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Judgment
The present appeal was preferred against the
judgment of conviction and sentence dated 17.07.1992 passed in
Sessions Trial No. 704 of 1986/ 93 of 1986 by the learned 6 th
Additional Sessions Judge, Patna, arising out of Paliganj P.S. Case
No. 142 of 1985.
The aforesaid Criminal Appeal was preferred by five
appellants, however, appellants No. 1 and 3, namely, Baleshwar
Yadav and Ramdeep Yadav died during the pendency of the aforesaid
appeal, hence the appeal, as against the appellants no. 1 and 3, has
abated vide order dated 08.07.2015. Therefore, the present appeal
survives against the following appellants:-
Ram Das Yadav son of Baleshwar Yadav. 2. Ram Prasad Yadav son of Sadhu Yadav. 3. Sidheshwar Yadav son of Jhapsu Yadav.
The appellants have been convicted under Section
302 read with section 34 of the Indian Penal Code, hence sentenced to
undergo rigorous imprisonment for life.
The short facts of the case are that on the basis of
fardbeyan of the informant, namely, Shrikant Yadav son of Madho
Yadav, an FIR vide Paliganj P.S. Case No. 142 of 1985 was registered
on 20.07.1985 at 11.30 A.M. for the offence punishable under Section
302 / 34 of the Indian Penal Code against Ram Prasad Yadav, Ramdeep
Yadav and Sidheshwar Yadav. It has been alleged by the informant
that on 20.07.1985, at about 8.30 A.M. in the morning, his elder
brother Shri Bhagwan Yadav was coming from Paliganj market to his
residence and when he reached at the western side of the village, he
was surrounded by Ram Prasad Yadav (Appellant No.1), who was
armed with Pasuli, Ramdeep yadav (now dead) armed with pistol in
his hand, Sidheshwar Yadav (Appellant No.3), whereafter Ramdeep
Yadav fired on the elder brother of the informant i.e. Shri Bhagwan
Yadav, resulting in his brother falling down whereupon Sidheshwar
Yadav (appellant no.3) and Ram Prasad Yadav (Appellant No.1) slit
the neck of the brother of the informant. The informant had further
stated that on the western side of the village, Ramjit Yadav,
Sidheshwar Yadav, Ram Prasad Yadav etc. were quarreling with
regard to the land of the widow and the informant as well as his
brother did not have any quarrel with the said persons. The informant
has further stated that his brother was killed by the said persons
without any reason. The said occurrence was witnessed by Sitaram
Yadav, Madho Yadav and several people of the village.
The case was investigated by the police and
thereafter, charge sheet was filed on 16.10.1985 and the cognizance
was taken on 17.10.1985. After completion of supply of police papers
the case was committed to the court of Sessions on 07.08.1986 and
charges were framed on 16.11.1987 against Ramdeep yadav,
Sidheshwar Yadav (Appellant No.3), Ram Prasad Yadav (Appellant
No.2) and on 06.04.1989 against Ram Das Yadav (Appellant No.1)
and Baleshwar Yadav (now dead).
It may be pointed out that the accused persons,
namely, Ram Das Yadav and Baleshwar Yadav were summoned by
the learned trial court by an order dated 17.01.1989 to face trial and
thereafter charges were framed against them on 06.04.1989. It is
pertinent to mention that the learned trial court by an order dated
17.7.1992 had directed for rectification of the numbering of the
witness numbers to the effect that the evidence recorded after fresh
charge should be numbered from serial no.1 onwards and in such
view of the matter, witness no. 5, namely, Shrikant Yadav was re-
numbered as P.W. 1 and, accordingly, the subsequent witnesses were
also re-numbered in continuance. As far as P.W. 1 to P.W. 4 are
concerned, they were firstly examined/ cross-examined in between the
period 21.6.1988 to 7.9.1988 and then they have again been
examined/ cross-examined afresh after fresh framing of charges on
6.4.1989 as P.W. 12, P.W. 11, P.W. 10 and P.W. 9, hence the said
deposition is being considered herein.
During the course of the trial, the prosecution
produced altogether 11 witnesses to prove its case. P.W. 1 Shrikant
Yadav is the informant and brother of the deceased as well as an eye
witness. P.W. 2- Shiv Kumar Yadav, P.W. 7- Vidyanand Yadav, P.W.
9 Musafir Yadav (injured), P.W. 6 Keshavlal Yadav (injured), P.W. 7
Brij Bihari Yadav and P.W. 8- Raj Kumar Yadav are said to be eye
witnesses. P.W. 13 Dr. Kameshwar Prasad Yadav has examined the
injuries sustained by Musafir Yadav, Keshavlal Yadav, Ram Das
Yadav and Chandeshwar Yadav while P.W. 10- Dr. Md. Afzal has
conducted the autopsy on the dead body of Bhagwan Yadav and
Sakaldeep Yadav. P.W. 15 i.e Girishi Kumar Jha is the Investigating
Officer of the present case.
The learned counsel for the appellants has argued that
the actual fact is that the appellants are innocent and no occurrence as
alleged had taken place at their behest. It is contended that the present
case has been filed as a counter-blast to Paliganj P.S. Case No. 141 of
1985 wherein the prosecution witnesses are accused and, in fact, they
had engaged in assault by garasa and bomb resulting in death of
Sakaldeep yadav and Jagdishi Yadav as well as other persons
sustaining injury. It has further been contended that one of the person
of the prosecution side was carrying bomb and while he was hitting
Sakaldeep yadav by bomb, the bomb had exploded and killed one of
the persons of the prosecution side. Hence, the death of the deceased,
namely, Bhagwan Yadav has been properly explained and the same
cannot be attributed to the appellants. It has also been stated that the
appellants are innocent and no evidence has been brought on record to
show that the appellants herein had murdered Bhagwan Yadav so as
to attract them under section 302 / 34 of the Indian Penal Code. Lastly
it has been submitted that the mode and manner of occurrence is also
not beyond pale of all reasonable doubts and does not stand
corroborated from the evidence laid out by the prosecution.
Shri Ajay Mishra, the learned Additional Public
Prosecutor appearing for the State, has submitted that there is ample
evidence on record to sustain conviction of the appellants herein.
According to him, various witnesses, who are eye witnesses to the
occurrence, have supported the prosecution case and there is no
contradiction or infirmity in the evidence of the said witnesses, as
such the evidence of the witnesses produced by the prosecution are
sufficient to show that the learned trial Judge has rightly passed the
judgment of conviction. The learned Counsel appearing for the
informant, has adopted the arguments advanced by the learned
Additional Public Prosecutor appearing for the State.
We have heard the learned counsel for the parties
and besides going through the materials on record have also perused
the evidence. At this juncture it would be apt to deal with the evidence
of the prosecution witnesses at length.
P.W. 1 i.e. Shrikant Yadav is the informant of the
present case as well as brother of the deceased. He has stated in his
evidence that while he was taking bath at about 8.30 in the morning,
he saw that the accused persons, namely, Ram Prasad Yadav, Jagdish
Yadav, Sakaldeep Yadav, Ramdeep Yadav, Baleshwar Yadav, Ram
Das Yadav and Raj Kumar Yadav were going to prevent them from
ploughing the field. The said witness was taking bath at the Well of
Bhola Yadav where Bhikhari Yadav told him that Ram Prasad Yadav
has hit Keshavlal Yadav by fasuli. On hearing this, P.W. 1 went
towards the western side at a distance of about 50 yard and saw that
his brother Shri Bhagwan yadav was surrounded by Ram Prasad,
Jagdish, Sakaldeep, Ramdeep Yadav, Baleshwar Yadav, Ramdas
Yadav and Sidheshwar Yadav. P.W. 1 ran and went near his brother
where he saw that Ramdeep Yadav had fired from his pistol and shot
his brother, whereafter his brother fell down. Then Sidheshwar Yadav
cut the neck of the brother of P.W. 1 by fasuli. Thereafter, Baleshwar
Yadav exhorted to kill the people present there and then Ram Das
Yadav hit on the leg of Keshavlal. Jagdish Yadav fired gun shot on
Musafir yadav and Sakaldeep Yadav took out a bomb and threw it
whereafter he ran away, however, he fell down and the bomb
exploded. It has also been stated by P.W. 1 that apart from him, the
occurrence was witnessed by Madhav yadav (P.W. 5), Raj Kumar
Yadav (P.W.8), Keshavlal Yadav (P.W.6), Musafir Yadav (P.W. 4),
Brij Bihari Yadav (P.W. 7) and Vidyanand Yadav (P.W. 3). The said
witness had identified his signature on the fardbeyan which was
marked as Exhibit-3.
P.W. 1 has stated in paragraph-3 of his cross-
examination that one case is pending in the court of Sub-Judge-II
regarding the land pertaining to gift deed. It has been stated in
paragraph-8 of his cross-examination that the police had come after
Sakaldeep and Jagdish had died and only thereafter, the police had
engaged in arresting the people and had thereafter arrested Shrikant,
Sita Ram Yadav, Musafir Yadav and Kesholal Yadav. P.W. 1 has denied that he was arrested in the sugarcane field. In paragraph-10 of
his cross-examination, P.W. 1 has denied to have taken the name of
any other accused persons, except Ram Prasad, Ramdeep and
Sidheshwar in the FIR. P.W. 1 has further denied the suggestion that
he had not stated before the police that when Sakaldeep was fleeing
away after throwing the bomb, he fell down. In paragraph-11 of his
cross-examination P.W. 1 has stated that he had not seen his brother''s
neck being cut by Musafir.
P.W. 2 i.e. Shiv Kumar Yadav has stated in his
evidence that on 20.07.1985 at about 8.30 in the morning he was
ploughing his field, which had been given by way of gift to his
brother Raj Kumar Yadav by Rajbanshi Yadav. His brother Keshavlal
Yadav was also sitting at the Boring and in the meantime, Ram Prasad
Yadav, Baleshwar Yadav, Ramdas Yadav, Jagdish Yadav, Sakaldeep
Yadav and Sidheshwar Yadav came to the field. Ram Prasad Yadav
and Baleshwar Yadav told them not to plough the field, whereafter
P.W. 2 said that since the field belongs to him, he would plough the
field. Thereafter, Baleshwar Yadav said that this people will not
listen, hence beat them, whereafter Ram Prasad Yadav hit the brother
of P.W.2 namely Keshavlal Yadav by fasuli and Sakaldeep Yadav
threw the bomb which he was carrying in his bag. When P.W. 2 and
others were running away, the accused persons surrounded them and
Ramdeep Yadav fired a gun shot on Shri Bhagwan Yadav, resulting in
him falling down. Sidheshwar Yadav cut his neck by fasuli and in the
meantime, Sakaldeep Yadav, who was carrying bomb in his bag fell
down and the bomb exploded. Thereafter, P.W. 2 and others fled
away while the police came there and caught his brother. In
paragraph-3 of his cross-examination, P.W. 2 has stated that he had
stated before the police that he was ploughing the gifted land and it is
not a fact that he had told the police that at the time of occurrence, he
was not near the place of occurrence. In paragraph-3 of his cross-
examination, P.W. 2 had stated that Shri Bhagwan Yadav did not have
anything to do with the disputed land. He has denied that his brother
Keshawlal yadav was sitting at the Boring with bomb. P.W. 2 has also
denied that he and other accused of the counter case had gone to
plough the field of Jotia Devi, armed with pistol, garasa and bomb and
assaulted the people present there resulting in murder of Sakaldeep
and Jagdish and that death of Bhagwan Yadav had occurred during
the course of them throwing bomb.
P.W. 3 i.e. Vidyanand Yadav had stated in his
evidence that while he was sitting in his Verandah on 20.07.1985 at
about 8.30 in the morning and his field was being ploughed then Ram
Prasad Yadav, armed with fasuli, Sakaldeep Yadav armed with bomb,
Jagdish Yadav armed with pistol, Ramdeep Yadav armed with pistol,
Ramdas and Baleshwar armed with lathi and Sidheshwar Yadav were
passing by, whereafter he and Musafir Yadav started following them.
The said accused persons reached at the field of this witness and then
Baleshwar Yadav asked him not to plough the field, whereupon father
of P.W.3 told that the field was of his, hence, he would plough the
field. Baleshwar Yadav exhorted to assault the persons present there,
whereafter, Ram Prasad Yadav hit Keshavlal Yadav by fasuli on his
head. Sakaldeep Yadav had exploded bomb. When P.W. 3 and others
tried to flee away, they were surrounded by the accused persons. Shri
Bhagwan Yadav was coming from market and he was also surrounded
by the accused persons. Then, Ramdeep Yadav fired a gun shot on
Bhagwan Yadav whereupon Shri Bhagwan Yadav fell down and then
Sidheshwar Yadav cut his head by fasuli. Jagdish Yadav had hit
Musafir Yadav by gun shot and Ramdas hit Keshavlal on his leg by
lathi. Sakaldeep Yadav was trying to flee away after throwing the
bomb, but the bomb exploded there and he remained there. Thereafter,
P.W. 3 ran away and had come to his house. P.W. 3 in paragraph-No.
2 of his cross-examination has denied that he had told the police only
about three accused persons, namely, Ram Prasad, Ramdeep and
Sidheshwar. In paragraph-2, P.W. 3 has denied the fact that upon
exhortation by Baleshwar Yadav, Ram Prasad had hit Keshavlal
Yadav on his forehead by fasuli. P.W. 3 had also denied the
suggestion that he had not disclosed before the police that Sakaldeep
Yadav had exploded bomb. In paragraph-3 of his cross-examination,
P.W. 3 had stated that in the said occurrence Sakaldeep and Jagdish
were killed. In paragraph-4 of his cross-examination, P.W. 3 has
stated that Sidheshwar was not armed and he was empty handed.
P.W. 4 i.e. Musafir Yadav has stated that the
occurrence pertains to four years back at about 8.30 in the morning
when he was sitting in the verandah of Raj Kumar along with
Vidyanand Yadav. He saw that Ram Prasad came out from his house
with fasuli in his hand. Baleshwar was carrying lathi, Jagdish Yadav
was carrying pistol, Sakaldeep Yadav was carrying a bag, Ramdeep
Yadav was carrying a pistol and Sudarshan Yadav was empty handed
and all the said accused persons were going somewhere, hence P.W. 4
and others started following them. These people went to the field near
the boring where Ram Kumar Yadav was ploughing the field. Then
Ram Prasad Yadav told him not to plough the field, but Ram Kumar
Yadav said that the field was his, hence he would plough it.
Thereafter, Baleshwar exhorted to assault them whereupon Ram
Prasad Yadav hit Keshavlal Yadav on his head by a fasuli. Ramdas
Yadav hit Keshavlal Yadav on his leg by lathi. Sakaldeep Yadav took
out a bomb and exploded the same. When P.W. 4 and others tried to
flee away, the accused persons surrounded them and then they also
surrounded Shri Bhagwan who was coming from Paliganj. Ramdeep
Yadav fired at Shri Bhagwan, who fell down. Whereafter Sakaldeep
Yadav threw bomb and Sudarshan Yadav cut the throat of Shri
Bhagwan. Jagdish Yadav had fired a gun shot on P.W. 4 which hit
him on his arm and he fell down. In paragraph-4 of his cross-
examination, P.W. 4 has stated that Sakaldeep and Jagdish were killed
and he is one of the accused in the said case. In paragraph-5 of his
cross-examination, P.W. 4 has stated that at the place of occurrence
and at the said time when the occurrence had taken place, Keshavlal
Yadav, Ram Kumar and Shiv Kumar were ploughing the field and at
the time of occurrence he had come to his village. In paragraph-6 of
his cross-examination, P.W. 4 has stated that since three years prior to
the date of occurrence Raj Kumar was ploughing the field and the
accused persons did not use to tell them not to plough the field. In
paragraph-7 of his cross-examination, P.W. 4 had stated before the
police that on the date of occurrence he was sitting at the verandah of
Ram Kumar. P.W. 4 has also stated that when Shri Bhagwan was
coming from Paliganj, he was shot by Ramdeep Yadav. He also
disclosed that when Shri Bhagwan fell down, Sakaldeep had hit him
by a bomb as well as Sidheshwar had cut the neck of Shri Bhagwan
by a fasuli. In paragraph-9 of his cross- examination, P.W. 4 has
stated that he had no enmity with the accused persons and he was not
an accused in any case. He has denied the suggestion that they had
gone to the field of Jotia Devi for capturing the same and had
assaulted the accused persons and with a view to save themselves
from the said case, they had filed a false counter case.
P.W.5 i.e. Madhav Yadav has stated in his evidence
that the occurrence pertains to four years back and the time was at
about 8.30 in the morning when he was going to graze his buffalo and
at that time Ram Prasad, Ramdeep, Sakaldeep, Jagdish, Baleshwar,
Ram Das and Shiv Kumar came there while Keshavlal and Ram
Kumar were sitting at the boring. Baleshwar and Ram Das were
carrying lathi, Sakaldeep was carrying bag and Jagdish and Ramdeep
were carrying pistol while Ram Prasad was carrying fasuli.
Sidheshwar Yadav was also going behind the accused persons.
Vidyanand and Musafir Yadav were also going behind them. The
accused persons told not to plough the field whereupon Ram Kumar
said that the field was his, hence why he should not plough the field.
At that point Baleshwar exhorted that he will not listen, hence beat
him. Then Ram Prasad hit Keshavlal by fasuli on his head. Sakaldeep
threw the bomb. Thereafter, Ram Kumar, Shiv Kumar etc. started
running but the accused persons ran and surrounded them. In the
meantime, Shri Bhagwan was coming from Pali and the accused
persons also surrounded him and Ramdeep fired a gun shot at Shri
Bhagwan. Sakaldeep exploded the bomb and Sidheshwar Yadav took
a fasuli from Ram Prasad and slit the neck of Shri Bhagwan, resulting
in death of Shri Bhagwan. Thereafter, Jagdish Yadav hit Musafir
Yadav on his right leg, Ram Das hit Keshavlal by lathi whereafter,
Sakaldeep Yadav and Jagdish Yadav started running away, resulting
in bag of Sakaldeep Yadav falling down and thereafter the bomb
exploded and Sakaldeep was killed. The said witness i.e. P.W. 5 had
then gone to his home. P.W. 5 has further stated that the occurrence
was witnessed by Musafir, Ram Kumar, Shiv Kumar, Keshavlal, Brij
Bihari etc. It has also been stated that the police reached at his house
and arrested Shrikant and Sitaram. Musafir was also arrested along
with Kesho.
In paragraph-4 of his cross-examination P.W. 5 has
stated that he is an eye witness to the occurrence. In paragraph-5 of
his cross-examination P.W. 5 has stated that the first occurrence took
place at 8'' 0 clock in the morning and after first occurrence the
accused persons came and surrounded the victims at a distance of 50
yards. In the 2nd occurrence, the accused and the prosecution side
were running side by side. P.W. 5 stated that he was not beaten by the
accused persons. P.W. 5 has denied the suggestion that Shri Bhagwan
had died on account of the bomb by which Sakaldeep and Jagdish
were attacked.
P.W. 6 i.e. Keshavlal Yadav has stated in his
evidence that on 20.07.1985 when he was at his boring, his brother
Shiv Kumar Yadav was ploughing the field and Ram Kumar (his
brother) was also there. Thereafter, Ramdas Yadav, Baleshwar Yadav,
Ram Prasad Yadav, Sakaldeep Yadav and Ramdeep Yadav came at
the field. Ramdas Yadav and Baleshwar Yadav were carrying lathi,
Sakaldeep was carrying a bomb in his hand. Ramdeep Yadav and
Jagdish Yadav were armed with pistol and Ram Prasad Yadav was
carrying fasuli. Thereafter, Musafir Yadav, Vidyanand Yadav and Brij
Bihari Yadav came at the field. The accused persons told not to
plough the field whereupon all the brothers said that the field belongs
to them, hence they would plough the field. On this, Ram Prasad
Yadav gave a blow by fasuli on the head of P.W. 6 i.e. Keshavlal,
Sakaldeep Yadav threw the bomb and after hearing the sound of bomb
explosion, they ran towards their home, however, at some distance the
accused persons surrounded them. In the meantime, Shri Bhagwan
was coming from Paliganj market and he was also surrounded by the
accused persons and thereafter, Ramdeep Yadav fired a gun shot on
Shri Bhagwan, resulting in Shri Bhagwan falling down whereupon
Sakaldeep Yadav threw a bomb and the same also hit Shri Bhagwan.
Then Sidheshwar Yadav took fasuli from the hand of Ram Prasad
Yadav and cut the neck of Shri Bhagwan Yadav. Jagdish Yadav fired
gun shot which hit Musafir Yadav on his right hand. In the meantime,
Baleshwar Yadav was exhorting to fire gun shot. Ramdas Yadav hit
Keshavlal i.e. the present witness. During the course of commission of
the crime, explosion took place on account of falling of the bomb
from the hand of Sakaldeep Yadav and he died there. Thereafter, all
the people went home and while they were preparing to go to the
police station, the police came there and caught the prosecution side.
In cross-examination, P.W. 6 has denied the
suggestion that he had not stated before the police that Baleshwar was
carrying lathi and Sakaldeep was carrying bomb in his hand as well as
Ramdeep yadav and Jagdish yadav were carrying pistol and Ram
Prasad Yadav was carrying fasuli. P.W. 6 has also denied the
suggestion that it is not a fact that he had not said that Sidheshwar
yadav had cut the neck of Shri Bhagwan Yadav after taking fasuli
from the hand of Ram Prasad Yadav. P.W. 6 has also stated that it is
not a fact that he had not told the police that 2-3 years prior to the date
of incident, his cousin brother Rajbabanshi Yadav had given the land
to his brother Ram Kumar Yadav by way of gift and he was in
possession of the gifted land. P.W. 6 has also denied the suggestion
that he had not stated before the police that Ram Prasad had hit him
on his head by farsa, resulting in him falling down and then he could
not see anything. This witness has admitted in his cross-examination
that a counter case is going on wherein he is an accused and in the
said case some people were killed.
P.W. 7 i.e. Brij Bihari Yadav had stated in his
evidence that on 20.07.1985 at about 8.30 in the morning, while he
was standing near the boring, Shiv Kumar Yadav, Keshavlal Yadav,
Ram Kumar Yadav etc. were ploughing the field. Ram Kumar and
Keshavlal were helping in the field. At that moment, Ram Prasad
carrying fasuli, Ramdeep carrying pistol, Jagdish carrying pistol,
Sakaldeep carrying bomb in his bag came there. Ramdas and
Baleshwar armed with lathi had also come there. Subsequently,
Sidheshwar had also arrived there. All the accused persons had told
Shiv Kumar Yadav not to plough the field, whereupon Ram Kumar
Yadav said that since the field belongs to them, they would plough the
field. Thereafter, the accused persons started quarrelling and in the
meantime, Musafir and Vidyanand also reached there. Then
Baleshwar Yadav exhorted to kill the persons of prosecution side
whereupon Ram Prasad Yadav gave a fasuli blow on the head of
Keshavlal Yadav, Ramdas Yadav threw the bomb whereupon
Keshavlal, Ram Kumar, Shiv Kumar, Musafir and Vidyanand started
running towards their house. However, all the accused persons ran
and surrounded them. In the meantime, Shri Bhagwan was coming
from Paliganj and he was also surrounded by the accused persons. Ramdas Yadav had then fired gun shot which hit Shri Bhagwan and
he fell down. Sakaldeep Yadav threw bomb which hit Shri Bhagwan.
Sidheshwar Yadav took fasuli from the hand of Ram Prasad and cut
the neck of Shri Bhagwan. Jagdish Yadav fired gun shot which hit
Musafir Yadav. Thereafter, all the accused persons started running
away and while Sakaldeep was running, carrying bomb in his bag, he
fell down and the bomb exploded and Sakaldeep remained lying there.
In paragraph-3 of his cross-examination, P.W. 7 has
stated that it is not a fact that he had not stated in his statement made
before the police that Baleshwar Yadav had exhorted and told to kill
the persons of prosecution side since they will not listen and thereafter
Ram Prasad had hit Keshavlal Yadav by fasuli on his head, Sakaldeep
Yadav had thrown bomb which had hit Shri Bhagwan and Jagdish
Yadav had fired gun shot which hit Musafir Yadav. In paragraph-4 of
his cross-examination, P.W. 7 has stated that Sakaldeep died on
account of bomb explosion and he was not knowing as to where
Jagdish was killed.
P.W. 8 i.e. Raj Kumar Yadav has stated in his
evidence that on 20.07.1985 at about 8.30 in the morning he was at
the gifted land along with his brother Rajbanshi Yadav. P.W. 8 has
further stated that he was in possession of the disputed land since two
years prior to the date of occurrence and mutation had also taken
place in his name. On the date of occurrence he was ploughing his
field when his co-villager Ram Prasad Yadav armed with fasuli,
Jagdish Yadav carrying pistol, Sakaldeep yadav carrying bomb in his
bag, Ramdeep Yadav carrying pistol, Baleshwar and Ramdas Yadav
carrying lathi came at the field. Brij Bihari Yadav, Musafir Yadav and
Vidyanand Yadav came from behind. The accused persons told him
not to plough the field. In the meantime, Sidheshwar Yadav came
there. When the accused persons came and told P.W. 8 not to plough
the field, he told them that since it was his gifted land, he would
definitely plough the field. Thereupon, Ram Prasad Yadav hit
Keshavlal on his head by fasuli, Sakaldeep Yadav threw bomb and
then the people of the prosecution side started running away,
however, after going for some distance, they were surrounded by the
accused persons. In the meantime, Shri Bhagwan Yadav was coming
from the market and he was also surrounded by the accused persons.
Thereafter, Ramdeep Yadav fired a gun shot which hit Shri Bhagwan
on his head. Sakaldeep Yadav again threw a bomb which hit Shri
Bhagwan and he fell down. Thereafter, Sidheshwar Yadav took fasuli
from the hand of Ram Prasad Yadav and cut the neck of Shri
Bhagwan. Jagdish Yadav fired gun shot which hit Musafir Yadav.
Ramdas Yadav hit Keshavlal Yadav on his leg. During the course of
this occurrence, Sakaldeep Yadav fell down and the bomb exploded,
whereupon he fell there and remained there. In his cross-examination
P.W. 8 has described as to how the gift was prepared. In paragraph-9
of his cross-examination, P.W. 8 has stated that earlier the gifted land
was in his name, however, upon the order of the Commissioner, the
receipt was prepared in the name of Jotia. P.W. 8 has stated in his
cross-examination that it is not a fact that the gifted land was not in
his possession. In paragraph-12 of his cross-examination P.W. 8 has
stated that after one and half months of the occurrence, his statement
was recorded by the police. In paragraph 17 of his cross-examination,
P.W. 8 has stated that when Sakaldeep fell down, the bomb had
exploded there. In paragraph-18 of his cross-examination, P.W. 8 has
stated that the entire occurrence took place in a span of ten minutes.
P.W. 9 is Dr. Kameshwar Prasad Singh, who was
posted as Medical Officer, State Dispensary, Paliganj on 20.07.1985
and on the said date at 11 A.M. he had examined the injuries of
Musafir Yadav and found the following injuries on his persons:-
"(1) Lacerated punctured wound 1/3x 1/4" on top front of right shoulder. Another lacerated punctured wound 3/4" x 1/2" on upper and outer and back part of right arm. Both wounds were communicating thereon a common channel 5" in length. The first wound is the wound of entry and the second wound is the wound of exit." The injuries were grievous in nature and caused by firearm. The injury report was marked as Exhibit No.8.
On the same day i.e. 20.07.1985 at about 11.15 A.M.,
P.W. 9 had examined the injuries of Keshavlal Yadav and found the
following injuries on his person:-
"(1) one lacerated wound 3"x1/4"x1/4" on left side of head. (2) One lacerated wound 1/2"x 1/4"x 1/4" on right side and back front of head. (3) Swelling 4"x 3" on right leg."
P.W. 9 has opined that all the injuries were caused by
hard and blunt object like lathi and were simple in nature. The said
injury report has been marked as Exhibit-8/1.
P.W. 10 is the Doctor, namely, Dr. Md. Afzal who
was posted as Medical Officer at Sub-Divisional Hospital at Danapur
on 21.07.1985 and he had held the postmortem examination at about
8.00 A.M. on the dead body of Shri Bhagwan Yadav and had found
the following injuries:-
"External examination- Rigor mortis is present, Eyes closed, mouth closed. Injury No.1: One lacerated wound at the back of head 3" in diameter with charring of hair and skin. The skull bone has shattered and brain matter coming out. There was multiple small injuries on the adjacent area.
(2) Incised wound on the neck extending across size 6"x 2" x cutting all the neck vessels and the trachea and the esophagus extend upto the vertebra.
(3) Multiple small injuries with charring was present on the back of the neck.
Internal Examination- throat, heart-empty and lung-pale, abdomen- stomach empty. Small gut, Gas, Large gut, Gas and feces, Spleen-pale, Liver-Pale, Kidney- Pale, Bladder-full.
Nature of injury- All injuries are ante mortem.
No.1 and 3 caused by some explosive substance and No.2 caused by sharp cutting weapon.
Cause of death- Hemorrhage and shock caused by injuries due to explosives and sharp cutting weapon.
Time since death- within 24 hours."
In the opinion of P.W. 10 the injuries have been caused
by some explosive substance as well as by sharp cutting weapon. The
postmortem report has been marked as Exhibit-4.
P.W. 11 i.e. Girish Kumar Jha is the Investigating
Officer of this case and on 20.07.1985 he was posted as Officer-in-
charge of Paliganj Police Station. On 20.07.1985 at about 11.30,
Paliganj P.S. Case No. 142 of 1985 was registered on the basis of the
statement of Shrikant Yadav under Section 302 / 34 of the Indian Penal
Code. The FIR is in the writing of Shri Rameshwar Singh, Munsi
(clerk of the Thana) of the police station and also bears the signature
of P.W. 11. The FIR has been marked as Exhibit 5. P.W. 11 has stated
in his evidence that he had taken the re-statement of the informant and
then prepared the inquest report of the deceased Shri Bhagwan yadav
as well as prepared the dead body chalan and sent the dead body for
postmortem. He had then recorded the statement of Keshavlal Yadav
and Sitaram Yadav at the police station. P.W. 11 is said to have gone
to the place of occurrence and reached there at 13 hours and inspected
the same. According to P.W. 11, the place of occurrence is at a
distance of 150 yards towards the east of the field of Jotia Devi, where
path is situated. This path runs from east to west and it is about 6 feet
wide and at this place huge quantity of blood was lying and remains
of bomb were also found. At this place 12 bore empty cartridges were
also found. P.W. 11 has also stated that from the said place, at a
distance of about 30 yards, the place of occurrence of Case No. 141 of
1985 is situated. P.W. 11 had seized blood stain mud, remains of the
bomb and empty cartridges from the place of occurrence and prepared
a seizure list. P.W. 11 is said to have arrested accused Sidheshwar
Yadav and recorded the statement of Ram Kumar Yadav on
13.8.1985. P.W. 11 has stated that for the treatment of Musafir Yadav
and Keshavlal Yadav, he had prepared the injury report and sent them
to the Medical Officer, Paliganj. The said injury report has been
marked as Exhibit-6. P.W. 11 had also prepared the inquest report of
the deceased, which is in the writing of Shri Rameshwar Singh and
also bears his signature. The said inquest report was marked as
Exhibit-7. The blood stain mud was sent to the forensic Science
Laboratory through the Sub-Divisional Judicial Magistrate. P.W. 11
has further stated in paragraph-7 of his cross-examination that
Shrikant Yadav was arrested and brought to the police station and he
was arrested for an occurrence which had taken place on that day in a
case which is a counter case to the present case i.e. Case No. 141
dated 20.07.1985. The FIR of Case No. 141 of 1985 was marked as
Exhibit-C. This witness has stated in paragraph-8 of his cross-
examination that he had reached the place of occurrence at 1 P.M. in
the day time. The Armed police had already been sent to the place of
occurrence whose commander was N. Rahman, Sub-Inspector of
Police. In paragraph-9 of his cross-examination, he has stated that it
has not been mentioned in his case diary that Most. Jotia had gone to
the police Station. Along with Srikant three more persons, namely,
Keshavlal Yadav, Musafir Yadav and Sitaram Yadav were arrested
and their statements were taken during the course of their arrest. In
paragraph-12 of his cross-examination, P.W. 11 has stated that
witness Ram Kumar did not say before him that Musafir was hit by
gun shot by Jagdish Yadav and Keshavlal Yadav was hit by fasuli and
that Ramdas had hit Keshavlal by lathi. In paragraph-13 of his cross-
examination, P.W. 11 has stated that the witness Srikant Yadav did
not say before him that he was taking bath at the well and that Ram
Kumar had told him not to plough the field. In paragraph-14 of his
cross-examination, P.W. 11 has stated that Musafir Yadav had not
stated before him that Shri Bhagwan was coming from Pali.
We have examined the materials on record and it is
apparent that P.W. 1, P.W.2, P.W.3, P.W. 4, P.W. 5, P.W.6, P.W. 7
and P.W. 8 are the eye witness to the occurrence and there is
consistency in their evidence and there is no reason to raise any doubt.
On going through the evidence of P.Ws. 1,2,3,4,5,6,7 and 8, it is
evident that the appellant No.1, i.e. Ram Das Yadav had hit on the leg
of Keshavlal Yadav causing grave injuries, Appellant No.2 i.e. Ram
Prasad yadav had hit Keshavlal Yadav on his head by fasuli causing
grave injuries and appellant no.3, namely, Sidheshwar Yadav had slit
the neck of Shri Bhagwan Yadav by fasuli resulting in grave injuries
as also contributing to his death. Apart from the aforesaid P.Ws. being
consistent on the specific injuries having been inflicted by the
appellants herein on the person of the prosecution party, it is evident
from the evidence of the P.Ws. No. 1 to 8 that the appellants herein
were the members of unlawful assembly and had assembled with
common intention of inflicting grievous and serious injuries on the
persons of the prosecution party, which had ultimately resulted in
injury to Keshavlal Yadav and Musafir Yadav as well as the death of
Shri Bhagwan Yadav. Thus, it is evident that the accused persons
including the appellants herein had killed the deceased Shri Bhagwan
Yadav with common object.
The Doctor i.e. P.W. 9, namely, Kameshwar Prasad
Singh, who had examined the injuries on the person of Keshavlal
Yadav and Musafir Yadav has also substantiated the injuries received
by the said person. The Doctor- P.W. 10, namely, Md.Afzal, who
conducted autopsy on the dead body of the deceased Shri Bhagwan
has also corroborated the cause of death of the deceased and has
substantiated the fact that the deceased Shri Bhagwan Yadav died due
to hemorrhage and shock on account of injuries caused by explosive
substance as also by sharp cutting weapon, hence, further
corroborating the case of the prosecution.
Moreover, all the witnesses are consistent on the
point that the accused persons including the appellants herein, who
were variously armed were present at the place of occurrence and had
assaulted the deceased persons as well as other injured witnesses and
inflicted grievous and grave injuries.
Upon perusal of the entire evidence brought on the
record of the case and after going through the same, there is no reason
to doubt the case of the prosecution. The present case has been proved
beyond all reasonable doubts, not only by the evidence of the
prosecution witnesses, but also by the evidence of the Investigating
Officer i.e. P.W. 11 and the Doctors i.e. P.W. 9 and P.W. 10.
Considering the facts and circumstances of the
present case and the specific evidence which has been brought on
record to prove the allegations leveled against the Appellants beyond
pale of any reasonable doubt as well as the consistency in the
evidence of the eye witnesses, which has not been discredited during
the course of their cross-examination, there is no reason to create any
doubt. We have examined the materials available on record and do not
find any apparent error in the impugned judgment of conviction and
sentence, hence, the same does not require any interference.
Accordingly, the present appeal i.e. Cr. Appeal (DB)
No. 284 of 1985 stands dismissed.
Appellant No.1, namely, Ram Das Yadav and
Appellant No.2, namely, Ram Prasad Yadav were granted bail by an
order dated 27.08.1992 while appellant no. 3, namely, Sidheshwar
Yadav was directed to be enlarged on bail by an order dated
04.09.1995. In view of dismissal of the aforesaid appeal, the bail
bonds of the aforesaid appellants are hereby cancelled.
The Appellants herein are directed to surrender before the court below forthwith for serving the remaining period of
sentence.
The appeal stands dismissed.