Om Prakash Yadav vs The State of Bihar

P.K. Deb, J.—This appeal u/s 374 (2) read with Section 389 (1) of the Code of Criminal Procedure has been directed against the judgment and order of conviction and sentence passed by the then Additional Sessions Judge I, Siwan in Sessions Trial No. 134/1994 whereby and whereunder the appellant has been convicted under Sections 302/324 I.P.C. and sentenced to rigorous imprisonment for life u/s 302 I.P.C. and rigorous imprisonment for two years u/s 324 I.P.C. ordering to run, both the sentences concurrently. A Fardbeyan (Ext. 3) was made by P.W. 2 Jainath Choudhary on 18.11.1993 at 5.30 hours at the emergency ward of Sadar Hospital at Siwan alleging that on the previous night at about 11 p.m. while the informant was sleeping in the verandah of his house and his son Mithilesh Kumar Yadav was also sleeping in the same verandah separately, he woke up hearing the screaming and crying raised by Mithilesh Yadav and saw that accused Om Prakash Yadav alongwith two other unknown persons had torn the stomach with knife. After seeing the informant getting up the accused- appellant Om Prakash Yadav alongwith his associates rushed towards him. One of them attempted to close this mouth and Om Prakash had assaulted him in his chest and stomach on the lower part and other assailants had given knife blows on his back. He tried to catch the knife with his right hand due to which his right hand palm was also got injured by the knife. He became stunned, puzzled and started weeping and fled away towards south. At that very moment hearing hullah his brother Dudhnath Yadav (P.W. 1) came to the spot alongwith neighbour Yusuf Khan. Several other villagers also came to the spot. It was found that the abdomen of his son Mithilesh Yadav was totally torn and intestine had protruded. Both the injured were taken to Siwan Sadar Hospital where ultimately Mithilesh Yadav died and he was in the emergency room for the purpose of treatment. During the course of investigation the spot was verified. Accused appellant Om Prakash was arrested but no trace could be found about his two associates. Reports of injuries on the persons of both Mithilesh Yadav and the informant P.W. 2 had been collected. Dead body of Mithilesh Yadav was in-quested and sent for postmortem. After postmortem examination report was collected and then chargesheet had been submitted against the accused-appellant u/s 302/326 of the I.P.C. On commitment before the Sessions Judge charges were framed against the accused-appellant Om Prakash Yadav u/s 302 I.P.C. and also u/s 326 I.P.C. vide order dated 14.6.1994 and when the same was read over and explained to the accused appellant he pleaded not guilty.

At the first instance the defence plea was total denial and it was suggested that there was no motive for committing the alleged occurrence. It was also suggested to the prosecution witnesses that the accused appellant has been falsely implicated at the instance of the enemies of the accused. But it was not disclosed as to the name of the enemy at whose intance the accused- appellant had been implicated. It was further suggested that the informant and his son were known bad character people and they might have been assaulted somewhere else by the enemies and the accused appellant had been implicated but no specific instances of bad character had been cited from the side of the defence. But during the course of trial for the first time a new case was raised that in the house on the night of occurrence there was quarrel between the deceased and the informant had committed the murder of his son in drunken condition. After closure of the prosecution evidence D.W. 1 Mukichand Sah had been examined for and on behalf of the accused-appellant to claim that the accused-appellant has been implicated falsely at the instance of one Harendra Choudhary who had got litigating terms with the accused-appellant but no specific instances were cited or case was made out as to how the said Harendra Choudhary is close to the informant. D.W. 1 had further stated that before him the informant had disclosed that he could not identify the assailants and the villagers also disclosed that the culprits could not be identified.

For and on behalf of the prosecution as many as 14 witnesses had been examined. It should be mentioned here that the Investigating Officer in the case could not be examined. Out of the above 14 witnesses vital witnesses are P.W. 2 Jainath Choudhary who happened to be the direct eye-witness of the occurrence and also injured in the occurrence itself. P.W. 1 Dudhnath Choudhary is the elder brother of Jainath Choudhary P.W. 2 who came to the place of occurrence on hearing hullah and according to him while he was coming to the place of occurrence he saw the accused-appellant and two other persons fleeing away having knives in their hands. P.W. 3 Sona Devi, P.W. 4 Kripal Yadav, P.W. 5 Chandrika Choudhary, P.W. 6 Manager Yadav, P.W. 7 Vidya Choudhary and P.W. 8 Nand Kishore Yadav are co-villagers and they are the reported witnesses. According to them they were informed by P.W. 2 that this accused-appellant alongwith his two associates had assaulted Mithilesh Yadav and also assaulted the informant. P.W. 9 Dr. Sudhir Kumar Aryan is the Medical Officer of Sadar Hospital Siwan. He held post mortem over the dead body of the accused-appellant Om Prakash Yadav and found the following injuries on his person :

(i) 5" stitched wound on left upper abdomen extended from mid line 8th left coastal cartilage

(ii) 10" stitched wound for laparatomy on upper part of abdomen

(iii) 2.5" long stitched wound on the lower part of the right chest near 8th and 9th coastal cartilege with chest drainage tube

(iv) Stiched wound 2" long on right fore arm near wrist.

According to the doctor injury no. 2 as mentioned above was caused due to operation as the injured was operated when his intestine were found to be protruding out. Other injuries were, also repaired by Surgeon and according to the doctor, at least there blows were necessary to cause those injuries. Internal injuries were due to two injuries, namely, Injury Nos. i and iii. Doctor has fairly stated that he had mentioned which of the injuries was responsible for death. But according to him cause of death was due to shock and haemorrhage as a result of the wounds meaning thereby cumulative effects of the injuries. P.W. 10 Dr. Ajit Kumar Sinha was the Surgeon at the Sadar Hospital, Siwan at the relevant time and he examined both the deceased and P.W. 2 in their injured conditions and found only one big penetrating wound abdominal cavity deep on the person of Mithilesh Yadav and according to him the injury was a grievous one caused by sharp pointed weapon. On the person of P.W. 2 following injuries were found :

(i) An incised wound 4" x 1/2"x muscle deep over right palm.

(ii) An incised wound 2"x3/4"x muscle deep in hypogastric region of abdomen

(iii) An incised wound 1 1/2"x1/2"x muscle deep over upper back.

According to the doctor all the injuries were simple in nature caused by sharp cutting weapon/instrument like that of a knife.

P.W. 11 Shambhu Ram is an Advocate''s Clerk who had formally proved the F.I.R. P.W. 12 Ram Sakal Singh is also a clerk. He proved formally the inquest report. P.W. 13 Birendra Kumar is Sub-Inspector who has proved formally the Fardbeyan. P.W. 14 Sushil Kumar Prasad is an Advocate''s Clerk who proved some portion of the case diary. I have already mentioned that defence has also adduced evidence of one witness namely, D.W. 1 Mukhi Chand Sah. On scrutiny of the evidence on record the learned Sessions Judge found that the prosecution could be able to prove the charge of Section u/s 302/324 I.P.C. against the accused appellant and, as such, convicted and sentenced him accordingly as mentioned above.

In this appeal the impugned judgment of conviction has been challenged on the following points : (1) that although a bulk number of witnesses had been examined in the case but none have stated anything as to why and for what motive the accused- appellant had committed the crime which cast a serious doubt on the whole prosecution case. (2) that the injury report as proved by P.W. 10 is in direct conflict with the post mortem report as proved by P.W. 9 and the same could not be met with by the prosecution raising a serious doubt about the manner of occurrence as depicted from the side of the prosecution. (3) except P.W. 2 none has been found to be witness to the occurrence as the evidence of P.W. 1 Dudhnath Choudhary has also been disbelieved by the learned Sessions Judge and in view of the sole testimony of P.W. 2 with the contradictory injury reports it cannot be said that the prosecution case has been proved beyond all reasonable doubt (4) even if it is taken that accused-appellant was one of the assailants then also it could not be proved which of the injuries were fatal and who had given that fatal injury and in that way, at least the present case does not fall within the purview of Section 302 of the I.P.C. The learned State counsel appearing for and on behalf of the respondent-State has controverted the submissions of the appellant as mentioned above by referring to the findings of the learned Sessions Judge in the impugned Judgment and also the materials on record.

On the 1st score, Mrs. Anjana Prakash learned counsel appearing for and behalf of the appellant has very fairly conceded that when there is eye-witness to the occurrence then non-mentioning of motive of non-proving of the same does not shatter the prosecution case but she submitted that at least non- mentioning of motive cast a doubt as to why in the midnight the accused-appellant had entered into the house of the deceased and the informant to commit the crime and the evidence of the witnesses, more particularly the evidence of P.W. 2 should be scrutinised by keeping the same in mind. For some reason or other the prosecution has not stated about the motive. It might be that, to the informant the motive was not known as the deceased and the accused-appellant might have something in between them which resulted in committing of the offence by the accused- appellant and when there is evidence of eye-witness who himself has also been injured in the occurrence itself then it cannot be said that absence of the motive in any way shall make the prosecution case weak. In that way the submissions made on behalf of the Appellant on the first score has got no force.

On the second score it appears that this point was raised before the learned Sessions Judge also and he has also discussed the matter in details in the impugned judgment. The injury report as proved by P.W. 10 does not show that such injuries were examined soon after the injured persons arrived at the civil Hospital, Siwan more particularly in respect of the deceased Mithilesh Yadav. From the description of the injury and the cross-examination portion of the doctor who held post mortem examination it becomes clear that soon after the deceased was brought into the civil Hospital and finding him to be in precarious condition he was immediately operated upon and when the operation was done bandage was definitely there and, as such, the abdominal injury was stated to be the only injury on the person of the deceased. Moreover the other injury just below the chest was also near to the abdominal injury and when stitches and bandages were there the doctor actually had stated about the vital injury on the abdomen. On close scrutiny of the injury being described by P.Ws. 9 and 10 on the person of the deceased, I do not find that there is any vital discrepancy between the two. Practically abdominal injury caused the intestine to protrude out and the same was operated upon which was mentioned as injury no. 2 in the post mortem report Thus on this point also I do not find much force in the submissions of the learned counsel for the appellant.

On the third point, it appears from the materials on record that practically P.W. 2 is the sole eye witness to the occurrence of assault. P.W. 1 had come to the place of occurrence after hearing the alarm raised. He was sleeping at some distance and while he rushed to the place of occurrence, he found the accused-appellant along with the 2 associates fleeing away from the place of occurrence being, armed with knives. Learned Sessions Judge had not properly scrutinised his evidence as is revealed from his discussions. Nowhere P.W. 1 has stated that he had seen the occurrence of assault. He was reported all the names of the assailants by the injured P.W. 2. But before that while he rushed to the place of occurrence, he had seen the accused-appellant and his associates fleeing away. That part of the evidence ought not to have been discarded straightway by the learned Sessions Judge. It appears from the evidence of P.W. 2 that the assailant after commission of the offence had rushed towards the southern side and from the evidence of P.W. 1, it appears that he also rushed to the place of occurrence from the southern side. Then it was definitely possible for him to see the assailants and if that part of his evidence is taken to be truthful one then it gives support to P.W. 2 to the extent that soon after the occurrence the accused-appellant and his associates were seen fleeing away from the place of occurrence and they were armed with knives but the fact remains that regarding actual occurrence of assault P.W. (sic) alone had witnessed the occurrence. Not only that P.W. 2 himself was also injured in the incident itself. So there is no earthly reason as to why P.W. 2 would falsely implicate others leaving aside the actual assailants of his son and this principle becomes reinforced when in the present particular case there is no allegation that the informant-P.W. 2 had any animosity with the accused-appellant. But on close scrutiny of the evidence, it appears that there is some sort of embellishment while deposing, by P.W. 2 during the course of trial. In the first information report it was his case that this accused-appellant along with his associates had cut open the abdomen of the deceased Mithilesh Yadav but before the trial court he has given up the case of participation of other two assailants in the actual assault on the deceased Mithilesh Yadav. It is quite natural that while the accused-appellant had faced the trial singularly then the prosecution or the injured witness would try to implicate him solely which he has done as natural human conduct. The same thing is there in respect of infliction of his own injury also. In the fardbeyan he stated that one of the unknown assailants had tried to shut his mouth and the other assailant had given him blow on the backside and this accused-appellant Om Prakash Yadav had given him blow on the abdomen and when he tried to resist his palm was also cut. But during the course of trial he said that all the injuries on his person had also been inflicted by the accused-appellant alone for the reason perhaps as per natural human conduct as already mentioned above. But even if such embellishment is taken into consideration then also the fact remains that this accused- appellant was responsible for the cause of death of Mithilesh Yadav by infliction of injuries on the vital part of the body of the deceased Mithilesh Yadav and also for causing simple injuries on the person of P.W. 2, Jai Nath Choudhary. It appears on scrutiny of the materials on record that the learned Sessions Judge ought to have framed charges against the accused-appellant with aid of Section 34 of the Indian Penal Code and ought not to have framed charges simpliciter and convicted. However, even if the aid of Section 34 I.P.C. had not been taken in framing charges then also if the materials warrant so, conviction can be made with the aid of Section 34 I.P.C. also, as already held by the Apex Court. Thus on this score, as submitted from the side of the accused-appellant, I find some force to the extent that although there is no contradiction in the injury report and the post-mortem report but there is some lacuna in scrutinising the evidence on record by the learned Sessions Judge, as already discussed above.

Regarding the fourth point, I am of the opinion that some force is there in the submission of Mrs. Anjana Prakash, learned advocate appearing for and on behalf of the accused-appellant. If the whole occurrence is visualised, it appears that the assailants have not come with pre-meditated mind to kill Mithilesh Yadav. They could have come with deadly weapons for the purpose of causing injury on his person to teach him a lesson but in course of that when the informant woke up then injury was caused on Mithilesh Yadav in such a way that the same proved fatal (although according to the Doctor, the death is due to cumulative effect of all the injuries). I come to such inferences on the ground that when the assailants were 3 in number having deadly weapons in their hands and if they had pre-meditated intention to kill Mithilesh Yadav then they could have killed him by giving blows on the neck as the deceased was then un-armed lying asleep on the bed but that was not done rather injury was caused on abdomen and by the side of the chest. It is also a fact that it could not be proved beyond all reasonable doubt that any particular or all the injuries were caused by this accused- appellant Om Prakash Yadav. In the evidence P.W. 2 although said so during the course of trial but if his earlier statement in the fardbeyan is taken into consideration then it becomes doubtful whether any particular injury much less all the injuries were caused by this accused-appellant. But then the fact remains that death was caused due to cumulative effect of the injuries inflicted on the person of Mithilesh Yadav and some of those injuries had definitely been caused by this accused-appellant and as such he is also responsible for his death as per the common intention as contemplated u/s 34 I.P.C. The injuries caused by this appellant could be simple and without prior intention to cause death but the result remains that Mithilesh Yadav died due to the infliction of the injuries by knife by the assailants including the accused-appellant. Hence his case does not come u/s 302/34 I.P.C. but it definitely comes within the scope of Section 304 Part II of the I.P.C. with the aid of Section 34 I.P.C. Same is the position with respect to the injury being caused on the person of the informant P.W. 2 and as such the accused appellant is definitely responsible for the offences committed by him u/s 304 Part II of the I.P.C. read with Section 324 I.P.C. with the aid of Section 34 of the I.P.C. and hence the order of conviction passed by the learned Sessions Judge is maintained by modifying the same as mentioned above.

The accused-appellant has remained in custody for about seven and half years and in view of the Penal Provisions being modified regarding conviction it can reasonably be held that the accused appellant has already been punished sufficiently and as such the sentence imposed on the accused-appellant is modified to the extent of period undergone. In the result the appeal is partly allowed with the modification in the sentence as mentioned above and the accused-appellant is directed to be released forthwith if not wanted in any other case.

Shiva Kirti Singh, J.

I agree.