Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011

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Patna High Court
Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011
Author: Dharnidhar Jha
                                                                              1




         IN THE HIGH COURT OF JUDICATURE AT PATNA
                          ----

Govt. Appeal (SJ) No.7 of 2007
Against judgment of conviction and order of sentence dated
24.1.2007 passed by Additional Sessions Judge XI, Patna, in
Sessions Trial No. 1251 of 1998.

=====================================================
The State Of Bihar
… …. Appellant
Versus

1. Ranjit Sao, son of Hariom Sao

2. Jhulan Yadav, son of Chhavinath Yadav

3. Lalan Yadav, son of Brahm Deo Yadav

4. Sukesh Yadav, son of late Jehali Yadav
All residents of Yogipur Mohalla, P.S. Patrakar Nagar, Kankarbagh,
District Patna
. … …. Respondents
with
Criminal Revision No. 144 of 2007
Dr.Brahma Deo Prasad, son of late Sajiwan Prasad, resident of Yogipur
Mohalla, P.S. Patrakar Nagar( Kankarbagh), District Patna, at present,
Advocate, Patna High Court, Patna.

…. …. Petitioner
Versus

1. The State Of Bihar

2. Ranjit Sao, son of Hariom Sao

3. Lalan Yadav, son of Brahma Deo Yadav

4. Jhulan Yadav, son of Chhavinath Yadav

5. Sukesh Yadav, son of late Jehali Yadav
All residents of Yogipur Mohalla, P.S. Patrakar Nagar( Kankarbagh),
District Patna
…. …. Opposite Parties
with
Criminal Appeal (SJ) No. 286 of 2007
Against the judgment of conviction and order of sentence dated
24.1.2007 passed by Additional Sessions Judge XI, Patna, in Sessions
Trial No. 1251 of 1998.

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

1. Jhulan Yadava, son of Chabbi Nath Prasad Yadav

2. Lallan Yadava son of Brahmdeo Yadav

3. Sukesh Yadava son of Jehadi Yadav
All residents of lMohalla Jogipur, P.S. Patrakar Nagar, District Patna
… …. Appellants
Versus
The State Of Bihar
…. …. Respondent
with
Criminal Appeal (SJ) No. 318 of 2007
Ranjit Kumar Sao son of Shri Hari Om Sao, resident of Mohalla Yogipur,
Police Station Patakar Nagar( Kankarbagh) Town and District Patna
…. …. Appellant
Versus
2

The State Of Bihar
…. …. Respondents
=====================================================
Appearance :

(In G. APP. (SJ) No. 7 of 2007)
For the Appellant : Shri Dilip Kumar Sinha, A.P.P..
For the Respondent/s Shri Shakeel Ahmad Khan, Sr. Adv.

Shri Sajid Salim Khan

(In CR. REV. No. 144 of 2007)
For the Petitioner : Dr. Brahmdeo Prasad( in person)
Shri Rakesh Kumar
For the Opp. Parties : Shri Shakeel Ahmad Khan, Sr. Adv.

(In CR. APP (SJ) No. 286 of 2007)
For the Appellants : Shri Shakeel Ahmad Khan, Sr. Adv.

For the Respondent : Shri S.N.Prasad, A.P.P.

(In CR. APP (SJ) No. 318 of 2007)
For the Appellant : Shri Shakeell Ahmad Khan, Sr.Adv.

For the Respondent : Shri S.N.Prasad, A.P.P.

=====================================================
CORAM: HONOURABLESHRI. JUSTICE DHARNIDHAR JHA

(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)

– —

The two Criminal Appeals, i.e., Cr. Appeal Nos. 286 of 2007 and 318 of

2007 preferred by the convicts of Sessions Trial No. 1251 of 1`998 as also

Criminal Revision petition No. 144 of 2007 filed by the informant P.W.1

and the Govt. Appeal No. 7 of 2007 arise out of judgment dated 24.1.2007

passed by the learned Additional Sessions Judge XI, Patna, in the above

noted Sessions Trial. They were heard together and are being disposed of

by the present common judgment.

2. Appellant Ranjit Kumar Sao was the only accused sent up by the

police on the basis of Ext.1, the fardbeyan of P.W.1 Brahmadeo Prasad.

The three appellants of Cr. Appeal No. 286 of 2007 were not sent up for

trial by the police. The informant, P.W.1, filed a complaint petition (Ext.2)

and after an inquiry under Section 202 Cr. P.C. the three appellants,
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namely, Jhulan Yadav, Lalan Yadav and Sukesh Yadav were summoned

by the Chief Judicial Magistrate, Patna, and their case was also committed

to the court of Sessions as a result of which they were tried together

which, lastly, ended in the impugned judgment.

3. The fact of the case is that the informant, who was the Deputy

General Manager of the Bihar State Co-operative Bank, was coming on

18.9.1996 at about 5.30 P.M. by his scooter from his office to his house

situated at Village Yogipur. When he reached near the house of one

Hariom Sao on the road he saw that appellant Ranjit Kumar Sao was

standing there with other five-six friends of his. P.W. 1 identified the four

appellants and could not identify the other two or three. All the accused

came in front of the scooter of P.W. 1 who was forced to stop the two

wheeler. As soon as the two wheeler was stopped, it is alleged, appellant

Ranjit Kumar Sao dealt a fasuli blow on the informant on his face as a

result of which the informant fell down. Appellant Ranjit Kumar Sao

along with other appellants and their unknown companions, thereafter,

dealt incessant fasuli blows on different parts of the body of P.W.1. The

informant attempted to fend himself by raising his two hands as a result of

which his hands were also injured and he kept rolling on the ground while

the appellants and their companions continued giving blows with fasuli.

4. It is stated that the informant recollected himself, got up and went

towards his house to save himself, but fell down in the verandah of his

house completely soaked in blood.

5. The police, on receipt of information came there and picked up the

informant and admitted him to the emergency ward of Patna Medical

College Hospital. The informant stated that he was not fully conscious,

rather was half conscious on 18.9.1996, as such, could not give his
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statement on that day and after having regained his consciousness fully, he

gave his fardbeyan ( Exrt.1).

6. It was stated by P.W. 1 that in the year 1993 the three appellants,

namely, Ranajit Kumar Sao, Lalan Yadav and Sukesh Yadav teased a girl

for which the informant had chastised them and that had resulted in the

informant being assaulted by the above named appellants as a result of

which P.W. 1 had lodged Kaakarbagh P.S.Case No. 414 of 1993. It was

stated that the appellants were pressurizing him to compromise the case

for which P.W.1 was not ready as a result of which the occurrence had

taken place. The informant stated that while he was driving home by the

two wheeler, Harshit Narain Singh ( not examined) was the pillion rider

and he was present at the time of occurrence.

7. On the basis of Ext.1, the F.I.R. of the case was drawn up and the

investigation was undertaken by D.W. 2 Inspector Rambriksha Rajak who

on that date was the Officer of Patrakarnagar Police Station. D.W. 2 stated

that he received a wireless message about P.W. 1 being assaulted by some

persons and he moved to the place of occurrence with his mobile

patrolling party and found P.W.1 in an injured condition and when he

questioned him about the name of his assailants, he gave the name of

appellant Ranjit Kumar Sao and further stated that he should be shifted to

the hospital for treatment. D.W.2 stated that he put the injured on his

mobile vehicle and brought him to P.M.C.H. for treatment. He took up the

investigation on 18.9.1996 itself but recorded the fardeyan ( Ext. 1) of

P.W.1 on 19.9.1996 and thereafter recorded the statement of P.W. 3,

Nirmala Devi, the wife of P.W. 1 on 19.9.1996 who did not state that she

had seen the occurrence nor did she name any of the accused persons. He

questioned many persons, namely, Mahendra Kumar, Punia Devi, Padam
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Singh and Harshit Naraian Singh (all not examined). The case was

supervised by Dy.S.P. D.W. 1 and finding materials sufficient only against

appellant Ranjit Kumar Sao, sent him up for trial.

8. In cross examination, D.W.2 stated that while he was shifting

P.W.1 to P.M.C.H. he wanted to know from him the details of the

occurrence, but P.W. 1 stated that he was not in a fit state of mind and

health to make statement and it will be made later. D.W.2 remained in

P.M.C.H. up to 10 P.M. and till then no one was coming forward to give

the details of the occurrence as to how it had occurred. D.W.2 stated that

whenever he questioned P.W.1, he always stated that one Ranjait Kumar

Sao and some others of his neighbourhood had assaulted him with fasuli

and, accordingly, he recorded the statement of P.W.1 in paragraph 2 of the

case diary, but did not record the fardbeyan of P.W.1 nor did he direct

recording of station diary entry as regards the statement of P.W.1

Brahmadeo Prasad about the name of only one accused, i.e., appellant

Ranjit Kumar Sao. D.W.2 has further stated in paragraph 2 of his evidence

that he remained in P.M.C.H. up to 10 P.M as indicated by him, but

nobody came to give any statement and that he arrested appellant Ranjit

Kumar Sao from his house in the same night. He came to P.M.C.H. early

in the morning on 19.9.1996 and recorded the fardbeyan of P.W. 1.

9. On being admitted into the emergency ward of P.M.C.H., P.W.1

was examined by P.W.2 Dr. Vimal Mukesh, who was the Surgeon on duty

in the surgical emergency Ward of P.M.C.H. on 18.9.1996 from 2 P.M. to

10 P.M. He found the following injuries on the person of Bahmadeo

Prasad, P.W. 1:

1. Clean incised wound over the posterior aspect of left shoulder
muscle deep 8″ vertical and 6″ horizontal, bleeding present.

2. Clean incised wound over the right chin 2″ long extending inside the
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oral cavity causing disfigurement of face.

3. Incised wound over the upper lip through and through on the right
side 1 ½” long causing disfigurement.

4. Clean incised wound parallel to injury no.2″ long, extending into the
left chin causing disfigurement.

5. Clean incised wound on the left side of the neck 10″ long bone deep.

1 blood vessel severed.-

6. Clean incised wound parallel to injury no.5 10″ long X skin deep.

7. Clean incised wound over the right side of chest below the nipple 5″

long muscle deep bleeding profusely.

8. Clean incised wound right upper chest 5″ long, muscle deep.

9. Clean incised wounds on right hand

(a) incised wound on the base of little finger

(b) incised wound on right thumb 1″ long

(c) right palm upper part 3″ long

10. Left hand incised wounds

(a) left wrist posterior aspect 6″ long extending into the palm.

(b) Tips of forefingers except thumb.

(c) Clean incised wound left palm upper part 1″ long

11. Clear incised wound on the forehead four in number each 1″ long,
bone deep

12. Clean incised wound below right eye 3″ long muscle deep

13. Clean incised wound over the right ala of nose 1″ long through and
through causing disfigurement.

In the opinion of P.W.2, injury nos. 2,3,4 and 13 ere grievous in nature on

account of causing disfigurement of face of P.W.1. Injury nos. 5 and 6

were endangering life of P.W.1, as may appear from the very descriptions

of those injuries and injury nos. 1 to 5 and 5 to 10 were simple in nature.

However, all the injuries were caused by sharp cutting weapon, may be by

a fasuli. Thus, there could be no doubt that injuries which were caused to

P.W.1 were really dangerous to life individually and cumulatively as well.

10. In support of its case, the prosecution examined four witnesses

which included the informant (P.W.1), his wife (P.W.3), the

Doctor,(P.W.2) who examined P.W. 1, whose evidence I have just

discussed and, lastly, Shri N.K.Agrawal, who was the Judicial Magistrate

on the date of occurrence in civil courts, Patna, and was undisputedly

residing as a tenant on the first floor of the house of P. W.1. I have

already noted the evidence of the Investigating Officer of the case.
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Besides, the Deputy Superintendent of Police, who was the Supervising

Officer, i.e., D.W. 1, namely, Smt. Sangita Kumari was also examined.

11. It was contended by Shri Shakeel Ahmad Khan, learned counsel

appearing on behalf of the appellants by referring to the evidence of

witnesses that the first statement which was given to the police by P.W.1

was not containing any name except that of appellant Ranjit Kumar Sao.

It is not that P.W.1 was not in a position to make statement as the

evidence of the Investigating Officer clearly indicates that he talked to

him on way to P.M.C.H. and repeatedly asked him to divulge the details

of occurrence but he was not doing it. The evidence of the Doctor does not

indicate that he had lost his consciousness and was not in a position to

make any statement and regained his consciousness to speak and then only

it was possible to record his fardbeyan by the police. It was contended that

in fact, the informant was consulting his Advocate as he appears admitting

in context to filing of the complaint petition for roping in the accused

persons. It was contended that as a matter of fact even appellant Ranjit

Kumar Sao was not the assailant of the informant and he had falsely been

roped in the case. Contention also was that Harshit Narain Sigh who was

allegedly the pillion rider on the same scooter by which P.W.1 was

coming to his house, was not examined nor Padam Narain Singh who was

also one of the tenants with P.W. 4 N.K.Agrawal, came to support the

prosecution case. None of the persons of his neighbourhood who are said

to have seen the occurrence had come forward to support any part of the

occurrence. P.W. 3 Nirmala Devi, wife of P.W.1 could never be an eye

witness as could be the case with P.W. 4 which was further compounded

by not naming the three appellants other than appellant Ranjit Kumar Sao

by the informant at the earliest and on repeated questioning.
8

12. Shri Brahmadeo Prasad, who was the informant of the case

and who after having retired from service appears being enrolled as an

Advocate, is practicing as an Advocate, appears in support of the Criminal

Revision petition filed by him and made submissions himself. It was

contended by Shri Prasad that it was not necessary to mention the names

of the prosecution witnesses in the F.I.R. for making them competent

witnesses and non-mentioning of the name of a witness could not make

his evidence unworthy of credence. In support of his contention Shri

Prasad referred to a decision reported in 2003(3) P.C.C.R. 142(SC) Raj

Kishore Jha Vs. State of Bihar& Ors. Shri Prasad was contending that

the police was dishonest and did not honestly investigate the case and that

appears admitted by D.W.2 in paragraph 9 when he stated that he was

directed by the Supervising Officer to submit charge sheet in respect of

solitary appellant Ranjait Kumar Sao and while he was recording the

fardbeyan, he did not make any inquiry from the informant as to why he

was naming four persons in spite of having named only one accused

Ranjit Kumar Sao in the first instance( D.W.2 paragraph 19). It was

further contended that the Investigating officer did not approach Shri N.K.

Agrawal, Judicial Magistrate, for recording his statement nor did he seize

his blood stained clothes in spite of there being a direction from D.W.1,

the supervising authority. It was contended that the witnesses were

competent and they fully supported the prosecution story and, as such, the

charges against all the accused persons stood established and the manner

of occurrence together with the injuries which were found by P.W.2

indicated that the sentence passed upon the appellants was too lenient to

be countenanced.

13. The learned Additional Public Prosecutor who appeared in the
9

two criminal appeals, namely, Shri S.N.Prasad submitted that initially not

naming the three appellants except appellant Ranjit Kumar Sao might be

on account of serious condition of the informant who was badly injured.

Shri Prasad further contended that the investigation was defective and

improper and for that the prosecution has never to suffer. Submission was

that the conviction of the appellants was proper.

14. Shri Dilip Kumar Sinha, learned Additional Prosecutor

appearing on behalf of the State in Govt. Appeal No. 7 of 2007(S.J.) urged

that the sentence was inadequate in terms of the manner of occurrence and

the injuries, as such, it required that at least life imprisonment could be the

proper sentence.

15. While making submission Shri Shakeel Ahmad Khan, learned

Senior counsel for the appellants was addressing on non-proof of the

motive which was the act of teasing by appellants Ranjit Kumar Sao,

Lalan Yadav and Sukesh Yadav, the three accused for which Kankarbagh

P.S.Case No.414 of 1993 was registered. It appears admitted by the

informant P.W.1 in his evidence, as may appear from paragraph 10, that

the girl who had been teased had never complained to him nor had she

been examined in the case. As such, the motive which was alleged against

the appellants to hold them guilty appears not correct. The three

appellants, namely, Ranjit Kumar Sao, Lalan Yadav and Sukesh Yadav

were of course convicted on account of non-proof of the initial story of the

prosecution regarding teasing of the girl, but the learned Magistrate was of

course convicting the appellants and was releasing them under Section

360 Cr. P.C. as may appear from Ext. A, the copy of judgment delivered

in that case. It was true that the judgment was passed subsequently but it

has been admitted by P.W. 1 himself that after he was being pressurized
10

for compounding the offence for which he had filed the above noted

Kankarbagh P.S.Case No.414 of 1993, he did not lodge a complaint to

anybody about being pressurized to withdraw the prosecution. This fact

has been admitted by P.W.1 in paragraph 10. Thus, what is found from the

evidence of P.W.1 in paragraph 10 is that the fact that the appellants could

be pressurizing him for withdrawing Kankarbagh P.S. Case No. 414 of

1993 appears not satisfactorily established and, as such, the motive for

commission of the offence appears not established.

16. In a case of direct evidence it is not necessary for the prosecution

to allege a motive. However, if it is alleged that any particular motive

could have impelled the accused persons to commit the offence, then the

prosecution was required to establish motive for commission of the

offence also as any other fact. If I go by that particular principle, then it

could be said that there is a major defect in the prosecution case. But, I

find that there were as many as thirteen injuries recorded by P.W. 2 on the

person of P.W.1 out of which at least two injuries were found endangering

life and four others, like injuries no. 2,3, 4 and 14, were opined to be

grievous in nature. At lest P.W. 1 had come forward to support the case,

as such, it does not appear prudent in the present facts of the case, that

ignoring the direct evidence the judgment be set aside merely on non-

proof of the motive.

17. P.W. 1 has stated that while he was coming from his office and

when he reached the house of one Hariom Sao, the accused persons who

were standing there came in front of the scooter, compelling the informant

to stop it. Appellant Ranjit Kumar Sao dealt a fasuli blow on the face of the

informant as a result of which he fell down and thereafter all the accused

persons dealt incessant blows with fasuli upon P.W.1. P.W.1 stated that he
11

raised his hands in his defence and his fingers were also cut. These injuries

were found by P.W 2, the Doctor, as noted at Serial Nos. 9 and 10 of the

injury report. P.W.2 was finding the palm and thumb of either of the hands

of P.W. 1 bearing incised wounds. Even in absence of any evidence that the

informant was raising his hands to fend himself, it could ordinarily be

presumed that any one who was so badly brutalised by dealing incessant

blows with such dangerous weapon like fasuli – which is a sharp cutting

weapon used by toddy-tapers in cutting the palm trees for dripping toddy-

one could be making all efforts to ward off of those blows which could have

been inflicted upon him. This is the reason that the injuries were spread

over right from the face of the informant up to his legs. There could not be

any doubt as may appear from the evidence of P.W.1 alone that he was

badly brutalized and was clearly intended to be killed by his assailants.

There could not be any escape from that conclusion which appears from the

evidence of P.W. 1.

18. However, as regards the evidence of P.Ws. 3 and 4 Smt.

Nirmala Devi and Shri N.K. Agrawal, the Court finds that it is really not

acceptable that Shri N.K. Agrawal, Judicial Magistrate, who was a tenant

residing on the upper floor of the house of P.W. 1 could have seen the

occurrence. Both P.Ws. 1 and 3 have stated that after hearing the cries of

the couple, i.e., P.Ws. 1 and 3, Shri N.K.Agrawal and Padam Singh who

were the tenants living up-stairs rushed down to find P.W.1 lying injured

in the Verandah. This fact was stated by P.Ws 1 and 3 themselves. P.W. 3

Smt. Nirmala Devi was stating in paragraph 1 of her evidence that after

her husband being assaulted and injured and came to his house fully

soaked in blood, she gave a call to Patrakarngar Police Station but did not

name any one in that information because she was wailing and weeping
12

which attracted N.K.Agrwwal (P.W. 4) and another tenant Padam Singh

(not examined). The above fact has again been stated by P.W.3 Smt.

Nirmala Devi in paragraphs 8 and 12 of her evidence, thus, making it

quite clear that Shri N.K.Agrwal could have come down stairs at the

verandah of the house of P.W.1 and P.W. 3 after having heard the cries of

P.W. 3 who was crying after her husband had reached her house. Shri

N.K.Agrawal did not say that he himself had seen the occurrence. He has

also stated as may appear from the very first paragraph of his evidence

that he heard the sound of weeping and wailing coming from the ground

floor and when he came out, he found that P.W. 1 Brahmadeo Prasad was

badly injured and he was bleeding from the injuries and when he made

inquiries P.W.1 stated the names of the accused persons. But, that

evidence of P.W. 4 that P.W. 1 had made statement before him also

appears not truthful as it was admitted by P.W. 4 that the police could not

come to record his evidence and further that he waited for the police to

come to him for recording his evidence and he never felt going to the

police himself for giving his statement informing it to record his

statement.. This statement appears in the evidence of P.W.4 in Paragraphs

7 and 12. D.W.2 Inspector Rambriksha Rajak, who investigated the case

stated in paragraph 7 of his evidence that he never recorded the statement

of Shri N.K.Agrawal, Judicial Magistrate. In the light of the admitted fact

that P.W.4 N.K.Agrawal had never given statement before the police, his

evidence appears of no use and in fact is inadmissible. As such, his claim

that he was told by P.Ws. 1 and 3 the names of the assailants appears not a

material fact.

19. As regards the evidence of P.W. 3 Smt. Nirmala Prasad, she

has claimed to be the eye witness to the occurrence by stating that while
13

she was taking a stall in her campus near her grill gate, she saw her

husband being assaulted and injured. However, the criticism on her

evidence is that she was not named in the F.I.R. and that was indicative of

the fact that she had not witnessed the occurrence. The argument on behalf

of the informant and the State was that merely not being named in the

F.I.R. may not be sufficient in itself to reject the evidence of particular

witness. I am also of the view that a witness may not be named in the

F.I.R. and there could be many reasons for the name of such a witness not

being mentioned in the F.I.R. as an eye witness, but that may not be

sufficient to exclude the evidence of such witness who is unnamed in the

F.I.R. from being considered. In my considered view, the merit of the

evidence of a witness has mainly to be judged independently of the fact as

to whether a witness was named in the F.I.R. or not named in it. The Court

must consider the claim of the witness regarding the reason on account of

which he was claiming himself to be a witness to the occurrence which

may be the reason showing his presence on or about the place of

occurrence so as to seeing the occurrence. The evidence of a witness may

also be considered on such factor as to whether he was making a statement

which was diametrically opposed to the proved facts or inconsistent with

the probabilities which could be appearing from the evidence of the

witnesses which has been accepted by the court.

20. Coming to the evidence of P.W.3, she is definitely not named in

the F.I.R. in spite of her claim that she was seeing the occurrence from her

grill gate. It is not that the F.I.R. was promptly lodged. It was lodged after

24 hours of the occurrence. The evidence of P.W. 3 Smt. Nirmala Prasad

in paragraph 3 indicates that she had also accompanied her husband to the

P.M.C.H. where her husband was taken for the treatment of his injuries by
14

the police by its Jeep. P.W. 3 has stated that if the Police had not come to

take her husband to hospital, he could have died then and there but it came

to save her husband and further that she along with Agrawal Saheb (P.W.

4) followed the police Jeep by her own vehicle. This evidence appears

acceptable inasmuch as it indicates the ordinary natural conduct of a wife

who could have done something finding her husband so badly injured

from assault given by some persons. No wife could have stayed away

from her husband in such a situation. A wife is always supposed to do

everything possible including going to the hospital to attend to her injured

husband or taking all cares of him during the period of his recuperation.

Thus, the evidence of Smt. Nirmala Prasad that she had accompanied her

husband has always to be accepted. Then, the question is the fardbeyan

was recorded after 24 hours. It is the consistent evidence both of P.W.1

and D.W.2, Inspector Rambriksha Rajak that the informant had not

completely lost his consciousness and was responding to queries and

answering to them also. P.W.1 stated that as soon as D.W. 2 reached his

house he made query from him regarding identification of his assailants

and he pointed out to him that it was appellant Ranjit Kumar Sao and

others who had assaulted him. D.W. 2 further stated in his evidence that

while he was carrying P.W.1 to P.M.C.H., he was again enquiring about

the details of the occurrence including the names and other details of the

accused persons and he was not getting any details. He remained very

much in the hospital up to 10 P.M. and no one came forward to give any

details as regards the assailants of P.W.1. Smt. Nirmala Prasad also

remained throughout with her husband. There is no evidence either of

her’s or of P.W. 1 or any other person that she ever parted with her

husband ( P.W.1), and the Court also has to accept the position that P.W. 3
15

had remained with her husband, P.W. 1, at least for some days in the

hospital till his condition had stabilized. The informant was talking and he

must have talked to his wife P.W. 3 and there must have been some

exchange of the details of the occurrence as also the identification of

persons who had participated in commission of the offence and it maaya

safely be supposed that P.W.1 must have divulged the names of his

assailants and other details of the occurrence to P.W.3, his wife. This

could be deduced from other circumstances also. P.W. 2, the Doctor, who

examined P.W. 1 never stated in his lengthy evidence that he had found

P.W.1 unconscious or that he was administered any medicine or

prescribed the line of treatment which could have made him unfit for

making any statement or talking to his close relatives. This further

supports the view that P.W.1 could have been in a position of giving some

semblance of the occurrence at least to his wife P.W. 3 and if P.W. 3 had

pointed out to him that she had seen the occurrence then there was no

reason for the informant P.W. 1 not to cite his wife as one of the eye

witnesses to the occurrence. There is no mention of her name in the F.I.R.

21. Besides the above, what appears from the description of the

Place of occurrence as given by P.W.1 in paragraphs 18 and 24 of his

evidence is that there could not be a clear view of the place of occurrence

from the gate of the house of P.W. 1. It appears that the occurrence was

taking place quite away from the gate of the informant and it was situated

in such a position that no one could have seen the place of occurrence

clearly to find as to what was happening on the road. This is the reason

that P.W.3 stated in paragraph 11 of her evidence that she was peeping

through the grill gate in expectation of arrival of her husband when she

saw the occurrence. This also makes it doubtful that P.W. 3 could have
16

seen the occurrence. She further stated in paragraph 1 that she gave a

telephonic call to the Police about the occurrence after her husband had

come bleeding at the verandah of his house but she was not naming any

one. It is acceptable to the Court as the state of shock and grief which cold

have overtaken P.W.3 could not have left her in such a state of her mind

that she could be narrating the whole details to the police. However, she

was keeping silent for 24 hours and even thereafter as appears established

from the evidence of D.W.2 who stated that while making statement

before him, P.W.3 was not stating that she was an eye witness to the

occurrence. This was the reason that the defene also drew her attention in

cross-examination that she had not stated to the police that she had seen

the occurrence, as may appear from paragraph 16 of P.W. 3 and paragraph

1 of D.W.2. On these reasons, I find that it is not safe to place reliance

upon the evidence of P.W.3 as she does not appear to me a witness to the

occurrence.

22. Thus, what I find from the discussion of the evidence on record is

that neither P.W. 3 nor P.W. 4 was the eye witness to the occurrence and

as such, the non-appearance of their names in the fardbeyan appears

significant. It may not, as such, be prudent to act upon this evidence.

23. This brings me to consider as to what was the initial version of the

occurrence and who were the persons named as his assailants by injured

P.W.1. It is not denied that P.W.1 was naming only appellant Ranjit Kumar

Sao whereas in his statement he appears adding that there were others

persons also. It was admitted by P.W.1 that he was not fit to make the

statement and, as such, he was not making statement to D.W.2 when he

arrived in hospital and finally after 24 hours of the incident, he could give

his fardbveyan. The evidence of D.W.2 that as soon as he reached the house
17

of P.W.1, he inquired about the incident when P.W.1 stated to him that

appellant Ranjit Kumar Sao and others had assaulted him and that he was

seriously injured and, as such, D.W.2 should rush him to the hospital is not

denied. The contention of the informant who appeared in person was that

the evidence of D.W.2 in paragraphs 5 and 19 that he did not record the

fardbeyan or drew up his statement separately after getting answer to his

question does not appear acceptable as he was a Police Officer and he was

getting the information about the commission of a cognizable offence by

some known or unknown persons. It is true that D.W. 2 did not draw up the

F.I.R. but it is also not disputed that he made entries of the above fact in

paragraph 2 of the case diary and he was very candid in pointing out that he

proceeded to investigate the case in anticipation of a formal F.I.R. being

given to him. It was not unusual that D.W. 2 could have done it. He could

have proceeded to investigate the case so as to arresting the accused or

recovering the weapon of offence in absence of the F.I.R. also as may be

permissible under Sections 157 of the Cr.P.C. as was held by the Privy

Council in Emperor Vs. Khwaja Nazir Ahmad reported in AIR 1945 P.

C.18 that the law permits such investigation by the police even in absence

of the F.I.R. The wife of the informant who was giving a telephonic

information to the Police which has been admitted by her in paragraph 1

itself. She was also not giving the information to the police naming any of

the appellants. It might be a circumstance that P.W. 3 could not be in a

perfect state of mind to give names of the appellants or might be that the

informant had not stated to her about the names of his assailants but the

evidence of P.W.2 may not be brushed aside as it is not seriously disputed

by P.W.1 that he was initially giving out the name only of appellant Ranjit

Kumar Sao as one of his assailants besides not naming others. This
18

evidence creates a doubt regarding the complicity of appellants other than

appellant Ranjit Kumar Sao in commission of the offence. It is true that

thirteen injuries which were inflicted upon P.W. 1 could not be inflicted by

a solitary hand of appellant Ranjit Kumar Sao and more persons must have

participated in it, but there is a doubt regarding participation of the three

appellants on account of their names not coming up promptly and at the

earliest. As such, the Court feels that the appellants other than Ranjit Sao

deserve to be acquitted as there is a doubt about their participation in

commission of the offence.

24. Accordingly, Cr. Appeal No. 286 of 2007 is hereby allowed by

setting aside judgment of conviction and order of sentence passed upon

appellants Jhulan Yadav, Lalan Yadav and Sukesh Yadav and they are

acquitted of the charge. These appellants are on bail. They are discharged

from the liabilities of their bonds.

25. So far as appellant Ranjit Kumar Sao is concerned, his participation

is clearly established by the evidence of P.W.1, who was naming him as one

of his assailants from the very beginning. As such, his participation in the

commission of offence by giving fasuli blows to the informant on his face

could not be doubted. But, the difficulty is that the injuries which were

found endangering life of the informant have not been assigned to appellant

Ranjit Kumar Sao who was specifically alleged to have dealt the first blow

on the face of P.W. 1. That disfigurement was not dangerous to life nor was

endangering the life of P.W. 1 and, as such, the sentence of rigorous

imprisonment for seven years was inflicted upon him. In my view, in

absence of any direct and specific evidence establishing appellant Ranjit

Sao as the person who had caused any injury to P.W. 1 which could bring

his act within the purview of an attempt to commit murder, the sentence
19

passed upon him cannot be said to be deficient. Besides, he was assessed by

the learned trial court as 27 years of age on 20.2.2004 which indicated that

appellant Ranjit Kumar Sao was an adolescent.

26. In view of the above, Cr. Revision No. 144 of 2007 and Govt.

Appeal No. 7 of 2007 have to fail and, accordingly, they are dismissed. The

appeal of appellant Ranjit Kumar Sao, i.e., Cr. Appeal No. 318 of 2007 is

dismissed.

( Dharnidhar lJha, J.)

Patna High Court
The 19th October, 2011
Kanth/N.A.F.R.

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