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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
