IMPORTANT POINTS
Reliable evidence of independent witnesses should not be disbelieved.
When evidence against appellant and acquitted co-accused are different, acquittal of the latter will not help the appellant in any way.
Conviction and sentence can be modified on evaluation of the basis of mitigating and aggravating circumstances.

JUDGMENT

Mohan M. Shantanagoudar, J.

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 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 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 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