Gopi Yadav And Anr vs State Of Bihar

The instant Revision is directed against the judgment of conviction and sentence dated 21st August, 2017 passed in Cr. Appeal No. 49 of 2007 by the learned 2nd Additional Sessions Judge cum Special Judge, Bhagalpur affirming the judgment and order of conviction passed by the learned Judicial Magistrate, 1st Class, Bhagalpur in Trial No. 146 of 2007 with certain modification of sentence.

Prosecution case in brief is that on 14th April, 2002 one Mahli Yadav gave a statement to the on duty police officer of Lodhipur police station stating, inter alia, that on the self same date at about 8:30 A.M he saw that one Fullo Devi and one Pramila Devi were quarreling with each other. In course of quarrel, Gopi Yadav, Devi Yadav and Fantus Yadav also intervened and began to quarrel. Seeing this, the informant tried to intervene and wanted to stop such quarrel between them. At this, Gopi Yadav, Devi Yadav and Fantus Yadav jointly assaulted the informant with the help of a lathi fitted with iron on the top, iron rod etc. As a result of such assault, he received bleeding injury on his head and hand as well as other parts of body. They also abused them with filthy language.

On the basis of the said complaint, police registered Sabour (Lodhipur) P.S. Case No. 0079 of 2002 dated 14th April, 2002 under Section 341/323/324/325/34 of the Indian Penal Code and entrusted one A.S.I. Deelip Kumar Paswan to investigate into the case.

On completion of investigation, police submitted chargesheet under the above mentioned penal provisions against the accused persons.

The accused persons duly appeared before the trial court to face trial. The learned Judicial Magistrate on conclusion of trial, held all three accused persons guilty for committing offence under Sections 341/323/325 of the Indian Penal Code. The were accordingly sentenced on different counts.

The convicts preferred Appeal before the first appellate court being the learned Additional Sessions Judge cum Special Judge, Bhagalpur which was registered as Cr. Appeal No. 49 of 2007. The learned Appellate court affirmed the order of conviction against Gopi Yadav and Fantus Yadav and acquitted accused Devi Yadav of the charges and the quantum of sentence against the above named two convicts were modified.

The said two convicts are the petitioners in the instant Revision assailing the legality, validity and propriety of the impugned order of conviction and sentence.

It is submitted by the learned Advocate for the petitioners that both the courts below failed to consider that the prosecution could not produce any independent witness of the occurrence. Secondly, it is established that there was political rivalry between the informant and the accused persons because of the fact that in the Councillor election, one Manju Devi was elected. The accused persons supported the said Manju Devi. Pramila Devi, wife of the informant, also contested in the said election but she was defeated. Therefore, the informant was inimical against the accused persons. Thirdly, both the courts below failed to consider that the prosecution could not establish any motive for the alleged incident. Fourthly, according to the informant, after the incident, he went to the police station to lodge complaint, and thereafter, to the hospital. Thus, according to the informant, complaint was lodged prior to medical examination of the victim. However, from the record it appears that the victim was medically examined at about 10:30 A.M and the F.I.R. was lodged at about 1 P.M on the basis of fardbayan of the informant. Thus, the prosecution suppressed the first information which the informant gave to the police before his medical examination.

Learned PP in-charge on behalf of the State submits that the evidence on record is not only sufficient but absolutely in corroboration to each other and there is no reason to cast any cloud of suspicion on the evidence on record and the petitioners were rightly convicted.

It appears from the lower court record that prosecution examined in all five witnesses during trial. Amongst them, one Arvind Prasad Yadav is a resident of Chaudhary Deeh. He happens to be the nephew of the informant. PW-2 Futo Devi is another witness of Chaudhary Deeh. PW-3 Vakil Yadav claimed himself to be the eye witness of the occurrence. PW-4 Mahli Yadav is the injured informant and PW-5 is the medical officer who medically treated the injured on 14th April, 2002 at about 10:30 AM.

From the evidence on record coupled with the medical examination report this court does not have any doubt that on 14th April, 2002, the victim/informant received bleeding injury on his head and other parts of body. From the evidence of PW-1, it is ascertained that on 14th April, 2002 at about 8:30 A.M when he was proceeding through the place of occurrence, he noticed that a quarrel broke out between Mahli Yadav and Gopi Yadav. Gopi Yadav was armed with a lathi and Fantus Yadav was also armed with a lathi fixed with a piece of iron on the top of it. They assaulted Mahli Yadav with the help of lathies.

From the cross-examination of PW-2, Futo Devi, it is ascertained that she stated to the police that hearing the hue and cry, he went to the place of occurrence and saw Gopi Yadav, Fantus Yadav and Manju Devi were assaulting the informant with the help of iron rod. As a result of assault, Mahli Yadav received bleeding injury on his head and fell down. Thus, from the cross-examination of PW-2, it is ascertained that the witness saw the accused persons assaulting the informant. PW-3 Vakil Yadav claimed himself to be the eye witnesses of the incident. It is submitted by the learned Advocate for the petitioner that PW-3 is a chance witness his present near the P.O. has not been established and being a chance witness, his evidence cannot be considered. It is also submitted by the learned Advocate for the petitioner that PW-3 stated on oath that he saw the incident but he did not raise any hue and cry to attract the local people to save the defacto complainant. He also did not come forward to save him. Thus, the conduct of PW-3 allegedly after seeing the occurrence is not inconformity with the act of a normal prudent person. PW-4 Mahli Yadav is the informant and injured who specifically stated that he has been assaulted by Gopi Yadav and Fantus Yadav when he tried to intervene and stop quarrelled between Fullo Devin and Pramila Devi.

I have already stated that PW-5 is a medical officer on 14th April, 2002 at about 10:30, he medically examined PW-4 found the following injuries. :-

(I) One lacerated wound measuring about 4 inches 0.5 inches scalp deep on the front of the skull.

(II) Lacerated wound measuring about 1 inch 0.5 inch over left forehand posterior region.

(III) Lacerated wound measuring about 0.5 inch 0.5 inch scalp deep over the terminal fallanes of the left middle finger.

(IV) Tenderness over right scapular region.

He advised ex-ray of the forearm of right hand.

Ex-ray was done on 18th April, 2002 and from the ex-ray report, it was found that the victim received fracture injury on his left forearm and right scapular region.

This is all about prosecution case.

It is needless to say that in order to establish a charge in a criminal trial, it is not the number of witnesses but the quality of evidence which matters. I have already stated that not only PW-3, PW-2 was also an eye witness of the occurrence. Both of them saw, the petitioners assaulting the informant. There may be some discrepancies in the evidence of the above named witnesses but those discrepancies are very natural and minor which was rightly ignored by the courts below.

It has come from the defence case that the petitioners were inimical against the defacto complainant due to political reason. The wife of the informant who was defeated in a local election was the member of rival political party to which Gopi Yadav and Fantus Yadav used to belong. Therefore, it is not surprising that taking an opportunity, the petitioners had assaulted the informant.

Learned Advocate for the petitioners vehemently argues that the informant stated that he first informed the incident to the local police station, and thereafter, he was medically examined. But no such statement prior to recording fardbayan at 1 P.M is produced by the prosecution. Thus, prosecution has withheld the first information made by the informant and the petitioners are entitled to get benefit of doubt in the instant case. It is the common experience not only of the court but all persons that whenever an injured goes to the police station with bleeding injury on the most vital part of the body, the police generally advises him to get medically treated first and thereafter come to the police station. It may be a fact that in the police station, the informant stated to the police that he was assaulted by Gopi Yadav and Fantus Yadav but police was more concerned for medical examination of the injured. After his medical examination, his statement in detail was recorded and accepted as fardbayan. There is no reason to raise suspicion against it.

While assessing the evidence on record, I find no material or ingredients under Section 339 of the Indian Penal Code in support of the allegation under Section 341 of the Indian Penal Code against them. None of the witnesses stated that the defacto complainant was wrongfully restrained by the petitioners. On the contrary, both the courts below rightly convicted the accused persons under Section 323 and 325 of the Indian Penal Code.

On the point of sentence, this court notes that the incident took place in the month of April, 2002, now, we are in 2024. So the incident took place about 22 years ago. The petitioners suffered mental agony and trauma for last 22 years in pursuing the case, Appeal and the instant Revision, therefore, I am inclined to take a lenient view in respect of the offence punishable under Section 323 of the Indian Penal Code.

For the offence under Section 323 and 325 of the Indian Penal Code, both the petitioners are directed to pay fine of Rs. 5,000/- each and half of the fine amount shall be paid to the informant by the trial court as compensation. For the offence punishable under Section 325 of the Indian Penal Code, the petitioners shall also suffer simple imprisonment for three months. The petitioners are directed to surrender before the trial court within 15 days from the date of communication of this order. The period of detention, if any, by the accused persons shall be set off against the actual period of sentence.

Let a copy of this order be sent to the court below along with the Lower Court Record (LCR).

The instant Revision is accordingly dismissed.