Ram Dhyan Yadav And Ors vs State Of Bihar
2023 Latest Caselaw 832 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.207 of 1996
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1. Ram Dhyan Yadav,

2. Parmanand Yadav Both sons of Late Deo Sharan Yadav,

3. Bindeshwar Yadav, son of Late Bishunpad Yadav

4. Bali Yadav, son of Late Parmeshwar Yadav (Appeal against appellant Nos. 3 and 4 abated vide order dated 13.02.2023) All residents of village Manga Bigha, Police Station-Karpi, District- Jehanabad.

... ... Appellants Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Ritwik Thakur, Advocate Mrs. Vaishnavi Singh, Advocate For the Respondent/s : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 17-02-2023

Heard learned counsel for the appellants and learned

A.P.P. for the State.

2. Vide order dated 13.02.2023, on the basis of report

submitted by learned District & Sessions Judge, Jehanabad,

dated 26th November, 2022, the present appeal stands abated

against appellants Nos. 3 and 4 since they have already died.

Hence, the present appeal survives only against appellant Nos.

1 and 2 namely Ram Dhyan Yadav and Parmanand Yadav. Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

3. The present criminal appeal has been preferred in the

year 1996 i.e. 26 years ago against the judgment and order

dated 23.05.1996 passed by learned 1st Additional District and

Sessions Judge, Jehanabad in Sessions Trial No. 45 of 1994

(arising out of Karpi P.S. Case No. 8 dated 31.5.1980 )

whereby and whereunder the appellant Nos. 1 and 2 have

been convicted under Section 302 of the Indian Penal Code,

1860 (hereinafter 'IPC') and sentenced to undergo rigorous

imprisonment for life and further the appellant Nos. 1 and 2

have been acquitted of the charge under sections 131 and 132

of the Representation of Peoples Act.

4. The prosecution case on the basis of fardbeyan of

Ram Lakhan Singh of village Batan Bigha recorded by S.I.

S.M. .Ram of Karpi Police Station on 31.05.1980 at 10:00

hours at Lower Primary School, Batan Bighat, in brief, is that

on the same day at about 09:00 a.m. his son Surendra Prasad

Singh, who was working as polling agent of Soshit Dal at

election booth set up at Batan Bigha Lower Primary School,

some persons of village Manga Bigha wanted to cast bogus

vote but his son tried to stop the bogus polling whereupon

Laldeo Yadav of village Dani Pala who earlier came at 08:00

a.m., in an abusive language shouted to drag him out from Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

the booth and kill him. Thereafter, Ram Dhyan Yadav

(appellant No. 1), Parmanand Yadav (appellant No. 2), Deo

Sharan Yadav, Bali Yadav and Bineshwar Yadav of village

Manga Bigha, after searching son of the informant took him

to the north of the said school about two bamboos distance

away from the school and started assaulting him with bhala,

dagger and lathi. Accused Ram Dhyan armed with bhala,

Parmanand with dagger, Deo Sharan with lathi, Bali with gun

and Bindeshwar with bomb, together assaulted his son and

killed him and threw his dead body in a field towards North.

There were 8 to 10 other persons who all were unknown. The

occurrence was witnessed by his nephew Sakal Deo Singh

(P.W.1), Sheo Prasad Singh (P.W.4), Dinesh Singh (P.W.3),

Ashok Singh (P.W.7) and others who were present in the

queue for casting their votes. The informant further stated that

the accused persons also wanted to assault the informant but

the informant managed to escape. On the basis of aforesaid

fardbeyan, Karpi P.S. Case No. 8 dated 31.05.1980 was

instituted under Section 147, 148, 149, 302 and 114 of the IPC

and investigation was taken up.

5. After investigation, the police submitted charge-sheet

and cognizance was taken by the Jurisdictional Magistrate and Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

thereafter the case was committed to the Court of Sessions.

Charges were framed against the appellants to which the

appellants pleaded not guilty and claimed to be tried.

6. During trial, the prosecution examined altogether

eleven witnesses, namely, P.W. 1 Sakal Deo Prasad Singh,

P.W.2 Ram Lakhan Singh (informant), P.W.3 Ram Binesh

Singh, P.W.4 Sheo Prasad Singh, P.W.5 Fahimuddin Khan,

P.W.6 Sheo Nandan Singh, P.W.7 Ashok Kumar, P.W.8 Jamal

Akhtar Ansari, P.W.9 Ram Kumar Verma, P.W.10 Dr.

Chitranjan Sharma and P.W.11 Chandeshwar Prasad.

Prosecution in support of the case has also produced exhibits

as Ext. 1 Inquest report, Ext. 2 signature of Sakaldeo Singh

on inquest report, Ext. 3 signature of Ram Lakhan Singh on

fardbeyan, Ext. 4 post-mortem report, Ext. 5 summon of Court

to Dr. V.V. Sahay, Ext. 5 letter of Dr. V.V.Sahay written to the

Court on his letter pad, Ext. 6 Fardbeyan and Ext. 7 F.I.R. The

defence has also examined two witnesses in support of its

case namely D.W. 1 Chandradeep Singh and D.W. 2 Ram

Briksh Singh. Certain documents were also exhibited on

behalf of the defence. After conclusion of the trial, the learned

Trial Court convicted and sentenced the appellant Nos. 1 and

2 in the manner indicated above.

Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

7. Learned counsel appearing for appellant no. 1

and 2 submitted that the judgment of conviction suffers from

several infirmities that have been overlooked by the learned

trial court and therefore, the impugned judgment is not

sustainable in the eyes of law. Learned counsel submitted

before the Court that the prosecution has failed to prove the

place of occurrence beyond reasonable doubt due to material

contradictions arising from the deposition of witnesses.

Learned counsel furthermore submitted that the ocular

evidence of assault does not corroborate the medical evidence

i.e. the post-mortem report of the deceased which casts

reasonable doubt on the manner of occurrence. The counsel

lastly submitted that due to non-examination of the

Investigating Officer, the case of the appellant Nos. 1 and 2

has been immensely prejudiced.

8. Learned APP for the State has submitted that the

judgment and order under challenge requires no interference

as the prosecution has been able to prove its case beyond all

reasonable doubts. The witnesses have been consistent in their

depositions and there are sufficient evidence to prove the guilt

of the appellant Nos. 1 and 2.

Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

9. After hearing the arguments advanced by the learned

counsel appearing for the parties and perusing the materials

available on the record, following issues arise for

consideration in this appeal:-

(I) Whether the prosecution has been able to prove

the place of occurrence beyond reasonable doubt

in order to sustain the conviction of the appellant?

(II) Whether the ocular evidence is inconsistent

with the medical evidence so far as manner of

occurrence is concerned?

(III) Whether the non-examination of the

Investigating Officer has caused prejudice to the

appellants?

10. Now adverting to the first issue, from the perusal of

the deposition of the prosecution witnesses namely P.W.1,

P.W.2, P.W.3 and P.W.4, it appears that when the deceased

was trying to prevent the bogus polling of votes, one of the

persons namely Laldeo Yadav ordered to kill the deceased by

taking him out from the polling station. In pursuance to this,

the accused persons namely Ramdhyan Yadav, Parmanand

Yadav, Deo Sharan Yadav, Bail Yadav and Bineshwar Yadav

dragged the deceased out from the polling station and took Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

him out to the field where he was killed by the

aforementioned persons. But P.W.6, who was an official

deputed at the polling station, categorically stated in his

deposition that he did not hear any hulla at the polling station

during the time of conducting election. He further stated in

his deposition that he did not remember whether the deceased

was present as polling agent at the polling booth. After giving

sufficient consideration to the evidence of P.W.6, we believe

that P.W.6 is a public servant and an independent witness in

the present case and, as such, there lies more credibility and

truthfulness to the testimony of such witness. Furthermore,

due to non-examination of the investigating officer in the

present case, it cannot be proved that there were signs of

struggle between the deceased and appellants or there were

signs of dragging or presence of blood at the place of

occurrence, in order to prove the place of occurrence beyond

reasonable doubt.

Therefore, in light of the consideration of the aforesaid

fact, we firmly believe that the prosecution has not been able

to prove the place of occurrence beyond all shadow of

reasonable doubt in order to sustain the conviction of the

appellant. The Hon'ble Supreme Court in Syed Ibrahim Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

versus State of Andhra Pradesh, (2008) 10 SCC 601 has held

that "when the place of occurrence itself has not been

established, it would not be proper to accept the prosecution

version".

Therefore, the issue no. 1 is decided in the negative.

11. In order to deal with the second issue, we have given

our due consideration to the ocular evidence arising from the

deposition of the prosecution witnesses and medical evidence

arising from the post-mortem report of the deceased. From

the observation of the ocular testimonies of prosecution

witnesses, it appears that Ram Dhyan Yadav was armed with

dagger, Parmanand with bhala, Deo Sharan with lathi, Bali

with gun and Bindeshwar with bomb. It further appears from

perusal of their testimonies that the deceased, after being

dragged out from the polling station, was assaulted by the

aforesaid persons after which he succumbed to death. But the

post-mortem report of the deceased, mentions following

injuries:

"1. Bruise 5" x 2" over the upper part of the abdomen left side.

2. Bruise 5" x 1 1/2" over the upper part of the abdomen rt. side.

3. Multiple small abrasions over the rt. side of the neck.

4. Lacerated wound 1 1/2" x 1/4" x bone deep over the chest.

Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

5. Lacerated wound 1" x 1 1/2" over the forehead left side.

6. Lacerated wound 2" x 1/2" x Bone deep over the back of the head.

7. Bruise - 3" x 1/2" over the rt. temporal region Echymonis on/or Blood clot found in all the above injuries On opening the scalp a fissured fractured -4 1/2" long found in the rt temporal bone & extensive sub dural Haematoma also found. No injuries found in the chest, organs or abdominal organs.

All the injuries are anti mortem in nature and most likely caused by a blunt weapon.

Death has most likely taken place due to Haemorrhage & shock as a result of the above injuries.

Death has taken place between 24 to 36 hours before the time of examination."

The post-mortem report does not state anything about

incised wound or penetrating wound which could be caused

when a person sustains injury after being assaulted with

sharp cutting or pointed weapon like dagger or bhala. The

post-mortem report categorically states that the death is

caused by hard and blunt substance. Therefore, there arises

material contradiction between the ocular evidence and

medical evidence with regard to the manner of occurrence.

At this juncture, we put reliance upon the case of Ram

Narain Singh versus State of Punjab and Ama Singh &

Ors. versus State of Punjab reported in (1975) 4 SCC 497

wherein the Hon'ble Supreme Court has held that Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

inconsistency between the ocular and medical evidence

is a most fundamental defect in the prosecution case and

unless reasonably explained, it is sufficient to discredit the

entire case. Therefore, in absence of any reasonable

explanation by the prosecution with regard to such material

inconsistency, there arises fundamental defect in case of

prosecution and as such the prosecution has failed to prove

manner of occurrence beyond reasonable doubt.

12. With reference to issue no. 3, it is to be taken note

of the fact that the prosecution has chosen not to examine the

Investigating Officer in this case. From the record, the place

of occurrence has not been proved beyond reasonable doubt

and there lies material inconsistency between the ocular

evidence and medical evidence with regard to manner of

occurrence. Due to non-examination, the defence has also

been deprived of the opportunity to bring on record the

material contradictions and improvement made by the

witnesses in their depositions. Therefore, in such

circumstances, the examination of the Investigating Officer

becomes important as he would have been the most

competent witness to throw light on the manner in which the

investigation was carried out and to explain the entire gamut Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

of evidence brought on record. In the case of State Of

Karnataka versus Bhaskar Kushali Kotharkar And Ors.,

(Cr. Appeal no. - 498 of 1998) the Hon'ble Supreme Court

while highlighting the importance of examination of

Investigating Officer, observed:

"It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr. P.C. or if mere is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr. P.C."

Accordingly, this Court is of the view that non-examination

of the I.O. by the prosecution without any explanation has caused

prejudice to the appellant Nos. 1 and 2 and is certainly fatal to

the case of prosecution.

13. In view of the findings arrived at regarding the issues

formulated above, we are of the considered opinion that the

prosecution has failed to prove its case beyond all reasonable

doubts and, as such, the conviction of the appellant Nos. 1 and 2

is not sustainable in the eyes of law.

Patna High Court CR. APP (DB) No.207 of 1996 dt.20-02-2023

14. Therefore, the present appeal stands allowed and the

judgment and order dated 23.05.1996 passed by learned 1 st

Additional District and Sessions Judge, Jehanabad in Sessions

Trial No. 45 of 1994 (arising out of Karpi P.S. Case No. 8 dated

31.5.1980 ), is set aside. Since the appellant Nos. 1 and 2 are on

bail, they are discharged from the liabilities of bail bonds.

(Sudhir Singh, J)

( Dr. Anshuman, J) Pankaj/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          23-02-2023
Transmission Date       23-02-2023