TMI Blog2003 (10) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 25 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. 2. Accusations which led to the trial of the accused persons and the prosecution version as unfolded during trial are as follows: On 16.6.199.1 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 chatti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. 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. 5. 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. 6. The primary grounds on which the acquittal was directed are as follows: (i) there is a referral hospital between the place of occurrence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating 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 whoso sympathies lay with the accused may hesitate to take any risks by offering themselves as witnesses end 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased 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. 12. 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 [1974]1SCR102 and Bodhraj @Bodha and Ors. v. State of Jammu and Kashmir 2002CriLJ4664 ). 13. So far as non-examination of Lambodar and two others is concerned it is established by the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. Similar view has also been expressed in Mange v. State of Haryana 1979CriLJ939 , State of U.P. v. Krishna Gopal and Anr. 1989CriLJ288 and Ram Dev and Anr. v. State of U.P. and State of U.P. v. Harban Sahai and Ors. [1998]2SCR1056 . 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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