Yogendra Yadav and Rajendra Yadav vs The State of Bihar

P.N. Yadav, J.—The instant appeal is directed against the judgment and order dated 12.12.1989, passed by Shri Bhikari Ram, Addl. Sessions Judge-XI, Patna in Sessions Trial No. 638 of 1985 whereby and whereunder he found and held the Appellants guilty and convicted them u/s 307 read with Section 34 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced them to undergo rigorous imprisonment for five years each thereunder.

The prosecution case as unfolded in the F.I.R. and the evidence of the prosecution witnesses lay within a narrow compass. The informant, Lal Deo Mahto (P.W. 2) was at about 8 P.M. in the night on 24.09.1984 sleeping at his house while his father, Rajgir Mahto (P.W. 4) was keeping watch over his electric pumping set machine at his Boring, situated a little away from his house at village Mahendranagar under the jurisdiction of Danapur Police Station of Patna district. Just then, four-five miscreants having armed themselves with Lathi and Spear went to the Boring where P.W. 4 was keeping watch. Detecting the arrival of the (sic) P.W. 4 raised alarm. Soon the miscreants surrounded him, P.W. 2, Laldeo Mahto hearing alarm of his father rushed to the scene with Torch and Lathi. He flashed Torch light and identified the Appellants Yogendra Yadav and Rajendra Yadav as well as Ram Nath Yadav and Sinhasan Yadav who were also accused in the case. No sooner had P.W. 2 arrived at the Boring then the Appellant Rajendra Yadav assaulted him with Lathi portion of Spear and the Appellant Yogendra Yadav gave Khanti blow on him as a result of which he sustained injuries on his head and right wrist. In the meanwhile, his uncle Doman Mahto (P.W. 3) reached there and he was also assaulted by the Appellants. He sustained injury on his head. Thereafter, the Appellant Rajendra Yadav assaulted P.W. 4 Rajgir Mahto with Spear as a result of which he sustained injury on his abdomen and the Appellant Yogendra Yadav gave Khanti blow causing injury below his lips. After sustaining injuries P.W. 4 got unconscious.

All the three injured persons

(P.Ws. 2, 3 & 4) were taken to Bikram Police Station wherefrom they were sent to Bikram Hospital where fard beyan (Ext. No. 2) of P.W. 2 was recorded at about 8 A.M. on 25.09.1984. On the basis of the fard beyan the formal F.I.R. (Ext. No. 3) was drawn up and the case was registered against the Appellants as well as Ram Nath Yadav and Singhasan Yadav. The injured persons were examined by Dr. Amrendra Narain Jha (P.W. 6). Investigation was taken up by P.W. 5, Jagdish Yadav. After completion of investigation the charge sheet was submitted u/s 307 besides some other sections of the Code against all the four accused persons including the Appellants and finally the trial commenced after commitment.

The motive attributed behind commission of high handed and illegal act of the miscreants including the Appellants was that they were turbulent persons having no regard for law and order and they always put hurdle and impediment to the informant in his agricultural operations and they also caused damage to their cultivation.

The Appellants and other two accused persons, namely, Ram Nath Yadav and Singhasan Yadav were charged u/s 307 read with Section 34 of the Code for having assaulted P.W. 2, Laldeo Mahto with such intention and under such circumstances that if by that act, they had caused his death, they would have been guilty of murder. In short, they were charged for having attempted to kill him. They denied the charge and claimed to be tried.

The Appellants did not enter into defence. However, from the trend of cross-examination of prosecution witnesses, written statement of the Appellants and statements of the Appellants recorded u/s 313 Code of Criminal Procedure the defence seemed to be that of total denial and false implication out of sheer enmity.

The learned Addl. Sessions Judge after taking the facts, circumstances and evidence brought on record into account found and held the Appellants guilty and he convicted and sentenced them as stated above acquitting the accused Ram Nath Yadav and Singhasan Yadav vide the impugned judgment and order.

The Appellants being aggrieved by the judgment and order of conviction and sentence passed against them preferred this appeal.

Shri Jha, learned senior counsel appearing on behalf of Appellants has assailed the impugned judgment and order of conviction and sentence by contending that it is bad in law and against the materials on records and the learned court below committed grave error in convicting the Appellants u/s 307 read with Section 34 of the Code for having attempted to kill P.W. 4 for which no charge was framed against them that the eye witness account of the incident leading to infliction of assault on P.W. 4 in an attempt to kill him is not in consonance with medical evidence; that the place of occurrence and the manner in which P.W. 4 was assaulted could not be proved by the prosecution that there was delay in lodging the F.I.R. rendering the prosecution version doubtful that the witnesses on whose evidence conviction was based were relatives and interested ones and independent witnesses, out of whom two were named in the F.I.R. were not examined by the prosecution as a result of which the Appellants were put to serious prejudice and that the alleged motive attributed behind the commission of crime too was not proved.

The Appellants were charged for having attempted to kill P.W. 2 Laldeo Mahto, the informant but they were convicted for having made an attempt on life of P.W. 4 Rajgir Mahto. A person/accused cannot be convicted under major section like Section 307 of the Code for having attempted to commit murder of the victim unless specific charge for the same has been framed against him. In the present case, learned court below committed error of law in convicting the Appellants for having attempted to kill P.W. 4 Rajgir Mahto for which no charge was framed against them. Shri Jha rightly contended that this grave error committed by the learned court below vitiated the whole trial.

The learned Addl. Sessions Judge tried to justify the Appellants conviction without framing specific charge against them by making averment in the judgment impugned that there was evidence to the effect that P.W. 4 Rajgir Mahto was given a bhala blow on his abdomen and injury was found to be grevious in nature and the Appellants were put question regarding infliction of spear blow causing grevious injury on his abdomen and as such they could not be said to have been put to prejudice. I find myself not in a position to agree with the view of the learned trial court. Moreover the recital in the judgment that the Appellants while being examined u/s 313 Code of Criminal Procedure were put question regarding infliction of spear blow on P.W. 4 with intent to kill him is against the records. The Appellants were not put specific question that they in furtherance of their common intention attempted to kill P.W. 4 by assaulting him with spear. Under the circumstance, it cannot be said that the Appellants were not prejudiced and taken aback when they were convicted for making an attempt to kill P.W. 4 Rajgir Mahto for which no charge was framed against them. If the learned court below felt that the Appellants who were charged for having attempted to kill P.W. 2 Laldeo Mahto were liable for having attempted to kill P.W. 4 Rajgir Mahto it ought to have amended the charge instead of straightway convicting them for having made an attempt on life of P.W. 4 Rajgir Mahto without charge for the same having been framed against them.

The prosecution as well as the trial court was of the view that the Appellants intended to kill P.W. 4 Rajgir Mahto and in furtherance of their common intention they variously assaulted him. But the materials on record did not substantiate this version as would be evident from discussion made hereinafter. From the evidence of P.W. 2 Laldeo Mahto, P.W. 3 Doman Mahto and P.W. 4 Rajgir Mahto it would transpire that P.W. 4 was alone at his boring where as many as four miscreants including the Appellants, all armed with spear, Khanti, and Lathi surroundedhim whereafter he raised alarm attracting P.Ws. 2 & 3 and thereafter they first assaulted P.W. 2 and P.W. 3 and list of all they assaulted P.W. 4. Had the Appellants and their two associates (since acquitted) intended to kill P.W. 2 they would have assaulted and murdered him easily as he alone was surrounded by them and they would not have waited till arrival of P.Ws. 2 & 3 and showering of assault on them. Even P.W. 4 did not say that the Appellants intended to kill him for he said he could not say whether the miscreants had gone to his boring for committing theft of electric motor or for killing him. Under the circumstances, the Appellants cannot be said to have intention to kill P.W. 4.

The eye witness account is not in consonance with the medical evidence. It was contended that it was mentioned in the F.I.R. that the Appellant Rajendra Yadav pierced spear in abdomen of P.W. 4 and the Appellant Yogendra Yadav dealt a Khanti blow (with sharp edge thereof) on his chin (below lower lips) but the prosecution changed its version in course of trial inasmuch as P.Ws. 2 & 3 said that Yogendra Yadav assaulted him with Lathi portion of Khanti. P.W. 4 was examined by Dr. A.N. Jha (P.W. 6) at about 4 A.M. on 25.9.84 and found (I) bleeding injury 1/2" x 1/4" on lower part of left lateral side of chest and (II) lacerated wound 1/2" x 1/4" x 1/4" on lower part of left side of face below lower lips the injury No. (ii) was said to be simple in nature caused by hard and blunt substance, however, no opinion in regard to injury No. (i) was given by the doctor. But surprisingly the doctor (P.W. 6) claimed to have made supplementary report on 11.10.1984 (Ext. No. 5/3) on the basis of discharge ticket granted to P.W. 4 by the P.M.C.H., Patna. He was not expected to have made report to the effect that injury was grievous in nature caused by sharp cutting weapon particularly when the entry regarding injury (Ext. No. 5/4) in the admission register made by Dr. Arbind Kumar Saran (P.W. 7) who examined P.W. 4 at about 6.30 P.M. on 25.9.84 was silent on the nature of the injury and weapon used for causing the same. P.W. 7 found lacerated wound over the left costal margin in lateral part 1/2" x 1/4" x muscle deep and one stitched wound about 3/4" long over the left side of fact. He admitted that he prepared injury report on 25.10.84 on the basis of entry in admission register. He also admitted that the nature of the injuries and weapons used were not mentioned in the relevant register nor was X-Ray plate available before him. It is also in his cross-examination that in the admission register referred to above, there is no reference as to when the abdomen of P.W. 4 was opened P.W. 7 proved discharge ticket (Ext. No. 6) said to have been written by Dr. Shyam Babu who was not examined. P.Ws. 6 & 7 ought not to have given opinion in regard to the nature of injuries and weapons used on the basis of discharge ticket. It may be mentioned that relevant documents of the hospital were not brought on records to show when P.W. 4 was operated upon and what was found in course of operation. In absence of these papers it cannot be said on the basis of discharge ticket that the opinion regarding nature of injuries given by doctors (P.Ws. 6 & 7) is correct. Incidentally it may be mentioned that P.W. 4 said he was treated at Patna Hospital for about ten days and thereafter he did not feel well and as such he got himself discharged from the hospital. He did not speak of his undergoing operation.

Under the circumstance, the contention put forward on behalf of Appellants that eye witness account of the incident leading to assault on P.W. 4 is inconsistent with medical evidence or in other words the medical evidence does not support the prosecution version seems to be well founded.

P.W. 4 Rajgir Mahto stated that the hutment in which he was assaulted had an area of 5 x 5 cubits. The Investigating Officer (P.W. 5) did not measure length and width of the hutment. From evidence of P.W. 5 it transpires that the hutment was made of straw (Plas). He found a thrasher machine, electric pumping set machine and a Chauki in the hutment. As many as four msicreants armed with spear, Khanti and Lathi entered into it and assaulted P.W. 4. Keeping in view small size of the hutment made of straw certain trampling marks and disturbance to straw with which it was built, blood on the ground as well as blood stain on walls were expected at the place of occurrence particularly when it has come in evidence that there was profused bleeding from the injuries of P.W. 4 and blood had fallen on the ground. But nothing of this sort was found by the I.O. In the facts and circumstances, it cannot be said that the prosecution proved that incident leading to assault on P.W. 4 took place at that time and place of occurrence and in the manner alleged by it.

The delay in lodging the information with the police was also high lighted at the Bar. The occurrence took place at about 8 P.M. on 24.8.84. The fardbeyan of P.W. 4 was recorded at 8 A.M. on 25.8.84 at Bikram Hospital. Obviously delay occurred in lodging the F.I.R. P.W. 4, Rajgir Mahto stated in his examination-in-chief that after the incident the injured persons including himself were taken to Bikram Police Station and he narrated the incident and he also disclosed the names of miscreants including the Appellants to the Sub-Inspector of Police but that version of prosecution story was suppressed and not brought on records. The investigating officer (P.W. 5) said he got wireless message from Bikram Police Station on 25.9.84 and then he proceeded to Bikram and he recorded fardbeyan of P.W. 4 at Bikram Hospital at about 8 A.M. Wireless message was not produced in the Court. When the injured including P.W. 2 Laldeo Mahto and P.W. 4 Rajgir Mahto had been at Bikram Police was expected to have recorded fardbeyan of any of the injured and thereafter P.W. 5 who belonged to Ranitalab Police Station could have been entrusted with the task of investigation particularly when the place of occurrence situated within Ranitalab Sub-Police Station under Bikram Police Station where the case was ultimately to registered as no case was registered at Ranitalab Sub-Police Station. It does not stand to reason as to why Bikram Police Station instead of recording Fardbeyan sent wireless message to RW. 5 at Ranitalab Police Station. All these instilled doubt in genuineness of the prosecution case.

In this case, three witnesses P.Ws. 2, 3 & 4 were examined on the point of occurrence. P.W. 2 is the son of P.W. 5 while P.W. 3 is brother of P.W. 4. It is obvious that all the three witnesses are relatives and interested witnesses. It is true that even evidence of relative witness if after close scrutiny is found to be above board and wholly reliable can form the basis of conviction but in the case at hand the evidence of P.Ws. 2, 3 & 4 considered together with delay in lodging the F.I.R. and medical evidence and non-examination of two RI.R. named eye witnesses, Surendra Mahto and Naresh Mahto plus a number of villagers such as Kamta Mahto, Dukhan Mahto, Jagarnath Mahto and others who had arrived at the scene soon after infliction of assault on the victim cannot be said to be free from taint and infirmity and the same cannot be said to be wholly reliable. Them is substance in the contention that evidence of P.Ws. 2, 3 & 4 examined in the case cannot form the basis of the conviction of the Appellants.

The motive attributed behind the commission of crime as recited in the F.I.R. was that the Appellants and their associates caused hindrance and hurdle, to the informant in carrying out his agricultural operation but no iota of evidence on this point was brought on record nor was even suggestion to that effect put to any of the witnesses. On the contrary while P.Ws. 2 & 4 were silent on the alleged motive. P.W. 3 stated that reason for commission of crime was the fact that the Appellants and their associates were committing theft of his electric motor. P.W. gave entirely new dimension to the motive attributed behind the commission of the offence. It is true that the motive has no role to play in criminal cases but once motive is alleged it has got to be proved. But in the instant case, the alleged motive and genesis of occurrence remained unproved.

The evidence on infliction of assault en P.Ws. 2 & 3 and involvement and participation of the accused Ram Narain Yadav and Sinhasan Yadav was divergent and inconsistent and even contradictory. The accused Ram Narain Yadav and Sinhasan Yadav were already acquitted by the learned court below. No charge was framed for infliction of assault on P.W. 3. The Appellants were not held guilty for having attempted to kill P.W. 2 for which they were charged. Under the circumstances, evidence on these points need not be discussed.

It is also to be borne in mind that the incident took place as far back as in the year 1984. The Appellants have been running to courts for above 17 years. They have already suffered tremendous hardship and harrassment and they underwent jail terms for some days during investigation. Under the circumstances, even if it is assumed for the sake of argument that the materials on records established commission of offence of causing simple hurt to P.Ws. 2 to 4 though there is no ground for such assumption it is not deemed just, proper and expedient in the interest of justice to convict the Appellants therefor after such a long span of time elapsed since the date of occurrence.

In view of what has been stated and observed in the preceding paragraphs it is to be held that the prosecution could not bring home the charge levelled against the Appellants beyond the reasonable doubt and as such they deserve to be acquitted.

In the result, the appeal succeeds and the same is allowed. The impugned judgment and order of conviction and sentence stands set aside. The Appellants are acquitted of the charges levelled against them. They are on bail. Let them be directed to be discharged from their respective bail bonds.