Allowed

Sakaldeo Yadav and Ors. v. State of Bihar

Patna HC20 Jun 2013CR. APP (SJ)/387/2000

Case brief

AI extract

What is this about?

Following a criminal appeal against a conviction for attempted murder and other offenses, the Patna High Court analyzed the consistency of prosecution witness testimony. The court found that the prosecution witnesses materially altered the story of the incident during the trial compared to their initial statements. Finding reasonable doubt regarding the prosecution's version and the shift in the i

What did the court decide?

The judgment of conviction and sentence is set aside; appellants are acquitted, discharged, and released on bail.

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

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.387 of 2000

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========================================================= (Against the judgment of conviction and order of sentence dated 07-092000 passed by learned VIIIth Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 314 of 1990)

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1.Sakaldeo Yadav, S/o Barashkali Yadav,

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Kanhaiya Yadav, S/o Ram Pati Rai,

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Swaminath Yadav, S/o Ram Pati Yadav, &

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Sheo Shankar Rai @ Sheo Shankar Yadav, S/o Sarat Yadav,

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All residents of Village-Ghanadih, P.S. Rasulpur, District- Saran.

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.... .... Appellants .

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Versus

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The State of Bihar

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.... .... Respondent.

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========================================================= Appearance : For the Appellant/s : Mr. Vidya Bhushan Prasad Ambashtha, Amicus Curiae for the appellants

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For the Respondent : Mr. Sujit Kumar Singh, A.P.P.

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Dated/ the 20 th day of June, 2013.

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=========================================================

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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

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C.A.V. JUDGMENT

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Hemant Kumar 1. This Criminal Appeal has been preferred against the Srivastava,J . judgment of conviction and order of sentence dated 07-09-2000 passed by learned VIIIth Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 314 of 1990 by which and whereunder, he convicted the appellant No. 1 for the offence punishable under Section-307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years under the above-said section and similarly, convicted the appellant No. 2 for the offence punishable under Section-324 of the Indian

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Penal Code and sentenced him to undergo rigorous imprisonment for one year under the above-said section whereas; appellants No. 3 & 4 were convicted for the offence punishable under Section-323 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for six months under the above-said section.

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P.W. 14 Sanjay Kumar Yadav gave his fardbeyan to ASI of Bhagwan Bazar Police Station on 02-02-1986 at about 9.30 p.m. in emergency ward, to this effect that on the same day, at about 5.00 p.m., he along with his brother Babulal Yadav (P.W.1) and Allah Yadav (P.W. 2) was spreading fertilizers in his field, which had been purchased by him one month prior, from Bhikhari Yadav (P.W. 6). In the meantime, appellants, being armed with lathi and Bhala, came in the aforesaid field and disclosed that the aforesaid land belonged to them and, thereafter, an exchange of words took place between him and appellants but in course of aforesaid exchange of words, appellant No. 1 exhorted the other appellants to kill him and also hurled Bhala, which hit on his abdomen. P.W. 1 & P.W. 2 raised alarm, which attracted his uncle Fuleshwar Rai (P.W. 11) and Rajan Raut. The above-said persons came to the rescue of P.W. 14 but the appellant Kanhaiya Rai assaulted Rajan Raut hitting him by brick whereas; appellants, Sheo Shankar Yadav assaulted Fuleshwar Rai by lathi, causing injury on his head. Similarly, appellant, Swaminath Rai assaulted P.W. 4 with brick, which hit on his left leg. In the meantime, Sukan Yadav, Adalat Rai (P.W. 3) and several other persons came there and saved P.W. 14 & others.

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On the basis of fardbeyan of P.W. 14, Ekma (Rasulpur) P.S. Case No. 171 of 1986 for the offences under Sections-323, 324,

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307/34 of the Indian Penal Code was registered and formal FIR was drawn up against the appellants for the above-said offences. The matter was investigated and after completion of investigation, charge sheet under Sections- 323, 324, 307/34 of the Indian Penal Code was submitted against the appellants. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.

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All the 4 appellants stood trial and, accordingly, they were charged for the offences punishable under Section-307 read with Section34 of the Indian Penal Code.

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In course of trial, prosecution examined altogether, 16 witnesses and also adduced documentary evidence. The statements of appellants were recorded under Section-313 of the Cr.P.C. in which, they reiterated their innocence and specifically, stated that P.W. 14 implicated them to save his skin from counter case and the prosecution party wanted to grab their lands. One defence witness was also examined and the said defence witness proved fardbeyan of Ekma (Rasulpur) P.S. Case No. 170 of 1986 as Ext. A and certified copy of aforesaid case was also produced by the defence which was proved as Ext. B. From perusal of statements of the appellants recorded under Section-313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, coupled with the documents produced on behalf of the defence, it appears that the defence of the appellants, was denial of the prosecution story and their false implication on account of land dispute.

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Learned trial court, having relied upon testimonies of prosecution witnesses, passed the impugned judgment of conviction and order of sentence, in the manner, as stated above.

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Learned counsel Sri Vidya Bhushan Prasad Ambashtha, appearing for the appellants, as amicus curiae, challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court failed to appreciate the evidences in right perspective and gave erroneous findings which are not liable to be sustained in the eye of law. Continuing his submission, he submitted that learned trial court failed to appreciate this fact that there was case and counter case between the parties and it was prosecution party, who wanted to take forceable possession of lands of the appellants and, therefore, prosecution party was aggressor and the appellants had every right to protect their property and person. He further submitted that learned trial court also failed to appreciate this fact that the appellants had also sustained injuries in the aforesaid occurrence and, therefore, even if, it presumed that a free fight took place between the parties, then also, the appellant No. 1 could not have been convicted for the offence punishable under Section-307 of the Indian Penal Code. He further submitted that the appellants and the informant (P.W. 14) are next door neighbours and the alleged occurrence took place in the year, 1986 on account of land dispute and persons from both the sides, sustained injuries and, therefore, the appellants may be sentenced for the period undergone by them, if this court finds the appellants guilty.

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On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that not only the informant but other eye witnesses also supported the prosecution story and moreover, P.W. 14 sustained grievous injury on his abdomen and, therefore, learned trial court, rightly, convicted the

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appellant No. 1 for the offence punishable under Section-307 of the Indian Penal Code and so far as rest appellants are concerned, the prosecution succeeded to prove this fact that they assaulted the other injured of this case and, therefore, the learned trial court, rightly, convicted the appellants under proper sections and no interference is warranted by this appellate court.

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As I have already stated that altogether, 16 prosecution witnesses were examined; out of them, P.W. 1 and P.W. 2 are brothers of P.W. 14 and they have been shown as eye witnesses in Ext 3 the fardbeyan of P.W. 14. Both the aforesaid prosecution witnesses supported the story of assault and specifically, stated that the appellant No. 1 namely, Sakaldeo Yadag gave one Bhala blow to P.W. 14 as a result of which, P.W. 14 sustained injury on his abdomen but both the aforesaid witnesses stated that they along with P.W. 14 came on their purchased land and parked tyre cart on the aforesaid land, upon which, appellants asked them to remove tyre cart from the aforesaid land and, thereafter, the alleged occurrence took place.

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P.W. 3 stated that at the time of alleged occurrence, he was at his door. This witness stated that after spreading fertilizer in the field, the P.W. 1, P.W. 2 and P.W. 14 returned and parked their tyre cart on the land, which had been purchased by them. This witness further stated that appellants came there and asked the aforesaid persons to remove tyre cart from the aforesaid land whereupon, the occurrence took place. Similarly, P.W. 4 stated that the alleged occurrence took place on the land, which had been purchased by P.W. 14 from Bhikhari Yadav. This witness stated that his house is adjacent to the above-said land and

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having heard the noise, he went to the place of occurrence, where he saw that the appellant No. 1 gave one Bhala blow to P.W. 14, causing injury on his abdomen whereas; the appellant Swaminath Yadav assaulted P.W. 14 with bricks causing injury on his left leg. This witness further stated that appellant, Kanhaiya Yadav hurled Bhala blow on Rajan Raut but the aforesaid Bhala blow caused only abrasion on the abdomen of Rajan Raut and, thereafter, the appellant, Kanhaiya Yadav assaulted Rajan Raut with bricks and appellant, Ravi Shankar Yadav assaulted Tileshwar Rai with Lathi. This witness, too, stated that P.W.14 and his brothers had parked their tyre cart and the appellants were asking to remove the aforesaid tyre cart, as a result of which, the alleged occurrence took place.

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P.W. 5 Bharat Yadav also stated that P.W. 14 and his brothers had parked their tyre cart on the land, which had been purchased by them from Bhikhari Yadav and on account of the aforesaid parking, the alleged occurrence took place. This witness stated that the appellant Sakaldeo Yadav gave Bhala blow to P.W. 14 whereas; appellant, Kanhaiya Yadav gave Bhala blow to Rajan Raut, which caused injury to him. This witness stated that the appellant, Sheo Shankar Yadav assaulted Raushani Devi with lathi.

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P.W. 6 Bhikhari Yadav @ Rai stated that he had sold 15 Dhurs land to P.W. 1 one month prior to the alleged occurrence. This witness, further, stated that on the alleged date of occurrence, P.W. 1, P.W. 2 and P.W. 14 parked their tyre cart on the above-said purchased land but appellants asked them to remove the aforesaid tyre cart from the above-said land, disclosing this fact that the aforesaid land belonged to them, as a court decree had already been passed in their favour. This

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witness further stated that when P.W. 1 did not remove the tyre cart from the aforesaid land, the alleged occurrence took place. This witness admitted that prior to the alleged occurrence, appellant, Sakaldeo Yadav had filed a Partition Suit against him and in the aforesaid suit, ex parte decree was passed. This witness also admitted that the land on which, the occurrence took place, was also subject matter of the aforesaid partition suit. He also admitted that he did not file any appeal against the aforesaid decree. He also admitted that the Dalan of appellant No. 1 was situated on the disputed plot since time immemorial. This witness also stated that when appellants came on the place of occurrence, an exchange of hot words took place and after that, the alleged occurrence took place. He also stated that none of the appellants repeated their blows.

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P.Ws. 7, 8, 9 & 10 made almost similar statements and claimed themselves to be eye witnesses of the alleged occurrence.

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P.W. 11 Tileshwar Rai @ Fuleshwar Raut is said to be injured of this case and stated that he had also sustained injury but did not disclose who assaulted him.

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P.W. 12 Raushani Devi has been tendered by the prosecution and there is nothing in her deposition.

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P.W. 13 is the doctor who had examined injured persons of this case. This witness stated that he examined Raushani Devi on 0312-1986 at 6.00 p.m. and found lacerated wound on right middle parital 1/2"x1/3”x skin deep with swelling around it about 1” in diameter, swelling upper back 1” in diameter and the aforesaid injuries were simple in nature caused by hard and blunt substances. This witness proved the injury report of Raushani Devi as Ext. 2.

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P.W. 14 Sanjay Kumar Yadav is the informant as well as injured of this case. This witness stated that on the alleged date of occurrence, he had parked his tyre cart in the field, which had been purchased by him from Bhikhari Rai but appellants, being armed with Lathi, brick and Bhala came there and uttered that a decree, in respect of the aforesaid land, had already been passed in their favour and furthermore, they asked from him to remove tyre cart from the aforesaid land, which was denied by him and thereafter, the alleged occurrence took place. This witness admitted in his cross-examination that appellants did not repeat Bhala blow. This witness admitted that almost all the prosecution witnesses are; either of his family members or his agnates. The attention of this witness was drawn towards his fardbeyan upon which, this witness stated that he had made statement in the fardbeyan to this effect that Kanhaiya Yadav hurled Bhala blow to Rajan Raut and Sheo Shankar assaulted Reshami Devi with Lathi. This witness stated that he does not know as to whether the appellant had sustained injury or not.

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P.W. 15 is a doctor who had examined P.W. 14 and stated that he found incised would on elbow lacteal region of abdomen 1”x1/2”x abdominal cavity deep with ometum out, an abrasion on left leg 1”x1/2”. This witness stated that injury found on abdomen had been caused by sharp cutting weapon such as; Bhala and grievous in nature whereas; the injury found on leg, was caused by hard and blunt substance and simple in nature. He further stated that on the same day, he examined Rajan Raut and found injuries on his person also.

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P.W. 16 is a formal witness, who proved signature of ASI on fardbeyan as Ext. 3 and formal FIR as Ext. 4.

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On perusal of evidences, available on the record, it is clear that almost all the material witnesses are family members or agnates of P.W. 14. Furthermore, I find that appellant No. 1 Sakaldeo Yadav lodged Rasulpur P.S. Case No. 170 of 1986 against the P.W. 14 and almost all the materials witnesses for the occurrence of same day, which is evident from perusal of Ext. A and almost all the material prosecution witnesses including P.W. 14 admitted this fact that for the occurrence of the same day, appellant No. 1 also lodged a case against him. Furthermore, it is admitted case of the prosecution that one month prior to the alleged occurrence; P.W. 14 had purchased the land of place of occurrence from P.W. 6. P.W. 14 stated in his fardbeyan that while he along with P.W. 1 & P.W. 2 was spreading fertilizer in the above said land, the appellants came there and assaulted him as well as other injured but in course of trial, P.W. 14 as well as other witnesses stated that the alleged occurrence took place, when P.Ws. 1, 2 & 14 parked their tyre cart near the southern wall of appellants. Therefore, it appears that in course of trial, the prosecution changed the genesis of the occurrence. P.W. 6 admitted in his deposition that the land, on which, the alleged occurrence took place, was subject matter of civil litigation and the appellants had obtained ex parte decree in respect of the aforesaid land. No doubt, the appellant No. 1 stated in Rasulpur P.S. Case No. 170 of 1986 that the prosecution party had parked their bullock cart near his southern wall and the occurrence took place when he asked to remove the bullock cart from there but it is settled principle of law that the prosecution has to stand on its own leg and the prosecution could not take benefit of weakness of defence. So, even if, the appellants admitted in Rasulpur P.S. Case No. 170 of 1986 that the

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occurrence took place on account of parking of tyre cart, then also, the prosecution had to prove the genesis of the occurrence as mentioned in the fardbeyan of P.W. 14 but as I have already stated that in course of trial, P.W. 14 as well as other witnesses changed the genesis of occurrence and therefore, in my view, the aforesaid circumstance, creates doubt about the genuineness of the prosecution case and it appears to me that the prosecution has not come before the court with clean hands.

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On perusal of the evidences, I also find that P.W. 14 has nowhere stated in his fardbeyan that the appellant Kanhaiya Yadav hurled Bhala blow, causing abrasion to injured, Rajan Raut but he improved the aforesaid fact, in course of trial and almost all the prosecution witnesses improved their statements in course of investigation. The witness, Raushani Devi (P.W. 12) has been tendered by the prosecution and she stated nothing about the alleged occurrence and, therefore, in my view, the appellants are entitled to get the privilege of benefit of doubt.

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On the basis of aforesaid discussions, this Cr. Appeal is allowed and the impugned judgment of conviction and order of sentence is, hereby, set aside and, accordingly, appellants are acquitted of the charges giving the benefit of doubt. All the appellants are on bail. They are discharged from the liabilities of their respective bail bonds.

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Patna High Court Dated/ the 20th day of June, 2013 A.K.V./-AFR

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(Hemant Kumar Srivastava, J)

Sakaldeo Yadav and Ors. v. State of Bihar

Case brief

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Sakaldeo Yadav and Ors. v. State of Bihar

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