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Criminal Appeal 494 of 2017     

     (  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

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     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

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     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

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     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.

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     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

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     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.

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     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.  

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     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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