{"id":230125,"date":"2011-10-19T00:00:00","date_gmt":"2011-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-brahma-deo-prasad-vs-the-state-of-bihar-ors-on-19-october-2011"},"modified":"2016-12-18T16:37:03","modified_gmt":"2016-12-18T11:07:03","slug":"dr-brahma-deo-prasad-vs-the-state-of-bihar-ors-on-19-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-brahma-deo-prasad-vs-the-state-of-bihar-ors-on-19-october-2011","title":{"rendered":"Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011<\/div>\n
Author: Dharnidhar Jha<\/div>\n
                                                                              1\n\n\n\n\n         IN THE HIGH COURT OF JUDICATURE AT PATNA\n                          ----\n<\/pre>\n
              Govt. Appeal (SJ) No.7 of 2007
\n        Against judgment of conviction and order of sentence dated
\n     24.1.2007 passed by Additional Sessions Judge XI, Patna, in
\n     Sessions Trial No. 1251 of 1998.\n<\/p>\n
     =====================================================
\n     The State Of Bihar
\n                                              … …. Appellant
\n                            Versus\n<\/p>\n
1.   Ranjit Sao, son of Hariom Sao\n<\/p>\n
2.   Jhulan Yadav, son of Chhavinath Yadav\n<\/p>\n
3.   Lalan Yadav, son of Brahm Deo Yadav\n<\/p>\n
4.   Sukesh Yadav, son of late Jehali Yadav
\n     All residents of Yogipur Mohalla, P.S. Patrakar Nagar, Kankarbagh,
\n     District Patna
\n                                    .         … …. Respondents
\n                            with
\n            Criminal Revision No. 144 of 2007
\n     Dr.Brahma Deo Prasad, son of late Sajiwan Prasad, resident of Yogipur
\n     Mohalla, P.S. Patrakar Nagar( Kankarbagh), District Patna, at present,
\n     Advocate, Patna High Court, Patna.\n<\/p>\n
                                    …. …. Petitioner
\n                            Versus\n<\/p>\n
1.   The State Of Bihar\n<\/p>\n
2.   Ranjit Sao, son of Hariom Sao\n<\/p>\n
3.   Lalan Yadav, son of Brahma Deo Yadav\n<\/p>\n
4.   Jhulan Yadav, son of Chhavinath Yadav\n<\/p>\n
5.   Sukesh Yadav, son of late Jehali Yadav
\n     All residents of Yogipur Mohalla, P.S. Patrakar Nagar( Kankarbagh),
\n     District Patna
\n                                    …. …. Opposite Parties
\n                            with
\n            Criminal Appeal (SJ) No. 286 of 2007
\n         Against the judgment of conviction and order of sentence dated
\n     24.1.2007 passed by Additional Sessions Judge XI, Patna, in Sessions
\n     Trial No. 1251 of 1998.\n<\/p>\n
     =====================================================\n<\/p>\n
1.   Jhulan Yadava, son of Chabbi Nath Prasad Yadav\n<\/p>\n
2.   Lallan Yadava son of Brahmdeo Yadav\n<\/p>\n
3.   Sukesh Yadava son of Jehadi Yadav
\n     All residents of lMohalla Jogipur, P.S. Patrakar Nagar, District Patna
\n                                    … …. Appellants
\n                            Versus
\n     The State Of Bihar
\n                                    …. …. Respondent
\n                            with
\n                 Criminal Appeal (SJ) No. 318 of 2007
\n     Ranjit Kumar Sao son of Shri Hari Om Sao, resident of Mohalla Yogipur,
\n     Police Station Patakar Nagar( Kankarbagh) Town and District Patna
\n                                 …. …. Appellant
\n                            Versus
\n                                                                                 2<\/span><\/p>\n
The State Of Bihar
\n                             …. …. Respondents
\n=====================================================
\nAppearance :\n<\/p>\n
(In G. APP. (SJ) No. 7 of 2007)
\nFor the Appellant : Shri Dilip Kumar Sinha, A.P.P..
\nFor the Respondent\/s Shri Shakeel Ahmad Khan, Sr. Adv.\n<\/p>\n
                      Shri Sajid Salim Khan<\/p>\n
(In CR. REV. No. 144 of 2007)
\nFor the Petitioner : Dr. Brahmdeo Prasad( in person)
\n                     Shri Rakesh Kumar
\nFor the Opp. Parties : Shri Shakeel Ahmad Khan, Sr. Adv.<\/p>\n
(In CR. APP (SJ) No. 286 of 2007)
\nFor the Appellants : Shri Shakeel Ahmad Khan, Sr. Adv.<\/p>\n
For the Respondent : Shri S.N.Prasad, A.P.P.\n<\/p>\n
(In CR. APP (SJ) No. 318 of 2007)
\nFor the Appellant : Shri Shakeell Ahmad Khan, Sr.Adv.<\/p>\n
For the Respondent : Shri S.N.Prasad, A.P.P.\n<\/p>\n
=====================================================
\nCORAM: HONOURABLESHRI. JUSTICE DHARNIDHAR JHA<\/p>\n
(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)\n<\/p>\n
               – —\n<\/p>\n
The two Criminal Appeals, i.e., Cr. Appeal Nos. 286 of 2007 and 318 of<\/p>\n
2007 preferred by the convicts of Sessions Trial No. 1251 of 1`998 as also<\/p>\n
Criminal Revision petition No. 144 of 2007 filed by the informant P.W.1<\/p>\n
and the Govt. Appeal No. 7 of 2007 arise out of judgment dated 24.1.2007<\/p>\n
passed by the learned Additional Sessions Judge XI, Patna, in the above<\/p>\n
noted Sessions Trial. They were heard together and are being disposed of<\/p>\n
by the present common judgment.\n<\/p>\n
2.     Appellant Ranjit Kumar Sao was the only accused sent up by the<\/p>\n
police on the basis of Ext.1, the fardbeyan of P.W.1 Brahmadeo Prasad.<\/p>\n
The three appellants of Cr. Appeal No. 286 of 2007 were not sent up for<\/p>\n
trial by the police. The informant, P.W.1, filed a complaint petition (Ext.2)<\/p>\n
and after an inquiry under Section 202 Cr. P.C. the three appellants,
\n                                                                                 3<\/span><\/p>\n
namely, Jhulan Yadav, Lalan Yadav and Sukesh Yadav were summoned<\/p>\n
by the Chief Judicial Magistrate, Patna, and their case was also committed<\/p>\n
to the court of Sessions as a result of which they were tried together<\/p>\n
which, lastly, ended in the impugned judgment.\n<\/p>\n
3.     The fact of the case is that the informant, who was the Deputy<\/p>\n
General Manager of the Bihar State Co-operative Bank, was coming on<\/p>\n
18.9.1996 at about 5.30 P.M. by his scooter from his office to his house<\/p>\n
situated at Village Yogipur. When he reached near the house of one<\/p>\n
Hariom Sao on the road he saw that appellant Ranjit Kumar Sao was<\/p>\n
standing there with other five-six friends of his. P.W. 1 identified the four<\/p>\n
appellants and could not identify the other two or three. All the accused<\/p>\n
came in front of the scooter of P.W. 1 who was forced to stop the two<\/p>\n
wheeler. As soon as the two wheeler was stopped, it is alleged, appellant<\/p>\n
Ranjit Kumar Sao dealt a fasuli blow on the informant on his face as a<\/p>\n
result of which the informant fell down. Appellant Ranjit Kumar Sao<\/p>\n
along with other appellants and their unknown companions, thereafter,<\/p>\n
dealt incessant fasuli blows on different parts of the body of P.W.1. The<\/p>\n
informant attempted to fend himself by raising his two hands as a result of<\/p>\n
which his hands were also injured and he kept rolling on the ground while<\/p>\n
the appellants and their companions continued giving blows with fasuli.<\/p>\n
4.     It is stated that the informant recollected himself, got up and went<\/p>\n
towards his house to save himself, but fell down in the verandah of his<\/p>\n
house completely soaked in blood.\n<\/p>\n
5.     The police, on receipt of information came there and picked up the<\/p>\n
informant and admitted him to the emergency ward of Patna Medical<\/p>\n
College Hospital. The informant stated that he was not fully conscious,<\/p>\n
rather was half conscious on 18.9.1996, as such, could not give his
\n                                                                               4<\/span><\/p>\n
statement on that day and after having regained his consciousness fully, he<\/p>\n
gave his fardbeyan ( Exrt.1).\n<\/p>\n
6.     It was stated by P.W. 1 that in the year 1993 the three appellants,<\/p>\n
namely, Ranajit Kumar Sao, Lalan Yadav and Sukesh Yadav teased a girl<\/p>\n
for which the informant had chastised them and that had resulted in the<\/p>\n
informant being assaulted by the above named appellants as a result of<\/p>\n
which P.W. 1 had lodged Kaakarbagh P.S.Case No. 414 of 1993. It was<\/p>\n
stated that the appellants were pressurizing him to compromise the case<\/p>\n
for which P.W.1 was not ready as a result of which the occurrence had<\/p>\n
taken place. The informant stated that while he was driving home by the<\/p>\n
two wheeler, Harshit Narain Singh ( not examined) was the pillion rider<\/p>\n
and he was present at the time of occurrence.\n<\/p>\n
7.     On the basis of Ext.1, the F.I.R. of the case was drawn up and the<\/p>\n
investigation was undertaken by D.W. 2 Inspector Rambriksha Rajak who<\/p>\n
on that date was the Officer of Patrakarnagar Police Station. D.W. 2 stated<\/p>\n
that he received a wireless message about P.W. 1 being assaulted by some<\/p>\n
persons and he moved to the place of occurrence with his mobile<\/p>\n
patrolling party and found P.W.1 in an injured condition and when he<\/p>\n
questioned him about the name of his assailants, he gave the name of<\/p>\n
appellant Ranjit Kumar Sao and further stated that he should be shifted to<\/p>\n
the hospital for treatment. D.W.2 stated that he put the injured on his<\/p>\n
mobile vehicle and brought him to P.M.C.H. for treatment. He took up the<\/p>\n
investigation on 18.9.1996 itself but recorded the fardeyan ( Ext. 1) of<\/p>\n
P.W.1 on 19.9.1996 and thereafter recorded the statement of P.W. 3,<\/p>\n
Nirmala Devi, the wife of P.W. 1 on 19.9.1996 who did not state that she<\/p>\n
had seen the occurrence nor did she name any of the accused persons. He<\/p>\n
questioned many persons, namely, Mahendra Kumar, Punia Devi, Padam
\n                                                                              5<\/span><\/p>\n
Singh and Harshit Naraian Singh (all not examined). The case was<\/p>\n
supervised by Dy.S.P. D.W. 1 and finding materials sufficient only against<\/p>\n
appellant Ranjit Kumar Sao, sent him up for trial.<\/p>\n
8.      In cross examination, D.W.2 stated that while he was shifting<\/p>\n
P.W.1 to P.M.C.H. he wanted to know from him the details of the<\/p>\n
occurrence, but P.W. 1 stated that he was not in a fit state of mind and<\/p>\n
health to make statement and it will be made later. D.W.2 remained in<\/p>\n
P.M.C.H. up to 10 P.M. and till then no one was coming forward to give<\/p>\n
the details of the occurrence as to how it had occurred. D.W.2 stated that<\/p>\n
whenever he questioned P.W.1, he always stated that one Ranjait Kumar<\/p>\n
Sao and some others of his neighbourhood had assaulted him with fasuli<\/p>\n
and, accordingly, he recorded the statement of P.W.1 in paragraph 2 of the<\/p>\n
case diary, but did not record the fardbeyan of P.W.1 nor did he direct<\/p>\n
recording of station diary entry as regards the statement of P.W.1<\/p>\n
Brahmadeo Prasad about the name of only one accused, i.e., appellant<\/p>\n
Ranjit Kumar Sao. D.W.2 has further stated in paragraph 2 of his evidence<\/p>\n
that he remained in P.M.C.H. up to 10 P.M as indicated by him, but<\/p>\n
nobody came to give any statement and that he arrested appellant Ranjit<\/p>\n
Kumar Sao from his house in the same night. He came to P.M.C.H. early<\/p>\n
in the morning on 19.9.1996 and recorded the fardbeyan of P.W. 1.<\/p>\n
9.      On being admitted into the emergency ward of P.M.C.H., P.W.1<\/p>\n
was examined by P.W.2 Dr. Vimal Mukesh, who was the Surgeon on duty<\/p>\n
in the surgical emergency Ward of P.M.C.H. on 18.9.1996 from 2 P.M. to<\/p>\n
10 P.M. He found the following injuries on the person of Bahmadeo<\/p>\n
Prasad, P.W. 1:\n<\/p>\n
1.   Clean incised wound over the posterior aspect of left shoulder
\n     muscle deep 8″ vertical and 6″ horizontal, bleeding present.\n<\/p>\n
2.   Clean incised wound over the right chin 2″ long extending inside the
\n                                                                               6<\/span><\/p>\n
      oral cavity causing disfigurement of face.\n<\/p>\n
3.    Incised wound over the upper lip through and through on the right
\n      side 1 \u00bd” long causing disfigurement.\n<\/p>\n
4.    Clean incised wound parallel to injury no.2″ long, extending into the
\n      left chin causing disfigurement.\n<\/p>\n
5.    Clean incised wound on the left side of the neck 10″ long bone deep.\n<\/p>\n
      1 blood vessel severed.-\n<\/p>\n
6.    Clean incised wound parallel to injury no.5 10″ long X skin deep.\n<\/p>\n
7.    Clean incised wound over the right side of chest below the nipple 5″\n<\/p>\n
       long muscle deep bleeding profusely.\n<\/p>\n
8.    Clean incised wound right upper chest 5″ long, muscle deep.<\/p>\n
9.    Clean incised wounds on right hand\n<\/p>\n
        (a)     incised wound on the base of little finger\n<\/p>\n
        (b) incised wound on right thumb 1″ long\n<\/p>\n
        (c) right palm upper part 3″ long\n<\/p>\n
10.   Left hand incised wounds\n<\/p>\n
        (a) left wrist posterior aspect 6″ long extending into the palm.\n<\/p>\n
        (b) Tips of forefingers except thumb.\n<\/p>\n
        (c) Clean incised wound left palm upper part 1″ long\n<\/p>\n
11.   Clear incised wound on the forehead four in number each 1″ long,
\n       bone deep\n<\/p>\n
12.   Clean incised wound below right eye 3″ long muscle deep\n<\/p>\n
13.   Clean incised wound over the right ala of nose 1″ long through and
\n       through causing disfigurement.\n<\/p>\n
In the opinion of P.W.2, injury nos. 2,3,4 and 13 ere grievous in nature on<\/p>\n
account of causing disfigurement of face of P.W.1. Injury nos. 5 and 6<\/p>\n
were endangering life of P.W.1, as may appear from the very descriptions<\/p>\n
of those injuries and injury nos. 1 to 5 and 5 to 10 were simple in nature.<\/p>\n
However, all the injuries were caused by sharp cutting weapon, may be by<\/p>\n
a fasuli. Thus, there could be no doubt that injuries which were caused to<\/p>\n
P.W.1 were really dangerous to life individually and cumulatively as well.<\/p>\n
10.       In support of its case, the prosecution examined four witnesses<\/p>\n
which included the informant         (P.W.1), his wife       (P.W.3), the<\/p>\n
Doctor,(P.W.2) who examined P.W. 1, whose evidence I have just<\/p>\n
discussed and, lastly, Shri N.K.Agrawal, who was the Judicial Magistrate<\/p>\n
on the date of occurrence in civil courts, Patna, and was undisputedly<\/p>\n
residing as a tenant on the first floor of the house of P. W.1. I have<\/p>\n
already noted the evidence of the Investigating Officer of the case.
\n                                                                                7<\/span><\/p>\n
Besides, the Deputy Superintendent of Police, who was the Supervising<\/p>\n
Officer, i.e., D.W. 1, namely, Smt. Sangita Kumari was also examined.<\/p>\n
11.      It was contended by Shri Shakeel Ahmad Khan, learned counsel<\/p>\n
appearing on behalf of the appellants by referring to the evidence of<\/p>\n
witnesses that the first statement which was given to the police by P.W.1<\/p>\n
was not containing any name except that of appellant Ranjit Kumar Sao.<\/p>\n
It is not that P.W.1 was not in a position to make statement as the<\/p>\n
evidence of the Investigating Officer clearly indicates that he talked to<\/p>\n
him on way to P.M.C.H. and repeatedly asked him to divulge the details<\/p>\n
of occurrence but he was not doing it. The evidence of the Doctor does not<\/p>\n
indicate that he had lost his consciousness and was not in a position to<\/p>\n
make any statement and regained his consciousness to speak and then only<\/p>\n
it was possible to record his fardbeyan by the police. It was contended that<\/p>\n
in fact, the informant was consulting his Advocate as he appears admitting<\/p>\n
in context to filing of the complaint petition for roping in the accused<\/p>\n
persons. It was contended that as a matter of fact even appellant Ranjit<\/p>\n
Kumar Sao was not the assailant of the informant and he had falsely been<\/p>\n
roped in the case. Contention also was that Harshit Narain Sigh who was<\/p>\n
allegedly the pillion rider on the same scooter by which P.W.1 was<\/p>\n
coming to his house, was not examined nor Padam Narain Singh who was<\/p>\n
also one of the tenants with P.W. 4 N.K.Agrawal, came to support the<\/p>\n
prosecution case. None of the persons of his neighbourhood who are said<\/p>\n
to have seen the occurrence had come forward to support any part of the<\/p>\n
occurrence. P.W. 3 Nirmala Devi, wife of P.W.1 could never be an eye<\/p>\n
witness as could be the case with P.W. 4 which was further compounded<\/p>\n
by not naming the three appellants other than appellant Ranjit Kumar Sao<\/p>\n
by the informant at the earliest and on repeated questioning.
\n                                                                               8<\/span><\/p>\n
12.        Shri Brahmadeo Prasad, who was the informant of the case<\/p>\n
and who after having retired from service appears being enrolled as an<\/p>\n
Advocate, is practicing as an Advocate, appears in support of the Criminal<\/p>\n
Revision petition filed by him and made submissions himself. It was<\/p>\n
contended by Shri Prasad that it was not necessary to mention the names<\/p>\n
of the prosecution witnesses in the F.I.R. for making them competent<\/p>\n
witnesses and non-mentioning of the name of a witness could not make<\/p>\n
his evidence unworthy of credence. In support of his contention Shri<\/p>\n
Prasad referred to a decision reported in 2003(3) P.C.C.R. 142(SC) Raj<\/p>\n
Kishore Jha Vs. State of Bihar& Ors. Shri Prasad was contending that<\/p>\n
the police was dishonest and did not honestly investigate the case and that<\/p>\n
appears admitted by D.W.2 in paragraph 9 when he stated that he was<\/p>\n
directed by the Supervising Officer to submit charge sheet in respect of<\/p>\n
solitary appellant Ranjait Kumar Sao and while he was recording the<\/p>\n
fardbeyan, he did not make any inquiry from the informant as to why he<\/p>\n
was naming four persons in spite of having named only one accused<\/p>\n
Ranjit Kumar Sao in the first instance( D.W.2 paragraph 19). It was<\/p>\n
further contended that the Investigating officer did not approach Shri N.K.<\/p>\n
Agrawal, Judicial Magistrate, for recording his statement nor did he seize<\/p>\n
his blood stained clothes in spite of there being a direction from D.W.1,<\/p>\n
the supervising authority. It was contended that the witnesses were<\/p>\n
competent and they fully supported the prosecution story and, as such, the<\/p>\n
charges against all the accused persons stood established and the manner<\/p>\n
of occurrence together with the injuries which were found by P.W.2<\/p>\n
indicated that the sentence passed upon the appellants was too lenient to<\/p>\n
be countenanced.\n<\/p>\n
13.      The learned Additional Public Prosecutor who appeared in the
\n                                                                                   9<\/span><\/p>\n
two criminal appeals, namely, Shri S.N.Prasad submitted that initially not<\/p>\n
naming the three appellants except appellant Ranjit Kumar Sao might be<\/p>\n
on account of serious condition of the informant who was badly injured.<\/p>\n
Shri Prasad further contended that the investigation was defective and<\/p>\n
improper and for that the prosecution has never to suffer. Submission was<\/p>\n
that the conviction of the appellants was proper.<\/p>\n
14.        Shri Dilip Kumar Sinha, learned Additional Prosecutor<\/p>\n
appearing on behalf of the State in Govt. Appeal No. 7 of 2007(S.J.) urged<\/p>\n
that the sentence was inadequate in terms of the manner of occurrence and<\/p>\n
the injuries, as such, it required that at least life imprisonment could be the<\/p>\n
proper sentence.\n<\/p>\n
15.     While making submission Shri Shakeel Ahmad Khan, learned<\/p>\n
Senior counsel for the appellants was addressing on non-proof of the<\/p>\n
motive which was the act of teasing by appellants Ranjit Kumar Sao,<\/p>\n
Lalan Yadav and Sukesh Yadav, the three accused for which Kankarbagh<\/p>\n
P.S.Case No.414 of 1993 was registered. It appears admitted by the<\/p>\n
informant P.W.1 in his evidence, as may appear from paragraph 10, that<\/p>\n
the girl who had been teased had never complained to him nor had she<\/p>\n
been examined in the case. As such, the motive which was alleged against<\/p>\n
the appellants to hold them guilty appears not correct. The three<\/p>\n
appellants, namely, Ranjit Kumar Sao, Lalan Yadav and Sukesh Yadav<\/p>\n
were of course convicted on account of non-proof of the initial story of the<\/p>\n
prosecution regarding teasing of the girl, but the learned Magistrate was of<\/p>\n
course convicting the appellants and was releasing them under Section<\/p>\n
360 Cr. P.C. as may appear from Ext. A, the copy of judgment delivered<\/p>\n
in that case. It was true that the judgment was passed subsequently but it<\/p>\n
has been admitted by P.W. 1 himself that after he was being pressurized
\n                                                                             10<\/span><\/p>\n
for compounding the offence for which he had filed the above noted<\/p>\n
Kankarbagh P.S.Case No.414 of 1993, he did not lodge a complaint to<\/p>\n
anybody about being pressurized to withdraw the prosecution. This fact<\/p>\n
has been admitted by P.W.1 in paragraph 10. Thus, what is found from the<\/p>\n
evidence of P.W.1 in paragraph 10 is that the fact that the appellants could<\/p>\n
be pressurizing him for withdrawing Kankarbagh P.S. Case No. 414 of<\/p>\n
1993 appears not satisfactorily established and, as such, the motive for<\/p>\n
commission of the offence appears not established.<\/p>\n
16.     In a case of direct evidence it is not necessary for the prosecution<\/p>\n
to allege a motive. However, if it is alleged that any particular motive<\/p>\n
could have impelled the accused persons to commit the offence, then the<\/p>\n
prosecution was required to establish motive for commission of the<\/p>\n
offence also as any other fact. If I go by that particular principle, then it<\/p>\n
could be said that there is a major defect in the prosecution case. But, I<\/p>\n
find that there were as many as thirteen injuries recorded by P.W. 2 on the<\/p>\n
person of P.W.1 out of which at least two injuries were found endangering<\/p>\n
life and four others, like injuries no. 2,3, 4 and 14, were opined to be<\/p>\n
grievous in nature. At lest P.W. 1 had come forward to support the case,<\/p>\n
as such, it does not appear prudent in the present facts of the case, that<\/p>\n
ignoring the direct evidence the judgment be set aside merely on non-<\/p>\n
proof of the motive.\n<\/p>\n
17.       P.W. 1 has stated that while he was coming from his office and<\/p>\n
when he reached the house of one Hariom Sao, the accused persons who<\/p>\n
were standing there came in front of the scooter, compelling the informant<\/p>\n
to stop it. Appellant Ranjit Kumar Sao dealt a fasuli blow on the face of the<\/p>\n
informant as a result of which he fell down and thereafter all the accused<\/p>\n
persons dealt incessant blows with fasuli upon P.W.1. P.W.1 stated that he
\n                                                                           11<\/span><\/p>\n
raised his hands in his defence and his fingers were also cut. These injuries<\/p>\n
were found by P.W 2, the Doctor, as noted at Serial Nos. 9 and 10 of the<\/p>\n
injury report. P.W.2 was finding the palm and thumb of either of the hands<\/p>\n
of P.W. 1 bearing incised wounds. Even in absence of any evidence that the<\/p>\n
informant was raising his hands to fend himself, it could ordinarily be<\/p>\n
presumed that any one who was so badly brutalised by dealing incessant<\/p>\n
blows with such dangerous weapon like fasuli – which is a sharp cutting<\/p>\n
weapon used by toddy-tapers in cutting the palm trees for dripping toddy-<\/p>\n
one could be making all efforts to ward off of those blows which could have<\/p>\n
been inflicted upon him. This is the reason that the injuries were spread<\/p>\n
over right from the face of the informant up to his legs. There could not be<\/p>\n
any doubt as may appear from the evidence of P.W.1 alone that he was<\/p>\n
badly brutalized and was clearly intended to be killed by his assailants.<\/p>\n
There could not be any escape from that conclusion which appears from the<\/p>\n
evidence of P.W. 1.\n<\/p>\n
18.           However, as regards the evidence of P.Ws. 3 and 4 Smt.<\/p>\n
Nirmala Devi and Shri N.K. Agrawal, the Court finds that it is really not<\/p>\n
acceptable that Shri N.K. Agrawal, Judicial Magistrate, who was a tenant<\/p>\n
residing on the upper floor of the house of P.W. 1 could have seen the<\/p>\n
occurrence. Both P.Ws. 1 and 3 have stated that after hearing the cries of<\/p>\n
the couple, i.e., P.Ws. 1 and 3, Shri N.K.Agrawal and Padam Singh who<\/p>\n
were the tenants living up-stairs rushed down to find P.W.1 lying injured<\/p>\n
in the Verandah. This fact was stated by P.Ws 1 and 3 themselves. P.W. 3<\/p>\n
Smt. Nirmala Devi was stating in paragraph 1 of her evidence that after<\/p>\n
her husband being assaulted and injured and came to his house fully<\/p>\n
soaked in blood, she gave a call to Patrakarngar Police Station but did not<\/p>\n
name any one in that information because she was wailing and weeping
\n                                                                           12<\/span><\/p>\n
which attracted N.K.Agrwwal (P.W. 4) and another tenant Padam Singh<\/p>\n
(not examined). The above fact has again been stated by P.W.3 Smt.<\/p>\n
Nirmala Devi in paragraphs 8 and 12 of her evidence, thus, making it<\/p>\n
quite clear that Shri N.K.Agrwal could have come down stairs at the<\/p>\n
verandah of the house of P.W.1 and P.W. 3 after having heard the cries of<\/p>\n
P.W. 3 who was crying after her husband had reached her house. Shri<\/p>\n
N.K.Agrawal did not say that he himself had seen the occurrence. He has<\/p>\n
also stated as may appear from the very first paragraph of his evidence<\/p>\n
that he heard the sound of weeping and wailing coming from the ground<\/p>\n
floor and when he came out, he found that P.W. 1 Brahmadeo Prasad was<\/p>\n
badly injured and he was bleeding from the injuries and when he made<\/p>\n
inquiries P.W.1 stated the names of the accused persons. But, that<\/p>\n
evidence of P.W. 4 that P.W. 1 had made statement before him also<\/p>\n
appears not truthful as it was admitted by P.W. 4 that the police could not<\/p>\n
come to record his evidence and further that he waited for the police to<\/p>\n
come to him for recording his evidence and he never felt going to the<\/p>\n
police himself for giving his statement informing it to record his<\/p>\n
statement.. This statement appears in the evidence of P.W.4 in Paragraphs<\/p>\n
7 and 12. D.W.2 Inspector Rambriksha Rajak, who investigated the case<\/p>\n
stated in paragraph 7 of his evidence that he never recorded the statement<\/p>\n
of Shri N.K.Agrawal, Judicial Magistrate. In the light of the admitted fact<\/p>\n
that P.W.4 N.K.Agrawal had never given statement before the police, his<\/p>\n
evidence appears of no use and in fact is inadmissible. As such, his claim<\/p>\n
that he was told by P.Ws. 1 and 3 the names of the assailants appears not a<\/p>\n
material fact.\n<\/p>\n
19.              As regards the evidence of P.W. 3 Smt. Nirmala Prasad, she<\/p>\n
has claimed to be the eye witness to the occurrence by stating that while
\n                                                                              13<\/span><\/p>\n
she was taking a stall in her campus near her grill gate, she saw her<\/p>\n
husband being assaulted and injured. However, the criticism on her<\/p>\n
evidence is that she was not named in the F.I.R. and that was indicative of<\/p>\n
the fact that she had not witnessed the occurrence. The argument on behalf<\/p>\n
of the informant and the State was that merely not being named in the<\/p>\n
F.I.R. may not be sufficient in itself to reject the evidence of particular<\/p>\n
witness. I am also of the view that a witness may not be named in the<\/p>\n
F.I.R. and there could be many reasons for the name of such a witness not<\/p>\n
being mentioned in the F.I.R. as an eye witness, but that may not be<\/p>\n
sufficient to exclude the evidence of such witness who is unnamed in the<\/p>\n
F.I.R. from being considered. In my considered view, the merit of the<\/p>\n
evidence of a witness has mainly to be judged independently of the fact as<\/p>\n
to whether a witness was named in the F.I.R. or not named in it. The Court<\/p>\n
must consider the claim of the witness regarding the reason on account of<\/p>\n
which he was claiming himself to be a witness to the occurrence which<\/p>\n
may be the reason showing his presence on or about the place of<\/p>\n
occurrence so as to seeing the occurrence. The evidence of a witness may<\/p>\n
also be considered on such factor as to whether he was making a statement<\/p>\n
which was diametrically opposed to the proved facts or inconsistent with<\/p>\n
the probabilities which could be appearing from the evidence of the<\/p>\n
witnesses which has been accepted by the court.\n<\/p>\n
20.        Coming to the evidence of P.W.3, she is definitely not named in<\/p>\n
the F.I.R. in spite of her claim that she was seeing the occurrence from her<\/p>\n
grill gate. It is not that the F.I.R. was promptly lodged. It was lodged after<\/p>\n
24 hours of the occurrence. The evidence of P.W. 3 Smt. Nirmala Prasad<\/p>\n
in paragraph 3 indicates that she had also accompanied her husband to the<\/p>\n
P.M.C.H. where her husband was taken for the treatment of his injuries by
\n                                                                            14<\/span><\/p>\n
the police by its Jeep. P.W. 3 has stated that if the Police had not come to<\/p>\n
take her husband to hospital, he could have died then and there but it came<\/p>\n
to save her husband and further that she along with Agrawal Saheb (P.W.<\/p>\n
4) followed the police Jeep by her own vehicle. This evidence appears<\/p>\n
acceptable inasmuch as it indicates the ordinary natural conduct of a wife<\/p>\n
who could have done something finding her husband so badly injured<\/p>\n
from assault given by some persons. No wife could have stayed away<\/p>\n
from her husband in such a situation. A wife is always supposed to do<\/p>\n
everything possible including going to the hospital to attend to her injured<\/p>\n
husband or taking all cares of him during the period of his recuperation.<\/p>\n
Thus, the evidence of Smt. Nirmala Prasad that she had accompanied her<\/p>\n
husband has always to be accepted. Then, the question is the fardbeyan<\/p>\n
was recorded after 24 hours. It is the consistent evidence both of P.W.1<\/p>\n
and D.W.2, Inspector Rambriksha Rajak that the informant had not<\/p>\n
completely lost his consciousness and was responding to queries and<\/p>\n
answering to them also. P.W.1 stated that as soon as D.W. 2 reached his<\/p>\n
house he made query from him regarding identification of his assailants<\/p>\n
and he pointed out to him that it was appellant Ranjit Kumar Sao and<\/p>\n
others who had assaulted him. D.W. 2 further stated in his evidence that<\/p>\n
while he was carrying P.W.1 to P.M.C.H., he was again enquiring about<\/p>\n
the details of the occurrence including the names and other details of the<\/p>\n
accused persons and he was not getting any details. He remained very<\/p>\n
much in the hospital up to 10 P.M. and no one came forward to give any<\/p>\n
details as regards the assailants of P.W.1. Smt. Nirmala Prasad also<\/p>\n
remained throughout with her husband. There is no evidence either of<\/p>\n
her’s or of P.W. 1 or any other person that she ever parted with her<\/p>\n
husband ( P.W.1), and the Court also has to accept the position that P.W. 3
\n                                                                              15<\/span><\/p>\n
had remained with her husband, P.W. 1, at least for some days in the<\/p>\n
hospital till his condition had stabilized. The informant was talking and he<\/p>\n
must have talked to his wife P.W. 3 and there must have been some<\/p>\n
exchange of the details of the occurrence as also the identification of<\/p>\n
persons who had participated in commission of the offence and it maaya<\/p>\n
safely be supposed that P.W.1 must have divulged the names of his<\/p>\n
assailants and other details of the occurrence to P.W.3, his wife. This<\/p>\n
could be deduced from other circumstances also. P.W. 2, the Doctor, who<\/p>\n
examined P.W. 1 never stated in his lengthy evidence that he had found<\/p>\n
P.W.1 unconscious or that he was administered any medicine or<\/p>\n
prescribed the line of treatment which could have made him unfit for<\/p>\n
making any statement or talking       to his close relatives. This further<\/p>\n
supports the view that P.W.1 could have been in a position of giving some<\/p>\n
semblance of the occurrence at least to his wife P.W. 3 and if P.W. 3 had<\/p>\n
pointed out to him that she had seen the occurrence then there was no<\/p>\n
reason for the informant P.W. 1 not to cite his wife as one of the eye<\/p>\n
witnesses to the occurrence. There is no mention of her name in the F.I.R.<\/p>\n
21.          Besides the above, what appears from the description of the<\/p>\n
Place of occurrence as given by P.W.1 in paragraphs 18 and 24 of his<\/p>\n
evidence is that there could not be a clear view of the place of occurrence<\/p>\n
from the gate of the house of P.W. 1. It appears that the occurrence was<\/p>\n
taking place quite away from the gate of the informant and it was situated<\/p>\n
in such a position that no one could have seen the place of occurrence<\/p>\n
clearly to find as to what was happening on the road. This is the reason<\/p>\n
that P.W.3 stated in paragraph 11 of her evidence that she was peeping<\/p>\n
through the grill gate in expectation of arrival of her husband when she<\/p>\n
saw the occurrence. This also makes it doubtful that P.W. 3 could have
\n                                                                             16<\/span><\/p>\n
seen the occurrence. She further stated in paragraph 1 that she gave a<\/p>\n
telephonic call to the Police about the occurrence after her husband had<\/p>\n
come bleeding at the verandah of his house but she was not naming any<\/p>\n
one. It is acceptable to the Court as the state of shock and grief which cold<\/p>\n
have overtaken P.W.3 could not have left her in such a state of her mind<\/p>\n
that she could be narrating the whole details to the police. However, she<\/p>\n
was keeping silent for 24 hours and even thereafter as appears established<\/p>\n
from the evidence of D.W.2 who stated that while making statement<\/p>\n
before him, P.W.3 was not stating that she was an eye witness to the<\/p>\n
occurrence. This was the reason that the defene also drew her attention in<\/p>\n
cross-examination that she had not stated to the police that she had seen<\/p>\n
the occurrence, as may appear from paragraph 16 of P.W. 3 and paragraph<\/p>\n
1 of D.W.2. On these reasons, I find that it is not safe to place reliance<\/p>\n
upon the evidence of P.W.3 as she does not appear to me a witness to the<\/p>\n
occurrence.\n<\/p>\n
22.     Thus, what I find from the discussion of the evidence on record is<\/p>\n
that neither P.W. 3 nor P.W. 4 was the eye witness to the occurrence and<\/p>\n
as such, the non-appearance of their names in the fardbeyan appears<\/p>\n
significant. It may not, as such, be prudent to act upon this evidence.<\/p>\n
23.    This brings me to consider as to what was the initial version of the<\/p>\n
occurrence and who were the persons named as his assailants by injured<\/p>\n
P.W.1. It is not denied that P.W.1 was naming only appellant Ranjit Kumar<\/p>\n
Sao whereas in his statement he appears adding that there were others<\/p>\n
persons also. It was admitted by P.W.1 that he was not fit to make the<\/p>\n
statement and, as such, he was not making statement to D.W.2 when he<\/p>\n
arrived in hospital and finally after 24 hours of the incident, he could give<\/p>\n
his fardbveyan. The evidence of D.W.2 that as soon as he reached the house
\n                                                                          17<\/span><\/p>\n
of P.W.1, he inquired about the incident when P.W.1 stated to him that<\/p>\n
appellant Ranjit Kumar Sao and others had assaulted him and that he was<\/p>\n
seriously injured and, as such, D.W.2 should rush him to the hospital is not<\/p>\n
denied. The contention of the informant who appeared in person was that<\/p>\n
the evidence of D.W.2 in paragraphs 5 and 19 that he did not record the<\/p>\n
fardbeyan or drew up his statement separately after getting answer to his<\/p>\n
question does not appear acceptable as he was a Police Officer and he was<\/p>\n
getting the information about the commission of a cognizable offence by<\/p>\n
some known or unknown persons. It is true that D.W. 2 did not draw up the<\/p>\n
F.I.R. but it is also not disputed that he made entries of the above fact in<\/p>\n
paragraph 2 of the case diary and he was very candid in pointing out that he<\/p>\n
proceeded to investigate the case in anticipation of a formal F.I.R. being<\/p>\n
given to him. It was not unusual that D.W. 2 could have done it. He could<\/p>\n
have proceeded to investigate the case so as to arresting the accused or<\/p>\n
recovering the weapon of offence in absence of the F.I.R. also as may be<\/p>\n
permissible under Sections 157 of the Cr.P.C. as was held by the Privy<\/p>\n
Council in Emperor Vs. Khwaja Nazir Ahmad reported in AIR 1945 P.<\/p>\n
C.18   that the law permits such investigation by the police even in absence<\/p>\n
of the F.I.R. The wife of the informant who was giving a telephonic<\/p>\n
information to the Police which has been admitted by her in paragraph 1<\/p>\n
itself. She was also not giving the information to the police naming any of<\/p>\n
the appellants. It might be a circumstance that P.W. 3 could not be in a<\/p>\n
perfect state of mind to give names of the appellants or might be that the<\/p>\n
informant had not stated to her about the names of his assailants but the<\/p>\n
evidence of P.W.2 may not be brushed aside as it is not seriously disputed<\/p>\n
by P.W.1 that he was initially giving out the name only of appellant Ranjit<\/p>\n
Kumar Sao as one of his assailants besides not naming others. This
\n                                                                           18<\/span><\/p>\n
evidence creates a doubt regarding the complicity of appellants other than<\/p>\n
appellant Ranjit Kumar Sao in commission of the offence. It is true that<\/p>\n
thirteen injuries which were inflicted upon P.W. 1 could not be inflicted by<\/p>\n
a solitary hand of appellant Ranjit Kumar Sao and more persons must have<\/p>\n
participated in it, but there is a doubt regarding participation of the three<\/p>\n
appellants on account of their names not coming up promptly and at the<\/p>\n
earliest. As such, the Court feels that the appellants other than Ranjit Sao<\/p>\n
deserve to be acquitted as there is a doubt about their participation in<\/p>\n
commission of the offence.\n<\/p>\n
24.        Accordingly, Cr. Appeal No. 286 of 2007 is hereby allowed by<\/p>\n
setting aside judgment of conviction and order of sentence passed upon<\/p>\n
appellants Jhulan Yadav, Lalan Yadav and Sukesh Yadav and they are<\/p>\n
acquitted of the charge. These appellants are on bail. They are discharged<\/p>\n
from the liabilities of their bonds.\n<\/p>\n
25.     So far as appellant Ranjit Kumar Sao is concerned, his participation<\/p>\n
is clearly established by the evidence of P.W.1, who was naming him as one<\/p>\n
of his assailants from the very beginning. As such, his participation in the<\/p>\n
commission of offence by giving fasuli blows to the informant on his face<\/p>\n
could not be doubted. But, the difficulty is that the injuries which were<\/p>\n
found endangering life of the informant have not been assigned to appellant<\/p>\n
Ranjit Kumar Sao who was specifically alleged to have dealt the first blow<\/p>\n
on the face of P.W. 1. That disfigurement was not dangerous to life nor was<\/p>\n
endangering the life of P.W. 1 and, as such, the sentence of rigorous<\/p>\n
imprisonment for seven years was inflicted upon him. In my view, in<\/p>\n
absence of any direct and specific evidence establishing appellant Ranjit<\/p>\n
Sao as the person who had caused any injury to P.W. 1 which could bring<\/p>\n
his act within the purview of an attempt to commit murder, the sentence
\n                                                                                      19<\/span><\/p>\n
            passed upon him cannot be said to be deficient. Besides, he was assessed by<\/p>\n
            the learned trial court as 27 years of age on 20.2.2004 which indicated that<\/p>\n
            appellant Ranjit Kumar Sao was an adolescent.\n<\/p>\n
            26.          In view of the above, Cr. Revision No. 144 of 2007 and Govt.<\/p>\n
            Appeal No. 7 of 2007 have to fail and, accordingly, they are dismissed. The<\/p>\n
            appeal of appellant Ranjit Kumar Sao, i.e., Cr. Appeal No. 318 of 2007 is<\/p>\n
            dismissed.\n<\/p>\n<\/p>\n
                                                ( Dharnidhar lJha, J.)<\/p>\n
Patna High Court
\nThe 19th October, 2011
\nKanth\/N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/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":[8,26],"tags":[],"class_list":["post-230125","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nDr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011 - 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\/dr-brahma-deo-prasad-vs-the-state-of-bihar-ors-on-19-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011 - 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