Kamal Yadav vs State Of Bihar

Heard Mr. Vipul Sinha, learned amicus curiae appearing for the appellant as well as Mr. Mukeshwar Dayal, learned Additional Public Prosecutor for the State.

This appeal has been preferred by the appellant challenging the judgment of conviction dated 10.11.2006 and order of sentence dated 15.11.2006 passed by learned Additional District and Sessions Judge FTC No. III, Buxar in Sessions Trial No. 90/2012 and 112/2002 arising out of Krishna Brahm P.S. Case No. 140 of 2001, whereby and whereunder appellant has been convicted for the offence punishable under Sections 341, 325 and 307 of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for seven years for the offence u/s 307 of the Indian Penal Code. No separate sentence was passed for the offence u/s 341 and 325 of the IPC.

On the basis of information given by Bhagwan Yadav, injured himself on 9.8.2001, Krishna Brahm P.S. Case No. 140 of 2001 was registered under Sections 323, 324 and 307/34 of the Indian Penal Code.

As per prosecution story, on 9.8.2001 at about 10 A.M., informant alongwith his brother Kanhaiya Yadav was returning from their agricultural field after planting paddy crops and on the way, they sat near the orchard situated at the door of Siddhi. In the meantime, appellant Kamal Yadav laced with spade, Anil Yadav and Siyanand Yadav laced with lathi reached there and started to abuse the informant and his brother, to which they opposed. It is further alleged that appellant Kamal Yadav assaulted to brother of the informant, namely, Kanhaiya Yadav by means of spade on his head as a result of which he fell down unconsciously. Accused Anil Yadav assaulted the informant by means of lathi on his left hand elbow and accused Siyanand Yadav assaulted him on his left thigh and head. On hulla being raised by both the injured persons, nearby people came there and they were being saved from further assault. Villagers took them to Dumraon hospital for treatment.

After completing the investigation, Investigating Officer has submitted chargesheet against the three accused persons, namely, Kamal Yadav, Anil Yadav and Siyanand Yadav under Sections 341, 323, 324, 326, 307/34 of the Indian penal Code and thereafter cognizance was taken and accused persons were summoned for trial. The case was committed to the court of Sessions for trial and disposal.

In the present case, out of three accused persons, trial relating to two accused, namely, Siyanand Yadav and Anil Yadav was separated on the ground of juvenile on 4.6.2005 by sessions Court and accused Kamal Yadav charged u/s 341, 326 and 307 of the Indian penal Code for attempt to commit murder of informant and his brother Kanhaiya Yadav by assaulting them with spade and lathi. Trial court has explained the charges to accused Kamal Yadav to which he pleaded not guilty and claimed to be tried.

To substantiate the charges leveled against the accused/appellant, altogether four witness were examined by the prosecution. P.W.-1, Kanhaiya Yadav (injured brother of the informant), P.W.-2 Bhagwan Yadav (informant), P.W.-3 Raghuraj Yadav (uncle of the informant) and P.W.-4 Dr. Kamal Kishore Ojha (doctor). The Investigating Officer was not examined. Defense has not examined any witness.

P.W. 1 Kanhaiya Yadav injured and brother of the informant has stated in his examination-in-chief, that he was returning from his agricultural field after planting the paddy crops, with his brother/informant and on the way, due to heat he sat beneath a tree of Sidhnath. In the meantime, appellant Kamal Yadav with accused Anil Yadav and Siwanand Yadav came there and started to abuse him. On oppose, Kamal Yadav assaulted him by means of spade on his head twice. Accused Anil Yadav and Siwanand, who were laced with lathi also assaulted to the informant. On hearing the alarm, villagers gathered there and they took them to hospital for treatment, where police recorded statement of both the injured brothers.

P.W.-2 in informant himself. He deposed in para 1 of his examination-in-chief that while he was returning from his agricultural field after planting the paddy crops, he sat down under the tree of Siddhi, three accused persons, namely, Kamal Yadav, Shivanand and Anil @ Aglu came there. Kamal was laced with Kudali and rest both were laced with lathi. On order of Kamal Yadav, Shivanand and Aglu assaulted to his brother by means of lathi. Kamal Yadav assaulted him by means of Kudali on his head twice. On hearing hulla, his uncle and others came there and took them to hospital, where police recorded their statement. In para-2 of his cross-examination, he stated that there is counter case in which he is accused.

P.W.-3 Raghuraj Yadav is uncle of the informant and interested witness. He has stated in his examination-in-chief that at the time and date of alleged occurrence, he was grazing buffalo in the orchard of Ramjee, he saw that his nephew Bhagwan Yadav and Kanhaiya Yadav were sitting near the house of Siddhi. In the meantime, three accused persons including the appellant Kamal Yadav reached there and he started to abuse and assault to Kanhaiya by means of spade on his head as a result of which he fell down then he again assaulted him by spade. Accused Anil Yadav and Siwanand assaulted to Bhagwan Yadav by means of lathi. On hulla, co-villager Ayodhyaa, Shivjee and some ladies reached there. Villagers took them to Dumraon Block Hospital for treatment from where they were referred to Sadar Hospital. Injured Kanhaiya was referred for medical treatment at P.M.C.H., Patna.

P.W.-4 is doctor, who examined the injured-informant and his brother. He has stated in his deposition that injured Kanahiya Yadav has received two injuries. One is bleeding lacerated wound over left side of scalp on parietal region. Injury no. 2 is also bleeding lacerated wound over middle of the scalp. Both injuries were caused by hard and blunt substance. As per X-ray report regarding injury no. 1 is found grievous. Second injury is simple in nature. Injured/informant Bhagwan Yadav has received two injuries. One is red abrasion on middle of the left forarm and another is also red abrasion with swelling over middle of the left perital region. Both injuries were caused by hard and blunt substance and simple in nature. Injury reports of both injured are annexed as Ext-1 and Ext-2. No one has received any sharp-cut injury. He has identified his handwriting.

Learned counsel appearing on behalf of the appellant has submitted that entire proceeding leading to present appeal conducted by the trial court is without jurisdiction and trial court has completely failed to appreciate the entire evidence made by the prosecution. Alleged occurrence took place between the parties at the spur of moment in which members of both sides have received injuries due to land dispute. Trial of two accused persons namely, Anil Yadav and Siyanand Yadav were separated on the ground of juvenile and the same was sent to the Juvenile Court and only accused/appellant Kamal Yadav is facing trial. P.W.-4 has stated that no one has received sharp-cut injury whereas, injuries were caused by spade which is a sharp-cutting weapon, so injury report is not in consonance with the prosecution story. Learned counsel for the petitioner further submits that P.W.-3 Raghu Yadav has stated in para-1 of his examination-in-chief that villager Ayodhaya, Shivjee and others had reached at the place of occurrence after just after the incident, but those independent witnesses of the occurrence, were not examined by the prosecution.

Learned trial court had completely failed to appreciate the entire evidence made by the prosecution during trial by not considering the essential ingredients of section 307 IPC as there is lack of intention to kill Kanhaiya Yadav by the appellant because he caused injuries to injured by back portion of the spade.

14 Investigation Officer of this was also not examined by the prosecution, making the entire case and prosecution story completely weak and as such in absence of the evidence of I.O. , the order passed by learned trial court is bad, illegal and perverse in the eye of law and as such, impugned judgment of conviction and order of sentence is fit to be set aside. Furthermore, appellant remained in custody for about four months.

Learned APP appearing for the state argued that impugned judgment in question is based on cogent and consistent evidence. From the evidence of P.W. 1, P.W.-2 and P.W. 3 it is clear fact that accused Kamal Yadav had assaulted the injured Kanhaiya Yadav by means of spade. There is repetition by spade blow on his head, which shows his intention of killing to Kanhaiya Yadav. P.W.-4 doctor has opined that injury no. 1 received by injured Kanhaiya Yadav is grievous in nature. Non-examination of independent witness Ayodhaya and Shivjee has no adverse effect of the prosecution case as the quantity of witnesses are irrelevant rather the quality of the evidence have to be seen for just decision of the case. The defense failed to discredit the evidence of the prosecution witnesses. He further submitted that the prosecution has been able to prove its case beyond all reasonable doubts, and therefore, learned trial court has rightly convicted the appellant by relying upon the evidence brought on record by the prosecution during trial. It has been contended that minor contradictions and variations in the testimony of the witnesses cannot be a ground to discard their evidence as a whole. Therefore, the judgment and order assailed in this appeal requires no interference and appeal is liable to be dismissed.

I have gone through the entire prosecution evidence and exhibits which are available on record. There is contented point in the instant appeal whether the judgment of conviction under Section 307 of the Indian Penal Code is on the basis of cogent and consistent evidence, which is adduced by the prosecution or not.

Under Section 307 IPC, what the Court has to see is whether the act irrespective its result was done with the intention or knowledge and under circumstances mentioned in that Section. The intention or knowledge of the accused must be such as, is necessary to constitute murder. Without this ingredient being established, there can be no offence “attempt to murder”. The intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body whether the injury is inflicted are some of the ingredients that may be taken into consideration to determine the intention. According to evidence of the doctor, injured Kanhaiya Yadav (P.W.-1) has received two injuries. One is bleeding lacerated wound over left side of scalp on the parietal region and injury no. 2 is bleeding lacerated wound over middle of the scalp. Both injuries were caused by hard and blunt substance. As per x-ray report, injury no. 1 is found grievous and second injury is simple in nature. Informant had also received two injuries on non-vital part caused by hard and blunt substance and doctor opinied nature of both the injuries as simple. If the appellant had definite intention to kill the informant’s brother, namely, Kanhaiya Yadav, no intervening circumstances is being explained as to why the appellant could not be successful in attempt of his murder. If he had any definite intention to kill P.W.-1, it is in the evidence that appellant had assaulted by means of spade on the head of the informant’s brother and on that time there is no intervening circumstances to stop the appellant from assaulting with the intention to kill him. In this case doctor has opined that injuries were caused by hard and blunt substance, whereas, appellant had inflicted the injury by spade, a sharp cutting weapon. The appellant had not assaulted the informant by sharp eadge of spade rather he had inflicted from back portion of the spade. Opinion of doctor is not based on the provision of Section 320 of the IPC. According to Section 320 IPC, the kinds of hurt which are designated as grievous in nature but doctor in his evidence has not explained in respect of kind of injury. Doctor has found the injury caused by hard and blunt substance and the offence against the appellant comes within the purview of Section 341 and 325 IPC and not under Section 307 IPC.

Thus, in view of the facts and circumstances of the case and the evidence as discussed above, I hold that appellant, namely, Kamal Yadav is found guilty under Section 341 and 325 IPC and convict him thereunder. In this case, the appellant had faced ordeal of trial since year 2001. This appeal relates to year 2007. In this case appellant remained in jail for about four months.

Considering the period of custody as well as ordeal of trial, the appellant is sentenced to period already undergone by him. The appeal stands dismissed with aforesaid modification of judgment of conviction and order of sentence.

Mr. Vipul Sinha, learned Amicus Curiae was appointed to represent the appellant/convict. I put on record the words of appreciation for able assistance rendered by him in arriving this Court at the proper conclusion in deciding the instant appeal. The Patna High Court, Legal Services Committee is, hereby, directed to pay Rs. 6,000/-(rupees six thousand only) to Mr. Vipul Sinha.