Criminal appeal challenging convictions under IPC Sections 324 and 323. The High Court set aside the conviction and sentence due to material discrepancies in prosecution witnesses' testimonies and prejudice caused by the non-examination of the Investigating Officer.
Trial judgment set aside; appeal allowed; appellants discharged from liability.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.418 of 2002
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The State of Bihar
... ... Appellant/s Versus ... ... Respondent/s
====================================================== Appearance : For the Appellant/s : Mr. Baban Roy- Amicus Curiae For the Respondent/s : Mr. Binod Bihari Singh-A.P.P. ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
30-07-2019
None appears on behalf of appellants on account thereof, Sri Baban Roy, learned counsel has been requested to assist the Court as an Amicus Curiae.
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bayan on 06.03.1996 while he was admitted at Sadar Hospital, Nawada disclosing therein that on the same day at about 3.00 P.M. while he was standing near about his house, his co-villager Kailash Yadav armed with garasa and Kesho Yadav came, out of whom Kesho ordered to kill, whereupon Kailash Yadav gave garasa blow causing injury. His cousin Suresh Yadav came in rescue, who was also assaulted with garasa by Kesho Yadav, whereupon he has sustained injury. Kailash Yadav snatched away hasuli of gold of his wife as well as also snatched away his wrist watch. Musafir Yadav (PW-1), Lakhan Yadav (PW-3), Pokhan Yadav have been cited as a witness.
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background, this case has been filed with false and frivolous allegation. However, nothing has been adduced in defence.
Dani Yadav
1. I) One deep incised wound over the right side of scalp size 2 ½” x ¼” x ¼”.
II) One lacerated wound over the left eyebrow, size 1” x ¼” x 1/8” deep.
2. Injury No.(I) caused by sharp cutting instrument such as Garasa. Injury No.(II) by hard and blunt substance such as lathi portion of garasa. Injury No.
(I) opinion reserved and injury no.2 simple in nature.
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3. In continuation of above injury report X-ray skull AP and lateral view done on 6.3.96 and shows no honey lesion or fracture. Injury simple in nature.
Suresh Prasad Yadav
I) One incised wound over the left eyebrow size ½” x 1/8” x 1/8”.
II) One abrasion over the left side of the face size 1” x 1/2”.
III) One lacerated wound over right index finger size 1/2” x 1/2”.
IV) One lacerated wound over the left half of the nose size 1/4” x 1/4”.
5. Injury No.1 caused by sharp cutting instrument such as garasa and others by hard and blunt substance such as blunt portion of garasa. All injuries clinically simple in nature.
During cross-examination as is evident, the doctor opined that so far injuries over the person of Suresh Yadav are concerned, happen to be superficial in nature and so far Dani Yadav is concerned, may be caused by fall.
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evident that PW-1, Musafir Yadav, during his examination-inchief, had identified Alaar Yadav to be assailant of PW-4/ informant Shivdani Yadav. From Para-7 of his crossexamination, it is evident that there happens to be material contradiction on that score and same theme appears to be from the evidence of PW-2, Paras-8, 9. Apart from admission at his end at Para-7 that one Karo Devi had instituted case against him and others wherein Kesho Yadav had deposed against him. PW3, during his examination-in-chief, has reiterated, but from Para13, PW-4, informant at Para-10, PW-5 at Para-3 and PW-7 at Para-16, there happen to be material contradiction.
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of Shivdani, East-Kesho Yadav, West-Suresh Yadav. PW-3 at Para-5 has stated that Shivdani had fallen down in front of darwaza of his house. Virtually, marpit took place on darwaza in front of his house and shown the boundary as North-road, South-house of Shivdani, East-Kesho Yadav, West-Suresh Yadav. PW-4 at Para-16 has disclosed the boundary as Northroad, South-his house, East-Kailash Yadav, West-Suresh Yadav.
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occurrence. In Para-8, he has stated that he was standing 2-3 minutes since before to the occurrence at his darwaza. Kailash Yadav and Kesho Yadav were also present since before. He has further stated that they have not indulged in brawl with each other prior to the so alleged occurrence. In Para-9, he has stated that Holi had already solemnized one day prior to the occurrence. In Para-11, he has stated that first of all, he came out. He remained there for two minutes, then he was assaulted. At the time of assault, neither he nor accused persons raised alarm. PW-5 has stated that at the time of occurrence, he was at his house, Kesho Yadav and Kailash Yadav passed through the same speaking that today, they will kill. Thereafter, Shivdani Yadav came out from his house, whereupon Kesho Yadav ordered to kill. Then, Kailash Yadav took out farsa from his house and assaulted. After marpit, there was hulla. During crossexamination at Para-5, he has stated that first of all, Shivdani Yadav sustained injury. He fell down, then thereafter, he reached at that place. PW-7 has stated that while she was at her house, she heard sound of an altercation, over which she came at the darwaza and then, claimed to be an eye witness to occurrence.
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will not cause dent in the prosecution case.
“12. Going by the number of discrepancies in the prosecution case coupled with the contradictory statements by prosecution witnesses, the entire prosecution story vitiates and leads for discrediting its version. Contradictions in the statement of the witnesses are fatal for the case, though minor discrepancies or variance in their evidence will not disfavour [See: State of H.P. Vs. Lekh Raj (2000) 1 SCC 247]. Considering the circumstances of the case on hand, it can be said that the discrepancies are comparatively of a major character and go to the root of the prosecution story. We cannot
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therefore ignore them to give undue importance to the prosecution case. It is well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence [See: Sukhdev Yadav v. State of Bihar, (2001) 8 SCC 86].
(Aditya Kumar Trivedi, J)
Vikash/-
| AFR/NAFR | A.F.R. |
|---|---|
| CAV DATE | N.A. |
| Uploading Date | 05.08.2019 |
| Transmission Date | 05.08.2019 |
3 issues framed by the court
Whether the conviction and sentence under Sections 324 and 323 IPC stand to be sustained given material contradictions in prosecution witness testimony and non-examination of the Investigating Officer
Whether the discrepancies in prosecution evidence go to the root of the prosecution story thereby vitiating the case.
Whether the accused are to be discharged from liability in light of the set-aside of the conviction.
Colour shows how this judgement treated each authority
State of Himachal Pradesh vs. Trilok Chand and anotherReferred¶49
State of Himachal Pradesh vs. Trilok Chand and another reported in (2018) 2 SCC 342 · Who else cites this
State of H.P. Vs. Lekh RajReferred¶49
State of H.P. Vs. Lekh Raj (2000) 1 SCC 247 · Who else cites this
Sukhdev Yadav v. State of BiharReferred¶49
Sukhdev Yadav v. State of Bihar, (2001) 8 SCC 86 · Who else cites this
Kailash Yadav
Kesho Yadav
The State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
