Jharkhand High Court
Darbari Yadav vs The State Of Jharkhand on 14 December, 2021
1
Cr. Appeal (SJ) No. 1125 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1125 of 2003
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(Against the judgment of conviction dated 15.07.2003 and order of
sentence dated 18.07.2003 passed by the learned Additional
Sessions Judge cum Fast Track Court-Vth , Giridih in Sessions
Trial No. 384 of 1995 in connection with Tisri P.S. Case No. 13/95 &
G.R. Case No. 506/95 Giridih Jharkhand.)
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Darbari Yadav ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'B LE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Pankaj Kumar, Amicus Curiae
For Respondents : Mrs. Niki Sinha, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 13 : Dated: 14th December, 2021
1. This appeal is directed against the judgment of conviction dated
15.07.2003 and order of sentence dated 18.07.2003 passed by the
Additional Sessions Judge, Fast Track Court- Vth, Giridih by which the
surviving sole appellant- Darbari Yadav is convicted for the offence
punishable u/s 304 r\w section 34 of I.P.C. Further the learned trial
court awarded sentence to undergo five years rigorous imprisonment to
the sole surviving appellant Darbari Yadav u/s 304 r/w section 34 of
I.P.C.
2. It is appearing from the record that the appellant no.1 Jodhi yadav
had died during pendency of this appeal and no close relative has come
forward to make an application to continue with this appeal, and it has
been urged on behalf of the deceased appellant no. 1 Jodhi Yadav to get
this appeal abated and as such this appeal stood abated with respect to
the appellant no.1 Jodhi Yadav and his name has been deleted from the
Cause Title of this Appeal. The rest sole surviving appellant is Darbari
Yadav whose appeal is being disposed off.
3. The prosecution story arose in the wake of the written report
dated 26.03.1995 of Dasrath Yadav (P.W.7) under which it was alleged
Cr. Appeal (SJ) No. 1125 of 2003
that on 26.03.1995 at about 7.00 A.M. the above named two accused
persons had beaten up his father Bandhan Yadav with tangi and lathi,
due to which his left thigh was fractured besides injuries on head. The
accused Jodhi Yadav was armed with tangi whereas the accused Darbari
Yadav was armed with lathi with which they caused the said injuries.
The occurrence is said to be witnessed by Lalo Yadav (P.W.1), Manoj
Yadav (P.W.2) and Lutan Yadav of the village who had intervened and
rescued the injured. The reason behind the occurrence, as mentioned is
that his father Bandhan Yadav had got one bigha land in his share, out of
which ten kathas is used as bari and ten kathas as field. It is mentioned
that the accused Jodhi Yadav (since deceased) accompanied by his son,
accused-appellant Darbari Yadav had started construction of house on
the ten kathas bari land of his father, which was objected by his father
upon which the accused person assaulted him which caused to him
serious injuries. There is also a separate fardbeyan of the informant
recorded by ASI Hari Shanker Pandey on 30.03.1995 at Bela Tand
hospital which indicated that during the course of treatment the injured
Bandhan Yadav died on 29.03.1995.
4. It further appears that on the basis of the written report (Ext. 1), a
formal FIR was drawn and subsequently section 302 of I.P.C. was added
in the FIR by the order dated 04.04.1995 and after conclusion of the
investigation, the charge sheet was submitted and the case was
committed to the court of sessions. The learned trial court after
concluding the trial convicted the appellant for the offence punishable
u/s 304/34 IPC by the impugned judgment of conviction dated
15.07.2003 and order of sentence dated 18.07.2003 which is under
challenge.
5. Heard Mr. Pankaj Kumar, learned Amicus Curiae appearing for
the appellant and Mrs. Niki Sinha, learned A.P.P. for the State.
Arguments on behalf of the appellants:-
6. Assailing the impugned judgment of conviction and order of
sentence the learned counsel appearing on behalf of the appellant
submitted that the learned court below without properly considering
Cr. Appeal (SJ) No. 1125 of 2003
the evidence of witnesses wrongly held the appellant guilty u/s 304/34
of IPC and the same is contrary to law and against the evidence on
record. It has been contended that the learned trial court has not
analyzed the evidence brought on record by the prosecution and has
come to erroneous finding and thus erred in holding the appellant
guilty. It has further been pointed out that the learned trial court has
failed to establish the time, place, genesis, FIR and involvement of the
appellant beyond all reasonable doubts and thus the charges leveled
against the accused appellant is not proved beyond all reasonable
doubt. Further, it has been contended that neither the inquest report has
been proved nor the injury report has been proved and the witnesses
who have been examined on behalf of the prosecution including P.W. 3
and P.W. 7 are highly interested witnesses and further the learned court
below has totally discarded the evidence of the defense witness. The
learned court below also did not appreciate the deposition of P.W. 8, the
doctor, who did not specifically mention which injuries caused shock
and hemorrhage. The P.W. 8, the Doctor, stated that the deceased might
have survived if the immediate treatment was provided to him. Further,
it is also submitted that there was an old enmity between the parties
and, therefore, a false implication cannot be denied and in absence of
the corroboration by the independent witnesses and non-examination of
I.O. has demolished the case of the prosecution and the FIR has also not
been proved as per the Evidence Act and the investigation of this case
has been done in a most perfunctory manner and, therefore, this appeal
deserved to be allowed by setting aside the impugned judgment of
conviction and order of sentence.
Arguments on behalf of the State:-
7. On the other hand, learned A.P.P. appearing on behalf of the State
submitted that the learned trial court has rightly appreciated the legally
admissible evidence available on record and there is no legal point to
interfere in the judgment of conviction and order of sentence. It has also
been pointed out that the non-examination of the I.O. has not caused
prejudice under the present facts and circumstances of this case in view
Cr. Appeal (SJ) No. 1125 of 2003
of the fact that the material witnesses examined on behalf of the
prosecution have not been confronted with their previous statement in
order to bring the contradiction, if any. Therefore, the plea taken on
behalf of the accused-appellant that non-examination of the I.O. has
caused prejudice to the appellant is not sustainable in the eyes of law
and, therefore, this appeal is fit to be dismissed being devoid of any
merit in order to uphold the judgment of conviction and order of
sentence.
FINDINGS
8. Having heard the learned counsel for the parties and perused the
record of the case including the Lower court records.
9. It is found that in support of the charges levelled against the
appellant, prosecution has examined altogether 8 witnesses, out of
which is it is found that P.W. 1- Lalo Mahto, P.W.2- Manoj Pd. Yadav,
P.W. 4- Sukhdeo Yadav, P.W.5- Jitan Mahto and P.W.6- Chattu Mahto
have been declared hostile and none of them stated about the alleged
occurrence although they have been confronted with their previous
statement recorded u/s 161 Cr.P.C. by the I.O. The I.O. has also not
been examined in this case. Therefore, the contradictions, if any, in their
statements could not be appreciated due to non-examination of I.O.
10. The rest of the witnesses who have been examined on behalf of
the prosecution and upon which the learned court below relied are said
to be P.W.3- Lutan Prasad Yadav and PW. 7 Dasrath Mahto @ Dashrad
Yadav (informant) and P.W.8- Doctor B.P.Singh, who is the medical
officer and conducted the postmortem of the deceased after his death.
11. P.W. 3 Lutan Prasad Yadav has categorically stated in his
examination-in-chief that the Darbari Yadav was holding a lathi and he
had assaulted the deceased Bandhan Mahto. He further stated that the
accused-appellant had inflicted injuries on the hand of Bandhan Mahto
by Lathi. Further, in the cross examination of P.W.3, it is found that the
deceased Bandhan in injured condition along with Dasrath Yadav (P.W.
7) were taken at first to the concerned police station and thereafter they
were taken to Tisri Hospital where Preliminary Treatment was done
and subsequently referred to Belatand Hospital where the deceased
Cr. Appeal (SJ) No. 1125 of 2003
Bandhan Yadav died during the course of the treatment. It is further
found that they had not seen the occurrence, but, they reached the place
of occurrence immediately after the assault and the deceased was found
lying on the place of occurrence then they came of know that the
deceased was assaulted by the lathi of this appellant. P.W. 3 has
categorically stated in para 13 that he had stated about the assault
inflicted by the accused persons where he categorically stated that the
appellant Darbari Yadav had assaulted with lathi. In the rest of cross-
examination no material has come out in order to disbelieve the version
of the prosecution despite the fact that the persons who were said to
have reached the place of occurrence turned hostile.
12. The P.W. 7 is the another witness who reached to the place of
occurrence immediately after the occurrence and found the deceased
Bandhan Yadav was lying on the ground and blood was oozing out
from his head and his thigh was also badly assaulted. He had also
stated that Darbari Yadav had assaulted the deceased Bandhan Yadav
by lathi. In the cross examination of P.W. 7, conducted on behalf of the
defense, no material has brought to disbelief his version to the extent
that Darbari Yadav had assaulted by lathi and deceased was lying on
the ground where blood was oozing from his head and his thighs were
also injured. This witness P.W.7 has approved the statement made in
the FIR which marked as Ext.1 and further the Fardbeyan recorded by
the police marked as Ext.2.
13. The statements of both the witnesses namely P.W. 3 & P.W. 7
corroborated the case of the prosecution that the deceased was inflicted
with the injuries of lathi by this accused-appellant Darbari Yadav and
the injuries inflicted by the lathi are further corroborated with the
version of P.W. 8-Doctor who candidly stated that he found the
following injures on the person of the deceased Bandhan Yadav as
under:
a. Incised wound on left thigh upper part back 3"x1" x bone
deep associated with complete cut of upper end of femur bone.
b. Lacerated wound on scalp left side 2"x1/2" x skin deep, this
wound was stitched.
c. Lacerated wound on left wrist 1"x1/4"x skin deep.
Cr. Appeal (SJ) No. 1125 of 2003
He stated about the nature of injures that the injury no. (a) was
caused by sharp cutting weapon and the injury nos. (b) & (c) by hard
and blunt substance and all the injuries were opined to be antemortem.
14. The findings of this P.W. 8 Doctor B.P. Singh, who had proved the
P.M. Report also as Ext.3, that the injuries nos. (b) & (c) were caused by
hard and blunt substance is corroborated i.e. lathi and thus the charges
against the sole surviving appellant Darbari Yadav gets corroborated
that he had assaulted the deceased by lathi and, therefore, in view of the
categorical deposition the testimonies of P.W. 8 the Doctor, despite the
minor discrepancies shown by the learned defense counsel do not
shaken the case of the prosecution because the facts remain to take into
consideration that surviving appellant had assaulted by lathi and
injuries of lathi were explicitly found by virtue of injuries nos. (b) & (c)
on the body of deceased. This P.W. 8 has subsequently stated that
injuries were caused by hard and blunt substance and the cause of death
as opined by him was assault and hemorrhage. Therefore, the injuries
inflicted by lathi caused by this appellant is established. This Court does
not find any flaws in the finding of the learned trial court where it has
come to the conclusion that this surviving appellant had assaulted the
deceased by lathi by which injuries were inflicted upon deceased. Thus,
the medical evidences corroborated the testimonies of P.W. 3 and P.W. 7
who have consistently stated the manner, mode and involvement of
appellant Darbari Yadav in the occurrence and no such major
discrepancies are found to disbelieve their testimonies.
It has been contended on behalf of the appellant that neither the
I.O. in this case has been examined nor the Doctor, who had treated the
deceased at the first instance, been examined and, therefore, the accused
appellant had been debarred to bring out the contradictions with
respect to the previous statement of the witnesses particularly P.W 3 &
P.W. 7. Further, neither the weapon either tangi or lathi has been seized
nor it has been brought on record as the material exhibits, therefore, the
prosecution fails to establish its case. In view of the submissions
advanced by the defense counsel on behalf of the appellant it is found
that as a matter of fact the I.O. of this case has not been examined nor
Cr. Appeal (SJ) No. 1125 of 2003
the doctor who had treated the deceased at the first instance, has been
examined, but, it is not fatal to demolish the case of the prosecution
particularly in the light of the testimonies of P.W. 3 & 7 and both the
witnesses have consistently and uniformly stated that the injured was
taken to the concerned police station from where they have taken to the
government hospital where their first aid treatment was done and
subsequently the injured was referred to the hospital where he has died
after three days on 29.03.1995. The plea of non-examination of I.O. in
this case is not tenable in the eyes of law as it has not caused prejudice
to the appellant as the previous statements of the material witnesses
P.W.3 nor P.W.7 have been confronted in their cross-examination in
order to appreciate the contradiction/inconsistencies in their
testimonies to discard their evidences. P.W. 7 had deposed that
panchnama of the dead body was prepared by the police, but the inquest
report has not been brought by the prosecution on record. Nonetheless
in absence of only inquest report the deposition of P.W. 3 & P.W. 7
cannot be set aside in view of the consistent deposition of these two
witnesses supported by the doctors P.W. 8. Further it has also been
pointed out that the witnesses upon which the learned trial court has
relied upon the P.W. 3 & 7 are highly interested witnesses and there are
landed property dispute. It is true that the surviving sole appellant
Darbari Yadav who is nephew of the informant P.W. 7 Dasrath Yadav
and the deceased Bandhan Yadav was the father of the appellant no. 1
Jodhi Yadav who had died during the pendency of this appeal in hand.
The learned trial court has rightly appreciated the relationship and also
the deposition of the interested witnesses and convicted the accused
appellant u/s 304 of I.P.C. and not under section 302 of r/w 34 of I.P.C.
in absence of clear cut intention of causing death as the assault
established to have been caused by the appellant was with lathi and the
assault caused by Tangi was against deceased appellant no.1 and not
against this appellant which resulted into his death after three days,
therefore, the severity of evidence against this appellant is milder. The
admitted enmity between the parties and inimical evidence has been
elaborately dealt with in the foregoing paragraphs and the same is
Cr. Appeal (SJ) No. 1125 of 2003
falling in line with the appreciation of the learned trial court and found
the guilt of both the appellants (along with the deceased appellant) for
the culpable homicide not amounting to murder and they were
convicted for the offence punishable u/s 304 of I.P.C. in view of the well
settled law that the testimony of this inimical is to be examined with
due caution and diligence. Hon'ble Supreme Court has repeatedly
held that the testimony of the witnesses cannot be rejected merely on
the point of inimical background. But since the reliability of inimical
witness is tainted by bias and interested witnesses, their testimony is
warily evaluated. Their testimony is corroborated with evidence,
judged with great caution and diligence and in absence of reassuring
factors, the evidence is eschewed. In a very lucid language the
Hon'ble Supreme court has observed as under in (1973) 2 SCC 583
(Akalu Ahir & others Versus Ramdeo Ram)
"Enmity as usual is a double edged weapon,
providing motive both for the offence as well for false
implication. The evidence in such case has, therefore,
to be scrutinized with care so that neither the guilty
party wrongly escapes on the plea of enmity, nor an
innocent person gets wrongly convicted on that
basis"
In the aforesaid backdrop, this Court does not find any ambiguity
in the appreciation of the inimical evidence by the learned trial court as
reappraised by this Court also in the aforesaid paragraphs. The
testimonies of P.W.3 and P.W.7 corroborated with testimonies of P.W.8
have coherently supported the case of the prosecution and hence the
genuineness and correctness of evidences on the ground of inimical
evidence ipso-facto cannot be brushed aside.
15. Recapitulating the entire evidence as discussed in the aforesaid
paragraphs it is well founded that there are two important witnesses
P.Ws. 3 & 7 corroborated by the deposition of the doctor P.W. 8 and
their testimonies establish the fact that the accused appellant had
assaulted by lathi to the deceased by which during the course of the
treatment the deceased succumbed to the injuries after three days of
incident on 29.03.1995.
Cr. Appeal (SJ) No. 1125 of 2003
16. It is well found that the accused appellant was involved in
assaulting by lathi and the injuries of lathi has been found by the P.W. 8
on the head of the deceased. It is also true that the witnesses who are
said to be present at the time of the occurrence has turned hostile, but,
the testimonies of P.Ws. 3 & 7 are consistent and uniform in pointing
out that the accused appellants were involved in the commission of the
offence punishable u/s 304 I.P.C. Accordingly, this Court specifically
upholds the punishment for the offence punishable under section
304/34 of I.P.C.
17. On the point of sentence, it is found that the parties are closely
related to each other as the deceased Bandhan Yadav was the grandfather
of this appellant and the informant was uncle of this appellant. It is also
found that there is an admitted dispute related to the landed properties
and it is also found that the defence has also examined one witness
D.W. 1 and brought on record certified copy of Sale deed as Ext. A in
order to show that there was a landed property dispute between the
parties which is an admitted fact. There is nothing on record to indicate
about the criminal history of this appellant. The incident has taken place
as far back as on 26.03.1995 and thus 25 years has gone from the date of
occurrence and thus this appellant has suffered with the uncertainty,
trauma and hardship of the criminal proceedings since last 26 years.
18. In this view of the matter, this Court does not find it just and
proper to send the appellant again in jail. It appears form the record
that the sole surviving appellant Darbari Yadav has remained in jail
about one year. Accordingly the appellant is awarded sentence of
imprisonment for a term of the period already undergone.
19. In the backdrop, this appeal is dismissed with modification in the
order of sentence.
20. Further Mr. Pankaj Kumar, as a Amicus Curie has assisted this
Court on behalf of the appellants to defend their case and accordingly,
Member Secretary, Jharkhand High Court Legal Services Authority is
directed to pay the remuneration/professional fee to Mr.Pankaj Kumar
as per the prescribed rules and regulations.
Cr. Appeal (SJ) No. 1125 of 2003
21. Let a copy of this Court judgment be sent to the Member
Secretary Jharkhand High Court Legal Services Authority to do needful
in this regard.
22. Let the LCR be sent back forthwith to the concerned court with a
copy of this judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 14.12.2021/NAFR
MM/-
