CRIMINAL APPEAL No.622 OF 2004 Against the Judgment and Order dated 18.08.2004, rendered by Additional District & Sessions Judge, Fast Track Court No. 5, Begusarai in Sessions Trial No. 53 of 1992, for the offences under Sections 302/34 as well as 342/34 of the Indian Penal Code 1. SHEKHO YADAV, SON OF LATE RAMAUTAR YADAV 2. WAKIL YADAV, SON OF SARYUG YADAV 3. KARE LAL YADAV ALIAS KARE YADAV, SON OF PARMESHWAR YADAV, ALL RESIDENTS OF VILALGE – PARTARPUR, POLICE STATION – SAHEBPUR KAMAL, DISTRICT - BEGSURAI ---------------------APPELLANTS VERSUS STATE OF BIHAR ----------------RESPONDENTS WITH CR. APP (DB) NO. 637 OF 2004 1. RAJENDRA YADAV SON OF BIJO YADAV 2. CHANDRADEO YADAV (SINCE DEAD) , SON OF BANARSI YADAV BOTH RESIDENTS OF VILLAGE – PARTARPUR, POLICE STATION – SAHEBPUR KAMAL, DISTRICT - BEGUSARASI ---------------------APPELLANTS VERSUS STATE OF BIHAR -------------------RESPONDENTS WITH CR. APP (DB) NO. 648 OF 2004 DEOKI NANDAN YADAV, SON OF LATE HALKHORI YADAV, RESIDENT OF VILLAGE – PRATAPPUR, P.S. – SAHEBPUR KAMAL, DISTRICT – BEGUSARAI ------------------APPELLANT VERSUS STATE OF BIHAR ---------------------(RESPONDENTS) WITH CR. APP (DB) NO. 719 OF 2004 CHHOTELAL YADAV @ CHHOTAN YADAV, SON OF LATE HALKHIRI YADAV, RESIDENT OF VILLAGE PRATAPPUR POLICE STATION – SAHEBPUR KAMAL, IN THE DISTRICT OF BEGUSARAI -------------------- APPELLANT VERSUS STATE OF BIHAR --------------------RESPONDENTS WITH CR. APP (DB) NO. 723 OF 2004 KAPILDEO YADAV SON OF LATE HALKHORI YADAV, RESIDENT OF VILLAGE PRATAPPUR POLICE STATION SAHEBPUR KAMAL IN THE DISTRICT OF BEGUSARAI ---------------------APPELLANT 2 VERSUS STATE OF BIHAR --------------------RESPONDENTS WITH CR. APP (DB) NO.739 OF 2004 SULO YADAV, SON OF LATE MAHABIR YADAV, RESIDENT OF VILLAGE – PARTARPUR, P. S. – SAHIBPUR KAMAL, DISTRICT – BEGUSARAI ---------------APPELLANT VERSUS STATE OF BIHAR --------------------RESPONDENTS FOR THE APPELLANTS : SARVSRI RAMAKANT SHARMA SR. ADVOCATE AKHILESHWAR PRASAD SINGH BIMAL KUMAR NO. 2, ADVOCATES FOR THE STATE: SHRI ASHWINI KUMAR SINHA APP. ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ****** Mridula Mishra & Dharnidhar Jha, JJ. Affidavit was filed yesterday, which has been sworn by one Binod Kumar Yadav, to which, he has attached a death certificate, issued by the Registrar of Birth and Death, Mahipatoli in the district of Begusarai, indicating that appellant no. 2, Chandradeo Yadav of Cr. Appeal No. 637 of 2004, demised on 15.07.2010. 3 2. In the light of the appellant’s death, the appeal of appellant, Chandradeo Yadav stands abated. 3. The six appeals arise out of the Judgment dated 18.08.2004, rendered by Additional District & Sessions Judge, Fast Track Court No. 5, Begusarai in Sessions Trial No. 53 of 1992. The appellants were put on trial in the above noted case, by framing joint charges against them under Sections 302/34 IPC and 342/34 IPC. The verdict of conviction was recorded against them by the learned Trial Judge and while passing sentence on 23.08.2004, each of the appellant of the six appeals, was directed to suffer rigorous imprisonment for life for his individual conviction under Section 302/34 IPC and further to undergo RI for one year for his conviction under Section 342/34 IPC. We have heard the appeals, which have set up the challenge to the above finding of guilt and order of sentence. 4. The prosecution story emanates from the FIR, Exhibit 4, which was lodged by Chulho Yadav, P.W. 3 at 4 Balia Police Station on 24.11.1984 at about 11.30 a.m. The informant stated that he along with Shankar Yadav (deceased) and Mushaharu Yadav, P.W. 1, were going to Begusarai Court on 24.11.1984 at about 08.00 a.m. and when they had reached near a bridge, which has been described as Simardahi bridge, the accused persons, who are named in the FIR, which consisted of the 9 appellants also emerged from a brick-kilns, armed with rifles, guns and pistols and surrounded the deceased Shankar Yadav. It is further alleged that the accused persons captured Shankar Yadav, lifted him and started taking him away towards through Diha Road in the direction of west of that particular road and when they had reached a place about one and half kilometers from the place where Shankar Yadav was picked up, Rampadarath Yadav fired a shot on the deceased Shankar Yadav. Shulo Yadav remonstrated him again to kill the deceased, upon which he again fired a shot upon the deceased. Besides, Rampadarath Yadav, 5 appellants, like, Chhotan Yadav and Kapil Yadav also fired on the deceased and killed him. 5. The informant apprehended that the accused persons might take away the dead body and as such he along with others picked up the dead body to bring it to his house and came to the police station with Bhola Yadav, (not examined), Rasho Yadav, (P.W. 2) and Mahadev Yadav (not examined) for lodging a report. The informant stated that the occurrence was witnessed by Sagar Yadav, (not examined), Bhola Yadav, (not examined), Rasho Yadav, (P.W. 2), Ganeshi Yadav, (P.W. 4), Sagar Yadav, (P.W. 5). The informant further alleged that the reason for the occurrence was the previous enmity between the parties. 6. On the basis of the FIR, Exhibit 4, the police investigated the case and sent up the accused persons for trial. Originally there were 12 accused persons named as accused in the FIR, but some of them, like Rampadarath 6 Yadav, Mahavir Yadav died, prior to the case was taken for trial and thus leaving the appellants on trial. 7. The defence of the appellants was that no occurrence in the manner as alleged by the prosecution, had ever taken place and the deceased was killed by someone else, as he was a person of criminal antecedents and in order to feeding fat the grudge and animosity, which the informant and the others were nursing towards the appellants, they falsely implicated the appellants. 7. In support of the charges, the prosecution examined six witnesses. P.W. 1, Mushaharu Yadav, is named in the FIR as an eye witness and appears to be brother of the deceased. P.W. 2, Rasho Yadav has claimed himself to be a witness of occurrence. P.W. 3, Chulho Yadav, was the informant of the case and admittedly the brother of the deceased, Shankar Yadav. P.W. 4, Ganeshi Yadav, is an eye witness to the occurrence. Besides, the above, Ram Sagar Yadav, P.W. 5 is another eye witness, 7 cited in the FIR. P.W. 6, Dr. Madan Mohan Prasad held the post-mortem examination on the deceased and has issued post-mortem examination report, exhibit 2. 8. The defence did not lead any evidence in support of its defence. The learned Trial Judge, after considering the evidence, which was available to him passed the judgment, which is being impugned in the present six appeals. 9. We have heard Shri Akhileshwar Prasad Singh, learned counsel appearing for the appellants of Criminal Appeal Nos. 622, 637, 719 and 739, all of year 2004 and Shri Rama Kant Sharma, learned senior counsel appearing for appellants in Criminal Appeal Nos. 648 and 739, both of year 2004. The two learned counsel appearing for the appellant have advanced common arguments. In fact, Shri Sharma, the learned Sr. Counsel, appearing in two appeals has adopted most of the arguments advanced by Shri Singh and has added a few of his own. Shri Singh has 8 submitted that the very manner of picking the deceased up and taking him to a place which could be one and half kilometers away from the real place of occurrence does not appear acceptable. It was contended that if all the appellants were bent upon killing the deceased Shankar Yadav, there was no obstruction to them in accomplishing the act on the very place where Shankar Yadav was captured by them. It was contended that the claim of the witnesses on carrying the deceased up to the field of Phulo Devi appears not reasonably acceptable inasmuch as their very conduct appears against ordinary human conduct. It was expected that they could have rushed for help or would have made a hue and cry and would not have allowed the appellants to take away the deceased so that he could be murdered in the field of Phulo Devi. Contention was also made on the merits of the individual witnesses. It was contended that P.W. 2, Rasho Yadav appears a chance witness, as he has stated that he was going to purchase 9 some fertilizers from a particular place and when he was on way, he could see the occurrence. His presence was further challenged by drawing our attention to some part of the cross examination evidence of the witness in which attention of the witness was drawn to some statements made by him in Court so as to suggest to him that he had not made these statements to the investigating Officer. Similar was the case while Shri Singh was criticizing the quality of evidence of P.W. 5 Ram Sagar Yadav, the son of the informant. It was contented that it was simply unacceptable that he will be going for purchasing some house hold articles to Balia and during that course he could see the occurrence. It was contended that the witnesses were admittedly interrelated to each other as may appear from the evidence of P.W. 2 in paragraph 10 and no independent person came forwarded to support the charges. In support of the above contention on non- examination of independent witnesses, a decision of the 10 Supreme Court, reported in 2005 (3) Criminal Law Journal, 2579 (State of U. P. Versus Gambhir Singh and others) was cited before us. Besides, citing the above decision, yet another decision of Supreme Court has been cited on interestedness of the witness, which has been reported in AIR 1981 SC 942 (Ram Ashrit and others Versus State of Bihar). Shri Singh has further submitted that the Doctor deposed that the death should have been caused within 48 hours of the holding of post-mortem examination and that also indicates as if the deceased had been killed at some other place and after recovering the body from that place, the informant and others implicated the appellant falsely to settle his grudge. It was, lastly, contended that there could be two views possible on the evidence of the case and in that case the acquittal of the appellants was highly desirable in the face of the evidence. In support of this contention, Shri Singh has cited before us a judgment reported in AIR 1984 SC 1622 (Sharad Birdhichand Sarda 11 Versus State of Maharashtra). It was contended that if a witness has been found not acceptable on account of infirmities, which could be found in his evidence, then his evidence could not be utilized in seeking support to the charges by getting support to the evidence of other PWs. To buttress the above submission, Shri Singh has placed reliance upon a judgment reported in AIR 1976 SC 989 (Muluwa and others and The State of Madhya Pradesh). 10. Shri Sharma, the learned Sr. Counsel appearing in the two appeals, has submitted that the blood stained earth was not sent for chemical analysis to the Forensic Science Laboratory and as such there is no report confirming that any blood which was recovered from the field of Phulo Devi was human blood and as such the site of assault was not established. Besides, the witnesses were of the same family and no one was coming from the outside the family, to support the charges and as such the prosecution was to be thrown over board. In support of the 12 above contention, Shri Sharma has placed reliance on a judgment reported in AIR 2003 SC 801 (State of U.P. Versus Arun Kumar Gupta). The other argument of Shri Sharma was that the witnesses were simply moving behind the appellants and were not raising any protest nor were they seeking any assistance by rushing to the nearby village Manjapur for garnering support of the villagers of that village and the charge-sheet witnesses like Garib and Sarju, were withheld, as such the whole prosecution case is doubtful, as was held by the Hon'ble Supreme Court in case reported in 2002, SC 3582 (Mohan Singh Versus Prem Singh and another). 11. Shri Ashwini Kumar Sinha, the learned Additional Public Prosecutor has countered the above submissions of the learned counsel appearing for the appellants, firstly, by submitting that the medical evidence is not a perfect evidence as medical science has not achieved such perfection, by which it could accurately tell the age of 13 injury or time of death. It is simply an opinion-evidence, which is mainly given on guess work, taking into account various attending features or circumstances of a given case. In support of the contention, Shri Sinha cited before us a decision reported in 2007 (2) SCC (Criminal) 626 (Ramjee Rai and Others Versus State of Bihar). It was contended that the witnesses appear corroborating each other on the material parts of the prosecution case and a ring of consistency appears around their evidences. The learned trial judge, who had the occasion of observing the witnesses while recording their evidence relied upon them and as such this could be simply not permissible for this Court to reject their evidence. 12. The criticism of P.W. 2, Rasho Yadav is on the ground that he is a chance witness as has been in the case of P.W. 5, Ram Sagar Yadav, the son of the informant. We may point out that in our society there is no fixed mode of behaviour and similarly there is no fixed time for us to take 14 up a particular work to be completed or accomplished. We live in a society where we all behave casually at most of the times of a day. We may be roaming around without any purpose on any road or could be found present at any place again without any purpose or remaining present anywhere. We have to consider the claim of a witness that he had seen the occurrence after keeping ourselves informed about the casual behaviour of most of the people who live in our society. Besides, it is not that the two witnesses had given no reason for going to a particular place in connection with their individual needs. The credibility of the witnesses of being present on or around the scene of occurrence would be tested on many parameters. But, the most important of them can be the reason, which could be appearing from his evidence as regards his presence at the place of occurrence. P.W. 2 and P.W. 5 have given reasons for being somewhere near the place of occurrence so as to seeing the occurrence and 15 they have said that they had reached the place of occurrence where the deceased was captured on account of moving on road for going to a particular place. P.W. 2 stated that he was going to Balia Bazar for purchasing some fertilizers. This appears in paragraph 1 of P.W. 2. The witness has been cross examined on the above fact in paragraph 11 of his evidence which appears at page 30 and 31 of the paper book. He has stated that it was true that he was going to purchase the fertilizers, but he did not do it and further that he could purchase the fertilizers after four days of the occurrence. He has stated as to what were the fertilizers which were purchased by him. When questioned on the price of fertilizer or about obtaining any receipt, the witness has very categorically stated that he could not exactly remember at what price he purchased the fertilizers. We understand as to why he could not have purchased fertilizer on the day of occurrence. The deceased had been picked up, he was being taken to a 16 particular place for being murdered. P.W. 2 as may appear from his own evidence in paragraph 10, appeared related to the family of the deceased. The whole incident must have upset him. It would have been the only fact in his mind occupying it completely. Being one of the family members of the deceased, he along with informant and others would have made all attempts to salvage the dead body as the informant claimed that he salvage it with others including P.W. 2 so that a report was made in time. In such circumstance, it could be simply unreasonable to expect a person to proceed ahead with his plan of purchasing fertilizers leaving his relative, who can be a person like the deceased in an injured or wounded condition or desert his dead body in a lonely field. 13. The same criticism was made against the evidence of P.W. 5, Ram Sagar Yadav, who was the son of the deceased. He claimed to be present near the scene of occurrence, because he was also proceeding to Balia Bazar 17 and he saw the accused persons, capturing his father near the brick-kiln. The witness had been cross examined in paragraph 7 of his evidence and during that course he pointed out to the Court that he was going to Balia Bazar to purchase some house hold articles, which can be required by the family. In the same paragraph P.W. 5 has stated that on the same day, his father had proceeded to attend the Court proceeding and was going to make pairvi in a pending case in some Courts. He has further indicated as to what was the case and who were accompanying his father. These factual data, which are available to us from paragraph 7 of P.W. 5, give several reasons to us to believe the presence of the witness near the place of occurrence. We do not find either in the evidence of P.W. 2 or in that of P.W. 5. Even that suggestion was given to either of the witnesses by the defence that their claim that they were going to Balia Bazar for purchasing fertilizer or house hold articles was a lie. The defence probably was 18 trying to live with the situation and was probably admitting their claim that they had legitimate, sound reasons for remaining present at the seen of occurrence. 14. As regards other witnesses, P.W. 1, Mushaharu Yadav along with P.W. 4, Ganeshi Yadav are named in the FIR. Their claims also appear to be legitimately acceptable. The only criticism about the presence of three witnesses, which was generally made against all of them, was that it was unthinkable and unacceptable that the witnesses could be moving behind the appellants when the appellants were carrying the deceased to a particular place for committing his murder. It was contended that if the accused persons were so heavily armed then it would have been very easy for the appellants to scare them away or to obstruct them to follow them. We find from the evidence that it was not that the appellants were not scaring them away. P.W. 3 in paragraph 4 has stated that when they were following the appellants, they used to threaten them by even pointing 19 out their guns and weapons towards them, as a result of which they would either retreat or take shelter by the side of the road. This evidence is available in the deposition of almost all the witnesses, as may appear from paragraph 19 of P.W. 1, Mushahari Yadav and paragraph 9 of P.W. 4 Ganeshi Yadav. This appears a natural behaviour of the appellants and a natural reaction of the witnesses also. 15. So far as the contention that the witnesses were not raising any hue and cry nor were rushing to the nearby village i.e., Manjapur for garnering support so as to obstructing the appellants from not succeeding in taking away the deceased and killing him, we have one line of evidence coming from P.W. 1 in paragraphs 17 and 18 of his deposition. It was not that people were not available either on the road or in surrounding area. P.W. 1 has stated in paragraph 7 that while the accused persons were taking away the deceased, people were still passing by the road. But in the same paragraph he has stated that as 20 soon as they found such a dreaded incident being accomplished by the appellants, they started running away out of fright from all around the scene of occurrence. This could probably indicate as to what could be the degree of fright, which was unleashed by the acts of the appellants. The appellants being heavily armed had picked up the Mukhiya of a Gram Panchyat from a high way and were moving with him ultimately to kill him in a filed. We while sitting in a Court room may not fathom the intensity of freight or degree thereof, which would have been unleashed at the seen of occurrence by the acts of the appellants. That degree and intensity is exhibited by that particular line of evidence of P.W. 1, when he was stating to the Court that everyone who was moving either on the road or in the surrounding area started running away to take shelter at various places. If this could be the circumstance, which was created by the dreadful acts of the appellants, it is simply unreasonable to think that 21 anyone from the surrounding village would come and intercept the high handed acts of the appellants. This appears to us the real reason that none was coming or intervening in the acts of the appellants. 16. The witnesses are consistent as they were found by the trial court. We were taken through the evidence of each and every witness and found that they are consistent on almost all material parts of the prosecution case. It might be that some one had failed in adding one name or omitting the other. We have always to be alive to the situation that the date of occurrence was the 24th of November, 1984 and charges were framed on 21st of February, 1994, i.e., 10 years after the occurrence, the first witness was examined on 23rd of September, 1996 and the last witness on 18.01.2001. Thus, we find that a complete 17 years were consumed in concluding the recording of the evidence during trial of the case. Those 17 years would have been very meaningful or relevant when 22 we consider the fact that the witnesses, who were coming forward to the Court were deposing after 15-16 years of occurrence. They were rustic persons and above all no one keeps a written record in our society of incidents. Memory of a person is what is recalled for reproducing the facts of the case. When the human process is there to give evidence in a Court, some omissions or aberrations are bond to occur, when a man is narrating a series of an incident to the Court, one may add or omit some fact. Besides, if witnesses are coming after 15-16 years of the occurrence to depose then they had always to be very conscious about their credibility that the Court may not rely upon their evidence. As such there could be a tendency in them to add up a few facts to their depositions under a psychological pressure that their evidence is accepted by the Court as believable. These are the reasons why we often find some facts stated or some facts omitted in the deposition of different witnesses. The whole criteria 23 of marshalling the facts by reading the evidence is to consider the material parts of prosecution story and then seek corroboration of those parts from the evidence of witness. After being taken through the brief containing the evidence of 5 witnesses, who were produced in trial court, we found them extremely consistent on the most material part of the case. There was no variation in any details so as to hold that the appellants were not the persons who forcibly surrounded the deceased, captured him and finally lifted him to be taken to the field of Phulo Devi, where he was shot