http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  119-121 of 1997 Appeal (crl.)  314-316 of 1997

PETITIONER: Ramanand Yadav                                                    

RESPONDENT: Prabhu Nath Jha and Ors.                                         

DATE OF JUDGMENT: 31/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       In 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.  

Accusations which led to the trial of the accused persons and the  prosecution version as unfolded during trial are as follows:

       On 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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.

       According 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.

       With 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.             According 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.   

       Stand 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.  

Placing implicit reliance on the evidence of the prosecution  witnesses the trial Judge directed conviction and sentence as aforesaid.  Three appeals were filed by the appellants separately and the High court  directed acquittal by the impugned judgment disposing of them together.  

The primary grounds on which the acquittal was directed are as  follows: (i) there 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;  (ii) PWs 6, 7 and 9 were examined after three days of occurrence; (iii)  one 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; (iv) when 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;  (v) the 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.  

       As indicated above, both the informant Ramanand (PW-12) and State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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.

       Learned 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.  Therefore, 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 convicted.  

       In 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.  The 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.  Further 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

Learned 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.  

The 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.  

The 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) SCC 45).  

So far 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.  Additionally, the accused persons have always the option of examining  the left out persons as defence witnesses.  

In Ram 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.  

So far 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 inference.  

The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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.  After 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.  

Similar 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.  Therefore, 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.  

       There 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) Supreme 17).

       The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

in the aforesaid terms.