{"id":16225,"date":"2003-10-31T00:00:00","date_gmt":"2003-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramanand-yadav-vs-prabhu-nath-jha-and-ors-on-31-october-2003"},"modified":"2017-09-01T13:13:37","modified_gmt":"2017-09-01T07:43:37","slug":"ramanand-yadav-vs-prabhu-nath-jha-and-ors-on-31-october-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramanand-yadav-vs-prabhu-nath-jha-and-ors-on-31-october-2003","title":{"rendered":"Ramanand Yadav vs Prabhu Nath Jha And Ors on 31 October, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramanand Yadav vs Prabhu Nath Jha And Ors on 31 October, 2003<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  119-121 of 1997\nAppeal (crl.)  314-316 of 1997\n\nPETITIONER:\nRamanand Yadav\t\t\t\t\t\t\t \n\nRESPONDENT:\nPrabhu Nath Jha and Ors.\t\t\t\t\t\n\nDATE OF JUDGMENT: 31\/10\/2003\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tIn these six appeals challenge is to the judgment of the Patna
\nHigh Court which directed acquittal of 8 persons upsetting conviction
\nrecorded and sentence imposed by the First Additional Sessions Judge,
\nDarbhanga.  Three of them namely, Prabhu Nath Jha, Laxmi Yadav and Badri
\nYadav were found guilty of offence punishable under Section 302 of the
\nIndian Penal Code, 1860  (in short the ‘IPC’) while five others namely,
\nRamashish Yadav, Yadu Nath Yadav, Ram Chandra Yadav, Bhutkun Yadav and
\nRam Prakash Yadav  were found guilty of offence punishable under Section
\n302 read with Section 149 IPC. Three of the accused persons namely
\nPrabhu Nath Jha, Ramashish Yadav and Yadu Nath Yadav were also found
\nguilty of the offence punishable under Sections 25A and 27 of the Arms
\nAct, 1959 (in short the ‘Arms Act’) and two of them namely Laxmi Yadav
\nand Badri Yadav were found guilty of offence under Section 3 of the
\nExplosive Substance Act, 1908 (in short ‘Explosive Act’).  Life sentence
\nwas imposed by offences relatable to Section 302 or Section 302 read
\nwith Section 149. Custodial sentence of various magnitudes were imposed
\nfor other offences. Since Prabhu Nath was absconding, his trial was
\nseparated initially but finally the trial Judge tried the sessions trial
\nof all the accused persons together.\n<\/p>\n
Accusations which led to the trial of the accused persons and the
\nprosecution version as unfolded during trial are as follows:\n<\/p>\n
\tOn 16.6.1991 which was a Sunday at about 7.00 a.m. in the morning
\nthe informant Ramanand Yadav (PW-12) (who leads the life of a Sadhu)
\ncame along with his elder brother Thakkan Yadav, a school teacher
\n(hereinafter referred to as the deceased) to Chanaur Chowk of the
\nvillage to take tea at a tea-shop; this Chanaur Chowk is a market place
\nin village Aabadi, where there are several small tea-shops, hair-cutting
\nsaloons, grocery shops, cloth shops etc; while Thakkan Yadav was
\nchatting with one Lambodar Jha, a press-reporter in front of the shop of
\none Krishna Purbey,  the accused Prabhu Nath Jha holding a revolver in
\nsmall bag tied around his waist and the accused Laxmi Yadav and his
\nbrother Badri Yadav having bags on their shoulder arrived near the
\ndeceased;  accused Prabhu Nath Jha fired his revolver\/pistol on the
\nright side Panjra (lower side chest) of the deceased and being hurt from
\nthis fire-arm shot of Prabhu Nath Jha, deceased fell down on the ground,
\nand the other two accused Laxmi Yadav and Badri Yadav took out bombs
\nfrom their bags and they started hurling bombs on the body of fallen
\ndeceased, and these two accused persons hurled several bombs and the
\nsmoke of the bombs engulfed the surroundings; deceased was severely
\ninjured; that the other accused Ramashish and Yadu Nath who were
\nstanding near the house of Prabhu Nath Jha at a distance of about
\nhundred feet from the Chowk started firing in the air to scare the
\nvillagers to run away, and the accused Bhutkun, Ram Chandra and Ram
\nPrakash started throwing brick-bats to make the villagers run away as
\nthe firing had started.\n<\/p>\n
\tAccording to the prosecution case all the eight accused belong to
\none camp led by the accused Prabhu Nath Jha and all the eight accused
\nwere sympathizers of a particular political party. After this occurrence
\nall the eight accused persons ran away towards the house of Prabhu Nath
\nJha, and the informant Ramanand Yadav (PW-12) went to the house of
\nPrabhu Nath Jha and found that all these accused were running away
\ntowards north.\n<\/p>\n
\tWith the help of Jagannath Yadav (PW-1), Shyam Yadav (PW-2) and
\nothers the seriously injured Thakkan Yadav was carried on a rickshaw to
\nthe clinic of Dr. Manoj Kumar in Manigachhi for treatment, and they
\nstayed there for ten minutes or about and there Dr. Manoj Kumar declared
\nthat Thakkan Yadav was dead, not being satisfied with the opinion of the
\ndoctor and hoping that the expert doctors might help in revival of life
\nof Thakkan Yadav, Ramanand Yadav (PW-12) finding the jeep of a political
\nparty with some workers of the party in it by the side of the clinic of
\nDr. Manoj Kumar, placed the injured Thakkan Yadav in that jeep and
\nbrought him to Darbhanga Medical College Hospital, where the doctors of
\nemergency wing too declared that Thakkan Yadav was dead.\n<\/p>\n
\tAccording to the prosecution there were 6 eye-witnesses namely
\nJagarnath Yadav (PW-1), Utim Yadav (PW-3), Mahabir Yadav (PW-7), Batohi
\nYadav (PW-9), Indra Mohan (PW-10) and Ramanand Yadav (PW-12). Nagendra
\nMishra (PW-14) was the Investigating Officer and Dr. A.R. Kishore (PW-\n<\/p>\n
17) was the doctor who conducted the post-mortem.   Shyam Yadav (PW-2),
\nAutar Jhan (PW-4) and Mahadeo Yadav (P-6) were stated to be immediate
\npost occurrence witnesses.\n<\/p>\n
\tStand of the accused persons was that deceased was murdered by
\nsome unknown persons which was not witnessed by anybody and they have
\nbeen falsely roped in due to enmity and political rivalry.  Reference
\nwas made to some criminal cases to show enmity. Accused Prabhu Nath took
\nthe plea of alibi claiming that he was working at a different place and
\ncould not have been at the place of occurrence.\n<\/p>\n
Placing implicit reliance on the evidence of the prosecution
\nwitnesses the trial Judge directed conviction and sentence as aforesaid.
\nThree appeals were filed by the appellants separately and the High court
\ndirected acquittal by the impugned judgment disposing of them together.\n<\/p>\n
The primary grounds on which the acquittal was directed are as
\nfollows: (i) there is a referral hospital between the place of
\noccurrence and the Darbhanga Government Hospital  and it has not been
\nexplained as to why the deceased was not taken to the referral hospital
\nand was taken to the Darbhanga Hospital which is at a greater distance;\n<\/p>\n
(ii) PWs 6, 7 and 9 were examined after three days of occurrence; (iii)
\none Lambodar Jha and two others were available at the spot of occurrence
\nbut were not examined and only the interested witnesses were examined
\nand, therefore, the prosecution version is suspect; (iv) when PWs 2 and
\n4 reached the place of occurrence they did not see any of the so-called
\neye witnesses and, therefore, their presence at the spot is doubtful;\n<\/p>\n
(v) the medical evidence is inconsistent with the prosecution case, as
\nno bullet injury was found on the lower side of the right chest though
\nwitnesses said that a bullet was fired at that part of the body. It has
\nto be noted that PW-7 has been found to be unreliable, and that
\naccording to High Court adds to the vulnerability of the prosecution
\nversion.\n<\/p>\n
\tAs indicated above, both the informant Ramanand (PW-12) and State
\nof Bihar have questioned correctness of the High  Court’s judgment. By
\norder dated 31.1.1997 the scope of present appeals was restricted to
\nrespondents 1 to 3 i.e. accused Prabhu Nath Jha, Laxmi Yadav and Badri
\nYadav, and was dismissed so far as others are concerned.\n<\/p>\n
\tLearned counsel for the appellant-State contended that each of the
\nreasons which has weighed with the High Court suffers from unsupportable
\nfallacies and even there has been mis-reading of the evidence. So far as
\nnot taking the deceased to the referral hospital nearby, it has been
\npointed out that the witnesses have given reasons as to why the deceased
\nwas not taken to such hospital. It has been clearly indicated that at
\nmost of the times doctors are not available at the hospital and,
\ntherefore, the relatives were not taking any chance. The fact that the
\nfirst examination was done by a doctor attached to the referral hospital
\nclearly establishes the possibility of the doctors being not there, and
\nmerely because the deceased was taken to a Government hospital at some
\ndistance that cannot be a ground to render the prosecution version
\nsuspect. Unfortunately, the High Court has not properly considered this
\naspect. The second reason which has weighed with the High Court is the
\ndelayed examination of PWs 6, 7, and 9. There was no question put to the
\nInvestigating Officer as to why there was delayed examination.
\nTherefore, same cannot be taken as a ground for discarding the
\nprosecution version on this ground alone. Regarding non examination of
\nLambodar and two others who claimed to be at the spot it was pointed out
\nthat the prosecution is not obliged to examine every witness in a
\nfaction ridden village and even those whose sympathies lay with the
\naccused may hesitate to take any risks by offering themselves as
\nwitnesses and such non examination cannot be a ground to discard the
\nprosecution version. So far as evidence of PWs 2 and 4 ruling out
\npresence of so-called eye witnesses is concerned it was pointed out that
\nthe witnesses have clearly stated that after the explosion they went
\naway being afraid and shocked, and came back after a short time. The
\nevidence of PWs 2 and 4 shows that they reached the spot of occurrence
\nimmediately after the explosion and, therefore, the fact that they did
\nnot see the eye-witnesses cannot be a factor to doubt their presence. So
\nfar as the medical evidence is concerned, it is pointed out that the
\nwitnesses have stated about firing a gun by accused Prabhu Nath. Merely
\nbecause no bullet injury was found that does not rule out the
\nparticipation of accused Prabhu Nath. Even otherwise, the medical
\nevidence in no way varies from the ocular evidence as the assaults
\nattributed to other accused persons are clearly linked to the injuries
\non the body of the deceased. In any case, by application of Section 34
\nIPC accused Prabhu Nath Jha can be convicted.\n<\/p>\n
\tIn response, learned counsel for the accused submitted that the
\nwhole incident alleged to have taken place is a sequel to a political
\nevent. The parliamentary election was held on 12.6.1991 whereas the date
\nof occurrence is 16.6.1991. The election tempo and frayed tempers
\ncontinued. Evidence on record shows that there was political rivalry.
\nThe High Court’s conclusions are in order. Firstly, there was no need to
\ntake the deceased to a hospital at a distant place after the doctor had
\nopined that the deceased was no longer alive. There was few hours delay
\nin lodging the FIR  and that afforded an opportunity to falsely rope in
\nthe accused persons because of political rivalry. Out of six so-called
\neyewitnesses three were admittedly having hostility towards the accused
\npersons. They were also not only related but also politically linked.
\nFurther delayed examination of PWs 6, 7 and 9 probabilises the inference
\nthat the prosecution version was concocted. PWs 1, 3 and 9 had business
\nlinks with the deceased and, therefore, they had reason to rope in the
\naccused persons falsely. Though medical evidence at first blush rules
\nout role of accused Prabhu, but that also leads to an inference of false
\nimplication of other accused persons. There is little scope for
\ninterference with the order of acquittal unless the judgment is totally
\nperverse and this is not a case of that nature.\n<\/p>\n
Learned counsel appearing for the informant in Crl.A. Nos. 119-
\n121\/1997 adopted the arguments of learned counsel for the State in the
\nconnected appeals.\n<\/p>\n
The first factor which appears to have weighed with the High Court
\nis taking the deceased to the hospital at some distance. The prosecution
\nevidence amply clarifies as to why that was necessary to be done and the
\nreading of evidence of PWs 1 and 12 is relevant in this regard. They
\nhave categorically stated that at most of the times the doctors at
\nreferral hospital are not present. They substantiated this impression by
\npointing out that Dr. Manoj who had first examined the deceased and
\ndeclared him to be dead was a doctor of the referral hospital. The
\nimpression may be totally out of context; but the reason given cannot be
\nsaid to be wholly implausible. Therefore, that should not have been
\ntaken as a ground by the High Court for directing acquittal.\n<\/p>\n
The second factor which has weighed with the High Court is the
\ndelayed examination of three witnesses i.e. PWs 6, 7 and 9. The evidence
\nof PW-7 does not appear to be very much credible and the trial Court and
\nthe High Court also did not appear to have placed much reliance on his
\nevidence. But so far as PWs 6 and 9 are concerned, it is clear from
\nreading of the evidence that the Investigating Officer was not asked
\nspecifically the reason for their delayed examination. This Court in
\nseveral decisions has held that unless the Investigating Officer is
\ncategorically asked as to why there was delay in examination of the
\nwitnesses the defence cannot gain any advantage therefrom. (See Ranbir
\nand Ors. v. State of Punjab (AIR<\/a> 1973 SC 1409 and Bodhraj @Bodha and
\nOrs. v. State of Jammu and Kashmir<\/a> (2002 (8) SCC 45).\n<\/p>\n
So far as non-examination of Lambodar and two others is concerned
\nit is established by the evidence on record that the village was a
\nfaction ridden one. In some cases persons may not like to come and
\ndepose as witnesses and in some other cases the prosecution may carry
\nthe impression that their evidence would not help it as there is
\nlikelihood of partisan approach so far as one of the parties is
\nconcerned. In such a case mere non examination would not effect the
\nprosecution version. But at the same time if the relatives or interested
\nwitnesses are examined, the Court has a duty to analyse the evidence
\nwith deeper scrutiny and then come to a conclusion as to whether it has
\na ring of truth or there is reason for holding that the evidence was
\nbiased. Whenever a plea is taken that the witness is partisan or had any
\nhostility towards the accused foundation for the same has to be laid. If
\nthe materials show that there is partisan approach, as indicated above
\nthe Court has to analyse the evidence with care and caution.
\nAdditionally, the accused persons have always the option of examining
\nthe left out persons as defence witnesses.\n<\/p>\n
In Ram Avtar Rai and Ors. v. State of Uttar Pradesh (AIR<\/a> 1985 SC\n<\/p>\n
880), Harpal Singh v. Devinder Singh and Anr. (1997 (6) SCC 660) and
\nGopi Nath @Jhallar v. State of U.P. (2001 (6) SCC 620) these aspects
\nhave been elaborately dealt with. Here again the High Court has
\nerroneously drawn adverse inference.\n<\/p>\n
So far as the alleged variance between medical evidence and ocular
\nevidence is concerned it is trite law that oral evidence has to get
\nprimacy and medical evidence is basically opinionative. It is only when
\nthe medical evidence specifically rules out the injury as claimed to
\nhave been inflicted as per the oral testimony, then only in a given case
\nthe Court has to draw adverse inference.\n<\/p>\n
The High Court has thus knocked out an eyewitness on the strength
\nof an uncanny opinion expressed by a medical witness. Over dependence on
\nsuch opinion evidence, even if the witness is an expert in the field, to
\ncheckmate the direct testimony given by an eyewitness is not a safe
\nmodus adoptable in criminal cases. It has now become axiomatic that
\nmedical evidence can be used to repel the testimony of eyewitnesses only
\nif it is so conclusive as to rule out even the possibility of the
\neyewitness’s version to be true. A doctor usually confronted with such
\nquestions regarding different possibilities or probabilities of causing
\nthose injuries or post-mortem features which he noticed in the medical
\nreport may express his views one way or the other depending upon the
\nmanner the question was asked. But the answers given by the witness to
\nsuch questions need not become the last word on such possibilities.
\nAfter all he gives only his opinion regarding such questions. But to
\ndiscard the testimony of an eyewitness simply on the strength of such
\nopinion expressed by the medical witness is not conducive to the
\nadministration of criminal justice.\n<\/p>\n
Similar view has also been expressed in Mange v. State of Haryana<\/a>
\n(1979(4) SCC 349), State of U.P. v. Krishna Gopal and Anr. (AIR<\/a> 1988 SC
\n2154) and Ram Dev and Anr. v. State of U.P. (1995 Supp. (1) SCC 547) and
\nState of U.P. v. Harban Sahai and Ors.<\/a> (1998 (6) SCC 50)<\/p>\n
\tEven otherwise, the medical evidence may be at variance so far as
\nalleged assault by accused Prabhu Nath Jha is concerned. But there is no
\nvariance pointed out by the High Court so far as others are concerned.
\nTherefore, there is no supportable foundation for holding that there was
\nconcoction. Accused Prabhu even otherwise can be held guilty by
\napplication of Section 34 IPC. Though there was no charge framed for an
\noffence under Section 302 read with Section 34, the evidence on record
\nclearly brings out application of Section 34 and as was observed by this
\nCourt in Lallan Rai and Ors. v. State of Bihar<\/a> (2003 (1) SCC 268)
\nSection 34 can be applied if the evidence of the eyewitnesses clearly
\nestablishes the role played by the concerned accused.\n<\/p>\n
\tThere is no embargo on the appellate Court reviewing the evidence
\nupon which an order of acquittal is based.  Generally, the order of
\nacquittal shall not be interfered with because the presumption of
\ninnocence of the accused is further strengthened by acquittal.  The
\ngolden thread which runs through the web of administration of justice in
\ncriminal cases is that if two views are possible on the evidence adduced
\nin the case, one pointing to the guilt of the accused and the other to
\nhis innocence, the view which is favourable to the accused should be
\nadopted. The paramount consideration of the Court is to ensure that
\nmiscarriage of justice is prevented. A miscarriage of justice which may
\narise from acquittal of the guilty is no less than from the conviction
\nof an innocent. In a case where admissible evidence is ignored, a duty
\nis cast upon the appellate Court to re-appreciate the evidence in a case
\nwhere the accused has been acquitted, for the purpose of ascertaining as
\nto whether any of the accused committed any offence or not. [See Bhagwan
\nSingh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567). The
\nprinciple to be followed by appellate Court considering the appeal
\nagainst the judgment of acquittal is to interfere only when there are
\ncompelling and substantial reasons for doing so.  If the impugned
\njudgment is clearly unreasonable and relevant and convincing materials
\nhave been unjustifiably eliminated in the process, it is a compelling
\nreason for interference. These aspects were highlighted by this Court in
\nShivaji Sahabrao Bobade and Anr. v. State of Maharashtra<\/a> (1973 (3) SCC\n<\/p>\n
193), Ramesh Babulal Doshi v. State of Gujarat<\/a> (1996 (4) Supreme 167),
\nJaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
\nJha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab
\nv. Karnail Singh<\/a> (2003 (5) Supreme 508 and State of Punjab v. Pohla
\nSingh and Anr.<\/a> (2003 (7) Supreme 17).\n<\/p>\n
\tThe inevitable conclusion because of the factual and legal
\npanorama noted above is that the High Court was not justified in
\ndirecting acquittal. The same is set aside. Respondents are convicted
\nunder Section 302 read with Section 34 IPC and are sentenced to undergo
\nimprisonment for life. As they are on bail, they shall surrender
\nforthwith to suffer remainder of the sentence. The appeals are allowed
\nin the aforesaid terms.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramanand Yadav vs Prabhu Nath Jha And Ors on 31 October, 2003 Author: A Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 119-121 of 1997 Appeal (crl.) 314-316 of 1997 PETITIONER: Ramanand Yadav RESPONDENT: Prabhu Nath Jha and Ors. DATE OF JUDGMENT: 31\/10\/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16225","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamanand Yadav vs Prabhu Nath Jha And Ors on 31 October, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramanand-yadav-vs-prabhu-nath-jha-and-ors-on-31-october-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramanand Yadav vs Prabhu Nath Jha And Ors on 31 October, 2003 - 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