Dismissed

Udhav Prasad Yadav and Ors. v. State of Bihar

Patna HC5 Apr 2013CR. APP (SJ)/255/2001

Case brief

AI extract

What is this about?

The Patna High Court dismissed the criminal appeal against conviction and affirmed the findings of the trial court. However, the court modified the sentence to a fine of Rs 2,000 payable to the injured witness, deeming a bond for good behaviour meaningless after a long lapse of time.

What did the court decide?

Criminal appeal dismissed; sentence modified to Rs. 2,000 fine payable to the informant.

Udhav Prasad Yadav and Ors. Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.255 of 2001

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Udhav Prasad Yadav son of Ram Pravesh Yadav

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Dukhan Rai son of Udhav Prasad Yadav

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Hari Shankar Yadav @ Hari Shankar Rai son of Udhav Prasad Yadav All resident of village Mohammadpur P.S. Revilganj District Saran

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State Of Bihar

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.... .... Appellants Versus .... .... Respondent

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========================================================== Appearance:

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For the Appellants : Mr. Mukesh Kumar Singh, Advocate For the State : Mr. Sujit Kumar Singh, A.P.P.

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========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT

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Date: 05-04-2013

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

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This criminal appeal has been preferred against the judgment of conviction and sentence order dated 17.5.2001 passed by learned Addl. Sessions Judge I, Saran in Sessions trial no. 232 of 1994 by which and whereunder he convicted the appellant nos. 1 and 2 for the offence punishable under section 324 of the Indian Penal Code and the appellant no.3 for the offence punishable under section 323 of the Indian Penal Code and released them on probation under the provision of Probation of Offenders Act, 1958.

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The fact, which lies to file this criminal appeal, is that P.W. 5, Mangal Prasad Yadav gave his fardbeyan to ASI Revilganj police station on 23.4.1993 at 10.30 a.m. in Revilganj hospital to this effect that on the same day at about 8 a.m. he along with his brother, namely, Gottam Kumar Yadav was fixing Khop. In the meantime,

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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appellant no.1 armed with farsa, appellant no.2 armed with farsa and appellant no.3 armed with lathi came there and started abusing him and also asked as to why he was fixing khop in their land whereupon he forbade them but the aforesaid appellants became furious and started assaulting him with farsa and lathi indiscriminately as a result of which he sustained injuries on his head, neck and other parts of the body. P.W.5 became unconscious and his brother raised alarm but he was, too, assaulted by the appellants. The witnesses came there and saved the life of P.W.5 as well as his bother.

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On the basis of the aforesaid fardbeyan, Revilganj P.S. case no.43/1993 for the offences under sections 323, 324, 307/34 of the Indian Penal Code was registered and formal FIR was drawn up against the appellants under the above stated sections. The matter was investigated by the police and after investigation, police submitted charge sheet against all the appellants for the offences under sections 341, 323, 324/34 of the Indian Penal Code but learned Chief Judicial Magistrate took the cognizance for the offence under section 307 of the IPC and the case was committed to the court of sessions, in usual way.

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Although the appellants were put on trial and the appellant nos. 1 and 2 were jointly charged for the offence punishable under section 307 read with section 34 of the IPC whereas the appellant no.3 was separately charged for the offence punishable under section 323 of the IPC. All the appellants denied the charges and claimed to be tried.

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In course of trial, prosecution examined, altogether, seven witnesses. Besides it, documentary evidence was also adduced. The

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and claimed their false implication on account of counter case bearing Revilganj P.S. case no.44/1993.

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The defence also examined, altogether, three witnesses and got exhibited some documents to prove this fact that the prosecution party was aggressor and on the alleged date of occurrence, prosecution party assaulted the appellants and others for which the above stated Revilganj P.S. case no.44/1993 was lodged and to save their skin from the aforesaid case, prosecution party lodged the instant case.

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The learned trial court, having appreciated and considered the materials available on record, convicted and sentenced the appellants in the manner as stated above.

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Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order submitting that the learned trial court failed to appreciate this fact that there was counter case lodged by the appellants and P.Ws. 5 and 6 were convicted by the court in the aforesaid counter case. He further submitted that the learned trial court also failed to appreciate this fact that the appellants had sustained injuries on the day of alleged occurrence but the informant lodged the present case suppressing the aforesaid fact and, therefore, it is evident that prosecution party had not come before the court with clean hands. He further submitted that in course of trial, prosecution witnesses made contradictory statements and the Investigating officer was not examined which caused prejudice to the defence. On the strength of the aforesaid submissions,

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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learned counsel for the appellants prays before this court for setting aside the impugned judgment of conviction and order of sentence.

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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 the learned trial court passed the impugned judgment of conviction and order of sentence on the basis of materials available on the record and there is no scope for this court to interfere with the findings of the learned trial court because it is well settled principle of law that if two views are possible on the same set of evidence, the appellate court can not substitute its own view on the findings of the trial court.

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As I have already stated that, altogether, seven witnesses were examined on behalf of the prosecution in course of trial. Out of them, P.W.1, P.W.2 and P.W.3 claimed themselves to be eye witnesses of alleged occurrence. P.W.5 is the informant who supported the prosecution case and stated that the appellants assaulted him with farsa and lathi. The statement of P.W.5 is corroborated by P.W.1, P.W.2 and P.W.3.

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P.W.6 is the doctor who examined the informant as well as his brother on the alleged date of occurrence and found injuries on their persons and on the same day, the appellant no. 1 as well as his son and some others were examined and he found injuries on the persons of the appellant no.1 and his son.

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Defence has brought on record certified copy of judgment of GR no. 1289/1993/ Trial no. 1089/1998 to show that the informant and others were convicted by the court for the occurrence of the same day. Furthermore, defence has also brought certified copy of

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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fardbeyan of the appellant no.1 recorded on 23.4.1993 on which basis Revilganj P.S. case no.44/1993 was registered.

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From perusal of the aforesaid documents, it is apparent that defence admitted this fact that on the alleged date of occurrence, scuffle had taken place between the appellants as well as prosecution party. According to the version of the appellants, on the alleged date of occurrence P.W.5 was fixing khop in his land upon which his son objected but P.W.5 and his associates assaulted his son as well as others including him. It is apparent from the aforesaid version that alleged occurrence took place on account of land dispute and persons from both sides sustained injuries. Furthermore, it is evident from the above stated materials that while P.W.5 was repairing his khop, the alleged occurrence took place. P.W.5 as well as other prosecution witnesses clearly stated that P.W.5 was repairing his khop in his land and it was the appellants who came there and forbade him to repair his khop upon which alleged occurrence took place. Therefore, it is apparent that alleged occurrence took place on the land of P.W.5 and, therefore, in my view, learned court below rightly convicted and sentenced the appellants.

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On the basis of the aforesaid discussions, this criminal appeal is dismissed and the impugned judgment of conviction is, hereby, affirmed.

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So far as order of sentence is concerned, admittedly, alleged occurrence took place in the year 1993 and up till now, near about 20 years have already elapsed. So, in my view, execution of bond for maintaining peace or good behaviour has become meaningless and the ends of justice would be met, if the appellants

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Patna High Court CR. APP (SJ) No.255 of 2001 dt.05-04-2013

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should pay Rs 2,000/- (Two thousand) to P.W.5 and accordingly, the sentence imposed upon the appellants is modified to the above stated

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extent.

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On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the sentence order as stated above. Let copy of this judgment be sent to the court below so that the learned court below could take the steps for realization of fine amount. Shahid/NAFR (Hemant Kumar Srivastava,J)

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(Hemant Kumar Srivastava,J)

Udhav Prasad Yadav and Ors. v. State of Bihar

Case brief

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Udhav Prasad Yadav and Ors. v. State of Bihar

Case brief

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