MURAT YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred by the above named eight appellants against the judgment and order dated 8-2-1989 passed by Shri Narendra Kumar Lal, 4th Additional Sessions Judge, Gaya in Sessions Trial No. 83/86(313/85) convicting the appellants under Section 324/34 of the Indian Penal Code, 1860 and sentencing Dineshwar Yadav to undergo R.I. for five years and rest of the appellants to undergo R.I. for four years. While admitting the appeal a Single Judge of this Court vide order dated 14-2-1989 has allowed the appellants to go on bail during the pendency of the appeal.

(2.) The prosecution case in brief is that Saket Sharma had gone towards south of the village after taking breakfast for the labourers and while returning home all the accused-persons who were working in their own lands had surrounded Saket Sharma and on being asked by accused appellant No. 1 Murat Yadav and other accused-appellants started assaulting Saket Sharma. Ram Pravesh Yadav accused (appellant No. 5) caught hold of Saket Sharma and took him towards the village. All the accused-persons confined Saket Sharma in the room facing west of the house belonging to accused appellant No. 3 Tarkeshwar Yadav and then all the accused-persons continued assaulting him by blunt weapons. The witnesses, namely, Rama Ashish Sharma (P.W. 1), Siya Ram Sharma (P.W. 2), Satendra Sharma (P.W. 3) Bir Sharma (P.W. 5) saw Saket Sharma being taken away by the accused-persons. They and others followed them up to the house of Tarkeshwar Yadav where Saket Sharma had been brutally assaulted. Saket Sharma fell unconscious although the accused-persons have been forbaded but the accused-persons did not pay (sic) to him and when Saket Sharma being full unconscious was out of fear that he might be killed they dragged out Saket Sharma out of the house and handed him over to the witnesses. There were marks of lathi assaults over whole of his body. There was further allegation that the witnesses had seen after peeping inside the room that accused Dineshwar Yadav had mounted upon the chest of Saket Sharma and was trampling his chest. The grandfather of Saket Sharma, namely, Tapeshwar Sharma (P.W. 6) had lodged fardbeyan, Ext-1, at the Police Station only after 2-1/2 hours of the alleged occurrence on 28-9-1984. Then Saket Sharma was medically examined and several injuries were found on his body including two grievous hurt, namely, dislocation of left wrist joint and fracture of the 5th rib on the left side of the chest of Saket Sharma. After investigation police submitted charge-sheet against the accused-persons under Sections 147, 323, 307 and 342 of the Indian Penal Code, 1860. On being committed to the Court of Session charges were framed against all the eight accused-persons under Section 307/34, I.P.C. read with Section 364 of the Indian Penal Code, 1860. The defence case is that the present case is a counter blast of a case filed against Saket Sharma. When on the same date time and place he had outraged the modesty of a lady, namely, Gangajali Devi and on her allegation F.I.R. was lodged. Investigation was done and charge-sheet was submitted under Section 354 of the I.P.C. It was also the case of the defence that when outraging the modesty of Gangajali Devi. Saket Sharma was caught red handed by the villagers and he was assaulted but the accused-persons had no hands in it and they have been falsely implicated. For and on behalf of the prosecution in total nine witnesses have been examined including the Investigating Officer and the doctor. On behalf of the defence one D.W. 1 has been examined who has proved the fardbeyan filed by Gangajali Devi against the injured Saket Sharma and the charge-sheet submitted against him in the other criminal case. There is admission from the side of the prosecution including the injured Saket Sharma himself about the criminal case lodged against him under Section 354, I.P.C. as complained by Gangajali Devi. P.W. 4 Saket Sharma has also admitted in his evidence that he did not name the present accused-persons in his statement under Section 161 of the Code of Criminal Procedure before the Investigating Officer and for the first time in the Court he was naming the accused-persons. Learned Court below in his impugned judgment has disbelieved that part of the evidence of Saket Sharma as the Investigating Officer did not support so.

(3.) In the fardbeyan filed in the case no motive has been imputed against the accused-persons regarding the incident but during evidence informant has stated that there was some dispute regarding irrigation matter between the father and grandfather of Saket Sharma and the accused-persons and, as such, he had been assaulted but that part of motive except being orally stated have not been proved by any documentary evidence although it was a case of the prosecution that on dispute of irrigation matter a petition was filed by P.W. 3 before the Gram Panchayat. Thus the learned Court below has rightly held that the motive imputed during the course of trial Court not be satisfactorily proved rather on the other hand from the admission of the prosecution witnesses and the Investigating Officer more particularly the injured himself that the motive imputed from the defence side regarding false implication etc., is more believable. That Saket Sharma was injured and several injuries were found on his person and the occurrence cannot be denied and has also not been denied from the side of the defence rather they had stated that they were not the persons who had assaulted the injured. In this connection the evidence of Saket Sharma should be taken into consideration although it seems that he had named the accused-persons and, as such, they were implicated in the case. Now during the course of trial he has denied so although other witnesses who had seen the occurrence had implicated the accused-persons and, as such, in the fardbeyan itself names of the accused-persons were included. Although in the criminal case mens rea or motive has no much relevance but in the present case it appears that there is case and counter case on the same incident. On one hand Gangajali Devi had alleged outraging of modesty against the injured Saket Sharma. On the other hand Saket Sharma has alleged that he has been assaulted by the accused-persons. The occurrence took place near the house of Gangajali Devi. So after considering the evidence on record learned Court below found that accused-persons were responsible for assaulting Saket Sharma and, as such, although injuries were there but the same were not found to be sufficient to convict the accused-persons under Section 307, I.P.C. and considering the two injuries being grievous in nature convicted all the accused-persons under Section 325, I.P.C. roping them under Section 34, I.P.C. The charge under Section 364, I.P.C. could not be proved and, as such, the accused-persons have been acquitted from that charge. Now let us taken up the matter in the light that when Gangajali Devi has alleged outraging of modesty by injured Saket then the accused-persons being the co-villagers had taught the lesson to Saket Sharma by assaulting him as a result of which he sustained injuries on his person including two grievous hurt. Now as to who caused two grievous hurt could not be proved by the prosecution. Assumption was taken by the Court below that as Dineshwar Yadav had been trampling on the chest origin of Saket Sharma then the facture of 5th rib of the chest might have been caused due to such trampling and, as such, Dineshwar Yadav had been imposed of higher punishment then the other accused-persons. A person who caused offence of outraging the modesty of a girl of the village then definitely the villagers amongst whom the accused-persons were also there had the reason to be enraged and, as such, they have assaulted Saket Sharma. This is the sum and substance which can be found out by scrutinising the evidence on record in totality. Now whether for that reason, the accused-appellants can be considered as guilty or not is a question to be decided. Learned Court below in his Judgment has observed that even if Saket Sharma had committed any offence, the accused-persons had no right to take law into their own hands and assault the injured but in this connection, learned Counsel for the accused-appellants has resorted to Section 97 of the Indian Penal Code, 1860 where the right of private defence of the body and of property has been defined. Every person has a right, to protect his own body and the body of another person against any offence affecting the human body. Here, Saket Sharma outraged the modesty of a lady and being co-villagers the accused-persons had assaulted the injured as is revealed from the circumstances of the case but as to who caused the grievous hurt injury could not be found out. In that view of the matter, at least Section 34 of the I.P.C. cannot come into play for roping of the accused-persons for an offence under Section 325, I.P.C. It is true that some of the accused-persons might have assaulted Saket Sharma but that assault alone if it is not grievous cannot come up for an. offence because of the protection as contemplated under Section 97 of the I.P.C. The assumption of causing grievous hurt by Dineshwar Yadav cannot be accepted as is done by the lower Court because there is no scope of assumption or presumption in such sort of cases. Moreover, even if the accused-persons have exceeded the right of private defence then also who has exceeded it could not be found out from the evidence on record. In that view of the matter-taking into consideration the evidence of Saket Sharma which has already been mentioned earlier, who is injured himself. I find that the circumstances of the case the accused-persons are entitled to get the benefit of doubt which I do accordingly.