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Sunday, March 19, 2017

We are unable to accept the contentions of the counsel for the appellant that the evidence against the appellant is similar to the evidence against acquitted accused. We have already noted that the acquitted accused did not assault the informant but has allegedly instigated. The evidence of PW-1 & PW-4 as inconsistent in that regard, inasmuch as PW-4 has not deposed about instigation. Hence the appellant cannot be given the benefit of acquittal as was given to Deven Yadav. However, having regard to the totality of the facts and circumstances of the matter and the material on record, it is clear that the accused- appellant did not make any attempt to commit murder of the informant. The incident has taken place on the spur of the moment as the informant had objected the appellant from cultivating the land which is adjoining his house. Hence the offence, committed by the appellant would come under Section 326 of the IPC. Learned counsel for the appellant submitted that the appellant is more than 72 years of age and leniency may be shown in his favour by way of imposing lesser sentence. The injured had sustained the compound fracture of forearm. Keeping in mind the aggravating and mitigating circumstances and in the interest of justice, the appellant should be sentenced to undergo simple imprisonment for one year and to pay fine of Rs.50,000/-.

                                                            (Non Reportable)

                       IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO.494 OF 2017
            (Arising out of SLP(Crl.) No.2082/2017 (Crl. M.P. 16556 of
2016)

Dinesh Yadav                                                  …..Appellant

                                          Versus





State                              of                              Jharkhand
....Respondent

                          J U D G M E N T



MOHAN M. SHANTANAGOUDAR, J.



1.    The judgment dated 18th April, 2016 in Criminal  Appeal   No.  820  of
2004 passed by the High  Court  of  Jharkhand  confirming  the  judgment  of
conviction and sentence imposed on Dinesh Yadav, accused  No.1  in  Sessions
Case No. 221 of 93/78 of 2002 for offence punishable under  Section  307  of
the Indian Penal Code, is questioned in this petition by  convicted  accused
No.1.
2.    The case of the prosecution is that on  the  date  of  occurrence  the
appellant as well as two other accused namely Badri Yadav  (since  deceased)
and Deven Yadav while were planting chilli  on the land adjoining the  house
of the informant, the informant protested for the same; accused Deven  Yadav
allegedly instigated the appellant to assault  the  informant;  Badri  Yadav
gave lathi blow on his head whereas  the  appellant  caused  injury  on  the
forearm of the informant by wielding  gandasa,  consequent  upon  which  the
informant sustained following injuries:
“(i) Lacerated wound on anterior surface  of  right  forearm  through  which
part of bone is protruding, size 2”x1”x.  resulting in compound fracture  of
forearm.

(ii)   Lacerated  wound  on  left  arm  (lower   posterior   surface)   size
1/2”x1/4”x1/4”.

(iii)  Lacerated  wound  on   the   left   parietal   region,   size   about
1”x1/4”x1/4”.”

3.    In support of its case, the prosecution had  examined  four  witnesses
including Dr. Pravesh Paswan-PW 3 who examined and  treated  the  informant.
Nepal Mandal (PW-1), Manohar Yadav (PW-2) and Dilip Kumar Yadav (PW-4)  were
the eye-witnesses.  PW-2 Manohar Yadav did  not  support  the  case  of  the
prosecution and was declared hostile.
4.    The Trial Court convicted the appellant herein  and  Deven  Yadav  for
the offences punishable under Section 307 of  the  Indian  Penal  Code  read
with Section 34 and sentenced them to undergo R.I. for  five  years  and  to
pay a fine of Rs.1,000/- each  and  in  default  of  payment  of  fine,  the
convicted accused had to undergo simple imprisonment for  a  further  period
of six months.
  Accused Deven Yadav had filed  Criminal  Appeal  No.114  of  2004  whereas
accused Dinesh Yadav-Appellant had filed  Criminal  Appeal  No.820  of  2004
before the High Court of Jharkhand.  The High Court allowed Criminal  Appeal
No.114 of 2004 filed by Deven Yadav and dismissed the  Criminal  Appeal  No.
820 of 2004 filed by Dinesh Yadav.  Another accused namely Badri  Yadav  had
not faced trial inasmuch as he had expired by the time the trial  commenced.
The informant/injured also had expired in the meanwhile.  Aggrieved  by  the
judgment of the courts below, the  convicted  accused  No.1  has  approached
this Court.
5.      Learned   counsel   for   the   appellant   submitted   that   major
inconsistencies  found  in  the  evidence  of  the  eye  witnesses  are  not
considered by the courts below in  proper  perspective.   The  informant  as
well as the Investigating Officer are not examined before the  trial  court,
consequently the benefit of doubt ought to have been given in favour of  the
appellant; since the High Court has  acquitted  the  accused  No.2,   namely
Deven Yadav, who  also  faced  trial  for  the  same  offence  with  similar
allegations, the appellant ought to have been acquitted  on  the  ground  of
parity.
6.    Learned counsel for the respondent State  argued  in  support  of  the
judgment of the High Court. The judgment and order  acquitting  Deven  Yadav
in Criminal Appeal No.114 of  2004  is  not  questioned  by  the  State  and
therefore the said judgment has attained finality.
7.    Both the courts below after assessing the evidence on  record  rightly
concluded that the evidence of PW-1 and PW-4  eye-witnesses  is  consistent,
cogent and reliable.  PW-1 Nepal Mandal had deposed that while he was  going
to Sukhari Village he saw the informant and the  appellant  quarreling;  the
appellant held “Gandasa” in hand and assaulted the informant  with  Gandasa;
however, the informant  escaped  from  further  assault  by  the  appellant;
accused Deven Yadav did not have any weapon in his hand but was  instigating
the appellant.  He is stated to have witnessed the incident from a  distance
of five yards.  PW-4 has deposed that while he was  on  the  way  to  attend
religious rituals in Sukhari Village, he saw the  appellant  assaulting  the
informant  with  Gandasa  whereas  the  accused  Deven  Yadav  was  standing
unarmed.  He did not depose about instigation by Deven Yadav.
8.    We find that the evidence of PW-1 and  PW-4  is  consistent  with  the
case of the prosecution, as against the appellant. We find the  evidence  of
these witnesses wholly reliable and there is  no  reason  as  to  why  these
witnesses, regarding overt act  of  the  appellant,  should  be  disbelieved
particularly when they are independent eye witnesses.
9.    The evidence deposed by PW-1 and PW-4 is supported by the evidence  of
the Doctor, PW-3 who examined the informant immediately after  the  incident
and opined that the injury  No.1  was  grievous  in  nature  and  all  other
injuries are simple in nature. According to the  Doctor  the  injuries  were
caused by hard substance.
        Injury No.1 (grievous injury) corresponds to the overt  act  of  the
appellant.  Since the evidence of eye-witnesses coupled  with  the  evidence
of the Doctor proves the case of the prosecution against the  appellant  and
as nothing was brought out in the cross examination of  these  witnesses  so
as to discard their evidence, the trial court as well as the High Court  are
justified in relying upon the evidence of these witnesses for coming to  the
conclusion. Since the evidence of these witnesses has remained  unimpeached,
and as there are no major contradictions or omissions  in  the  evidence  of
these witnesses, the non-examination of the  Investigating  Officer  by  the
prosecution may not tilt the balance in favour of the defence.  It  has  not
been shown what prejudice has been caused to  the  appellant  by  such  non-
examination. Similar view is taken by this Court as  back  as  in  the  year
2000 in the case of Bahadur Naik  vs.  State  of  Bihar  AIR  2000  SC  1582
wherein it is observed thus:
            “The appellant has not been able to  shake  the  credibility  of
the eye-witness. No material contradiction in the case  of  the  prosecution
has been shown to us. Under facts and circumstances, the non-examination  of
the Investigating Officer as a witness is of  no  consequence.  It  has  not
been shown what prejudice has been caused to  the  appellant  by  such  non-
examination.”

      As mentioned supra, the injured had expired prior to  commencement  of
the trial of Sessions Case. Hence, he could not be examined.

10.   We are unable to  accept  the  contentions  of  the  counsel  for  the
appellant that  the  evidence  against  the  appellant  is  similar  to  the
evidence  against  acquitted  accused.   We  have  already  noted  that  the
acquitted  accused  did  not  assault  the  informant  but   has   allegedly
instigated. The evidence of PW-1 & PW-4  as  inconsistent  in  that  regard,
inasmuch as PW-4 has not deposed about  instigation.   Hence  the  appellant
cannot be given the benefit of acquittal as was given to Deven Yadav.

11.   However, having regard to the totality of the facts and  circumstances
of the matter and the material on record, it  is  clear  that  the  accused-
appellant did not make any attempt to commit murder of the  informant.   The
incident has taken place on the spur of the  moment  as  the  informant  had
objected the appellant from cultivating the  land  which  is  adjoining  his
house. Hence the offence,  committed  by  the  appellant  would  come  under
Section 326 of the IPC.  Learned counsel for the  appellant  submitted  that
the appellant is more than 72 years of age and leniency may be shown in  his
favour by way of imposing lesser sentence.  The injured  had  sustained  the
compound  fracture  of  forearm.  Keeping  in  mind  the   aggravating   and
mitigating circumstances and in  the  interest  of  justice,  the  appellant
should be sentenced to undergo simple imprisonment for one year and  to  pay
fine of Rs.50,000/-.

12.   Accordingly, the Appeal  is  disposed  of  with  conclusion  that  the
appellant is convicted for the offence  under  Section  326  of  the  Indian
Penal Code and is sentenced to undergo R.I. for one year and to pay fine  of
Rs.50,000/-. In default of payment  of  fine  the  appellant  shall  undergo
further imprisonment of six  months.   The  appellant  is  entitled  to  the
benefit of set off under Section 428 Crl.P.C.

The appellant shall surrender before the concerned authorities to serve  the
remaining sentence within four weeks and  fine  shall  be  deposited  within
four weeks from the date of this judgment.  If the  fine  is  deposited,  an
amount  of  Rs.  45,000/-  shall  be  paid  as  compensation  to  the  legal
representatives of the injured- informant (since deceased).



                                               .………………………………..…….J.
                                                     [DIPAK MISRA]




                                                    …………………………………….…..J.
                                                          [MOHAN M.
SHANTANAGOUDAR]
New Delhi.
Dated: March 09, 2017

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