CRIMINAL APPEAL (DB) No.138 OF 1988 WITH CRIMINAL APPEAL (DB) NO.178 OF 1988 WITH CRIMINAL APPEAL (DB) NO.182 OF 1988 WITH CRIMINAL APPEAL (DB) NO.183 OF 1988 WITH CRIMINAL APPEAL (DB) NO.184 OF 1988 WITH CRIMINAL APPEAL (DB) NO.186 OF 1988 ***** Against the judgment and order of conviction dated 22.2.1988, passed by Sri Om Prakash Sinha, 2nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.258 of 1986/ 10 of 1987. ***** KRISHNA MURARI MAHTON @ KRISHNA MURARI PRASAD:.. Appellant (in Cr. Appeal (DB) No.138 of 1988) ARUN MAHTON @ ARUN KUMAR: .... ...... Appellant (in Cr. Appeal (DB) No.178 of 1988) SHAILENDRA MAHTO @ SHAILENDRA PRASAD: ..... Appellant (in Cr. Appeal (DB) No.182 of 1988) BAHADUR MAHTO @ INDERJIT @ INDERJIT SINGH: ... Appellant (in Cr. Appeal (DB) No.183 of 1988) KAUSHLENDRA PRASAD @ KAUSHAL MAHTON: ..... Appellant (in Cr. Appeal (DB) No.184 of 1988) SURENDRA PRASAD @ SULI MAHTON: ..... Appellant (in Cr. Appeal (DB) No.186 of 1988) Versus THE STATE OF BIHAR: ..... ..... .... Respondents (in all appeals) ***** For the Appellants: Mr. Rana Pratap Singh, (in Cr.App.(DB) No.138/88) Senior Advocate with Mr. Bal Mukund Prasad Sinha Advocate For the Appellants: Mr. Surendra Singh, (in Cr.App.(DB)No.178/88) Senior Advocate with Mr. Hemant Kumar Jha, Advocate. For the Appellant: Mr. Chitranjan Sinha (in Cr. App.(DB) No.182/88) Senior Advocate with Mr. Binoy Kumar, Advocate. 2 For the Appellant: Mr. Rana Pratap Singh, (in Cr.App.(DB)No.183/88) Senior Advocate with Mr. Anjani Kumar Advocate. For the Appellant: Mr. Anjani Kumar (in Cr. App.(DB) No.184/88) Advocate. For the Appellant: Mr. Manu Shankar Mishra, (in Cr.App.(DB)No.186/88) Advocate. ***** For the State : Mr. Lala Kailash Bihari Prasad (in all cases) Public Prosecutor. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM ***** S K Katriar, J. The six appellants have preferred the six appeals arising out of a common judgment dated 22.2.1988, passed by the learned 2nd Additional Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No.258 of 1986/10 of 1987 (The State of Bihar Vs. Shailendra Mahton and five others), whereby Arun Mahto alias Arun Kumar has been convicted under section 302 of the Indian Penal Code. The remaining appellants, namely, Krishna Murari Mahton alias Krishna Murari Prasad, Shailendra Mahton alias Shailendra Prasad, Bahadur Mahto alias Interjit alias Inderjit Singh, Kaushlendra Prasad alias Kaushal Mahton, and Surendra Prasad alias Suli Mahton have 3 been convicted under section 302 read with section 34 of the IPC. All the six appellants have been sentenced to undergo rigorous imprisonment for life. 2. The prosecution case is that on 7.3.1986, at 10.45 A.M., the informant Budhram Prasad (P.W.6), along with deceased Vijay Yadav got into a Rajya Transport bus bearing no.BHY 1355, at village Nakatpura to go to village Poj. When the bus reached village Muhammadpur, the accused persons came on two motor-cycles from the west and stopped their motor- cycles in front of the bus. They threatened the driver that he would be done to death if he drove the bus ahead. Accused Arun Mahton, Shailendra Mahton, and Bahadur Mahton had arrived on one motor-cycle, and Kaushal Mahton, Surendra Prasad alias Suli, and one more accused whose name he did not remember at that time had approached on another motor-cycle. Accused Arun Mahton, Shailendra Mahton and Kaushal Mahto were armed with rifles. Accused Bahadur Mahton and one other accused whose name was not known to the informant were wielding guns. Accused Surendra Prasad alias Suli was armed with a country-made pistol in his hand. All the accused persons got down from the motor-cycles and surrounded the bus. In the meantime, five to six persons emerged from the medicine shop of Dr. Ramnandan Prasad and came near the bus. Some of 4 them were armed with pistols. They asked the passengers of that bus to get down. The accused persons did not allow Vijay Yadav to get down from the bus. The informant got down from the bus out of fear. When all the passengers of the bus got down and only Vijay Yadav was left in it, accused Arun Mahton fired the first shot from his rifle on Vijay Yadav. After him accused Shailendra Mahton, Kaushal Mahton, Bahadur Mahton and Surendra Mahton also fired from the fire-arms they were wielding, at Vijay Yadav due to which he died in the bus itself. Thereafter all the accused persons left the place on their motor- cycles. While the accused persons were fleeing away, one motor-cycle fell on the ground and the accused persons fled away towards Sherpur, leaving behind the motor-cycle. Many residents of Nakatpura including Lakhana Yadav, Baudhu Yadav, Misar Yadav and others were present there and had witnessed the occurrence. It has been alleged that murder of one Sudhir Mahton a few years ago was the motive for the occurrence. It was suspected that the deceased had his hand in the murder of Sudhir Mahton leading to the retaliation in the murder of Vijay Yadav. The Fardbeyan (Ext.2) of P.W.6 was recorded by J.K. Sharma, S.I. of Police of Asthawan P.S., on 7.3.1986, at 12.00 P.M, at village 5 Muhammadpur on the basis of which formal F.I.R. (Ext.3) was drawn. 3. Investigation commenced. After completion of investigation charge-sheet was submitted, cognizance of the alleged offences was taken and the case was committed to the court of sessions. Charge against Arun Mahton was framed under section 302 of the IPC as well as section 27 of the Arms Act. Charges were framed against the remaining accused persons under section 302 read with section 34 of the IPC. Charges were framed and explained to the accused persons. They pleaded not guilty and claimed to be tried. The defence of the accused persons was that they have been falsely implicated in this case due to enmity. 4. The prosecution examined nine witnesses in support of its case. P.W.1 (Rajendra Gope), P.W.2 (Raghubir Yadav), P.W.3 (Ram Lakhan Yadav), P.W.4 (Suresh Prasad), P.W.5 (Baudhu Gope), P.W.6 (Budhram Prasad), and P.W.7 (Rajo Yadav), are eye witnesses. P.W.8 is Sub-Inspector of Police who had investigated the case and submitted charge-sheet. P.W.9 is the Deputy Superintendent of Sadar Hospital, Biharsharif, who had conducted the post-mortem on the dead body of Vijay Yadav, the deceased. 6 5. The following documents were marked as exhibits on behalf of the prosecution: (i) Exhibit-1 - Signature of Suresh Prasad on the seizure-list. (ii) Exhibit-1/1 - Signature of Krishna Prasad on the seizure-list. (iii)Exhibit-1/2 - Signature of Suresh Prasad on the inquest report. (iv) Exhibit-1/3 - Signature of Krishna Prasad on the inquest report. (v) Exhibit-2 - Fard-beyan (vi) Exhibit-3 - Formal F.I.R. (vii)Exhibit-4 - Seizure-list (viii)Exhibit-4/1- Seizure-list in which Rajdoot motor-cycle was seized. (ix)Exhibit-5 - Carbon copy of death inquest. (x)Exhibit-6 - Post-mortem report. 6. The following are the material exhibits on behalf of the prosecution: a. Exhibit-I - Casette No. S.C.I. b. Exhibit-II - Bullet (cartridge) c. Exhibit-III - Bushirt d. Exhibit-IV - Full pant 7. The defence examined one witness, namely, Dr. Suresh Kumar Verma, in support of its case to prove the case of alibi set up by accused Arun Mahto. The defence also proved O.T. slip of Sadar Hospital, Muzaffarpur, which has been marked Exhibit-A. 7 8. On a consideration of the materials on record, the learned trial court found that the occurrence had taken place in Bus No.BHY-1355 at village Nakatpura. Accused Arun Mahton had fired the first shot at Vijay Yadav from his rifle, followed by fire-arm shots from the remaining appellants, as a result of which he died inside the bus. He, therefore, convicted and sentenced all the six appellants in the aforesaid manner. They were, however, acquitted of the charge under section 27 of the Arms Act because of absence of the necessary sanction in terms of section 30 of the Arms Act. 9. I would prefer to consider the evidence of the informant (P.W.6) first of all. He is Budhram Prasad, an agriculturist by avocation, and lk<+w (co- brother) of the deceased. Both of them are Gharjamai and living in their Sasural because their wives have no brother. About 17 months ago they had together left their Sasural and boarded a Rajya Transport bus at village Nakatpura to go to Barbigha to purchase a buffalo. The bus had stopped at village Muhammadpur to enable passengers to get down and get in. As soon as the bus had stopped, two motor-cycles with three persons on each arrived and parked the same in front of the bus. One of them went near the driver‟s door, abused him in foul language and said that he would be 8 shot dead if he had taken the bus forwards. Arun, Shailendra and Kaushal were armed with rifles, and Bahadur and Suli were armed with pistols. The sixth person whose name he was unable to recall was armed with a gun. At this point of time, six persons armed with pistols emerged from the medicine shop of Dr. Ramanandan situate nearby. Arun had forced the driver to get out of the bus. The other five motor-cycle riders went to the rear gate of the bus and started forcing the passengers to come out of the bus. The persons who had emerged from the medicine shop of Dr. Ramanandan stood at the driver‟s door. All the passengers got out of the bus except Vijay Yadav. The informant also got out of the bus and stood on a raised place near the medicine shop. Arun came back to the rear door, entered the bus and fired at Vijay from his rifle. The other five accused persons also fired at Vijay. He had received injuries in his stomach (dks[k) and his chest, as a result of which he died. The six accused persons got on their motor- cycles and fled away. One of the motor-cycles slipped a little distance away, in village Sherpur, which was abandoned and the riders ran towards Sherpur village. The six persons who had emerged from the medicine shop of Dr. Ramanand ran away towards the village. The informant identified Arun, Shailendra, Bahadur, 9 Kaushal and Suli who were present in court and recognised them. The sixth person was not present in court. He claimed that he can recognise him also. The Sub-Inspector of Police reached the place of occurrence and took down the fardbeyan of the informant which was read over to him and he affixed his thumb-impression marked Exhibit.2. 9.1) P.W.6 has stated in his cross-examination that he was about 15-20 years ago married to the daughter of Tek Lal of village Nakatpura. The second daughter was married to Vijay Yadav (the deceased). Both were co-brothers (lk<w), and cultivators, P.W.6 being the elder one. Both of them are engaged in cultivation. He has further stated in his cross- examination that both of them had taken their meals before they had left their residence to catch the bus. The informant had taken rice, pulses and vegetables. Vijay had taken his meal separately. He was not aware as to what food Vijay had taken. It had taken about 10 minuts from Nakatpura to reach Muhammadpur. After the accused persons had got down from their motor- cycles, they had started shouting “idM+ks&ekjks“. They were mentioning Vijay Yadav‟s name also. He claims to be recognising the motor-cycle riders from before for about 2-3 years. They used to perform Saraswati Puja at Yadav‟s Lodge where he also used to visit and had 10 recognised them since then. He was not aware about the avocations of the motor-cycle riders. He has further stated in his cross-examination that he used to supply milk to them. There was no problem about payments. The six persons who had emerged from the medicine shop stood at the driver‟s door. They had not surrounded the bus. None of the passengers had resisted the accused persons. Vijay had not attempted to escape from the bus. P.W.6 had made no attempt to save and protect Vijay out of sheer fear. The accused persons had not misbehaved or ill-treated any one of the passengers including the informant. He had noticed the accused persons when he was getting out of the bus. There was no exchange of words with them. He knows a few residents of Muhammadpur. After getting out of the bus, he had requested a few residents of Muhammadpur to save and protect Vijay but they had expressed their helplessness. Yadavs are also amongst the residents of Muhammadpur. Vijay was looking from inside the bus and had called for help. He (P.W.6) said that he was helpless and was unable to do any thing. Most of the passengers got scattered and only a few remained there. The six persons who had emerged from the medicine shop had not fired any shot. All persons present there including the passengers and the shop-keepers kept quiet and made 11 no attempt to control the situation. No teacher or student from nearby middle-school or high school came there. He had re-asserted that, after getting out of the bus, he had proceeded towards the medicine shop and stood on a raised place and was, therefore, able to witness the occurrence. He has stated that he had seen Indradeo near the medicine shop, but no other acquaintance was present there. 5-6 shots had been fired and people had started running away after hearing the sound of the shots. He had denied the suggestion that Indradeo Yadav had gone to the medicine shop to call Dr. Ramanandan or that Indradeo had seen the occurrence. Arun had fired the first shot as a result of which Vijay had fallen down. The accused persons had left the bus about 5-6 minutes thereafter and the informant (P.W.6) had entered the bus after a minute or two. 9.2) He has further stated in paragraph 47 of his cross-examination that he knew all the accused persons as well as the names of their fathers. He knew them at the time of occurrence also. He had expressed complete unawareness about the death of Sudhir. He has denied the suggestion as to the details of the trial regarding the murder of Sudhir. He has in paragraph 52 of his cross-examination denied the suggestion that Vijay had taken liquor. He 12 has stated in paragraph 54 of his cross-examination that he had met Vijay at 6.00 to 7.00 A.M.. Both were going to Barbigha for purchase of buffalos. P.W.6 was carrying 3,500/- in cash for the purchase. He has further stated that Vijay was not drunk at the time they left their residence. Both of them had got seats in the bus on the left side of the engine. Arun had pointed his rifle at Vijay, as a result of which he could not get out of the bus. The firings in the bus had taken place after he had got out of the bus. After Arun had fired the shots, five more shots were fired at him. He had noticed P.W.3 (Lakhan), P.W.5 (Baudhu), P.W.1 (Rajendra), P.W.7 (Rajo), and Mishra near the dead body. Hira Chaukidar, resident of village Muhammadpur, had informed the police whereafter the Sub-Inspector of Police had arrived. 9.3) On a close scrutiny of the deposition of P.W.6, it appears that he has fully supported the prosecution case, and the defence has not been able to elicit any contradiction in his deposition. He and Vijay Yadav deceased had left Nakatpura together in the bus. As soon as the bus had reached Nakatpura, it was surrounded by the six appellants who had come on two motor-cycles variously armed. He was unable to recall the name of Krishna Murari but he asserted that he can recognise him on seeing him. Arun had 13 got into the bus first of all and fired at Vijay Yadav from a point-blank range. This was followed by gun-shots by the remaining five appellants who were standing in the rear portion of the bus. He along with other co-passengers particularly of Nakatpura were unable to save and protect him out of sheer fear. Arun had fired the first shot, as a result of which Vijay had fallen down. This was followed by fire-arm shots by the remaining five appellants who were standing inside the bus in the rear. Though P.W.6 has stated that he and Vijay had taken food before leaving the residence to get the bus, but he states that they had not taken food together and was not aware as to what food Vijay had taken giving rise to the possibility that Vijay may or may not have taken anything before leaving their residence. He claims to have known the appellants for some time. 10. P.W.1 (Rajendra Gope) is an agriculturist, and a resident of Nakatpura. He was travelling by the same bus to Barbigha Hat along with Budhram Gope and Vijay. He had boarded the bus along with Budhram Gope and Vijay at village Nakatpura at about 11.00 A.M. The bus stopped at village Muhammadpur to enable passengers to get down and board the bus. Two motor-cycles with three persons on each had stopped in front of the bus. All the six 14 persons got down, surrounded the bus, started talking in abusive language and had the passengers out of the bus. Only Vijay remained inside the bus. He was stopped from coming out of the bus at the gun point by Arun, Shailendra, Bahadur, Kaushal, Suli and one more person. They all were carrying fire arms. Dr. Ramanand‟s shop was close by. 5-6 persons emerged from his shop whom he was unable to recognise. Kaushal, Shailendra, Bahadur and Suli had surrounded the bus in the rear. The persons who had come out of Ramanand‟s shop were at the driver‟s door. Arun Mahto came to the rear gate of the bus. He shot at Vijay Yadav. This was followed by indiscriminate firing by other accused persons. Vijay dropped dead, whereafter the accused persons went away in different directions. He recognised Suli alias Surendra, Arun, Bahadur and Kaushal who were present in court. Shailendra was not present in the court room. He asserted that he can recognise Shailendra also. 10.1) He has stated in his cross-examination that he knew the accused persons from before. He used to supply milk to them and that is how he recognises them. Nakatpura and Muhammadpur are separated by “,d dksl“. Nakatpura and Barbigha are separated about “ikap dksl“. He was going to Barbigha market. It had taken a total of 10 minutes after the bus was cleared of the 15 passengers. He had himself got out of the bus out of sheer fear. The accused persons were standing at the gate when he was getting out of the bus. They had not threatened him and he had gone towards the shop of Dr. Ramanand. Budhram was also standing with him. Some of his co-villagers were also standing where Rajo (P.W.7), Lakhan (P.W.3), Raghubir (P.W.2), Baudhu (P.W.5), and Mishri Gope were present. We do not remember the names of other persons. They were standing on Tilha. The Tilha was about “nks&rhu gkFk“away from the bus. P.W.1 and Budhram also stood on the Tilha. The Tilha was up to waist height and had a circumference of “pkj&ikap gkFk“. He has further stated in his cross-examination that the accused persons had confined Vijay in the bus and did not allow him to get up from his seat. Arun Mahto was pointing a rifle at his chest. The remaining accused persons were standing at the rear-gate. Vijay wanted to get out of the bus but were prevented by the accused persons at gun point. 10.2) On a close perusal of the deposition of P.W.1, it appears that he is a co-villager and a resident of Nakatpura, had travelled with P.W.6 and the deceased in the same bus. He has also stated that Arun was first to fire shot at Vijay from point-blank range. Vijay Yadav dropped dead. This was followed by 16 indiscriminate firing by other accused persons. He had witnessed the entire occurrence while standing on the Tilha. He had fully supported the mode and manner of the occurrence, as well as participation of the six appellants in the manner stated in the Fardbeyan, and the defence has not been able to elicit any contradiction in his testimony. 11. The evidence of P.Ws.2 to 5 are on the same lines as P.Ws.1 and 6. P.W.2 (Raghubir Yadav) is an agriculturist and resident of Nakatpura. He had on that day, at about 11.00 A.M., gone to the clinic of Dr. Ram Nandan to give him a call. When he reached there, he noticed that a bus had reached there from the west and stopped. Two motor-cycles with Arun, Bahadur, Shailendra, Kaushal, Suli and Krishna Murari came and stopped in front of the bus. They were armed with rifles and guns. Arun had forced the passengers to get out of the bus. Vijay Yadav was not allowed to come out of the bus. In the meantime, 5-6 persons emerged from the shop of Dr. Ram Nandan and he recognised Dinesh, Devendra and Kishori amongst them. Arun Mahto entered into the bus through the rear door and shot at Vijay Yadav. Shailendra, Bahadur, Kaushal, and Suli also fired shots at Vijay, as a result of which he died in the bus. On hulla being raised, the accused persons fled away on the two motor-cycles. 17 One motor-cycle fell down about 100 yards away whereafter all of them took to their heels. He identified Shailendra, Suli, Bahadur, Arun and Kaushal who were present in court. Krishna Murari was not present in court on that day. He claimed that he recognises Krishna Murari and can identify him. 11.1) He has stated in his cross-examination that he had gone to fetch Dr. Ram Nandan because his daughter Saroj Kumari was unwell. Indradeo Yadav was also present in the Dr. Ram Nandan‟s dispensary on that day. He visits Muhammadpur once or twice every month. Dr. Ram Nandan or his compounder was not present in the dispensary when he reached there. Arun was initially standing at the driver‟s door and the remaining accused persons were at the rear door. The driver was forced to come out of the bus due to abusive language and threat of gun-shot. There was a Tilha between Dr. Ram Nandan‟s clinic and the bus. He perched himself on the Tilha along with 5-6 more persons. Except one or two persons, all the remaining persons from his village were on the Tilha. There were about 50 persons in the bus, all of whom except Vijay came out of the bus without protest carrying their belongings in their hands, and dispersed. No one attempted to save and protect Vijay. Budhram and Rajendra, co-villagers, also stood on the Tilha. They 18 felt helpless because of the sight of rifle. He knew the accused persons for one to two years. He used to meet them at Yadav lodge where they assemble for Puja. He has further stated in his deposition that when the case relating to the other Vijay Yadav (not the Vijay Yadav deceased of the present case) was in progress, he used to watch the proceedings. He has denied the suggestion that the said case had given rise to caste frenzy between the Yadavas and Kurmis. He has further stated in his deposition that he did not say anything out of fear. People reached there about 15-20 minutes after the accused persons had fled away. The driver‟s door had been obstructed by Arun. The remaining five accused persons were at the rear gate, who had not allowed Vijay to come out of the bus. He had stayed there till the arrival of the police. The police had arrived there about 2-21/2 hours after the occurrence. He had gone inside the bus to have a look at Vijay. He must have earlier met Krishna Murari at least ten times. He used to talk to him because they belong to