RAJENDRA PRASAD Vs. STATE OF BIHAR AND ORS

JUDGEMENT

(1.) The appellant has challenged the judgment and order dated 22.11.2011 passed in Sessions Case No. 222 of 1999 arising out of Bahera P.S. Case No. 01 of 1999 under Sec. 372 of the Code of Criminal Procedure, by the learned Additional Sessions Judge (F.T.C.), Benipur, Darbhanga by which respondent no. 2 to 7 have, though, been convicted and sentenced for the offence punishable under Sections 147, 323 & 341 of the Indian Penal Code but have been acquitted of the charge under Sections 307 & 379 of the Indian Penal Code. The appellant is aggrieved by the order of acquittal recorded by the learned Judge with respect to the offence punishable under Sections 379 and 307 of the Indian Penal Code. The prosecution case, in brief, according to the informant (appellant), is that on 1.1.1999 at about 9 a.m. respondent no. 2 to 7 along with three others unknown being armed with spear, gandasa and kudal forming an unlawful assembly came to the land appertaining to khata no. 272 and 274 corresponding to Khesra no. 1557 and 1554 and started constructing a passage near the western side of the plot. The appellant protested the construction of passage which infuriated the accused persons. Respondent no. 2 Ramakant Yadav, thereafter, abused the appellant and ordered to kill him. Upon which, the other respondents wrapped a towel around his neck and in order to kill him started tightening the same. At this stage, one Jiwachh Yadav intervened and rescued the appellant. In process, respondent no. 3 snatched the shawl worth Rs.span 750.00 from the appellant and respondent no. 7 Mahavir Yadav took away a "Henga" ( an agricultural implement) worth Rs.span 150.00. According to the appellant, the occurrence was witnessed by the Vishwambher Yadav, Mangan Yadav and Deo Narain Yadav. On the basis of the written statement of the appellant submitted on 1.1.1999 to the Officer-in-Charge, Bahera Police Station, a case under Sections 147, 323, 341, 307 and 379 of the Indian Penal Code was registered against respondent no. 2 to 7 and investigation was taken up. On conclusion of investigation, charge sheet was submitted against the accused persons. The learned A.C.J.M., Benipur, Darbhanga took cognizance of the offence and committed the case to the court of Sessions for trial. Charges were framed against respondent no. 2 to 7, to which, they pleaded not guilty and, accordingly, the trial commenced.

(2.) In order to prove the charges, the prosecution examined altogether six witnesses in course of trial. They are P.W.-1 Vishwambher Yadav, P.W.-2 Jiwachh Yadav, P.W.-3 Deo Narain Yadav, P.W.-4 Rajendra Prasad, P.W.-5 Raj Nath Mandal and P.W.-6 Dr. Amar Nath Prasad. Besides the ocular evidence, the prosecution also proved the signature of the informant on the written statement which was marked as Exhibit-1, the formal F.I.R. marked as Exhibit-2, the case diary marked as Exhibit-3, the injury report marked as Exhibit-4 and some certified copies of judgments which were marked as Exhibit-5 to 5/3. The appellant was examined as P.W.-4 in course of trial. Though, he has not specified in the F.I.R. as to who had wrapped the towel around his neck but in deposition, he categorically stated that it was respondent no. 6 Chandra Yadav, who had wrapped the towel around his neck and attempted to twist it in order to kill him. In cross-examination, he has admitted that several litigations were pending between the family members of the informant and the accused persons. He also admitted that P.W.-1 Vishwambher Yadav and P.W.-2 Jiwachh Yadav are his family members. He further admitted that both in eastern and western side adjacent to the plot, in question, of the informant (appellant) were the land belonging to the accused persons. Though, the informant in his deposition did not attribute assault by any one else apart from respondent no. 6 Chandra Yadav, who allegedly wrapped towel around his neck and tightened it. But, P.W.-1 Vishwambher Yadav in his deposition stated that all the accused persons assaulted the informant, who was some how rescued by Jiwachh Yadav, Mangan Yadav and Deo Narain Yadav. P.W.-2 Jiwachh Yadav and P.W.-3 Deo Narain Yadav have also deposed in the court, stating therein, that the informant was assaulted by all the accused persons by fists and slaps.

(3.) P.W.-5 Rajnath Mandal is the I.O. of the case. He proved the formal F.I.R. and the case diary. P.W.-6 Amar Nath Prasad had examined the injuries of the informant and prepared the injury report. He has proved the injury report in course of trial. In deposition, he stated that he found swelling on the neck to the extent of 5.5" x 3". No other injury was found on the person of the informant. In cross-examination, he has admitted that at the time of medical examination the informant was fully conscious. He was discharged on the same day on which he appeared for treatment. We find that apart from official witnesses, all other witnesses examined on behalf of the prosecution are related to the informant. The admitted position is that there was long standing enmity between the parties and several litigations were going on from before between them. From the evidence of witnesses particularly from the deposition of P.W.-1 Vishwambher Yadav and P.W.-3 Deo Narain Yadav, it is apparent that all the accused persons assaulted the informant by fists and slaps but the doctor has categorically stated in his deposition that apart from superficial swelling found around the neck of the informant, no other injury was found on his person. We further find inconsistency in the evidence of the witnesses examined on behalf of the prosecution. The allegation in the F.I.R. is that the accused persons were variously armed with lathi, spear, kudal, etc. but apparently no injury is alleged to have been caused by such weapons by any of the accused persons. Further there is evidence that the informant was assaulted by all the accused by fists and slaps but there is no corroboration in medical evidence in that regard.