Yogendra Layak And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

These criminal appeals; Cr. Appeal (DB) No. 270 of 2009 by the appellants, namely, Yogendra Layak and Anirudh Layak, Cr. Appeal (DB) No. 149 of 2009 by the appellants, namely, Sarju Layak and Bhishnu Layak, Cr. Appeal (DB) No. 212 of 2009 by the appellants, namely, Birbal Layak and Parmeshwar Layak and Cr. Appeal (DB) No. 269 of 2009 by the appellants, namely, Bajendra Layak and Dinesh Layak, have been preferred by the above-named appellants challenging the judgment of conviction under section 302/149 IPC and under section 148 IPC passed in Sessions Case No. 260 of 2003/ 7 of 2008. The appellants, namely, Bajendra Layak and Dinesh Layak have been convicted also under section 326 IPC.

The above-named appellants have faced the trial on the charge under section 302/149 IPC for committing murder of Wakil Manjhi and under section 307/149 IPC for attempting to cause death of Shambhu Yadav. A common charge under section 147 IPC and section 148 IPC was also framed against them.

The appellants have been acquitted of the charge under section 307/149 IPC as well as under section 147 IPC.

The appellants, namely, Anirudh Layak and Yogendra Layak in Cr. Appeal (DB) No. 270 of 2009 are in jail whereas the other appellants have been released on bail by virtue of the orders passed by this Court.

The informant of this case, namely, Raksu Manjhi is the father of Wakil Manjhi, the deceased. On the basis of the fardbeyan of Raksu Manjhi recorded on 21.10.2000 at 11:00 a.m., Jarmundi P.S. Case No. 150 of 2000 was registered against the above-named accused persons under sections 147, 148, 149, 307, 302, 341, 342, 323, 326 of the IPC. In his fardbeyan, the informant has stated that in the morning of 21.10.2000, at about 6:00 a.m.- 6:15 a.m., he along with his elder son, namely, Shambhu Yadav and one labourer had gone to plough his field. His second son, namely, Wakil Manjhi was also going towards the field and as soon as Wakil Manjhi reached near the field of Dinesh Layak, several villagers, namely, Yogendra Layak, Anirudh Layak, Sarju Layak, Bhishnu Layak, Birbal Layak, Parmeshwar Layak, Bajendra Layak and Dinesh Layak variously armed with spade, farsa, garasa and sword came there, surrounded him and started assaulting him. At that time, the informant had gone towards the eastern side on the nature's call. On seeing this, he rushed to save his son and in the meantime his elder son, namely, Bhishnu Manjhi had also come there to save his brother. The informant has alleged that the accused persons have assaulted him and also both his sons. Bajendra gave one farsa blow on the leg of Shambhu Yadav and Dinesh Layak assaulted him with garasa on his hand and when Wakil Manjhi after suffering assault at the hands of the accused persons fell on the ground, Anirudh Layak assaulted him with bhala on his neck and Yogendra Layak with farsa on his left hand and back. On his raising hulla, co-villagers, namely, Bijendra Manjhi, Agahnu Mahto, Ram Kishan Manjhi etc. came there and Shambhu Manjhi was taken to the hospital; Wakil Manjhi had died on the spot.

During the trial, the prosecution has examined 10 witnesses; the informant, namely, Raksu Manjhi is PW-8 and his elder son, namely, Shambhu Yadav is PW-6.

Dr. Ramesh Prasad Verma PW-7, who has conducted the postmortem examination, has found the following injuries on Wakil Manjhi:

"(I) Diffuse swelling over right side of neck.

On dissection there was subcutaneous extra vescular of blood.

On further dissection muscles internal carotid artery was found ruptured.

(II)Lacerated wound occipital region 1"x 1/2" bone deep.

On dissection there was fracture of parital occipital bone right side.

On further dissection there was collection of blood in cranial cavity and brain meninges were found ruptured.

(III) Incised wound in left palm horizontally 2" x 1/4" a cross left palm."

The accused persons have led documentary evidence, by filing certified copies of the First Information Report and Charge-sheet of Jarmundi P.S. Case No. 2 of 1998 dated 05.01.1998 which was instituted by Yogendra Yadav against Raksu Manjhi and others, to show enmity between the parties.

Sri Jitendra S. Singh, the learned counsel for the appellants has contended that: (i) presence of the informant at the time of the occurrence is doubtful, (ii) there is contradiction in the ocular evidence and the medical evidence, (iii) non-examination of the laborer who according to the informant had gone with him to plough the field and failure of the Investigation Officer to recover the crime weapon and collect other incriminating articles have thrown serious doubt on the prosecution's case, and (iv) conviction of the appellants with the aid of section 149 IPC is illegal and improper.

The learned counsel have further submitted that conviction of the appellants, namely, Bajendra Layak and Dinesh Layak under section 326 IPC is also not sustainable in law.

The prosecution witness, namely, Anil Yadav who has been examined as PW-1 is son of the informant. He has said that at the time of the occurrence he was at home. He is a witness to the inquest report. PW-2, namely, Bijendra Manjhi who is nephew of the informant has also stated that at the time of occurrence he was in his house and on hearing hulla he has gone to the place of occurrence. PW-2 admits land dispute between the parties. He has seen the dead body of Wakil Manjhi and the injured Shambhu Manjhi lying in the fields. PW-3 is a hearsay witness; at the time of the occurrence he was in Jarmundi bazar, but has seen injuries on Wakil Manjhi and Shambhu Yadav. The wife of the informant, namely, Sohri Devi is PW-4 and the wife of the deceased, namely, Uma Devi is PW-5. They were at home in the morning of 21.10.2000. They have deposed in the court that the informant and his sons had gone to the field in the morning and on hearing hulla they had also gone to the place of occurrence. PW-9 is a hearsay witness, but he has also seen the dead body of Wakil Manjhi lying in the field. He is also a witness to the inquest report.

The main Investigating Officer of the case has not been examined during the trial.

13 The prosecution has projected PW-6 and PW-8 as eye witness.

The prosecution witness, namely, Shambhu Yadav-PW-6 is the elder son of the informant-PW-8. Both have claimed that they have seen the appellants assaulting Wakil Manjhi. In his examination-in-chief, he has reiterated a similar story about the occurrence but he has also stated that when he raised hulla, his father, his mother and others came to the place of occurrence. The informant has stated that when he saw the appellants assaulting Wakil Manjhi he had gone there to save him. At that time, he was in the fields going to ease himself. It has come on record that distance between the place of occurrence and his house is about 200 yards. On such facts, a statement by PW-6 in his examination-in-chief that his father and others came there after he raised hulla would not create a doubt on presence of the informant at the place of occurrence and at the time of occurrence. During their cross-examination, both PW-6 and PW-8 have remained unshaken on the point of assault on Wakil Manjhi by Anirudh Layak and Yogendra Layak. They are also consistent in their evidence on assault by Bajendra Layak and Dinesh Layak on Shambhu Yadav. Minor inconsistency in their testimony; may be due to inadvertence, lapse of time, lack of alertness etc., would not create doubt on their truthfulness. In "A. Shankar v. State of Karnataka," reported in (2011) 6 SCC 279 , the Supreme Court has held as under:

"22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."

Having scrutinized their testimony, we find that PW-6 and PW-8 are fully reliable and trustworthy witnesses and they have clearly stated about active participation of Anirudh Layak, Yogendra Layak, Bajendra Layak and Dinesh Layak. But, active participation of others in the occurrence is doubtful.

Section 141 of the Indian Penal Code makes an assembly of five or more persons "unlawful assembly" if the common object of the persons composing that assembly is to commit any one of the offences under five clauses of section 141 IPC. PW-6 has stated that Anirudh Layak was holding a spade with which he has assaulted Wakil Manjhi on his neck and Yogendra Layak has assaulted Wakil Manjhi with farsa on his left hand and his back. The informant has also deposed that Anirudh Layak was holding a spade and Yogendra Layak was carrying a farsa. On assault on Wakil Manjhi, the informant has also made similar allegations against Anirudh Layak and Yogendra Layak; assault on the neck by Anirudh Layak and assault on the left hand and back of the deceased by Yogendra Layak. Though, both PW-6 and PW-8 have stated that Birbal Layak was holding a farsa, Sarju Layak and Parmeshwar Layak were wielding lathi and Bhishnu Layak was carrying a kudal, they have not alleged any overt-act by these four appellants except the alleging hoe (kudal) blow by Bhishnu Layak on the head of PW-6 and, that too, made for the first time in the court and by PW-6 only.

In so far as assault on PW-6 by Bhishnu Layak is concerned, the informant has not said anything about him either in his fardbeyan or in the court. The doctor who has examined PW-6 has not found any injury which can be attributed to the appellants, namely, Birbal Layak, Sarju Layak, Bhishnu Layak and Parmeshwar Layak. Therefore, that part of the testimony of PW-6 where he has stated about assault on him by Bhishnu Layak must be excluded from consideration as being highly doubtful and unbelievable. On active participation of these four appellants and their forming part of an unlawful assembly, we may profitably see the judgment in "Bhagwan Singh & Ors Vs. State of M.P." reported in (2002) 4 SCC 85, wherein the Supreme Court has held as under:

9.".......It is true that a mere innocent person, in an assembly of persons or being a bystander does not make such person a member of an unlawful assembly but where the persons forming the assembly are shown to be having identical interest in pursuance of which some of them come armed, others though not armed would, under the normal circumstances, be deemed to be the members of the unlawful assembly......."

May be the appellants, namely, Birbal Layak, Sarju Layak, Bhishnu Layak and Parmeshwar Layak were present in the field at the time of the occurrence, but they were neither armed nor have they taken part in the incident. The prosecution has failed to establish that they were present there to commit an offence in prosecution of the common object of the assembly. The above being the factual scenario, we are inclined to hold that the prosecution has failed to establish that the appellants were part of an unlawful assembly. The prosecution has also failed to establish that the appellants had formed an unlawful assembly common object of which was to commit murder of Wakil Manjhi and attempt to commit murder of Shambhu Yadav or that they had the knowledge that such offence might be committed in prosecution of common object of the unlawful assembly.

Accordingly, the conviction of the appellants, namely, Birbal Layak and Parmeshwar Layak in Cr. Appeal (DB) No. 212 of 2009 and the appellants, namely, Sarju Layak and Bhishnu Layak in Cr. Appeal (DB) No. 149 of 2009 under section 302/149 IPC and section 148 IPC is set aside.

The appellants, namely, Sarju Layak and Bhishnu Layak in Cr. Appeal (DB) No. 149 of 2009 and the appellants, namely, Birbal Layak and Parmeshwar Layak in Cr. Appeal (DB) No. 212 of 2009, who are on bail, are discharged of liability of the bail-bonds furnished by them.

The conviction of all the appellants under section 148 IPC is also set aside.

Now, this has to be seen whether the appellants, namely, Anirudh Layak and Yogendra Layak have shared common intention to kill Wakil Manjhi.

On the role played by the appellant, namely, Anirudh Layak, we find that the allegation of assault by him on the neck of Wakil Manjhi with spade is amply corroborated by the medical evidence. The doctor has found two injuries on and around the neck of Wakil Manjhi. On dissection of the neck area over which diffused swelling was observed, the doctor has found ruptured artery and on dissection of the lacerated wound around the occipital region he has found fracture of the parietal bone on the right side. The allegation against the appellant, namely, Yogendra Layak of assaulting Wakil Manjhi with farsa on his left hand and back is partly corroborated by the medical evidence; the doctor has found one incised wound on his left palm of the size 2" x 1/4". The doctor has rendered an opinion that the injury nos. 1 and 2, which are attributable to assault by Anirudh Layak were sufficient in natural course to cause death, but in the same breathe he has also said that the death has occurred due to shock and haemorrhage. Anirudh Layak was holding a bhala but the injuries caused by him were lacerated wounds and since the Investigating Officer of the case was not examined during the trial and the crime weapons were not seized, it cannot be said that no prejudice has been caused to the appellants.

On such facts, we are of the opinion that the prosecution has failed to establish that the appellants, namely, Anirudh Layak and Yogendra Layak shared common intention to murder Wakil Manjhi. The prosecution has also failed to establish that the appellant, namely, Anirudh Layak intended to cause death of Wakil Manjhi or that he had knowledge that the injury caused by him would be so imminently dangerous that in all probability it would cause death; intention of Anirudh Layak not to cause death of Wakil Manjhi is reflected in the manner of assault by him on Wakil Manjhi that he has not assaulted him from the sharp-pointed side of bhala. Therefore, they are liable to be convicted for their individual acts.

Accordingly, the conviction of the appellants, namely, Yogendra Layak and Anirudh Layak in Cr. Appeal (D.B.) No. 270 of 2009 and the appellants, namely, Bajendra Layak and Dinesh Layak in Cr. Appeal (DB) No. 269 of 2009 under sections 302/149 is set aside.

On the basis of the evidences led against them, all that the prosecution has been able to establish is that Anirudh Layak intended to cause grievous hurt to Wakil Manjhi which was likely to cause death; the specific allegation of assault by him as spoken by PW-6 and PW-8 is corroborated in large parts by the medical evidence which shows grievous injury to Wakil Manjhi around his neck and occipital area. Accordingly, the appellant, namely, Anirudh Layak is liable to be convicted under section 326 IPC. The appellant, namely, Yogendra Layak is liable to be convicted under section 324 IPC for causing injury on the palm of Wakil Manjhi.

The appellant, namely, Anirudh Layak is sentenced to R.I. for 10 years under section 326 IPC and the appellant, namely, Yogendra Layak is sentenced to R.I. for 2 years under section 324 IPC.

PW-7 has examined Shambhu Yadav at about 12:05 p.m. on 21.10.2000 and he has observed the following injuries on him:

"(I) Crushed lacerated wound over left leg below knee joint with bone expose and bleeding.

(II) Lacerated wound 2" x 1/2" x muscle deep over left wrist. (III)Lacerated wound 2" x 1/4" x muscle deep over left parital region"

The appellant, namely, Bajendra Layak has caused injury on the leg of Shambhu Yadav and the appellant, namely, Dinesh Layak has assaulted him with garasa on his hand. The injury nos. (II) & (III) are simple in nature but the injury no. (I) was grievous. The injury found by PW-7 on Shambhu Yadav corroborates the allegation of assault by Bajendra Layak and Dinesh Layak on Shambhu Yadav. The injury caused by Bajendra Layak has been found grievous whereas the injury which is attributable to Dinesh Layak was simple in nature. However, the injuries caused by them are not likely to cause death and, therefore, the conviction of the appellants, namely, Bajendra Layak and Dinesh Layak in Cr. Appeal (DB) No. 269 of 2009 under section 326 IPC is set aside. The appellant, namely, Bajendra Layak is convicted and sentenced to R.I. for 5 years under section 325 IPC and the appellant, namely, Dinesh Layak is convicted and sentenced to R.I. for 2 years under section 324 IPC.

Sri Shekhar Sinha, learned Public Prosecutor states that the appellant, namely, Anirudh Layak and Yogendra Layak have remained in custody for more than 11 years.

Accordingly, the appellants, namely, Anirudh Layak and Yogendra Layak in Cr. Appeal (DB) No. 270 of 2009 shall be set free forthwith, if not required in connection to any other case.

The appellants, namely, Bajendra Layak and Dinesh Layak are on bail. The bail-bonds furnished by them are cancelled. They shall surrender before the court below to serve the remaining sentence.

In the result , Cr. Appeal (DB) No. 149 of 2009 and Cr. Appeal (DB) No. 212 of 2009 are allowed and Cr. Appeal (DB) No. 270 of 2009 and Cr. Appeal (DB) No. 269 of 2009 are partly allowed.

Let the lower court records be transmitted to the court concerned forthwith.