Anirudh Yadav vs The State of Bihar

B.N.P. Singh, J.—The Appellant u/s 307, and Shambhu Nath Yadav and Prabhu Yadav u/s 307/34 of the Indian Penal Code were prosecuted on behest of Prameshwar Yadav (P.W. 4) with accusation that on 23rd June, 1987, while Prameshwar Yadav was going home, he was intercepted by the Appellant and two others, who caught hold of him near Mahavir Asthan. It was alleged that on exhortation made by Shambhu Nath Yadav, while Prabhu Yadav dealt fists and slaps on him, Appellant dealt dagger blows on his right shoulder, abdomen and also above the eye-brow, and with these accusations, first information report was drawn up and investigation commenced. During investigation, the Investigation Officer, (P.W. 6) recorded statement of witnesses, visited place of occurrence, got the injured examined by the doctor and on conclusion of investigation, laid chargesheet before the Court, pursuant to which on commitment of case to the Court of Sessions, the Appellant alongwith Shambhu Nath Yadav and Prabhu Yadav were put on trial. In the eventual trial, that commenced against them, altogether seven witnesses were examined by the State including injured, Mangelu Yadav, brother of the injured, (P.W. 1), Ramdeo Yadav, brother-in-law of the injured (P.W. 2), Gajendra Yadav P.W. 3, some formal witnesses, Investigating Officer and also Dr. P.N.P. Gupta (P.W. 5). Defence too examined one witness ostensibly to counter the allegations attributed to the Appellant and others, and the trial Court on appreciation of evidences placed on the record, while acquitted Shambhu Nath Yadav and Prabhu Yadav for insufficiency of good evidence operating adverse to them, rendered verdict of guilt against the Appellant, finding him guilty u/s 307 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years on that count.

Various submissions were canvassed at bar on behalf of the Appellant to assail the finding recorded by the Court below and it is sought to be urged that though the occurrence was shown to have taken place in the midnight of 23rd June, 1987, the doctor, who examined the injured, stated to have clinically examined him at 1.20 noon, after lapse of about more than 13 hours. It is urged that, this fact, however, cannot be lost sight of that even though injured was examined by the doctor after more than 13 hours, the age of injury, in estimation of the doctor, was only three hours old which was quite incongruous with the edifice of the prosecution case, and the prosecution case on such inconsistency of the finding of doctor, had to be discarded in entirety. Contentions were raised that it would appear from the tenor of the first information report, of which non else but the injured was the maker, that he sustained three injuries with sharp edged weapon on his person including injuries on his right shoulder, but there was no corresponding finding of the doctor about presence of any incised injury on the right shoulder of the injured. It is urged that only interested and partisan witnesses were sought to be examined, at trial, entirely to the exclusion of independent witnesses and if testimony of P.W. 1 was to be given any credence, houses of large number of persons situate around the place of occurrence and many of them had flocked at the place of occurrence to see the incident, but State had not chosen to examine any of them at trial, and the last argument canvassed at bar on behalf of the Appellant was that though the doctor found two injuries grievous in nature, regard being had to their specification, nature of these injuries clearly fall within the ambit of Section 323 of the Indian Penal Code and would not constitute grievous injury, as enjoined u/s 320 of the Indian Penal Code and in quick succession, it is urged that the prosecution was launched against the Appellant in the year 1987, and since the Appellant has suffered ordeal of protracted trial for about 16 years and has also remained in custody about three months both as under trial prisoner and also during post conviction period, the Court is expected to take into consideration all these mitigating circumstances during consideration of imposition of sentence on the Appellant. Learned Counsel appearing for the State resisted contentions raised on behalf of the Appellant.

Though the trial Court has placed reliance on the testimony of all the witnesses, certain facts deserve consideration. Though Mangelu Yadav P.W. 1, who, happens to be brother of the injured, projected himself to be ocular witness of the incident, for twin reasons he was not ocular witness; firstly, that he did not claim to have noticed assault on the eye brow and right shoulder of the injured, and that apart, in most certain terms, the witnesses would admit that by the time he happened to such near place of occurrence, he could see only the injury on the person of his brother and also that he witnessed the assailants making good their escape. Similar was the case with Gajendra Yadav P.W. 3 who too was related with the injured, Though he projected himself to be an ocular witness for assault on the injured by the Appellant, his statement before the police was quite omnibus in nature without any explicit attribution to the Appellant for dealing dagger blows on Prameshwar Yadav. So far case of Ramdeo Yadav P.W. 2 was concerned, he made explicit accusation against the Appellant both before the Court as well as before the police about overt act attributed to him. The evidence of Prameshwar Yadav P.W. 4 who happens to be non else but the injured was the reiteration of his eariy version which he rendered before the police barring some minor variations which did not affect the bread feature of the prosecution case, and as has been finding of the doctor, he noticed corresponding injury on the person of the injured. True it is that the houses of a large number of persons situate around place of occurrence but their non-examination would not affect the merit of the prosecution case when some witnesses examined at trial, even if they were related with the injured, did not suffer infirmity or blameless, and hence relying on testimonies of Ramdeo Yadav P.W. 2, Prameshwar Yadav P.W. 4, and also the finding recorded by the doctor, the prosecution accusation about the Appellant being the author of the injuries the person of Prameshwar Yadav P.W. 4 has been amply proved by the State.

However, regard being had to the nature of injuries, I find myself in agreement with the submissions made by learned Counsel for the Appellant about this being a case u/s 323 of the Indian Penal Code, and since the Appellant has remained in custody for about three months, he is sentenced to the period already undergone in custody and in addition to that he is sentenced to pay a fine of Rs. 1000/- (one thousand), in default of which he would suffer imprisonment for seven months and with these modification, the appeal is dismissed.