Gangadhar Yadav, Bhudeo Yadav and Anil Yadav vs The State of Bihar

B.N.P. Singh, J.—Though broad features of the prosecution case have been fairly spelt out in the judgment of the Court below, we shall discuss only the salient features of them with brevity for better appreciation of the contentions raised at Bar.

Shortly after Tuna Rajak, who was pressing clothes, heard alarms about house having caught fire, came out of the house, noticed Bishundeo''s house on fire and Umesh Yadav, Gangadhar Yadav, Bhudeo Yadav, Jaikaran Yadav, Anil Yadav, Rajniti Yadav and Bhushan Yadav, (hereinafter referred to as the Appellants) holding fire arms with them. It was alleged that on exhortation made by Jaikaran Yadav, Gangadhar Yadav fired shots on deceased Bishundeo Rajak, who dropped on the ground. Bhudeo Yadav and Anil Yadav, it was alleged, fired shots on Budhadeo Rajak who too dropped on the ground and further on exhortation made by Jaikaran Yadav, when house inmates began to flee, it was alleged that the Appellants showered bullets and also removed house belongings. By the time the house inmates came back, they found Bishundeo Rajak and Budhadeo Rajak, dead and with these accusations on strength of written report, first information report was drawn up, pursuant to which investigation followed.

In course of investigation, the Police Officer entrusted with the onerous task of investigation, visited place of occurrence, recorded statement of witnesses, seized wads and also blood stained earth from the place of occurrence, prepared inquest report over the dead body of both the deceased, sent the dead bodies to mortuary for post mortem examination, and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed, State examiend altogether nine witnesses, who are relations of the deceased, formal witnesses, who brought first information report of Tuna Rajak on record, two doctors who had held autopsy over the dead body of the deceased and also the Police Officer who was Investigating Officer of the case. Defence too had chosen to examine one witness, namely, Lal Bahadur Singh (DW 1) ostensibly to counter allegations attributed to the Appellants. The trial Court, however, on appreciation of evidences placed on the record, placing implicit reliance on witnesses, while rejecting plea of innocence of the Appellants, recorded finding of guilt, finding Gangadhar Yadav, Anil Yadav and Bhudeo Yadav guilty u/s 302 of the Indian Penal Code (IPC) and sentenced them to suffer imprisonment for life. These three Appellants suffered conviction also u/s 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years. Jai Karan Yadav suffered conviction u/s 302/109 IPC for which he was sentenced to suffer imprisonment for life. Though Jaikaran Yadav was found guilty also u/s 302/34 IPC, no sentence was awarded to him on this count. Bhushan Yadav, Rajniti Yadav and Umesh Yadav suffered conviction only u/s 435 IPC for which they were sentenced to suffer rigorous imprisonment for a term of one year. However, in case of those convicts, who suffered conviction on more than two counts, their sentences were directed to run concurrently.

Defence of the Appellants both before the Court below and this Court had been the plain denial of entire allegations and suggestions were given to the prosecution witnesses that though the deceased suffered killings at a different place, their dead bodies having been brought at the place of occurrence, Appellants were falsely. implicated, for the land disputes which were pending between the parties. Certain submissions were canvassed to Bar to assail the findings recorded by the Court below and before we bestow our consideration to them, we consider it proper to analyse evidences on the record, which have been taken into consideration by the Court below for recording finding of guilt against the Appellants on different counts.

Reiterating his earliest version which he rendered before the Police, Tuna Rajak, who was maker of the first information report, states at trial that after he found house of Bishundeo Rajak in flames and Appellants holding arms, then on exhortation made by Jai Karan Yadav Gangadhar Yadav fired shots which struck on the scalp of Bishundeo Rajak who dropped there. Budhadeo Rajak too suffered fire arm injury when Bhudeo Yadav fired shot on his arms which was followed by another shot fired by Anil Yadav which struck deceased Budhadeo Rajak in ches (sic) The witness says that on further exhortation made by Jaikaran Yadav, Appellants showered bullets and also removed house belongings. The statement of the witness was recorded by Jiwan Rajak on his dic(sic) tes which was made over to the Police officer, who visited place of occurrence. As for the genesis of the incident, the witness states that the incident erupted when the Appellants had put nad on the disputed land for its forcible possession by them. The inquest report over the dead body of the deceased was prepared by the police Officer in his presence who also (sic)ized wads and blood stained earth from the place of occurrence. Credibility of this witness is criticised by the learned Counsel for the Appellants on premises that on own showing of the witness, the disputed land on which the Appellants had allegedly put (sic)ad did not belong to him and suggessions were given to the witness that the land in question which was a parti land, was donated to a school by Banelli Raj. Though attention of this witness was drawn to his earliest version, allegedly, there being no such parallel statement made before the Police about the shots fired by Bhudeo Yadav hitting scalp of the deceased, the Investigating Officer was not confronted with this question and hence even if there be such omission, significance of drawing attention is lost.

Now adverting to the evidence of (sic)agar Rajak (P.W. 1), who happens to be son of deceased, Budhadeo Rajak, we find witnesses stating at trial that while he was in house, he saw house of Bishundeo [Rajak in flames and Appellants holding fire (sic)ms. When deceased Bishundeo Rajak (sic)ted to escape along the family members Gangadhar Yadav fired shots on Bishundeo Rajak who dropped dead, which (sic) followed by another shot fired by (sic)hudeo Yadav and Anil Yadav on Budhadeo Rajak, who too dropped dead on receipt of (sic) arms injuries. The assailants and the (sic)er Appellants, it was stated by the witnesses while retreating opened fire. Lakhia (sic)vi who happens to be P.W. 2, is the wife deceased Bishundeo Rajak. She states at trial that the Appellant holding fire arms came, and on exhortation made by Jaikaran Yadav, Bhushan Yadav, Umesh Yadav and Rajniti Yadav set her house on fire and when they wanted to escape, while Gangadhar Yadav fired shots which struck the head of her husband, Bhudeo Yadav and Anil Yadav shot dead Budhadeo Rajak who dropped dead on receipt of fire arm injuries. Referring to astray statement made by this witness, it is urged at bar that if this witness is considered to be credible, possibility of presence of other witnesses at the place of occurrence was extremely remote. However, we find other witnesses too stating at trial about their presence at the place of occurrence, and hence we find statement of this witness bearing truth which makes his presence probable on place of occurrence at the material time of incident.

Now adverting to the evidence of another witness, name\\\\/, Naresh Rajak (P.W. 3), we find this witness stating that he too witnessed house of Bishundeo Rajak in t\\ames and deceased Bishundeo Rajak, Budhadeo Rajak and their family members running from the place of occurrence, and also assemblage of the Appellants at the place of occurrence holding fire arms. Giving graphic account of the incident, the witness states that while GangadharYadav shot dead Bishundeo Yadav, Bhudeo Yadav and Anil Yadav shot dead Budhadeo Rajak and the assailants, shortly thereafter made good their escape from the place of occurrence. This witness too states about seizure of wads and blood stained earth and also preparation of inquest report by the Police Officer for which Naresh Rajak was a witness. Credibility of this witness too was sought to be assailed on the premises that no parallel statement was made by this witness before the Investigating Officer about Gangadhar Yadav firing shots on the head of Bishundeo Rajak, and since these questions were never put before the Investigating Officer when he was in the dock, admittedly significance of putting such question to the witness was lost. The claim (sic) on the premises that he cannot be witness to the killing of them, as on his own showing, he being apprehensive of the horrible incident, concealed himself behind the bush. Though this argument appears to be quite alluring but is devoid of merit for the simple reason that witness was quite emphatic in his assertion that only after the incident was over, that he concealed himself behind the bush, and in this backdrop, the witness appears to be quite credible and also ocular who had all opportunity to see the killing of the two deceased with his naked eyes. Failure of this witness to take any step to apprehend the assailant shortly after the incident, cannot be said to be contrary to the human conduct, as since the witness was apprehensive, it was quite unlikely that he would venture to chase them for their apprehension. Other criticism for this witness was that it would appear from his statement that quite for some time, after the incident, family members had been debating about action to be taken by them for launching prosecution against the accused persons, and in the backdrop of such assertions made by the witness, it is urged that the prosecution was the outcome of deliberations and concoction. On this score too we find that the witness was quite emphatic and made explicit assertions that he narrated before the Investigating Officer only those facts which were witnessed by him during the incident.

Triveni Rajak (P.W. 4) is cousin brother of Budhadeo Rajak, deceased, and this witness too states to have seen house of Bishundeo Rajak in flames and almost with same vein and terms, he states about assemblage of Appellants there with firearms. Spree of killing was given motion by Gangadhar Yadav, who fired shots on Bishundeo Rajak, which was followed by (SIC) shot:; firod by Bhudoo Yadav and Anil Yaduv on Budhadeo Rajak, who dropped dead. The Appellants, the witness states, while retreating, also took recourse to firing. Credibility of this witness was criticised on premises that on his own showing he was the person to render first hand information to the Police Officer on his visit to the place of occurrence, and also put his left thumb impression on his statement. In quick succession it is sought to be urged that if this witness was considered to be credible, statement rendered by him before the Police must be considered to be first information report and hence the written report of Tunna Rajak which was shown to be sheet anchor of the prosecution case must be considered to be a fabricated document, as statement of Triveni Rajak, which assumes character of first information report, was deliberately suppressed, and on this score too we find that i since the prosecution case was instituted with all promptitude and investigation fol-lowed shortly thereafter within two hours of the incident, even if statements are rendered by this witness, it did not assume | character of the first information report. This fact cannot be lost sight of that the'' witness happens to be rustic and in his anxiety to espouse the case of the prosecution, he might have made exaggeration about putting his LTI on his statement which in fact is not borne out from the record.

Commenting on evidence of P.W. 2, submission was that since no one visited Police Station to inform the Police, it was quite intriguing to find as to how the Police reached the place of occurrence, and on this score too we find good reasons for the Police Officer visiting place of occurrence. P.W. 3 was quite explicit in his (sic)sertion that though the Police Officer was informed through chowkidar about the (sic)cident, he was not briefed about all details of incident. It was only on arrival of the Police Officer that the written report of (sic)na Rajak was made over to him which allowed commencement of investigation, (sic)ewise, witness cannot be considered to be incredible for reason that she did not accompany the dead body to the Police Station and also that she did not brief chowkidar about details cf the incident.

Rewati Raman Prasad Sinha (P.W. (SIC)), the other witness happens to be the investigating Officer of the case, who states to have registered a Police case on written report submitted by Tuna Rajak, pursuant to which during investigation, he prepared request report, sent dead body to mortu(sic),y recorded statement of witnesses, (sic)ized wads and blood stained earth from the place of occurrence. The Police Officer stated to have found Nad and Khunta on the disputed land, and also copius blood on the place of occurrence. A very small part of straw was found burnt. He stated to have taken steps for apprehension of the Appellants, and on conclusion of inves-ation laid chargesheet before the Court, Credibility of this witness cannot be questioned only for the reason that he did not take any probe about the land dispute (sic)sisting between the parties. Some faint attempts were made to persuade the Court (sic) believe that the Police case diary prepared by the Police Officer was ante dated (sic)nd fabricated, for which we find no good (sic)idence to suspect fairness of investigation.

Adverting to the evidences of the ctors, who held autopsy over the dead jdies of the deceased, Dr. K. Ranjan P.W. 6) who held autopsy on the dead body on Bishundeo Rajak, noticed following ante mortem injuries:

(i) One lacerated circular wound 1/2" in diameter on left occipital region i.e. wound of entry with fracture of occipital bone.

(ii) One lacerated oval wound of size 4" x 3" x brain cavity deep with fracture of front parietal temporal bone on right side.

Injury Nos. (i) and (ii) in the opinion of the doctor were internally through and through.

Taking the positive finding recorded by the doctor, it is urged that possibility of such injuries sustained by the deceased due to fall through his head on round shaped object could not be ruled out. However, we find that the doctor rejected such possibility of the deceased having sustained injuries on fall through head on round shaped object. Death of the deceased in the estimation of the doctor was due to firearm injuries found on his person.

Dr Mehilal Singh (P.W. 7) was the other doctor who held autopsy over dead body of deceased Budhadeo Rajak and he states to have noticed the following ante mortem injuries on the dead body of the deceased:

(i) Lacerated wound 1/2" x 1/4" x skin deep on the left part of the fore- head just above the eyebrow caused by hard blunt substance.

(ii) Round lacerated wound 1/2" x 1/2" x muscle deep on the lateral side of the left upper arm just above the left elbow joint, margins were dark and inverted indicating it as wound of entry.

(iii) Round lacerated wound 1/2" x 1/2" x thorasic cavity deep on the entire lateral upper part of left chest at the level of left 3rd rib, margins were dark and inverted indicating wound of entry. In estimation of the doctor while injury No. (i) was caused by hard and blunt substance, rest two injuries were found lacerated fire arm injuries.

True it is that the prosecution did not have a case for Budhadeo Rajak sustaining injury with hard and blunt substance, however, such injury on the person of the deceased, due to fall, on receipt of injury on the ground may be a possibility. Broad criticism, that were made at Bar on behalf of the Appellants was that though the Investigating Officer stated to have seized blood stained earth from the place of occurrence, there has been no finding by the chemical examination about the blood to be human blood, and on this score, we find that these are matters of petty details which did not befog the real issue, and that apart for lapse on the part of the Investigating Officer, prosecution cannot be a casualty.

It was next urged that those who were examined by the State were only family members of the deceased, entirely to the exclusion of independent witnesses but for this reason alone, we are of the opinion that clinching and cogent evidence of the prosecution witnesses even if they happen to be relations of the deceased cannot be thrown overboard. As the guidelines for Courts is to scrutinise the evidence with utmost caution to rule out possibility of fabrication in evidence of such witnesses.

Having analysed evidences on the record, we find that the witnesses with sustained consistencies have given graphic account of horrendous act of the Appellants with explicit accusation against Gangadhar Yadav to be the assailant of deceased Bishundeo Rajak, and Bhudeo Yadav and Anil Yadav to be the assailants of Budhadeo Rajak who dropped dead shortly on receipt of fire arm injuries on them. The witnesses examined by the State are none else but the house inmates of the house and their presence at the material time of incident was most probable and their evidences bear ring of truth and evidence of no mitigating nature was ever, brought on record to militate against assertions made by them. Though some residential houses, as has been the statement of some of the witnesses, are situated in the vicinity of the place of occurrence and also that some persons had thronged to the place of occurrence but their non-examination would not constitute infirmity in the prosecution version, as on own showing of the witnesses, persons from the neighbourhood had thronged to the place of occurrence, only after the incident was over. Had they been examined, they would not have been witnesses to the killing of the deceased. We have noticed that the ocular account of the incident given by the witnesses were corroborated also by the positive findings of the doctor who had noticed corresponding injuries on the bodies of the deceased. The Investigating Officer too had found nad and khunta at the place of occurrence allegedly kept by the Appellants, and the fact which is suggested to be the genesis of the incident was that the incident took place only after members of the prosecution party resisted their action for forceful possession over the disputed land on putting nad by them.

Now adverting to the evidence of Lai Bahadur Singh (D.W. 1), we find the witness stating at trial that Gangadhar Yadav, one of the assailants had been to village Sangrampur at about 9/10 a.m. on 29.1.1996 and on own showing of his witness, village Sangrampur was hardly at a distance of two kms. from the place of occurrence. This fact need not be reiterated that plea of alibi postulates physical impossibility of a person at the place of occurrence at a given time, ruling out possibility of his presence, due to distance. between two places and making presence of Person improbable there at a given time. Since the distance between the place of rrence and village Sangrampur where Appellant Gangadhar Yadav was shown to been present at the material time of incident, was quite insignificant, presence of the assailants at the place of occurance -on negotiating such distance within (sic)no time even if he is presumed to be present in village Sangrampur, cannot be (sic) remote possibility, and hence the plea of taken in defence of Appellant Gangadhar adhar Yadav did not have substance.

Other facts which deserve consideration and which have been brought to our notice was the role assigned to Jaikaran Yadav about he exhorting other Appellants, of reditals made in the first information report was to be given credence, Jaikaran Yadav exhorted his associates to execute dilling of the deceased. However, we find that the evidence which have been placed on the record, was quite otherwise, as even the informant, who was the maker of the fardbeyan, did not make narrations in similar terms about Jaikaran exhorting his associates for executing killing of the deceased, We would now refer to the evidence of P.W. 2 Lakhiya Devi, who conrary to the assertions made by P.W. 5, states that Jaikaran Yadav was exhorting to set the house on fire, and on this score, we find that the prosecution had not led consistent evidence about exhortation made by Jaikaran Yadav for the object which has been assigned to him in the first formation report. If the role assigned to Appellant Jaikaran Yadav is not found established, his case stands at par with Bhusan Yadav, Umesh Yadav, and Rajniti Yadav who notwithstanding their presence, have not been convicted u/s 302/34 IPC. No any overt act was attributed to this Appellant except that of exhortting the assailants, which has not been found established by good evidence, suggesting his participation in action to make him vicariously liable for his conviction u/s 34 IPC. Hence, finding of the trial Court as against this Appellant, namely, Jaikaran Yadav is set aside and he is acquitted of the charge levelled against him.

So far as the case of Bhushan Yadav, Umesh Yadav and Rajniti Yadav is concerned, who suffered conviction u/s 435 IPC, we find that evidence on this score too led by the State at trial did not impress us. Barring Lakhia Devi (P.W. 2) who states that Bhushan Yadav, Umesh Yadav and Rajniti Yadav had set the house of Bishundeo Rajak on fire, there was no corroboration from any quarter about the assertion made by this witness. P.W. 4 states that he did not see any person setting house on fire, and similar narrations were made by Tunna Rajak (P.W. 5) also. These two witnesses claimed to be ocular witness to the incident. There are. yet other good reasons to discard prosecution version on this score, that due to arson the house was gutted and house belongings were reduced to ashes. The Investigating Officer during investigation found only small part of straw, burnt. No house belongings were found burnt by the Police Officer who visited the place of occurrence within two hours of the incident, and on this score we find that the accusations attributed to Bhushan Yadav, Rajniti Yadav and Umesh Yadav were not established by cogent evidence and hence, finding recorded by the trial Court on this score, finding these three Appellants guilty u/s 435 IPC and sentencing them to suffer imprisonment for a term of one year, is set aside.

Having given our anxious and deepest consideration to the facts and circumstances of the case and also evidences placed on the record, while acquitting Jaikaran Yadav of the charges and also Bhushan Yadav, Rajniti Yadav and Umesh Yadav of the charges levelled against them, we uphold the findings recorded by trial Court finding GangadharYadav, Anil Yadav, and Bhudeo Yadav guilty u/s 302 IPC and sentencing them to suffer imprisonment for life. Accordingly while Cr. Appeal Nos. 120 of 1999 and Cr. Appeal No. 189 of 1999 are allowed, there being no merit, Cr. Appeal No. 217 of 1999 is dismissed. Those who have been acquitted of the charges are discharged from the liability of their bail bonds. Since the Appellants of Cr. Appeal No. 217 of 1999 are already in custody, they will suffer remainder of sentence awarded to them by the Court.

S.N. Jha, J.

I agree.