Allowed

Yogendra Thakur and Ors. v. State of Bihar

Patna HC14 May 2013CR. APP (SJ)/201/2001

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and set aside the conviction of three appellants. The court held the prosecution failed to prove its case beyond reasonable doubt due to contradictions in witness accounts, delays in lodging the FIR, discrepancies regarding medical evidence, and failure to produce seized items on record.

What did the court decide?

The impugned judgment of conviction and sentence was set aside; appellants were placed on bail and discharged from bail bond liabilities.

Yogendra Thakur and Ors. Vs State of Bihar — Cheating and Forgery | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.201 of 2001

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=========================================================== 1. Yogendra Thakur 2. Rajendra Thakur 3. Panchlal Thakur All sons of late Manroop Thakur resident of village Bishanpur police station Bela district Sitamarhi

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.... .... Appellants Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellants : Mr. Mahendra Thakur, Advocate Mr. Sanjay Kumar, Advocate

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For the State : Mr. Sujeet Kumar Singh, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 14-05-2013

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Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State.

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This criminal appeal has been filed by above mentioned three appellants against the judgment of conviction and order of sentence dated 20.6.2001 passed by learned Addl. Sessions Judge I, Sitamarhi in Sessions trial no. 182 of 1990/149 of 1996 by which and whereunder he convicted the appellants for the offences punishable under section 326 read with section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years with a fine of Rs 2,000/- each and in default of payment of fine, appellants were directed to undergo rigorous imprisonment for a further period of six months each.

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During the pendency of the appeal, appellant no.1 namely, Yogendra Thakur died and his appeal abated vide order dated

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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13.5.2013.

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P.W. 5, namely, Mahendra Sah, gave his fardbeyan to the officer-in-charge of Parihar police station on 15.1.1990 at about 9 a.m. to this effect that on preceding Saturday at about 9 to 10 a.m. while he was sitting at his door, appellants started abusing him and also damaged his windows door and in that course, appellant Rajendra Thakur hurled one saving razor blow on his neck but he warded off the aforesaid blow by his left hand as a result of which little finger of his left hand was chopped off. He further stated that his brother Nawal Kishore Sah snatched the said saving razor from the hand of appellant Rajendra Thakur and in the meantime, villagers came there. After the aforesaid occurrence, villagers assured him to convey a panchyati and one Mahant Sah of his village gave treatment to him. He further stated that when no panchyati was conveyed, he along with his brother came to police station and handed over the above stated saving razor as well as his separated little finger to police.

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On the basis of the aforesaid fardbeyan, Bela P.S. case no.05/1990 for the offences under sections 326, 323 of the Indian Penal Code was registered and on the same day formal FIR was drawn up for the offences punishable under sections 326, 323 of the IPC against the appellants but later on, section 307 of the IPC was also added. The matter was investigated and after investigation, police submitted charge sheet against the appellants for the offences punishable under sections 307 and 326 of the IPC. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way.

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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Appellant Yogendra Thakur and Panchlal Thakur were jointly charged for the offence punishable under section 307 read with section 34 of the IPC whereas appellant Rajendra Thakur was separately charged for the offences punishable under sections 307 and 326 of the IPC. The charges were read over and explained to appellants to which they denied and claimed to be tried.

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In course of trial, prosecution examined, altogether, nine prosecution witnesses and also got exhibited fardbeyan as exhibit 1, requisition sent by officer-in-charge of Parihar police station to Incharge Medical officer, Parihar, Health Centre as exhibit 2, signature of the informant Mahendra Sah on his fardbeyan as exhibit 3, injury report of Mahendra Sah as exhibit 2/1 and production-cumseizure list as exhibit 4. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and denied the prosecution story.

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No evidence was adduced by the appellants in support of their defence but from perusal of statements recorded under section 313 of the Cr.P.C as well as trends of cross-examination of prosecution witnesses, it appears that defence of the appellants was total denial of prosecution story and furthermore, they claimed that they were falsely implicated by the informant on account of land dispute.

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The learned trial court, having relied upon the testimonies of the prosecution witnesses as well as documents adduced on behalf of the prosecution, passed the impugned judgment of conviction and sentence order in the manner as stated above.

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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Learned counsel appearing for the appellants assailed the impugned judgment of conviction and sentence order arguing that the learned trial court based his findings on surmises and conjectures and, as a matter of fact, prosecution could not succeed to prove its case beyond all shadow of reasonable doubts. He further contended that P.W.5, informant of this case, admitted in his deposition that there was land dispute between the parties and according to the prosecution case itself, alleged occurrence took place on 13.1.1990 whereas fardbeyan of P.W.5 was recorded on 15.1.1990 i.e. after two days of the alleged occurrence and no explanation of the aforesaid delay was given by the prosecution. He further pointed out that P.W.6, Dr. Sheonarayan Sah is said to have examined P.W.5 after institution of this case and the aforesaid witness very specifically stated that P.W.5 was examined by him on 20.1.1990 i.e. after seven days of alleged occurrence but doctor found age of injury within 48 hours on the date of examination and, therefore, the aforesaid circumstance creates serious doubt about the prosecution story. He further submitted that in course of trial, not only P.W.5 but so-called eye-witnesses improved the prosecution case saying that the appellants Panchlal Thakur and Yogendra Thakur (since deceased) also assaulted him with lathi and danta. He further stated that P.W.6 found one injury on the person of P.W.5 and, therefore, all the above stated circumstances suggest that the appellants were falsely implicated by P.W.5. He further stated that according to the prosecution case, alleged occurrence took place in the year 1990 and the appellants faced trial till the year 2001 and still they are suffering from trauma due to their

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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conviction and, therefore, the appellants have sufficiently been punished and ends of justice will meet, if the appellants are sentenced to the period already undergone in course of trial as well as during the pendency of the appeal, even if this court finds guilty to the appellants.

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On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that P.Ws.3, 4, 8 and 9 claimed themselves to be eye witnesses of alleged occurrence and P.W.5, informant, supported the contents of his fardbeyan which is corroborated by the deposition of P.W.6 and, therefore, there is no scope for this court to interfere with the findings of the learned trial court.

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As I have already stated that, altogether, nine prosecution witnesses were examined on behalf of the prosecution in course of trial. Out of them, P.Ws. 3, 4, 8 and 9 are said to be eye witnesses of the alleged occurrence whereas P.W.6 is the doctor and P.W.7 is the Investigating officer of the case.

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Exhibit 1 fardbeyan of P.W.5 was recorded by ASI of Parihar police station on 15.1.1990 at about 9 a.m. and according to exhibit 1, the aforesaid fardbeyan was recorded on Monday whereas the occurrence had taken place on Saturday. Therefore, it is an admitted position that exhibit 1 was recorded after two days of the alleged occurrence. Furthermore, it is the case of prosecution that after alleged occurrence, one Laxmi Sah, Nawal Kishore Sah and Mukesh Sah stopped the P.W. 5 from going to police station on the pretext that

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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the matter would be settled in panchyati but when the aforesaid panchyati was not conveyed, P.W.5 along with his brother went to Parihar police station and gave his fardbeyan and handed over snatched saving razor as well as separated little finger to officer-incharge of the aforesaid Parihar police station.

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Admittedly, officer-in-charge of the aforesaid Parihar police station did not prepare any production-cum-seizure list in respect of the aforesaid separated little finger as well as saving razor. P.W.7, who happens to be officer-in-charge of Bela police station, stated that the above stated separated little finger and saving razor were handed over by the police of Parihar police station to him in course of investigation and after that P.W. 7 prepared productioncum-seizure list in presence of Kuldip Sah and Lal Babu Singh on 15.1.1990. The aforesaid production-cum-seizure list has been marked as exhibit 4 but it has not been mentioned in exhibit 4 as to who had produced separated little finger as well as saving razor. Admittedly, witnesses of the aforesaid production-cum-seizure list have not been examined by the prosecution.

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P.W.5 in his cross-examination stated that he made his statement to the police station of Parihar police station on the day when the alleged occurrence took place and the aforesaid statement was recorded at 11 a.m., but admittedly, no such statement of P.W.5 was brought on record by the prosecution before the learned trial court in course of trial. Therefore, it appears that earlier version of P.W.5 was suppressed by the prosecution and due to the above stated suppression, adverse inference would be drawn against the

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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prosecution. P.W.5 stated that Parihar police station is situated at a distance of 4 miles from his house where Bela police station is situated at a distance of 2 miles from his house. It is also an admitted position that place of occurrence falls under the jurisdiction of Bela police station but P.W.5 did not choose to visit Bela police station which was nearer to his house. No doubt, only on the ground that P.W.5 lodged his case on a different police station, prosecution case can not be doubted but in the present case, admittedly, exhibit 1 was lodged after two days of the alleged occurrence and P.W.5 chose to lodge the case at a police station which was situated far away from his house.

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P.W.5 stated that the appellant Rajendra Thakur hurled blow of saving razor causing injury on his little finger whereas the appellant Panchlal Thakur assaulted him with lathi and also damaged his window by assaulting with lathi and bricks but P.W.6 found only one injury on the person of P.W. 5 and similarly, P.W. 7 did not find any sign of assault either on window or the house of P.W. 5. Furthermore, I find that P.W 3 stated that the appellant Yogendra Thakur caught P.W.5 and assaulted him whereas P.W.4, nowhere, stated this fact that P.W.5 was caught by the appellants at the time of alleged occurrence rather P.W.4 stated that P.W.5 Mahendra Sah was assaulted by the appellants Yogendra Thakur and Panchlal Thakur. It is obvious from the aforesaid fact that both the witnesses made contradictory statements in respect of manner of alleged occurrence.

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P.W.8 has nowhere stated this fact that P.W.5 was caught by the appellants Yogendra Thakur and Panchlal Thakur and

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Patna High Court CR. APP (SJ) No.201 of 2001 dt.14-05-2013

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furthermore, P.W.8 has also not stated that appellants Yogendra Thakur and Panchlal Thakur assaulted P.W.5 whereas P.W.9 stated that the appellants Yogendra Thakur and Panchlal Thakur assaulted P.W.5 by means of lathi. Therefore, almost, all the above stated socalled eye-witnesses made contradictory statements in respect of manner of occurrence and, therefore, the aforesaid contradiction creates doubt about genuiness of the prosecution story.

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P.W.6 stated that on 20.1.1990, he was posted at Parihar Health Center as Medical officer and examined P.W.5. This witness issued injury report on 20.1.1990 but when this witness was cross-examined, he admitted that he had not mentioned date and time of examination of P.W.5. Although exhibit 2 reveals that requisition for medical examination was issued by the officer-in-charge of Parihar police station on 15.1.1990 but according to P.W.6, P.W.5 was examined on 20.1.1990 and, therefore, the aforesaid circumstance creates doubt about the genuiness of exhibit 2/1, injury report of P.W.5.

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On scrutinizing and analysising the entire prosecution evidences, I find that the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and, in my view, the appellants are entitled to get the privilege of benefit of doubt.

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Thus, on the basis of the aforesaid discussions, this criminal appeal is allowed and the impugned judgment of conviction and sentence order is, hereby, set aside. The appellants are on bail. They are discharged from the liabilities of their bail bonds.

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Shahid/NAFR

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(Hemant Kumar Srivastava,J)

Yogendra Thakur and Ors. v. State of Bihar

Case brief

What is this about?

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Yogendra Thakur and Ors. v. State of Bihar

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