Nagendra Yadav @ Nagendra Singh vs The State Of Bihar

These appeals have been preferred for setting aside the judgment of conviction dated 03.04.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 12.04.2023 and 12.03.2025 (hereinafter referred to as the ‘impugned order’) in respect of Nagendra Yadav and Basant Yadav respectively passed by learned Additional District and Sessions Judge-II, Jehanabad (hereinafter referred to as the ‘learned trial court’) in Sessions Trial Case No. 141 of 2015 arising out of Karpi (Arwal) P.S. Case No. 68 of 1996.

The appellants have been convicted for the offences punishable under Sections 302/34, 307/34, 148 of the Indian Penal Code (in short ‘IPC’) and Section 27 of the Arms Act. By the impugned orders, the appellants have been sentenced to undergo rigorous imprisonment for life with a fine of Rs.5,000/- under Section 302/34 IPC and in default of payment of fine, they will further undergo six months’ imprisonment. They have also been sentenced to undergo rigorous imprisonment for three years under Section 148 IPC and further, under Section 307/34 IPC, the appellants have been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.3,000/- and in default of payment of fine, they will further undergo three months’ imprisonment. The appellants have been further sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. All the sentences are to run concurrently.

The prosecution case is based on the fardbeyan (Ext.1) of the informant Shiv Narayan Singh (P.W.-4). The fardbeyan was recorded by S.I. Laliteshwar Pandey Officer in-charge of Sahar Telpa (O.P.) on 09.08.1996 at 5.00 am at Keyal Ahar near place of occurrence. The informant alleged that there is a big Ahar situated in northern western side of his village where water was stored for irrigation but villagers of Asadhi used to cut the Ahar, therefore, due to aforesaid reason, they were watching ‘bandh’ and on the said night, the informant along with Bharat Singh (deceased) Manger Singh (deceased), Ram Niwas Singh (deceased) and Nawlesh Singh (deceased), Pramod Kumar (injured P.W.-1), Karu Kurmi, Gung Kurmi and Ravi Kurmi were watching the said Ahar and they were in the Jhopari (hut) and on the alleged date in night i.e. 08.09.1996 at 11 pm, they heard sound ('Ahat') then he made query “who are you”, then 30-40 unknown persons who were wearing half pant and ganji, came near the Jhopera armed with rifle and gun and one person told that they belong to a Party and asked them to be mum. Further, it is alleged that some persons came from western side and some remained in Eastern side. Further, it is alleged that from western side one person came taking lathi from Jhopari and assaulted Karu Kurmi and also started assaulting Bharat Singh with lathi and further one person who was standing on eastern side flashed the torch and another person standing by the side of that person fired with rifle at Manger Singh causing injury on the right eye, the said person caused firearm injury to Bharat Singh on right hand and on neck and thereafter, the another person caused fire-arm injury to Ram Niwas Singh right side of the neck, he died on the way to hospital and the same person caused fire-arm injury to Nawlesh Singh on neck and same person also caused fire-arm injury to injured Pramod Kumar who was injured and brought to Hospital, Jehanabad and further one another person assaulted Premnath Singh on his hand by lathi and thereafter, they started going towards western side from Bandh. Further, it is alleged that fifteen to thirty minutes after going of accused persons, the informant, Bhola Singh, Premnath Singh, Karu Kurmi, Gung Kurmi, Ravi Kurmi started going towards eastern side of the village and in the way so many persons met in the raasta who were coming towards Bandh after hearing the sound of firing and thereafter they came to Jhopari and flashed the torch and found that Manger Singh, Nawlesh Singh, Bharat Singh had already died and Ram Niwas Singh and Pramod Singh were in injured condition and some of them were crying and then some remained there for watching the dead body and some persons took Pramod Singh and Ram Niwas Singh to Hospital and some persons went to police for informing. Further, later on he got to know that Ram Niwas Singh died in the way and Pramod Singh was taken to Jehanabad Hospital. Further, he also got to know that one accused person sustained fire-arm injury who was taken away by the accused persons and in clear words the informant stated in the fardbeyan that this crime has been committed by Majdoor Kisan Sangram Parishad (M.K.S.P) Extremist and the informant and his associates had seen some of the accused persons from near and they claimed to identify them by face, if shown to them and the aforesaid fardbeyan was recorded by S.I Laliteshwar Pandey on which Prem Nath Singh (PW-3) also signed.

On the basis of the fardbeyan, Karpi P.S. Case No. 68 of 1996 dated 09.08.1996 was registered under Sections 302, 307, 326, 342, 323, 34 IPC and Section 27 of the Arms Act against unknown 30-40 M.K.S.P. extremists. After investigation, police submitted chargesheet bearing Chargesheet No. 79 of 1996 dated 15.11.1996 against twenty four accused persons, showing Basant Yadav (appellant in Cr. Appeal (DB) No. 593 of 2025) and Nagendra Yadav (appellant in Cr. Appeal (DB) No. 611 of 2023) absconders.

Vide order dated 18.01.1997, cognizance was taken under Sections 302, 342, 323, 307, 212, 201/34 IPC and Section 27 of the Arms Act. Thereafter, vide order dated 19.01.1998 the learned Magistrate directed the Office to prepare the police papers for supply to the accused persons in attendance and the learned Magistrate observed that all the processes have been exhausted for securing presence of the appellants, therefore, disposed of the Trial No. 453 of 1998 relating to the appellants declaring them absconders and directed to deposit the records in the record room. Vide order dated 27.03.1999, the case of other 22 accused persons in attendance was taken up, police papers were supplied and the case was committed to the court of Sessions.

On 14.07.2009 Nagendra Yadav was arrested and on 25.07.2013 Basant Yadav was arrested, thereafter, their case was committed by learned SDJM on 21.05.2015 to the court of sessions where it was numbered as Sessions Trial No. 141 of 2015.

Charges were read over and explained to Nagendra Yadav and Basant Yadav in Hindi which they denied and claimed to be tried. Accordingly, charges were framed vide order dated 30.06.2015 for the offences punishable under Sections 302/34, 307/34, 148 IPC and Section 27 of the Arms Act.

In course of trial, the prosecution examined as many as four witnesses and exhibited several documents. The list of prosecution witnesses and the documents are given hereunder in tabular form:-

Thereafter, the statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’). The appellants in their 313 CrPC statement denied the prosecution case and pleaded innocence.

The defence has not produced any oral evidence but in the form of documentary evidence, one document has been marked exhibit:-

It appears from the records that the learned trial court delivered the judgment relating to the appellants and the other accused persons, whose case record was committed to the court of Session earlier by a common judgment dated 03.04.2023 dealing the evidences of both the cases separately. It further appears that though in Session Trial No. 141 of 2015 Basant Yadav (appellant in Cr. Appeal (DB) No. 593 of 2025) also faced trial with Nagendra Yadav (appellant in Cr. Appeal (DB) No. 611 of 2023) but on the date of pronouncement of judgment in the trial court, Basant Yadav absented himself, but judgment of conviction was delivered and both the appellants were convicted. In respect of appellant Nagendra Yadav order of sentence was passed on 12.04.2023. Later on, the appellant Basant Yadav was arrested and he was sentenced vide order dated 12.03.2025.

Learned trial court found that the deposition of PW-13 Pramod Kumar in Sessions Trial No. 65/1998 and deposition of PW-1 in Sessions Trial No. 141 of 2025 are same with some minor contradictions which occurred because of delay in recording of both the evidences. Learned trial court found that this witness has supported the case of the prosecution and defence cannot take the benefit of minor contradictions which is natural on the part of memory of any person.

Learned trial court found that the witnesses in Sessions Trial No. 65 of 1998, namely, PW-4, PW-5, PW-6, PW-7, PW-8, PW-11, PW-12, PW-13, PW-19 and PW-22 have taken the name of both accused persons, namely, Nagendra Yadav and Basant Yadav @ Pappu Yadav as main assailant for committing the murder. Learned trial court found that in this regard PW-7 Bhola Sharma examined in Sessions Trial No. 65 of 1998 has identified Basant Yadav, Nagendra Yadav, Dhananjay Yadav, Upendra Yadav, Mithlesh Yadav, Chandragosho, Ajay, Baijnath and Rajaram Yadav. Learned trial court found that the eye witnesses who were present in the hut have seen Basant Yadav firing on Bharat Sharma and Nagendra Yadav fired bullet on Ram Niwas Sharma.

Learned trial court found that the prosecution has produced reliable, believable and cogent evidence against the accused. Therefore, keeping in view the facts and circumstances of the case, learned trial court convicted Basant Yadav @ Pappu Yadav and Nagendra Yadav for the offences punishable under Sections 302/34, 307/34, 148 IPC and Section 27 of the Arms Act.

Mr. Bindhyachal Singh, learned Senior Counsel for the appellant Nagendra Yadav and Mr. Alok Kumar Chaudhary, learned Senior Counsel for the appellant Basant Yadav submit that as per the prosecution case, the appellants are said to be among the assailants, however, the prosecution completely failed to establish the identity of the appellants beyond all reasonable doubts. Learned Senior counsel(s) submit that the FIR itself was lodged against 30-40 unknown extremists and the appellant was not named in the FIR. The informant (PW-4) in paragraph ‘3’ of his deposition has stated that he could not identify anyone in the night, in the next morning, he came to know that people from Asadhi village had committed the occurrence and the names of the assailants were disclosed by the Superintendent of Police (not examined) during investigation. Thus, learned Senior Counsel submits that the evidence of the informant (PW-4) on the point of identity of the accused-appellants is hearsay and legally inadmissible.

Learned Senior Counsel(s) further submit that the conviction cannot be based on the dock identification that too after about nineteen (19) years of the occurrence. Learned Senior Counsel(s) submit that the appellants were arrested in July 2009 and July 2013 respectively. Their trial commenced in 2015 but the witnesses identified them in the court nearly nineteen years after the occurrence. Learned Senior Counsel(s) submit that such identification has almost no evidentiary value in law. Reliance in this regard has been placed on the judgment of the Hon'ble Supreme Court in the case of Budhsen versus State of U.P. reported in AIR 1970 SC 1321 and Kanan & Ors. versus State of Kerala reported in AIR 1979 SC 1127.

Learned Senior Counsel(s) submit that the absence of test identification parade proved fatal to the prosecution case. Learned Senior Counsel(s) submit that the prosecution had never conducted any test identification parade despite the fact that PW-1, who claims himself an eye witness, has stated that he did not know the appellants before the occurrence but he states that prior to the occurrence, he had seen them when they were coming in the Panchayat. It establishes that PW-13 was at least in a position to say during investigation that the accused were from the same Panchayat. If he was not familiar with the accused-appellants, the test identification parade (T.I.P.) should have been conducted as a safe rule to corroborate identification in the dock. Reliance in this regard has been placed on the judgment of the Hon’ble Supreme Court in the case of Dana Yadav @ Dahu versus State of Bihar reported in AIR 2002 SC 3325 and State of Maharashtra versus Sukhdev Singh and Anr. reported in AIR 1992 SC 2100.

Learned Senior Counsel(s) also submit that the delay of nearly nineteen years destroys the reliability of identification as human memory naturally fades with passage of time. Learned Senior Counsel(s) submit that the delayed dock identification without test identification is inherently unsafe.

Learned Senior Counsel(s) submit that the occurrence took place in complete darkness around 11:00-11:30 PM. Learned Senior Counsel(s) submit that PW-2 and PW-3 have stated that there was dark night. According to the prosecution itself, 40-50 armed persons surrounded the hut, they came from both east and west side and torchlight flashed momentarily, in such circumstance, accurate identification of individual assailants becomes practically impossible. Reliance in this regard has been placed on the judgment of the Hon’ble Supreme Court in the case of Matru @ Girish Chandra versus State of U.P. reported in AIR 1971 SC 1050.

Learned Senior Counsel(s) submit that PW-1 has stated in his cross-examination that he did not remember whether in his earlier deposition, he had taken the name of Nagendra or Basant. Learned Senior Counsel(s) submit that if an eyewitness himself cannot remember whether he had implicated the appellants earlier, his evidence cannot be treated as trustworthy. Learned Senior Counsel(s) have relied upon the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan versus Kalki and Anr. reported in AIR 1981 SC 1390. This witness himself says that the statements made by him in P.M.C.H. were wrong. He further states that his deposition in the original trial was correct. Thus, he himself destroys his credibility.

Learned Senior Counsel(s) submit that there are material improvements in the evidence of the informant (PW-4). Learned Senior Counsel(s) submit that during occurrence, PW-4 could not identify anyone, however, during trial almost nineteen years after the occurrence, he identified the appellant Nagendra who was present in the court and claimed that he can identify Basant also. Learned Senior Counsel(s) submit that the Hon’ble Supreme Court in the case of Mahavir Singh versus State of Madhya Pradesh reported in AIR 2016 SC 5231 has observed that the material improvements made during trial seriously impair the credibility of witnesses.

Learned Senior Counsel(s) submit that there are contradictions in the evidences of PW-1, PW-2, PW-3 and PW-4 regarding the manner of occurrence.

Learned Senior Counsel(s) submit that in the original sessions trial being Sessions Trial No. 65 of 1998, total 27 prosecution witnesses were examined but in the split up trial against the appellants only four witnesses were examined. Learned Senior Counsel(s) submit that the prosecution withheld several material witnesses without explanation which will invite an adverse inference against the prosecution under Section 114(g) of the Indian Evidence Act.

Learned Senior Counsel(s) lastly submit that the prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubts. Learned Senior Counsel(s) submit that considering all the above discussed contradictions and improvements in the evidence of prosecution witnesses, the conviction is legally unsafe. Learned Senior Counsel(s) submit that the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 observed that if two views are possible, the one favorable to the accused must prevail. Similar view has been taken in the case of Kali Ram versus State of Himachal Pradesh reported in AIR 1973 SC 2773.

Learned Additional Public Prosecutor for the State has submitted that the learned trial court has rightly convicted the appellants. Learned Additional Public Prosecutor submits that there was identification of the appellant Nagendra Yadav by the witnesses, his presence and participation in the occurrence has been established and supported by corroborative evidence.

Learned Additional Public Prosecutor for the State submits that the Hon’ble Supreme Court in the case of Masalti versus State of U.P. reported in AIR 1965 SC 202 mentioned how to appreciate evidence in cases where large number of accused persons sharing the common object commit an offence.

Learned Additional Public Prosecutor submits that where the accused were known to the witness, the identification even in faint darkness was possible. Learned Additional Public Prosecutor submits that it has been held by the Hon'ble Supreme Court that when the persons are known, identification is possible from the manner of speech, manner of walking gesticulating and special features of a person.

Learned Additional Public Prosecutor for the State submits that the Hon’ble Supreme Court in the case of Dome Yadav Versus State of Bihar reported in 2002 (7) SCC 295 regarding Test Identification Parade discussed the relevancy and admissibility of the T.I. Parade vis-à-vis –identification in dock-their evidentiary value, etc.

Learned Additional Public Prosecutor for the State submits that it is settled law that defective investigation does not automatically invalidate a prosecution case if other credible evidence exists. Reliance in this regard has been placed on the judgment of the Hon’ble Supreme Court in the case of R. Baiju versus The State of reported in 2025 SCC OnLine.

Learned Additional Public Prosecutor submits that the survivor testimony satisfies test for the core group particularly when corroborated by the medical finding of fire-arm injuries and the evidence of the I.O's. Reliance in this regard has been place on the judgment of the Hon’ble Supreme Court in the case of Darbara Singh vs State of Punjab reported in 2012 (10) SCC 476.

Learned Additional Public Prosecutor submits that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built-in-guarantee of his presence at the scene of the crime and is not likely to spare the actual assailants in order to falsely implicate someone else. Reliance in this regard has been placed on the judgment of the Hon’ble Supreme Court in the case of Abdul Sayeed Versus State of Madhya Pradesh reported in 2010 (10) SCC 259. (para-28-31).

Learned Additional Public Prosecutor submits that in view of the above submissions, the impugned judgment and orders of the learned trial court need no interference of this Court and the appeals deserve to be dismissed.

In this trial, only four prosecution witnesses have deposed and three exhibits have been marked. We have already taken note of the names of the witnesses and the descriptions of the exhibits adduced on behalf of the prosecution in the preceding paragraphs. On behalf of the defence, certified copy of deposition of Pramod Kumar (PW-13 in Sessions Trial No. 73 of 2004) has been brought on record as Exhibit ‘A’. Pramod Kumar (PW-1) has stated that on 8^th August, 1996 at 11:30 in the night he was at the Pokhra doing the Agoriya work. Along with him Shiv Narayan Singh, Bharat Sharma, Mangal Singh, Ram Niwas Singh, Lokesh Kumar, Bhola Kumar, Prem Nath @ Rinku, Karu Kumri, Gung Kurmi and Ravi Kurmi were also present and they were talking to each other. In the meantime, from the eastern side they saw the torch light on which they asked as to who were they, then they told that they were from Sangathan. This witness has stated that he and other persons remained silently in the madai (hut). Some criminals remained towards the eastern side and some remained towards the western side. They were 40-45 persons, out of them 5 persons entered into the hut. Thereafter, this witness has stated that Karu Kurmi was assaulted by lathi, he fell down on Shiv Narayan Singh. Some criminals started firing, one person shot at Bharat Sharma which hit on his shoulder, Mangal suffered firearm shot onto his eyes, Ram Niwas received a shot onto his neck, Nawlesh got a shot at his neck and this witness had suffered one bullet on his left leg. He has stated that the terrorists went towards the western side after shooting. Villagers came and they took him and Ram Niwas towards village whereafter, this witness became unconscious at his home. He was treated in PMCH. His left leg had got damaged because of the firearm injury. He proved his signature on the statement recorded by Daroga ji in PMCH. His signature has been marked Exhibit ‘1’. He has stated that Dhananjay was one amongst the assailants, he was holding a rifle in his hand, but this witness has stated that he had not seen whom he had shot at. He has stated that he was shot at by Ajay Yadav, Rajendra Yadav, Ram Narayan Yadav, Ram Krishna Yadav, Daya Singh, Golu Yadav, Basant @ Pappu Yadav. This witness identified Nagendra Yadav, who was present in the dock and claimed to identify the accused who was on representation.

In course of his cross-examination, this witness was suggested by the defence that he had made wrong statement in the PMCH, the witness denied and said that he had read, understood and then put his signature on his statement in PMCH. The defence suggested this witness that in his earlier deposition, he had not stated the name of Nagendra and Basant amongst the assailants. The witness stated that he did not remember. He further denied the suggestion of the defence that he was suppressing the fact and that he was aware that in his earlier statement/deposition, he had not taken name of Nagendra and Pappu @ Basant.

He denied the suggestion that for the first time, he was taking the name of Nagendra and Basant in this court. He has stated that he and the accused were residents of the same panchayat. On the date of occurrence, no indiscriminate firing was taking place. Total 7-8 rounds of firing were done and at the time of firing, he was inside the hut, therefore, he could not raise halla because after receiving the firearm injury he was crying. He remained lying in the same condition. 15-20 minutes after the occurrence, the villagers came and they took him away from the place of occurrence. He did not remember that who had taken him away from the hut because he was in unconscious condition. In paragraph ‘11’, this witness has stated that he did not know Nagendra and Basant prior to the occurrence, but he had seen them visiting the panchayat prior to the occurrence. His statement was recorded in PMCH after two days, but he cannot correctly say the day. After his statement in PMCH, police had not recorded his restatement. The defence suggested that no such occurrence as stated by him had taken place and that the accused persons have been falsely implicated in this case, the witness denied the suggestion.

The defence has brought on record his earlier deposition as Exhibit ‘A’ to demonstrate that his deposition at the earliest occasion in the another trial and that in the present trial materially differed. This Court finds that in his earlier deposition (Exhibit ‘A’), this witness had stated that on hearing the movement from the eastern side, it was Shiv Narayan Singh who had lit the torch and had asked that who were they. In the present trial, this witness says that they had noticed that a light was flashed from the eastern side of the ahar, then the prosecution side people enquired as to “who were they”. In his examination-in-chief, PW-1 does not say that Shiv Narayan had flashed the torch.

This Court further finds that in his earlier deposition, this witness (PW-1) has stated that 5-6 persons had entered into the hut and they had lit the torch. In his earlier deposition, he has not named the assailants, but has stated that one person assaulted Karu Kurmi by Lathi, the second person shot at Mangla Singh, the third person shot at Bharat Singh, the fourth person shot at Navlesh Kumar, the fifth person shot at Ram Niwas Singh, and the sixth person shot at him on his leg. In the second trial, this witness has given the name of the accused and disclosed as to who shot at whom. This is a material improvement in the evidence of PW-1. In his earlier deposition, this witness (PW-13) identified Dhananjay Singh as the assailant of Mangal Singh and has stated that no other accused who was involved in firing was present in the dock. He identified Ram Krishna Yadav, Rajaram Yadav, Rajiv Yadav, Ram Narayan Yadav, Daya Singh and Ajay Yadav as the persons who were present with the assailants, but in the subsequent trial, while deposing as PW-1, he has stated that he had not seen who was shot at by Dhananjay Yadav. Improving upon his statement in the earlier trial, as PW-1, he has stated that Ajay Yadav, Rajendra Yadav, Ram Narayan Yadav, Ram Krishna Yadav, Daya Singh, Golu Yadav and Basant @ Pappu Yadav had shot at him. It is further evident from Exhibit ‘A’ that this witness, though, claimed that he can identify the other assailants on seeing them, but had not named Basant Yadav @ Pappu Yadav and Nagendra Yadav as assailants. In the subsequent trial, however, this witness has stated as PW-1 that he knew Nagendra Yadav and Basant Yadav. He identified Nagendra Yadav, who was present in the dock, but the defence rightly suggested him that he had not named Nagendra and Basant earlier.

This Court further finds from the deposition of PW-1 that Basant and Nagendra used to visit the panchayat and this witness had seen them, but he claims that he did not know Nagendra and Basant prior to the occurrence. The testimony of PW-1 in the subsequent trial is at much variance from his statement in the first trial. This Court is of the opinion that PW-1, having seen Nagendra and Basant coming to panchayat prior to the occurrence, was knowing them, therefore, he could have at least disclosed that the accused persons, or some of the accused persons, were from the Asadhi village, which is in the same panchayat, but he had not stated so. It appears that in this case, his statement was recorded in PMCH, but the police officer who recorded his statement in PMCH has not been examined in course of trial. In fact, no one amongst the I.Os. of this case has been examined. This witness is an injured witness, but the injury report of this witness has not been exhibited in this trial. He himself says that his statements made in P.M.C.H. were wrong statements.

Bhola Sharma (PW-2) claims himself an eye witness of the occurrence. He has stated that he saw a light flashed from the eastern side of the ahar then he has deposed on the line of PW-1 only but at this stage, there is some variance in the statement of PW-1 and PW-2. While PW-1 says that some of the criminals went east to the hut and some remained towards the west, and according to him, 5-6 persons entered into the hut, PW-2 has stated that those persons had surrounded the hut from eastern and western side, they asked the caste name and shot at Bharat Sharma. PW-2 has stated that Dhananjay Yadav had shot at Mangal, Chandra Dev Yadav had shot at Pramod Sharma, Nagendra Yadav had shot at Ram Niwas and Upendra Yadav had shot at Nawlesh, whereafter Nagendra fired towards the western side of the ahar. Binda Yadav said that he had received gunshot, they hurled abuses on this witness side and assaulted by lathi. They threatened them saying that they should remain in the hut, otherwise the Sangathan people are there and they would kill them. This witness identified Basant @ Pappu, who was present in the dock, and claimed that he could have identified Nagendra also if he would have been present.

In his cross-examination, this witness has stated that on the date of occurrence, it was a dark night. He was 18-19 years old at that time. He was inside the hut. He has stated that there were total 11 persons inside the hut. They were doing agoria work. He has named the persons present in the hut. In his further cross-examination, he has stated that there was no indiscriminate firing, rather, after seeing in the light, they were shooting. The occurrence took place inside the hut, he had not tried to conceal himself because there was no place for that. They were saying to kill those persons who belonged to upper caste and leave those who were of the lower caste. He claimed in paragraph ‘10’ of his deposition that he had not become unconscious on seeing the occurrence, he was seeing that who was shooting whom and how. He claimed that during the occurrence he had raised halla, then accused persons surrounded and after asking the caste, they were shooting. Police came after 25 minutes of the occurrence, villagers came in hundreds. This witness has stated in paragraph ‘12’ that some time after the occurrence he went to his village, fleeing away from the hut, after the villagers arrived and after reaching village, he had talked with the villagers. He named that he had a talk with Late Jagdish Sharma. He had not given any information to police from his side. Police came after half an hour of the occurrence, at that time he was in his house. He has stated that injured were taken for treatment by the villagers. There are licensee guns in the village, but those were not being used. He has stated that two hours after the occurrence police had interrogated him, but he was not aware whether police had recorded anybody else’s statement at that time. This witness was suggested that he was making false statements, unknown persons had killed the people, but the accused persons were falsely implicated.

On going through the evidence of PW-2, it appears that he claims himself an eye witness, but it seems highly improbable that in the dark night, he could have identified inside the hut as to who killed whom and how. He claims that he was inside the hut, but he had not received any injury. He had not tried to conceal himself because there was no place for that, and the accused persons were asking the caste name from the people engaged in the agoria work. This witness comes from the upper caste, as stated by him, still the assailants did not shot at him. This seems to be a highly improbable story. The conduct of the witness in saying that after 25 minutes of the occurrence, villagers came and then he fled away from the hut and reached his home whereafter he had not given any information to police. Police came after half an hour, but at that time he was in his home. We understand that this cannot be natural conduct of an eye witness as he, in all likelihood, would have ensured his presence at the place of occurrence when the police arrived, so that he could have explained the facts and circumstances which he had seen at the time of occurrence. In the opinion of this Court, the testimony of this witness would not inspire confidence.

PW-1 and PW-2 both have stated that they had heard the movements from the eastern side of the hut and they had seen the torchlight from that side whereafter they had asked that who were those persons and those persons disclosed that they were from the Sangathan. It gives an impression to this Court that the hut was either open from the eastern side or that the prosecution side were outside the hut, only then they could have seen the torchlight from the eastern side. They had come to know that the people who were coming from the eastern side were of the Sangathan, they had an option to flee away from the said place as their village was only at a distance of one kilometer. It would not be a natural conduct of a person to keep waiting for arrival of 40-45 persons of a Sangathan nearer to them, particularly, during those days when the caste fight was at the peak. Identification in the torch light flashed by the accused in the direction of witness is highly doubtful. Reference in this regard may be made to the judgment of Hon'ble Supreme Court of India in the case of Tamilselvan Vs. State Rep. by Inspector of Police, Tamil Nadu reported in 2008 (7) SCC 755, wherein it was held that if the direction of the torch is in the direction of witnesses then it creates partial blindness and all the more difficult to see and identify faces of the accused persons. In the present case also, the identification of the appellants as claimed by the eyewitnesses is not humanly possible under torch light lit by appellants' side from east and west in the Jhopri in a chaotic situation of attack by mob of 30-40 assailants.

Premnath Singh (PW-3) is another witness who claims himself an eye witness of this case. In his examination-in-chief, he has deposed on the line of PW-1 and PW-2. He has stated that on seeing the torch light from the eastern side and movements of people, Shiv Narayan Sharma had lit the torch. Then they saw that 40-45 persons armed with weapons were coming from the eastern side. On asking them, they had said that they were from the Sangathan. Thus, on the point of who flashed the torch, this witness gives a different version inconsistent to that of PW-2. This witness has then stated that they had come inside the hut. This witness does not say that some of the criminals had entered inside the hut. He has stated that some came from the eastern side and some came from the western side and by lighting torch, they started asking the name. This witness has stated that on the asking of Basant Yadav @ Pappu, Bharat Sharma disclosed his name and caste, then Basant shot at him. Nagendra shot at Ram Niwas. Upendra Yadav shot at Manger Sharma, and Dhananjay shot at Nawlesh. Some persons were assaulting this witness by danda and asked him to remain lying silently, otherwise all of them would be killed. This witness claims that they remained lying, in the meantime, they heard a sound from the western side that “he had suffered a bullet”, then the criminals said that Binda had received the bullet, thereafter all those people took away Binda.

This witness has stated that in the morning of the occurrence, Daroga ji came and recorded the fardbeyan of Shiv Narayan Singh, on which he had put his signature, which has been marked Exhibit ‘2’.

In his cross-examination, this witness has also affirmed that the night of the occurrence was dark. He has stated that the criminals had asked them to remain lying. This witness has stated that the occurrence had taken place for 15-20 minutes. He had not received any injury. After the occurrence, he had come back to his home and in the village, he had a talk with Subhash Sharma, Anil Sharma, Chhotan Sharma, Dinesh Sharma and others. After the occurrence, villagers came to the place of occurrence. He had not taken the injured for treatment. In paragraph ‘11’, he has stated that the people of Kayal village and Asadhi village were knowing each other. He has stated that prior to occurrence, Jagdish Sharma was killed. In paragraph ‘16’, this witness has stated that firing was taking place from both sides i.e. east and west. Thus, to this Court, it appears that the hut was open in both sides. He has stated that about ten rounds of firing would have taken place. He has further stated that the firing was done from the close range. This witness was suggested that unknown people had committed the occurrence, the informant had lodged the case against unknown people, therefore, innocent people have been falsely implicated in this case. This witness denied the suggestion.

On a close analysis of the testimony of PW-3, this Court finds that this witness claims that the people of Kayal and Asadhi villages knew each other. He is one of the witnesses present at the time of fardbeyan of Shiv Narayan Singh. He had put his signature on the fardbeyan as a witness, which has been marked Exhibit ‘2’. Surprisingly, even as he claims to have seen the occurrence in which who killed whom was known to him, but he did not disclose the names of the accused persons at the time of recording of the fardbeyan. There is no explanation for this material omission at the time of recording of the FIR. He has stated that he was lying silently as directed by the criminals. In such circumstance, it would not have been possible for this witness to say that who fired at whom. In paragraph ‘7’ of his deposition, this witness has clearly stated that he had no talk with Shiv Narayan Singh at the place of occurrence and he had not disclosed to him that such and such accused had fired at such and such person. He has stated that he had no talk with him in connection with this, till date. This Court cannot believe this statement of PW-3 that while he is a witness to the fardbeyan, he would have no talk with Shiv Narayan Singh at the place of occurrence, if both of them were present there at the time of occurrence.

This Court further finds that according to this witness, Jagdish Sharma was murdered prior to this occurrence, but PW-2 has claimed in his deposition that when he fled from the hut after arrival of the villagers and reached his home, then he had a talk with the villagers. He has stated that he had a talk with Late Jagdish Sharma. If Jagdish Sharma had died prior to the occurrence, the statement of PW-2 that he had a talk with Jagdish Sharma would not inspire confidence of the Court.

Again, this Court finds that if the prosecution side had already seen 40-45 persons coming with firearms from the eastern side, it cannot be a natural conduct that they would come inside the hut and will sit there awaiting the arrival of those persons. They could have tried to run away from the said place to save their life. It was an open space and his village was at distance of only one kilometre. In such circumstance, this Court finds that the evidence of PW-3 is not a wholly reliable piece of evidence.

Shiv Narayan Singh (PW-4) is the informant of this case. He has stated that he was in the hut at the ahar of his village where Karu Kurmi, Bharat Singh, Premnath Sharma, Gung Kurmi, Ravi Kurmi, Pramod Kumar and Ram Niwas were also present. They were talking with each other, in the meantime, from the side of his village, some people came and lit the torch then he asked that who were they, they said that they were from Sangathan (party). Some of them went towards the eastern side and some went to the western side, and out of them one person started assaulting Karu Kurmi by a danda. Karu fell down on his body and thereafter one person lit the torch, an another person fired at the eyes of Manger Singh. One person shot at Ram Niwas. Likewise, this witness has explained about the occurrence. In paragraph ‘3’ of his examination-in-chief, this witness has stated that he did not identify any person in the night. In the morning, he came to know that people of Asadhi village had committed the occurrence. SP Sahib had found it out and informed this witness that Dhananjay Yadav had killed Manger Singh, Bharat was killed by Basant Yadav, Ram Niwas was shot at by Nagendra, Nawlesh was shot at by Upendra Yadav, and those people had shot at Pramod. He identified Basant and Nagendra in the dock. This witness has stated in his cross-examination that Kayal and Asadhi village fall in the same and one panchayat and the border of both are connected with each other. It is for this reason the people of Kayal knew the people of Asadhi village and the people of Asadhi village knew the people of Kayal. In paragraph ‘6’, he has stated that at the police station, he had heard SP Sahib talking in the evening of the second day of the occurrence. He had filed protest petition on 30.10.1996 in which he had made correct statement, but this witness admits that he had not stated/written in the protest petition that he had heard from SP Sahib that Dhananjay had killed Manger Singh, Basant Yadav had killed Bharat, and Nagendra had killed Ram Niwas. This witness was suggested by the defence that he had no talk with SP Sahib and he was making a false statement. This witness denied the suggestion.

On a bare perusal of the evidence of informant (PW-4), this Court finds that in his fardbeyan, though he had stated about the apprehension of cutting the ahar (bandh) by the people of Asadhi village and for that reason watch (agoria) was being done, but he had not stated that people from ‘Asadhi’ village were involved in the occurrence or that he had identified any of the assailants, belonging to Asadhi village. He had not stated that one of the accused Binda had suffered bullet injury.

This Court finds that PW-2 and PW-3, who are claiming in trial that they knew who among the accused persons shot at whom, had not disclosed the names of the accused persons to the informant at the time of recording of his fardbeyan. Similarly, this Court finds that in this trial, the informant himself says that he had not identified anyone in the night. He claims that he came to know in the morning that people of ‘Asadhi’ village had committed the crime, and this was told to him by SP Sahib, but in his cross-examination, he has stated that he had heard the SP Sahib saying this at the police station in the evening of the second day of the occurrence. Thus, the statements regarding identification of accused is based on hearsay. This becomes inadmissible. The statements made in the examination-in-chief and in the cross-examination regarding the source of knowledge as to the names of the accused persons involved in this case are not inspiring confidence of this Court so as to keep the evidence of the informant (PW-4) in the category of a wholly reliable witness.

In this case, neither the doctor nor the I.O. has been examined in course of trial. Non-examination of the doctor resulted in not proving the injury report of the injured witness Pramod Kumar (PW-1) and the post-mortem report of the deceased. Non-examination of the I.O. has caused serious prejudice to the defence. The I.O. could have provided the description of the place of occurrence and the circumstances prevailing there immediately after the occurrence in the night. How the names of the appellants transpired in this case is not known. The S.P. has not been examined in course of trial.

We have found from the judgment of the learned trial court that the learned trial court has held that the prosecution has produced quite reliable, believable and cogent evidence against the accused person. We, however, having given our thoughtful consideration to the materials available on the record, take a view that the findings of the learned trial court in this regard are not based on proper appreciation of the evidences available on the record.

This Court has already indicated the vital and material inconsistencies amounting to the extent of contradictions in the evidence of the prosecution witnesses. The material witness like doctor and the I.O. of the case have not been examined. The injury reports of PW-1 and the deceased, the post-mortem reports etc. have not been brought on record. No explanation in this regard has been given.

We have further noticed from the statement of the accused recorded under Section 313 CrPC that all the incriminating evidences which were brought by the prosecution were not put to the accused facing trial. The prosecution witnesses claimed to have identified the accused in the torchlight. This has not been pointed out to the accused. Further, the prosecution witnesses have stated that Basant @ Pappu Yadav shot at Bharat Sharma, Nagendra Yadav shot at Ram Niwas, but this specific statement of PW-2 and PW-3 has not been brought to the notice of the accused. Thus, the evidence on the point of identification in the torchlight and that whom he had shot at were not brought to the notice of the accused person. Therefore, those evidences are required to be discarded while considering the case of the appellants. All the eye witnesses in this case have deposed after about 19 years of the occurrence and the identification of the accused has taken place for the first time in the dock.

In ultimate analysis, we find that, though, it is a case of unfortunate killing of four persons in the dead of night, due to complete indifferent attitude of the investigating agency, proper and fair investigation could not take place. In the case of Krishna Mochi and Others Vs. State of Bihar reported in (2002) 6 SCC 81, the Hon’ble Supreme Court has taken note of the prevailing circumstances, the caste war which this region of the State of Bihar was facing. We can see on the face of the materials on the record that the administration, responsible to conduct a free and fair investigation, had a different plan whereunder they remained totally inactive, grossly negligent and in the process did not abide by their own instructions/guidelines etc. in the matter of investigation of a criminal case.

Similarly, in the case of Mahavir Singh vs. State of Madhya Pradesh reported in 2016 (10) SCC 220, the Hon’ble Supreme Court has observed as follows:-

As a result of this, the prosecution has failed to establish it's case beyond all reasonable doubts against the appellants. This Court would, therefore, set aside the impugned judgment and order and acquit the accused-appellant, namely, Nagendra Yadav @ Nagendra Singh and Basant Yadav @ Pappu Yadav @ Pappu giving them the benefit of doubt. The appellants are said to be in incarceration, they shall be set at free if not wanted in any other case.

Both the appeals are allowed.

Before we part with this judgment, it would be necessary to observe that, though, it is a case of unfortunate killing of four persons in the dead of night, due to complete indifferent attitude of the investigating agency, proper and fair investigation could not take place. Further, we can see on the face of the materials on the record clearly show that the administration, responsible to conduct a free and fair investigation, had a different plan whereunder they remained totally inactive, grossly negligent and in the process did not abide by their own instructions/guidelines etc. in the matter of investigation of a criminal case.

In the case of State of Gujarat versus Kishanbhai and Others reported in (2014) 5 SCC 108 (paragraphs ‘19’, ‘22’ and ‘23’), the Hon’ble Supreme Court has taken note of this aspect of the matter while acquitting the accused in a murder case. We reproduce paragraphs ‘19’, ‘22’ and ‘23’ hereunder for a ready reference:-

The judgment in the case of Kishanbhai (supra) has been followed by the Hon’ble Supreme Court in the case of Ankush Maruti Shinde v. State of Maharashtra reported in (2019) 15 SCC 470 wherein once again the Hon’ble Supreme Court has taken a strict view in the matter of failure of a prosecution case because of sheer negligence or because of culpable lapses on the part of the Investigating Officer. We reproduce paragraph ‘17’ of the judgment in the case of Ankush Maruti Shinde (supra) hereunder:-

In recent times, this Court has given directions to the Department of Home, Government of Bihar and the DGP, Bihar to look into the matters in which due to lapses on the part of the Investigating Officers, acquittals have taken place. It is not known whether the orders of this Court are being complied with and the directions in this regard have yielded any significant result. In the opinion of this Court, it is high time for the Department of Home, Government of Bihar, the DGP, Bihar and the Director, Directorate of Prosecution to sit together and review its policy in this regard.

We are of the opinion that the manner in which the Investigation Agency has conducted the investigation negligently, which has been discussed in preceding paragraphs, would be required to be reviewed by a team of Senior Police Officers.

We direct the Director General of Police, Bihar to constitute a three-member committee of Senior Police Officers of repute to take a view on the manner in which the investigation was done by the I.O. (not examined) and based on that report, take an appropriate view of the matter in administrative side within a period of three months from the date of receipt/production of the copy of this Judgment.

The action taken in this regard be informed to the appellants. The appellants shall be at liberty to pursue the matter.

This Court calls upon the Department of Home, Government of Bihar to apprise the Court as to its policy in the matter of reviewing the cases where lapses on the part of the prosecution and the investigation have been pointed out by this Court. In how many cases inquiries have been instituted and with what result be informed to this Court within one month from today. Such report of the Department of Home shall be placed before this Court for perusal even as these appeals stand allowed.

A copy of this judgment be also sent to the Department of Home Government of Bihar, Office of the Director General of Police, Bihar and the Director, Directorate of Prosecution, Government of Bihar.

Let a copy of this judgment along with the trial court’s records be sent down to the learned trial court.