Ram Narayan Yadav vs The State Of Bihar
2023 Latest Caselaw 4601 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.774 of 2015
    Arising Out of PS. Case No.-28 Year-2011 Thana- LADANIA District- Madhubani
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Ram Narayan Yadav Son of Late Chedi Yadav, Resident of village - Chiknotoba, P.S. - Ladaniya, District - Madhubani.

... ... Appellant Versus The State of Bihar

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

For the Appellant : Mr. Gagan Deo Yadav, Advocate For the Respondent : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 15-09-2023

The present criminal appeal has been preferred against the

judgment of conviction dated 10.07.2015 and the order of sentence

dated 21.07.2015 passed by Shri Subhash Prasad Kumar,

Additional Sessions Judge IV, Madhubani in S.T. No.74 of 2012

arising out of Ladaniya P.S. case No.28 of 2011, G.R. No.956 of

2011, whereby and whereunder the appellant has been convicted

under Sections 302/149 of the Indian Penal Code (referred to

'I.P.C.'), and has been sentenced to undergo rigorous

imprisonment for life with fine of Rs.5,000/- under Sections

302/149 of the I.P.C.

Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

2. The prosecution case, as per the fardbeyan of informant

Ram Bilakashan Yadav (PW5) recorded at 15.45 on 24.04.2011 in

injured condition before the S.H.O. Ladaniya, is that his brother

Ram Bharosh Yadav and his villager Ram Hirdaya Yadav were

contesting election for ward member, due to which they had

rivalry. On 24.04.2011, the informant alongwith his brother

Jageshwar Yadav were going to caste their vote at about 3:00 p.m.

as they reached near the house of Jinish Lal, accused Ram Narain

Yadav, Krishna Kumar Yadav, Bachchan Yadav, Ram Hirdaya

Yadav, Ram Sagun Yadav, Ram Sevak Yadav, Shiv Shankar Yadv,

Ram Chandra Yadva, Hari Narain Yadav, all resident of

Chiknatava under Ladaniya P.S. forming unlawful assembly armed

with lathi, farsa encircled the informant and his brother abused

them and also started assaulting. When the informant prevented,

appellant Ram Narain Yadav, who was holding farsa in his hand,

gave farsa blow on the head of Jageshwar Yadav and accused

Krishna Kumar Yadav assaulted to the informant by farsa with

intention to kill, on account of which both sustained severe

injuries. Injured Jageshwar Yadav became unconscious and fell

down. Other accused persons also assaulted by lathi, danda, fists

and slaps. In the meantime, police personnel reached there, then

the accused persons fled away and both injured were brought to Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

Ladaniya P.H.C. on police jeep, where the doctor declared his

brother Jageshwar Yadav dead while the treatment of the informant

was going on.

3. On the basis of aforesaid fardbeyan of the informant,

Ladaniya P.S. case No.28 of 2011 dated 24.04.2011 was

registered under Sections 147, 148, 149, 323, 324, 307, 302, 504

of the I.P.C. The police after investigation submitted charge sheet

and thereafter cognizance was taken by the Jurisdictional

Magistrate and then the case was committed to the court of

Sessions. Charges were framed against the appellant, to which the

appellant pleaded not guilty and claimed to be tried.

4. During trial, the prosecution examined altogether eleven

witnesses, namely, Rakesh Kumar (PW1), Shashi Devi (PW2),

Gulab Devi (PW3), Kalpana Devi (PW4), Ram Bilakshan-

informant (PW5), Ram Hirday Yadav (PW6), Dr. Sudhanshu

Shekhar Jha (PW7), Muskil Yadav (PW8), Dr. Arun Kumar Singh

(PW9), Ajay Kumar Yadav (PW10) and Jitendra Kumar (PW11).

In support of its case, the prosecution has also produced exhibits as

Ext.1 (signature of informant Ram Bilakshan Yadav on fardbeyan),

Ext.2 (protest petition dated 13.09.2011), Ext.3 (postmortem

report), Ext.4 (injury report of Ram Bilakshan Yadav), Ext.5

(charge sheet No.66/11), Ext.6 (fardbeyan), Ext.6/1 (Indorsement Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

on fardbeyan) and Ext.7 (signature of I.O. Jitendra Kumar on

formal F.I.R.). The defence also examined two witnesses, namely,

Ram Kishun Yadav (DW1) and Subhash Chandra Mishra (DW2).

In support of its case, the defence has produced exhibits, viz.

Ext.A (c.c. of F.I.R. of Ladania P.S. case No.29/11), Ext.B (c.c. of

chargesheet of Ladania P.S. case No.29/11) and Ext.C (injury

report of Ram Kumar Yadav in S.T. No.583/12). After conclusion

of the trial, the learned Trial Court convicted and sentenced the

appellant in the manner as indicated above.

5. Learned counsel for the appellant has submitted that the

judgement of conviction and order of sentence passed by the

learned trial Court is bad in law and deserves to be set aside. The

learned trial Court has failed to properly appreciate the entire

material available on the record. It has further been argued that the

prosecution has also utterly failed to prove the case beyond all

reasonable doubts. In order to buttress this contention, the

attention of this Court has been drawn towards the variation and

contradiction in the testimony of the prosecution witnesses. It has

also been pointed out that there is severe inconsistency between

the ocular testimony of the witnesses and the findings of the

medical report of the injured witness (PW 5). The learned counsel

for the appellant has further argued that the prosecution has also Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

failed to prove the place of occurrence to the judicial satisfaction

of the Court. It has also been pointed out that there are only related

witnesses excluding the Medical Officer and the Investigating

Officer. Such latches of the prosecution have caused immense

prejudice to the appellant. Moreover, it has been pointed out that

the prosecution has not come with clean hands as they have

suppressed certain material facts regarding the manner of

occurrence which has been later brought up to the notice by the

appellant in the form of Exhibit A to C. Therefore, it is contended

that the findings of the learned trial Court are bad in law, wrong on

facts, bereft of legal reasoning, devoid of merit and the judgement

of conviction is fit to be set aside.

6. The learned A.P.P. appearing for the State has submitted

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

reasonable doubts, and therefore, learned trial court has rightly

convicted the appellant by relying upon the evidence brought on

record by the prosecution during trial. It has been contended that

minor contradictions and variations in the testimony of the

witnesses cannot be a ground to discard their evidence as a whole.

Therefore, the judgement and order assailed in this appeal requires

no interference and appeal is liable to be dismissed. Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

7. After perusing the record and hearing the arguments

advanced by the parties, following issues arise for consideration in

this appeal: -

(I) Whether the prosecution has proved the presence of eyewitnesses at the alleged place of occurrence?

(II) Whether the doubt regarding the place of occurrence and non-examination of the material witness has caused prejudice to the appellant?

(III) Whether the suppression of material facts during the trial is fatal for the prosecution case?

8. With reference to issue No. I, upon a thorough

examination of the case record, it is found that a total of 11

prosecution witnesses were examined, where, from PW 1 to PW 5,

alleged to be eyewitnesses to the occurrence. However, the

presence of all these eyewitnesses, particularly PW 1 to PW 3,

becomes doubtful in light of the testimony provided by the

Investigating Officer (PW 11) in paragraphs 28, 29 and 30 of his

deposition. It is evident from the mentioned paragraphs that certain

material information regarding the presence of some eyewitnesses

were disclosed by PW 1 to PW 3 for the first time during the trial

and was not mentioned to the Investigating Officer. Furthermore,

there is a major inconsistency and contradiction in the testimony of

the eyewitnesses, PW 1 and PW 5 (the informant) claimed that the Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

deceased fell backward after being hit by the farsa, contradicting

the testimonies of PW 2, PW 3, and PW 4, who said that the

deceased fell forward. Additionally, there are inconsistencies in the

description of the deceased's clothing, PW 1 stated that the

deceased was wearing a red-coloured T-shirt and lungi, while PW

2 mentioned an orange-coloured half ganji and lungi, and PW 3

stated an orange-coloured T-shirt and green lungi. It has

furthermore been pointed out that PW 1, PW 2, and PW 4 in their

respective deposition admitted that they were not voters and were

merely accompanying other witnesses. It is furthermore found

upon perusal of the deposition of the PW 11 that in paragraph 13

of his deposition, where he mentioned going to see votes at 2 pm,

being there for an hour and returned to his house, raises doubts

about his claim of being an eyewitness.

Moreover, the conduct of the eyewitnesses, including their

failure to assist the deceased or call the police when numerous

family members were allegedly present at the polling booth, adds

to the skepticism surrounding their presence. In this regard, it is

pertinent to take note of the decision of the Hon'ble Supreme

Court, passed in the case of State of Rajasthan v. Mohan Lal,

reported in (2009) 12 SCC 308, wherein it has been held that

considering the facts and conduct of not saving the deceased, Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

along with the contradictions in the testimonies of the

eyewitnesses, the presence of eyewitnesses cannot be accepted.

Additionally, the absence of the eyewitnesses' names in the

fardbeyan provided by the informant (PW 5) further raises

questions about their presence at the place of occurrence.

Moreover, the credibility of the informant's testimony (PW 5) is

also called into doubt when compared to the medical report

(Exhibit 4), which describes the nature of the wounds as simple,

whereas PW 1 to PW 4 assert that the informant (PW 5) was struck

with a farsa. PW 2, in paragraph 34, even mentioned the farsa

getting stuck in the informant's (PW 5) head. However, according

to the doctor (PW 9), the injury is a lacerated wound and can be

described as superficial in nature. Thus, there is evident

inconsistency, substantial disparities and contradictions in the

testimony of the above witnesses, who contend to be eyewitnesses

to the alleged incident. At this point, it is imperative to consider

the decision of the Hon'ble Supreme Court passed in the case of

Sunil Kumar Shambhudayal Gupta and others versus State of

Maharashtra, reported in (2010) 13 SCC 657, where in para No.

16 the following has been observed:

"The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature maybe a ground for Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

disbelieving and discrediting that evidence. In such circumstances witnesses may not inspire confidence if the evidence is found to be in conflict and contradiction with the other evidences and the statement already recorded. In such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt."

In light of the discussions made above, we are of the

considered opinion that there exist reasonable doubts,

contradictions, and inconsistencies in the testimony of the

witnesses which casts doubt on the presence of the eyewitnesses

(PW 1 to 5) at the place of occurrence.

Accordingly, issue No. I is decided in negative.

9. With reference to issue No. II, a thorough examination of

the case record reveals that the entire incident allegedly occurred

near Jinish Lal's house. PW 1 to PW 5 categorically testified

during the trial that they witnessed the appellant, who was holding

a farsa in his hand, striking the deceased on the head, resulting in

bloodshed and the deceased falling to the ground. However, in

stark contradiction to this testimony, the Investigating Officer (PW

11) stated in his deposition, specifically in paragraph 21, that he

did not find any blood marks at the place of occurrence.

Furthermore, in paragraph 22 of his deposition, he mentioned that Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

he did not find any signs of violence at the place of occurrence.

Such a fundamental defect casts reasonable doubts to the place of

occurrence. In this regard, it is pertinent to note the decision of the

Hon'ble Supreme Court in the case of Syed Ibrahim versus State

of Andhra Pradesh, reported in (2008) 10 SCC 601, wherein it has

been held that when the place of occurrence itself has not been

established, it would not be proper to accept the prosecution's

version. In light of the facts of the case and considering the

inconsistencies in the testimony of the prosecution witnesses,

coupled with the absence of any bloodstain marks or signs of

violence at the alleged place of occurrence, the entire case

becomes doubtful and certainly detrimental to the prosecution's

case.

Further, it is worth noting that the prosecution witnesses

affirmed that the incident took place near Jinish Lal's house.

Surprisingly, the prosecution did not take the initiative to examine

Jinish Lal or any other independent witnesses, despite the fact that

there was an election taking place at the time of the occurrence. In

this context, it becomes imperative to refer to the Hon'ble

Supreme Court judgement in the case of Takhaji Hiraji v.

Thakore Kubersing Chamansing reported in (2001) 6 SCC 145,

in paragraph 19 of the judgement, it has been observed that the Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

non-examination of a material witness, who could provide

essential information or fill gaps in the prosecution's case, may

lead the court to draw an adverse inference against the

prosecution. However, if overwhelming evidence has already been

presented, the non-examination of additional witnesses may not be

significant. In such cases, the court must scrutinise the value of the

evidence already presented and consider whether the witness in

question was available but withheld.

In light of the discussions made above and considering the

issue No. I (where the presence of eyewitnesses stands doubtful),

we are of the considered view that an adverse opinion against the

prosecution can be formed due to the absence of any material

witness in this case, despite having several houses between the

alleged place of occurrence and the deceased's house, as

mentioned in the deposition of PW 2 and PW 3.

Hence, in light of the substantial disparities and

contradictions between the material witnesses regarding the place

of occurrence, along with the non-examination of material witness,

particularly Jinish Lal or any other independent observers during

the election, it casts clouds of doubts over the veracity of the

prosecution's case and prejudices the appellants.

Accordingly, issue No. II is decided in affirmative. Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

10. With reference to issue No. III, a thorough examination

of the case record reveals that there exists both a prosecution case

and a counter case. Exhibit A presented by the accused represents

the counter case, wherein it is asserted that a free fight occurred

involving both parties, resulting in injuries on both sides. Notably,

Exhibit C, the injury report marked as such, vividly demonstrates

that the accused also suffered injuries. Surprisingly, the

prosecution has not provided an explanation about the free fight

and the injuries sustained by the accused party. Exhibit C, the

injury report shows that the nature of wound to be grievous, and

Exhibit A indicates the existence of a pending counter case related

to the present occurrence. It is evident that the prosecution has

suppressed crucial facts, and as a consequence, their presented

evidence ought to be discounted. At this juncture, it is relevant to

take note of the Hon'ble Supreme Court finding in the judgement

of State of Karnataka v. Jinappa Payappa Kudachi, reported in

1994 Supp (1) SCC 178 wherein at page 181, the following has

been observed:

"6. The effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case.

Normally if there is such non-explanation, it may at the most give scope to argue that the accused had the Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

right of private defence or in general that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence."

In light of the legal position as discussed above, this Court

is of the opinion that the prosecution's failure to account for the

injuries sustained by the accused party, as evidenced by Exhibit C

and the existence of a pending case (Exhibit A), raises significant

doubts about the veracity of the case as they have not come out

with the whole truth and particularly the genesis of the occurrence.

Accordingly, issue No. III is decided in affirmative.

11. In view of the findings arrived at on the issues

formulated hereinabove, we are of the considered opinion that the

prosecution has failed to prove the charges against the appellants

and, therefore, the judgment of conviction is not tenable.

12. Therefore, we are of the considered opinion that the

conviction of the appellant is not sustainable in the eyes of law.

13. In the result, the present appeal stands allowed and the

judgment of conviction dated 10.07.2015 and the order of sentence

dated 21.07.2015 passed by Shri Subhash Prasad Kumar,

Additional Sessions Judge IV, Madhubani in S.T. No.74 of 2012 Patna High Court CR. APP (DB) No.774 of 2015 dt.15-09-2023

arising out of Ladaniya P.S. case No.28 of 2011, G.R. No.956 of

2011, are set aside.

14. Since the appellant Ram Narayan Yadav is in jail

custody, he is directed to be released from custody forthwith, if

not wanted in any other case.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Narendra/-

AFR/NAFR                NAFR
CAV DATE                06.09.2023
Uploading Date          15.09.2023
Transmission Date       15.09.2023