Yadav Vs. Prabhu Nath Jha & Ors  Insc 545 (31 October 2003)
Raju & Arijit Pasayat Arijit Pasayat, J.
Appeal (crl.) 314-316 of 1997
these six appeals challenge is to the judgment of the Patna High Court which
directed acquittal of 8 persons upsetting conviction recorded and sentence
imposed by the First Additional Sessions Judge, Darbhanga. Three of them
namely, Prabhu Nath Jha, Laxmi Yadav and Badri Yadav were found guilty of
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
the 'IPC') while five others namely, Ramashish Yadav, Yadu Nath Yadav, Ram
Chandra Yadav, Bhutkun Yadav and Ram Prakash Yadav were found guilty of offence
punishable under Section 302 read with Section 149 IPC. Three of the accused
persons namely Prabhu Nath Jha, Ramashish Yadav and Yadu Nath Yadav were also
found guilty of the offence punishable under Sections 25A and 27 of the Arms
Act, 1959 (in short the 'Arms Act') and two of them namely Laxmi Yadav and Badri
Yadav were found guilty of offence under Section 3 of the Explosive Substance
Act, 1908 (in short 'Explosive Act'). Life sentence was imposed by offences
relatable to Section 302 or Section 302 read with Section 149. Custodial
sentence of various magnitudes were imposed for other offences. Since Prabhu Nath
was absconding, his trial was separated initially but finally the trial Judge
tried the sessions trial of all the accused persons together.
which led to the trial of the accused persons and the prosecution version as
unfolded during trial are as follows:
16.6.1991 which was a Sunday at about 7.00 a.m. in the morning the informant Ramanand
Yadav (PW-12) (who leads the life of a Sadhu) came along with his elder brother
Thakkan Yadav, a school teacher (hereinafter referred to as the deceased) to Chanaur
Chowk of the village to take tea at a tea-shop; this Chanaur Chowk is a market
place in village Aabadi, where there are several small tea-shops, hair-cutting
saloons, grocery shops, cloth shops etc; while Thakkan Yadav was chatting with
one Lambodar Jha, a press-reporter in front of the shop of one Krishna Purbey,
the accused Prabhu Nath Jha holding a revolver in small bag tied around his
waist and the accused Laxmi Yadav and his brother Badri Yadav having bags on
their shoulder arrived near the deceased; accused Prabhu Nath Jha fired his
revolver/pistol on the right side Panjra (lower side chest) of the deceased and
being hurt from this fire-arm shot of Prabhu Nath Jha, deceased fell down on
the ground, and the other two accused Laxmi Yadav and Badri Yadav took out
bombs from their bags and they started hurling bombs on the body of fallen
deceased, and these two accused persons hurled several bombs and the smoke of
the bombs engulfed the surroundings; deceased was severely injured; that the
other accused Ramashish and Yadu Nath who were standing near the house of Prabhu
Nath Jha at a distance of about hundred feet from the Chowk started firing in
the air to scare the villagers to run away, and the accused Bhutkun, Ram
Chandra and Ram Prakash started throwing brick-bats to make the villagers run
away as the firing had started.
to the prosecution case all the eight accused belong to one camp led by the
accused Prabhu Nath Jha and all the eight accused were sympathizers of a
particular political party. After this occurrence all the eight accused persons
ran away towards the house of Prabhu Nath Jha, and the informant Ramanand Yadav
(PW-12) went to the house of Prabhu Nath Jha and found that all these accused were
running away towards north.
the help of Jagannath Yadav (PW-1), Shyam Yadav (PW-2) and others the seriously
injured Thakkan Yadav was carried on a rickshaw to the clinic of Dr. Manoj
Kumar in Manigachhi for treatment, and they stayed there for ten minutes or
about and there Dr. Manoj Kumar declared that Thakkan Yadav was dead, not being
satisfied with the opinion of the doctor and hoping that the expert doctors
might help in revival of life of Thakkan Yadav, Ramanand Yadav (PW-12) finding
the jeep of a political party with some workers of the party in it by the side
of the clinic of Dr. Manoj Kumar, placed the injured Thakkan Yadav in that jeep
and brought him to Darbhanga Medical College Hospital, where the doctors of
emergency wing too declared that Thakkan Yadav was dead.
to the prosecution there were 6 eye-witnesses namely Jagarnath Yadav (PW-1), Utim
Yadav (PW-3), Mahabir Yadav (PW-7), Batohi Yadav (PW-9), Indra Mohan (PW-10)
and Ramanand Yadav (PW-12). Nagendra Mishra (PW-14) was the Investigating
Officer and Dr. A.R. Kishore (PW- 17) was the doctor who conducted the
post-mortem. Shyam Yadav (PW-2), Autar Jhan (PW-4) and Mahadeo Yadav (P-6) were
stated to be immediate post occurrence witnesses.
of the accused persons was that deceased was murdered by some unknown persons which
was not witnessed by anybody and they have been falsely roped in due to enmity
and political rivalry. Reference was made to some criminal cases to show
enmity. Accused Prabhu Nath took the plea of alibi claiming that he was working
at a different place and could not have been at the place of occurrence.
implicit reliance on the evidence of the prosecution witnesses the trial Judge
directed conviction and sentence as aforesaid.
appeals were filed by the appellants separately and the High court directed
acquittal by the impugned judgment disposing of them together.
primary grounds on which the acquittal was directed are as follows:
is a referral hospital between the place of occurrence and the Darbhanga Government Hospital and it has not been explained as to
why the deceased was not taken to the referral hospital and was taken to the Darbhanga Hospital which is at a greater distance;
6, 7 and 9 were examined after three days of occurrence;
Lambodar Jha and two others were available at the spot of occurrence but were
not examined and only the interested witnesses were examined and, therefore,
the prosecution version is suspect;
PWs 2 and 4 reached the place of occurrence they did not see any of the
so-called eye witnesses and, therefore, their presence at the spot is doubtful;
medical evidence is inconsistent with the prosecution case, as no bullet injury
was found on the lower side of the right chest though witnesses said that a
bullet was fired at that part of the body. It has to be noted that PW-7 has
been found to be unreliable, and that according to High Court adds to the
vulnerability of the prosecution version.
indicated above, both the informant Ramanand (PW-12) and State of Bihar have questioned correctness of the
High Court's judgment. By order dated 31.1.1997 the scope of present appeals
was restricted to respondents 1 to 3 i.e. accused Prabhu Nath Jha, Laxmi Yadav
and Badri Yadav, and was dismissed so far as others are concerned.
counsel for the appellant-State contended that each of the reasons which has
weighed with the High Court suffers from unsupportable fallacies and even there
has been mis-reading of the evidence. So far as not taking the deceased to the
referral hospital nearby, it has been pointed out that the witnesses have given
reasons as to why the deceased was not taken to such hospital. It has been
clearly indicated that at most of the times doctors are not available at the
hospital and, therefore, the relatives were not taking any chance. The fact
that the first examination was done by a doctor attached to the referral
hospital clearly establishes the possibility of the doctors being not there,
and merely because the deceased was taken to a Government hospital at some
distance that cannot be a ground to render the prosecution version suspect.
Unfortunately, the High Court has not properly considered this aspect. The
second reason which has weighed with the High Court is the delayed examination
of PWs 6, 7, and 9. There was no question put to the Investigating Officer as
to why there was delayed examination.
same cannot be taken as a ground for discarding the prosecution version on this
ground alone. Regarding non examination of Lambodar and two others who claimed
to be at the spot it was pointed out that the prosecution is not obliged to
examine every witness in a faction ridden village and even those whose
sympathies lay with the accused may hesitate to take any risks by offering
themselves as witnesses and such non examination cannot be a ground to discard
the prosecution version. So far as evidence of PWs 2 and 4 ruling out presence
of so-called eye witnesses is concerned it was pointed out that the witnesses
have clearly stated that after the explosion they went away being afraid and
shocked, and came back after a short time. The evidence of PWs 2 and 4 shows
that they reached the spot of occurrence immediately after the explosion and,
therefore, the fact that they did not see the eye-witnesses cannot be a factor
to doubt their presence. So far as the medical evidence is concerned, it is
pointed out that the witnesses have stated about firing a gun by accused Prabhu
Nath. Merely because no bullet injury was found that does not rule out the
participation of accused Prabhu Nath. Even otherwise, the medical evidence in
no way varies from the ocular evidence as the assaults attributed to other
accused persons are clearly linked to the injuries on the body of the deceased.
In any case, by application of Section 34 IPC accused Prabhu Nath Jha can be
response, learned counsel for the accused submitted that the whole incident
alleged to have taken place is a sequel to a political event. The parliamentary
election was held on 12.6.1991 whereas the date of occurrence is 16.6.1991. The
election tempo and frayed tempers continued. Evidence on record shows that
there was political rivalry.
High Court's conclusions are in order. Firstly, there was no need to take the
deceased to a hospital at a distant place after the doctor had opined that the
deceased was no longer alive. There was few hours delay in lodging the FIR and
that afforded an opportunity to falsely rope in the accused persons because of
political rivalry. Out of six so-called eyewitnesses three were admittedly
having hostility towards the accused persons. They were also not only related
but also politically linked.
delayed examination of PWs 6, 7 and 9 probabilises the inference that the
prosecution version was concocted. PWs 1, 3 and 9 had business links with the
deceased and, therefore, they had reason to rope in the accused persons
falsely. Though medical evidence at first blush rules out role of accused Prabhu,
but that also leads to an inference of false implication of other accused
persons. There is little scope for interference with the order of acquittal
unless the judgment is totally perverse and this is not a case of that nature.
counsel appearing for the informant in Crl.A. Nos. 119- 121/1997 adopted the
arguments of learned counsel for the State in the connected appeals.
first factor which appears to have weighed with the High Court is taking the
deceased to the hospital at some distance. The prosecution evidence amply
clarifies as to why that was necessary to be done and the reading of evidence
of PWs 1 and 12 is relevant in this regard. They have categorically stated that
at most of the times the doctors at referral hospital are not present. They
substantiated this impression by pointing out that Dr. Manoj who had first
examined the deceased and declared him to be dead was a doctor of the referral
hospital. The impression may be totally out of context; but the reason given
cannot be said to be wholly implausible. Therefore, that should not have been
taken as a ground by the High Court for directing acquittal.
second factor which has weighed with the High Court is the delayed examination
of three witnesses i.e. PWs 6, 7 and 9. The evidence of PW-7 does not appear to
be very much credible and the trial Court and the High Court also did not
appear to have placed much reliance on his evidence. But so far as PWs 6 and 9
are concerned, it is clear from reading of the evidence that the Investigating
Officer was not asked specifically the reason for their delayed examination.
This Court in several decisions has held that unless the Investigating Officer
is categorically asked as to why there was delay in examination of the
witnesses the defence cannot gain any advantage therefrom. (See Ranbir and Ors.
v. State of Punjab (AIR 1973 SC 1409 and Bodhraj @Bodha
and Ors. v. State of Jammu
and Kashmir (2002 (8)
as non-examination of Lambodar and two others is concerned it is established by
the evidence on record that the village was a faction ridden one. In some cases
persons may not like to come and depose as witnesses and in some other cases
the prosecution may carry the impression that their evidence would not help it
as there is likelihood of partisan approach so far as one of the parties is
concerned. In such a case mere non examination would not effect the prosecution
version. But at the same time if the relatives or interested witnesses are
examined, the Court has a duty to analyse the evidence with deeper scrutiny and
then come to a conclusion as to whether it has a ring of truth or there is
reason for holding that the evidence was biased. Whenever a plea is taken that
the witness is partisan or had any hostility towards the accused foundation for
the same has to be laid. If the materials show that there is partisan approach,
as indicated above the Court has to analyse the evidence with care and caution.
the accused persons have always the option of examining the left out persons as
Avtar Rai and Ors. v. State of Uttar Pradesh
(AIR 1985 SC 880), Harpal Singh v. Devinder Singh and Anr. (1997 (6) SCC 660)
and Gopi Nath @Jhallar v. State of U.P.
(2001 (6) SCC 620) these aspects have been elaborately dealt with. Here again
the High Court has erroneously drawn adverse inference.
as the alleged variance between medical evidence and ocular evidence is
concerned it is trite law that oral evidence has to get primacy and medical
evidence is basically opinionative. It is only when the medical evidence
specifically rules out the injury as claimed to have been inflicted as per the
oral testimony, then only in a given case the Court has to draw adverse
High Court has thus knocked out an eyewitness on the strength of an uncanny
opinion expressed by a medical witness. Over dependence on such opinion
evidence, even if the witness is an expert in the field, to checkmate the
direct testimony given by an eyewitness is not a safe modus adoptable in
criminal cases. It has now become axiomatic that medical evidence can be used
to repel the testimony of eyewitnesses only if it is so conclusive as to rule
out even the possibility of the eyewitness's version to be true. A doctor
usually confronted with such questions regarding different possibilities or
probabilities of causing those injuries or post-mortem features which he
noticed in the medical report may express his views one way or the other
depending upon the manner the question was asked. But the answers given by the
witness to such questions need not become the last word on such possibilities.
all he gives only his opinion regarding such questions. But to discard the
testimony of an eyewitness simply on the strength of such opinion expressed by
the medical witness is not conducive to the administration of criminal justice.
view has also been expressed in Mange v. State of Haryana (1979(4) SCC 349), State of U.P. v.
Krishna Gopal and Anr. (AIR 1988 SC 2154) and Ram Dev and Anr. v. State of U.P. (1995 Supp. (1) SCC 547) and State of U.P. v. Harban Sahai and Ors. (1998 (6) SCC 50) Even
otherwise, the medical evidence may be at variance so far as alleged assault by
accused Prabhu Nath Jha is concerned. But there is no variance pointed out by
the High Court so far as others are concerned.
there is no supportable foundation for holding that there was concoction.
Accused Prabhu even otherwise can be held guilty by application of Section 34
IPC. Though there was no charge framed for an offence under Section 302 read
with Section 34, the evidence on record clearly brings out application of
Section 34 and as was observed by this Court in Lallan Rai and Ors. v. State of
Bihar (2003 (1) SCC 268) Section 34 can
be applied if the evidence of the eyewitnesses clearly establishes the role
played by the concerned accused.
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise
from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence in a case where the accused
has been acquitted, for the purpose of ascertaining as to whether any of the
accused committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567). The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. These
aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.
State of Maharashtra (1973 (3) SCC 193), Ramesh Babulal Doshi
v. State of Gujarat (1996 (4) Supreme 167), Jaswant
Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
State of Punjab v. Karnail Singh (2003 (5) Supreme
508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)
inevitable conclusion because of the factual and legal panorama noted above is
that the High Court was not justified in directing acquittal. The same is set
aside. Respondents are convicted under Section 302 read with Section 34 IPC and
are sentenced to undergo imprisonment for life. As they are on bail, they shall
surrender forthwith to suffer remainder of the sentence. The appeals are
allowed in the aforesaid terms.