnesses who have supported the prosecution version.

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14. Submission has been made that it is a case where one person was murdered and attempts were done to commit murder of four other persons. Out of those four injured

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one Bhukhru Yadav died. The rest three are alive and they have supported prosecution version while deposing the testimonies. In support of their injuries the doctor has been examined, who has supported the prosecution version. As such only because the inquest report of the deceased has not been brought on record, the case of the prosecution cannot be disbelieved.

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15. Submission has been made that it is case where the appellants/accused persons forming an unlawful assembly with pre-determination of mind formed an unlawful assembly with a common object of committing murder of the deceased has used the deadly weapons like bhala, garasa etc. a sharp-edged weapon on the vital part of the body of the injured. Therefore, Section 149 IPC is attracted in the case at hand.

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16. Further submission has been made that even there is minor discrepancies in the testimonies the case of the prosecution cannot be disbelieved.

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17. Learned State counsel based upon the aforesaid ground has submitted that the prosecution has been able to prove the guilt of the appellants beyond all reasonable doubt.

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Analysis

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18. We have heard learned counsel for the parties, perused the documents available on record and the 12

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testimony of witnesses as also the finding recorded by learned trial Court in the impugned order.

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19. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following issues to be answered by this Court:

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(I). Whether non-examination of the doctor, who conducted the Post Mortem and not bringing the the Post Mortem report on record, vitiates the case of prosecution to fall under Section 302 IPC?

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(II). Whether the offence under Section 307/149 IPC is not proved since as per the injury report of the injured injuries are simple in nature?

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(III).Whether non-examination of the I.O. in this case where all the witnesses are alleged to be interested witness is fatal to the prosecution case?

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20. Since all the issues are inter-linked with each other

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and as such they are being taken together by taking into consideration the facts of the given case including the testimony of witnesses.

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21. This Court, in order to answer the issues framed by this Court, first deems it fit and proper to go through the testimony of witnesses examined by prosecution. For ready

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reference, the extract of their testimony is discussed hereunder as.

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22. P.W.1-Haldhar Yadav and P.W.2-Haribol Yadav have been declared hostile by the prosecution. However, they have been cross-examined both by the prosecution as well as defence. But nothing fruitful has come from their testimony.

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23. P.W. 3-Ludan Yadav, is one of the injured. He has stated that on that about 13 years ago on Saturday, he was working in the field of Bhukru Yadav. Bhukru was ploughing and he was working with spade. Then Chakru along with Foltu, Paltu, Binodi and Sri Mohan came there. Chakru was armed with spade and rest were armed with garasa. Chakru started to cut the ridge of the field of Bhukru Yadav. They came to the place where the witness was working and questioned as to why they did not object in cutting the ridge. At this Suresh, the informant, stated that they did not object out of fear and then quarrel between the parties started. On being asked who was assaulting to whom, he replied that Paltu Yadav with garasa to Sudan; Vinodi Yadav with Garasa to Sudan; Vinodi Yadav and Sri Mohan Yadav with garasa to Naresh.

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24. In cross-examination, P.W-3 has stated that the darogaji did not take his statement and for the first time, he is giving statement before this Court.

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25. P.W. 4-Ganesh Yadav , has stated that he saw the Sudan Yadav dead. He did not go to the place where assault took place. He was working in the farm and saw the occurrence from his farm. He further stated that place of occurrence is 100 cubits away from his farm. Nothing has come in his cross-examination.

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26. P.W. 5-Suresh Yadav , is the informant of the case. He has stated in his evidence that incident is 15-16 years ago. He along with Naresh, Jagdish, Sudan Yadav, Ludan Yadav, Bhukru Yadav were uprooting the seeds. In the meantime, 26 persons, including the appellants armed with bhala, lathi, spade, garasa came there. They cut the ridge of the farm. Since it was the time of reaping of seeds, water flown out from the farm, to which the informant party resisted. Upon which they shouting the slogan of ‘Jay Bajrang Bali’ and started beating them. P.W-5 further deposed that Bhukru Yadav, Paltu, Bholti Yadav, Vinodi Yadav and Sheomohan Yadav assaulted with garasa to Sudan Yadav. Sri Mohan with the garasa assaulted on the middle of the head as such there was cut on the neck also. Sudan Yadav died while going to police station. P.W-5 has further stated that Dasrath

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Yadav assaulted on the waist of Naresh Yadav. Baiju Yadav assaulted with garasa to Bhukru Yadav. Dhukhan Yadav assaulted with garasa to Ludan. The informant was assaulted with lathi by Damodar Yadav. In crossexamination, he has stated that blood-stained clothes were seized by the investigating officer.

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27. P.W. 6-Naresh Yadav , is one of the injured. He has supported the prosecution version and narrated the same story.P.W-6 deposed that he was assaulted by Dasrath with garasa on his waist.

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28. P.W. 7-Jagdish Yadav, is also one of the injured persons. He has also supported the prosecution version and narrated the same story except some variations.

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29. P.W. 8-Dr. Vasudeo Prasad Sinha, is the doctor, who examined the injured, namely, (1).Sudan Yadav; (2). Bhokhani Yadav; (3). Naresh Yadav; (4). Suresh Yadav, on 16.08.1980.

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30. (1.) On examination of Sudan Yadav Sudan Yadav S/o Munshi Yadav, Vill. Tangai P.S. Mahagama, aged about 50 year and found following injuries on his person:

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(1) Sharp cutting injury 2 ½" X 1/2"x1/2" extending from middle of palm to the dorsan of the left hand.

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2) Bruise 1” X 1” on middle of left parietal found.

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(3) Bruise 1”X ½” on the back of lateral Candyl of humerur of right hand.

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(4) Bruise 1”X ½” on the lateral side of the ankle joint of the left leg just above the lateral malely.

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(5) Bruise ½”X½” below the lateral malely of the right leg. Doctor has proved the injury report of Sudan Yadav, which was marked as Ext.-1.

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(2 .) On the same day doctor examined Bhukhru Yadav S/o Dhelu Yadav vill Ghat Dharampur P.O. Tangai P.S. Mahagama and found the following injury on his

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person:

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(1) Sharp cutting injury 5 ½”X 1/2 " x3/4 " on the dorsum of left hand.

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(2) Sharp cutting injury ½”X 1/4 “X1/6" on the middle of head in midian plain.

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Doctor has proved the injury report of Bhukhru Yadav, which was marked as Ext.-1/1.

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(3.) On the same day doctor examined Sri Naresh Yadav S/o Bhoklam Yadav vill. Ghat Dharmapur P.O. tangain P.S. Mahagama and found the following injury on his person:

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(1) Incised wound 4 ½”x 3/4" x 3/4" on the right side of back of waist extending from waist up and to vertebral column.

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(2). Bruise and swelling 2”X 1” on the right side of the forehead.

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.(3). Both the nostrils full of blood conjectira showing sub conjestiral haemorrhage.

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Patient was semi conscious and both eye lids were swollen. A sign of internal haemorrhage in skull probably from anterior cranial fossa.

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(4). Sharp cutting wound 1" x ¼’’ x 1/6" on the right side of the occipital bone.

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(5) Bruise 1”X ½” on the front of right knee.

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Doctor has proved the injury report of Naresh

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Yadav, which was marked as Ext.-1/2.

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(4.) On the same day doctor examined Suresh Yadav S/o Bhukhru Yadav of vill Ghat Dharampur P.S. Tangain P.S. Mahagama Distt. Godda and found the following injury:

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Injury No. (1) Bruise (a) (b) (c)

(a) 1"X 1/2 "

(b) 1½"X 1/2 "

(c) 1"X 1/2 "

All the three side by side on the deltoid muscles of the left arm.

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(2) Bruise 1"X1/2 " on the right shoulder lateral side.

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(3) Bruise and swelling 2”X1" on the dorsum of the right hand.

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(4) Bruise 2”X1” on the right scapular region of the back of the chest.

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Doctor has proved the injury report of Suresh Yadav, which was marked as Ext.-1/3.

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31. From the testimony of the doctor, based upon the injury report of the injured, it is evident that save and except the injury inflicted upon injured Naresh Yadav, all the injuries inflicted upon other injured persons are admittedly simple in nature.

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32. It is evident that it is a case where one person has succumbed to injuries sustained to him alleged to attract offence under Section 302 of the Indian Penal Code and four persons have been injured, which are simple in nature attracting offence under Section 307 of the Indian Penal.

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33. Therefore, this Court, on the basis of documents available on record as exhibited and testimony of the witnesses, is to see as to whether there is sufficient material to attract offence under Section 302 and 307 IPC.

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34. Now, coming to the case at hand, admittedly, the inquest report has not been produced by the prosecution. The purpose of producing the inquest report, prepared under Section 174 Cr.P.C., is to record the circumstances of a suspicious death, including the injuries and observations at the scene. It can be crucial especially in a case where limited number of witnesses has been examined and if the inquest report is missing the prosecution loses a key piece of evidence that could 19

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have supported their case. In absence thereof, it could be harder for the prosecution to prove the ‘nature of injuries’, ‘cause of death’ and the ‘circumstances surrounding the death’. The question arises, who could be the best to describe the ‘nature of injuries’, ‘cause of death’ and the ‘circumstances surrounding the death’. The obvious answer is - it is the doctor and the investigating officer, who could have be the best to describe about the inquest report. But, admittedly, in the case at hand neither the doctor, who conducted post mortem, has been examined who may have described about the ‘nature of injuries’ and ‘cause of death’ and in absence thereof, it is not possible for the prosecution to say anything about the ‘nature of injuries’ or ‘cause of death’ or ‘circumstances surrounding the death’. In absentia thereof, if there is forensic report and/or any other potentially circumstantial evidence, the prosecution may have relied upon the same but admittedly there is no such evidence i.e., neither there is forensic report or any potential circumstantial evidence which could have proved the case of murder beyond all reasonable doubt.

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35. The second relatable piece of evidence, if any, with respect to inquest report, is the testimony of police officer/investigating officer, in whose presence the inquest report was prepared because the inquest report

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includes information about the deceased, the place of death and the time of death, a description of the body and injuries and the investigating officer’s opinion on the cause of death. But, in the case at hand the investigating officer has not been examined.

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36. It is settled position of law that the Investigating Officer is responsible for gathering evidence, recording statements and preparing the case for trial. The testimony of the Investigating Officer is important for explaining the investigating process, the evidence collected and how it connects to the accused. In absence of these elements, it certainly causes prejudice to the accused and they would be unable to properly defend themselves and it could lead to acquittal.

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37. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Munna Lal v. State of U.P. , (2023) 18 SCC 661 wherein it has been held that whether or not nonexamination of investigating officer has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:

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39. --- It is true that mere failure/neglect to effect seizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not being found by this Court to be wholly reliable. The missing links could have been provided by the investigating officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the investigating officer could not depose as a witness, as told by PW 4, is that he had been sent for training. It was not shown that the investigating officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the investigating officer.

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40. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.

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38. The Hon’ble Apex Court in the case of Lahu

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Kamlakar Patil v. State of Maharashtra , (2013) 6

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SCC 417 has observed the certain circumstances where the examination of investigating officer becomes vital and the explanation regarding non-examination of the I.O. must be satisfactorily explained. The relevant paragraph

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of the aforesaid Judgment is being quoted as under:

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18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] , this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then nonexamination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State of J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50] , has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should

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have been examined and his non-examination creates a

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lacuna in the case of the prosecution.

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39. Herein admittedly due to non-examination of

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investigating officer the place of alleged occurrence has not been ascertained and further the statement of the witnesses recorded under 161 Cr.P.C has also not been fully substantiated. Further herein even the bloodstained soil or the weapon which has been used in alleged commission of crime has not been sent to the FSL. Further due to non-examination of the investigating officer/police officer the veracity of inquest report has not been fully established.

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40. Thus, in the aforesaid circumstance the testimony of the Investigating Officer is important for explaining the investigating process, the evidence collected and how it connects to the accused. In absence of these elements, it certainly causes prejudice to the accused as they would be unable to properly defend themselves.

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41. Further it is admitted case of the prosecution that the Doctor who had conducted autopsy on the body of deceased has not been examined and even post-mortem report has not been brought on record which is the vital piece of evidence in order to substantiate the testimonies of the eyewitnesses.

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42. It needs to refer herein that the Division Bench of the High Court of the Jharkhand in the case of Sowam Kisku and others Vs. The State of Bihar [2006 Cri L J 2526] has observed that it is no doubt true that in spite of the steps taken, the prosecution could not procure the attendance of the doctor who conducted autopsy over the dead body, but that could not have precluded the prosecution from examining some other doctor from the same hospital who knew the handwriting and signature of the doctor who conducted autopsy.

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43. But admittedly in the instant case prosecution had not taken pain to examine other doctor of the same Hospital who was acquainted with the signature and writing of the said doctor who had conducted autopsy on the body of the deceased and even the report has not placed on the record.

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44. If any other doctor had been examined who knew the signature of the doctor who conducted the autopsy and if he had given evidence as to the nature of post mortem done and the injuries found by the doctor on the dead body, then the appellants could have had an opportunity of cross-examining the said doctor to say that the injuries suffered by the deceased are not fatal in nature and even if the deceased died on account of such injuries, the accused-appellants could have taken a

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defence to say that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are only likely to cause the death. The prosecution by not examining the doctor denied the opportunity to the accused-appellants as they were prevented from cross-examining the doctor.

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45. It needs to refer herein that though Section 294 Cr.P.C provides for no formal proof of certain documents, but it cannot take the place of direct evidence of the doctor. It refers to only that document which can be needed in evidence and the wound certificate/ medical report/postmortem report cannot be read in evidence unless the doctor is examined or otherwise.

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46. We, accordingly, hold that if a medical report/injury report/post-mortem report is tendered in evidence by a person who is not the author of the same, such evidence, though admissible, would not have any probative value, unless and until the same is proved by any other doctor, as indicated above, who is equipped with medical science and competent to answer the questions on the merits of such report, as the defence would be deprived of crossexamination with regard to the contents of the report.

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47. In the case of State of U.P. v. Lakhmi , (1998) 4 SCC 336 the Hon’ble Apex Court has observed that No doubt it is the duty of the prosecution to prove post-mortem

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findings in murder cases, if they are available. Absence of such proof in the prosecution evidence in a murder case is a drawback for prosecution. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:

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15. Learned counsel for the respondent, however, pointed out that as the doctor who conducted post-mortem examination on the dead body was not put in the witness-box in this case and it was argued on its strength that in the absence of legally proved medical evidence no finding can be reached that the deceased died due to blows inflicted with “phali”. No reason is seen noted by the trial court or the High Court for the nonexamination of the doctor who conducted the autopsy. No doubt it is the duty of the prosecution to prove postmortem findings in murder cases, if they are available. Absence of such proof in the prosecution evidence in a murder case is a drawback for prosecution.---"

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48. On consideration of the above legal preposition, we are of the considered view that, non-examination of a competent medical practitioner, would virtually amount to denial of valuable right of the accused to crossexamine the medical practitioner, who could have addressed the intricacies of the said report.

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49. Even ‘absence of inquest report’ and/or ‘nonexamination of the Investigating Officer and Medical Officer does not ipso facto mean that the factum of murder will fail, but it definitely weakens the case of the prosecution. Therefore, this Court has to go the other

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materials available on record and the see the credibility of the testimony of the witnesses in order to see as to whether the case of the prosecution has been proved beyond all reasonable doubt.

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50. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of

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U.P. , reported in (2000) 3 SCC 454 , wherein, at

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paragraph-22, it has been held as under:-

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"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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51. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka [(2017)

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13 SCC 98] , has held at paragraph-26 as under:-

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"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

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52. Further, it needs to refer herein the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors ., reported in (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under: -

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"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to

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criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

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53. It needs to refer herein that the Hon'ble Apex Court, in

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the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-

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“ 6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. "

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54. It needs to refer herein before laying down the

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aforesaid view, the Hon’ble Apex Court in the case of

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Sharad Birdhichand Sarda v. State of Maharashtra

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reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as

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“ 163 . We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

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55. In the backdrop of the aforesaid settled position of law this Court is now adverting to the factual aspects of this case. Admittedly in the case at hand, P.W. 1 and 2 have been declared hostile. P.W. 3-Lutan Yadav, in his crossexamination has stated that his statement under section 161 Cr.P.C was not recorded and for the first time, he deposed before the trial court.

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56. P.W. 4, Ganesh Yadav, is allegedly an eye witness, has stated in his cross-examination that he saw Chakru, Paltu, Titku and Dasrath on the one side and Suddan (deceased), Suresh, Naresh, Ludan, Jagdish and Bhokru on the other side and they were fighting but this witness has not stated anything regarding the appellants. Further, P.W. 5, 6, and 7 are the full brothers as well as injured and they have presented a new story against the FIR.

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57. Therefore, it is evident that only interested witnesses have been examined, however the incident has occurred in broad day light. The material witnesses, who are the independent witnesses and the charge-sheeted witnesses, namely, Sk. Allaudi; Sk. Chaugh alias Noor Mohammad; Sk. Gafoor; Jamuna Singh; Doctor R. Chanani, S.I. N. Mishra and M.N. Modi, have not been examined though the trial remained pending for 17 years. Not only that neither the blood-stained earth from the place of occurrence nor the blood-stained cloths were produced and exhibited by the prosecution, which are the vital piece of material evidence in such type of case.

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58. This Court, on the aforesaid ground i.e., nonproduction of the inquest report and non-examination of the doctor who conducted post mortem and nonexamination of the investigating officer though the trial took about 17 years, besides other grounds, as discussed in the preceding paragraph, is of the view that the prosecution has miserably failed to prove the charge under Section 302 IPC against the appellants no. 1 to 3., beyond all reasonable doubt. In consequence of falling of charge under Section 302 IPC, charge against the Appellant no. 4 to 12 under section 302/149 of IPC is also not proved.

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59. Further ground has been taken that no case under Section 307/149 IPC is made out even accepting the prosecution version to be true as the injury report of the injured shows that none of the injury is shown to be grievous in nature.

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60. This Court, in order to reach such conclusion, has gone through first the injury report of the injured and the deposition of the doctor, who has been examined as P.W. 8-Dr. Vasudeo Prasad Sinha, who has examined the injured, namely, (1).Sudan Yadav(deceased) (2). Bhokhani Yadav; (3). Naresh Yadav; (4). Suresh Yadav. From the deposition, it is amply clear that all the injury inflicted upon the injured are simple in nature, save and except an injury no.3 inflicted upon Naresh Yadav, which is stated to be grievous in nature. But, ongoing through the injury report Ext.-1/2 of Naresh Yadav, this court finds that doctor has noted in injury no. 3 that there was a sign of internal hemorrhage in skull probably from anterior cranial fossa, but, at para-12 of his crossexamination, doctor has admitted that he did not get the X-ray. Hence, without seeing the X-report, doctor stated that there was sign of internal hemorrhage in the skull and said that injury no. 3 was grievous and this raises doubt as to nature of injury no. 3 sustained by Naresh Yadav.

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61. Section 307 of the Indian Penal Code deals with the offence of attempt to murder. The key ingredients for this offence are –(1).intention or knowledge to commit murder; (2).an act towards committing the offence; and(3).the act must be such that if death were caused it would amount to murder.

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62. This Court on the basis of pleadings available on record is to see whether these ingredients are available in the case at hand or not so as to attract the penal offence under Section 307 IPC.

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63. For this, this Court has again gone into the factual aspect of the matter. Admittedly, for cutting the ridge of the farm resulting into water flown out from the farm, a sudden dispute between the parties arose as a result of which, the appellants including other accused persons assaulted the informant party with spade and garasa due to which people of the informant’s side have sustained injuries, which are found to be simple in nature.

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64. From the testimonies of the witnesses, it is evident that though the appellants have been found to have caused injury upon the injured but it lacks intent or knowledge to commit murder and even the injuries sustained are simple in nature. So far offence under Section 307 IPC is concerned, it requires proof of

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intention or knowledge to murder and the act done would have caused death.

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65. This Court, therefore, is of the view that in the case at hand the offence under Section 307 is not attracted. But, as per the injury report, the injury has been inflicted upon the injured though they are simple in nature. Therefore, in the case at hand, it cannot be said that the appellants had ever intention or knowledge to attempt murder and the act of assault and circumstances in which a dispute arose between the parties over the issue of cutting of ridge of the farm, does not constitute the offence under Section 307 IPC.

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66. Therefore, this Court is of the view that the prosecution has failed to prove the charge for the offence said to have been committed under Section 307/149 IPC by the appellants beyond all reasonable doubt.

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67. But the fact remains, as per the testimony available on record that there are injuries on the person of the injured, as per testimony of the doctor.

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68. Learned counsel for the appellant has submitted that since there lacks intention to kill by the appellants and the injuries are minor in nature, therefore, at best the case of the appellants would fall within the ambit of Section 323 IPC.

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69. This Court since has already come to the conclusion that there was lack of intention to kill by the appellants, therefore, this Court has to see whether there are other ingredients attracting the offence under Section 323 IPC are available or not.

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70. Admittedly, the key difference attracting offence under Section 307 and 323 IPC is the intention or knowledge of the accused, besides other factors are the nature of injuries; weapon used and the evidence presented by the prosecution. So far as nature of injuries is concerned, admittedly it is simple in nature. The other factor, the weapon used, as per the testimony of the witnesses, the Garasa and the spade which was used in farm was used. Certainly, if there would have been intention to kill, the weapon alleged used may have caused grievous injury but that is not the case herein. In this respect, this Court has again gone through the testimony of the witnesses and found therefrom that most of the witnesses are interested witnesses and injured are the full brothers of the informant even though independent charge-sheeted witnesses were there but the prosecution did not examine those witnesses thought the trial took 17 years to conclude.

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71. In this situation, considering the nature of injuries, which are simple in nature, this Court finds that the case

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against the appellants for attempt to murder is not proved but at most, the case of appellants is found to be proved under Section 323 of IPC.

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72. In that view of the matter it is considered view of this Court that the appellants are hereby guilty for offence punishable under Section 323 IPC and the appellants are hereby sentenced to the period already undergone by them.

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73. So far as conviction of all the appellants under section 148 of IPC is concerned, this court has acquitted the appellants under sections 302, 302/149 and 307/149, as discussed in the preceding paragraph. Further, four injured namely, (1). Sudan Yadav; (2). Bhokhani Yadav; (3). Naresh Yadav; (4). Suresh Yadav, were examined by the Doctor P.W-8 and doctor found all the injuries sustained by the injured were simple in nature, hence, seeing the nature of injuries sustained by the injured, which are simple in nature, conviction of the appellants under section 148 of IPC becomes doubtful and is set aside.

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74. Since the appellants are on bail, they are discharged from liabilities of bail bonds.

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75. Accordingly, the instant appeal is hereby disposed of with aforesaid observation.

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76. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.

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77. Pending Interlocutory Application(s), if any, stands disposed of.