IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.352 of 2005 ====================================================== 1. RAM BILASH YADAV 2. NARO YADAV @ NARESH YADAV SON OF LATE JHARI YADAV 3. SHIYA RAM YADAV SON OF LATE BALDEO YADAV 4. SARYUG YADAV @ SAJJO YADAV @ SAJO YADAV @ SAJI YADAV SON OF LATE JAGESHWAR YADAV ALL R/O VILLAGE- KAMARGANJ, P.S.- SULTANGANJ, DISTRICT- BHAGALPUR .... .... APPELLANT/S VERSUS STATE OF BIHAR……………………….. .... RESPONDENT/S With CRIMINAL APPEAL (DB) NO. 425 OF 2005 ===================================================== 1. ARUN MANDAL SON OF PUNNA MANDAL 2. DHURUB BHAGAT SON OF LATE BECHU BHAGAT 3. JAI JAI YADAV SON OF LATE BALDEO YADAV 4. TARKESHWAR YADAV SON OF LATE RATTAN YADAV 5. MAHENDRA YADAV SON OF LATE MAHADEO YADAV 6. RAJ KISHORE YADAV @ RAJ KISHORE BHAGAT ALL RESIDENT OF VILLAGE- KAMARGANJ, P.S.- SULTANGANJ, DISTRICT- BHAGALPUR…………………... .... APPELLANT/S VERSUS STATE OF BIHAR……………………..... .... RESPONDENT/S ====================================================== Against the judgment of conviction and order of sentence dated 9th and 12th May, 2005 passed in Sessions Case No. 359 of 1990 ( R ) by Sri N. K. Pandey, 7th Additional Sessions Judge, Bhagalpur ======================================================= Appearance : For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Advocate Mr. Lokesh Kumar Sinha, Advocate For the Respondent/s : Mr. Salahuddin Khan, Spl. PP Mr. Saurabh Kr. JC to Spll. P. P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Above noted both the appeals are related with the massacre of the district of Bhagalpur in the month of November, Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 2 1989 when frenzied mob of thousands surrounded the village and indiscriminately killed the persons belongings to a particular community. 2. Above noted both the appeals, preferred by the above named appellants, have arisen out of common judgment dated 9th and 12th May, 2005 passed in Sessions Trial No. 359 of 1990 ( R ) by the learned 7th Additional Sessions Judge, Bhagalpur whereby the appellants were convicted for offences punishable under Sections 302/149, 436/149, 153 A/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life for the offence under Sections 302/149 of the Indian Penal Code, 10 years rigorous imprisonment for the offence under Section 436/149 IPC and 2 years for the offence under section 153A/149 Indian Penal Code. All the sentences were directed to run concurrently. 3. The prosecution story, in brief, is that on 14.11.1989 at 9.00 AM the Officer In-Charge of Sultanganj Police Station along with other police officials was establishing contacts with general public so that a peace meeting at the police station in the wake of communal situation then prevailing in Bhagalpur District may be arranged. At that very time, he (PW 22) came to know that the village Karamganj was being burnt by the rioters. Immediately thereafter, he with police party rushed towards Karamganj village and arrived there at 9.20 AM and saw that the village was surrounded from all directions by the rioters who were burning the houses of Muslims. At the sight of the police, the rioters retreated Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 3 towards the Railway Station Muslim Tola. The Officer In-charge (PW 22) went there and saw the houses belonging to the Muslims were being burnt there also. The rioters thereafter, went towards the river and from there they started firing upon the Muslims. When the police party arrived at the bank of the river, then the Officer-in- charge ordered his policemen to resort to firing so that the police and victims may be saved. The rioters on the arrival of the police, escaped towards „Diyara‟ land. Thereafter, the fard-beyan of Badrul Islam, Son of Md. Kalam resident of village Karamganj was taken at 10.30 AM on the same day wherein Badrul Islam described the occurrence saying that about 500-2000 Hindu rioters variously armed with Farsa, lathi and gun had started firing indiscriminately upon the persons of Muslim community. The Muslims in order to save themselves tried to escape from the village. The mob of rioters was being led by Dayanand Yadav and Jai Jai Yadav. Among the rioters, the informant identified 52 persons, namely, (1) Dayanand Yadav, (2) Mahendra Yadav, (3) Sajo Yadav, (4) Khelo Yadav, (5) Chitpur @ Ram Baran Yadav (6) Siya Ram Yadav, (7) Jai Jai Yadav, (8) Arun Mandal (9) Ram Bilash Yadav (10) Tarkeshwar Yadav (11) Kailash Yadav, (12) Sajji Yadav (13) Sudhir Kumar Yadav, (14) Dinesh Yadav, (15) Raj Kmar Yadav, (16) Ram Kumar Bhagat, (17) Ram Bhu Yadav, (18) Hari Kishore Yadav, (19) Rajgir Yadav, (20) Raj Janam Yadav, (21) Dukhan Yadav, (22) Subelal Yadav, (23) Ramanand Yadav, (24), Mangal Yadav, (25), Sitaram Tiwary, (26) Tuna Tiwary, (27) Raj Kumar Tiwary, (28) Sikander Yadav, (29) Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 4 Nandu Bhagat, (30) Bhangi Rai, (31) Dhrub Bhagat, (32) Naro Yadav, (33) Raju Yadav, (34) Sashi Bhagat (35) Kishori Bhagat (36) Bahadur Yadav, (37) Arjun Yadav, (38) Prakash Yadav (39) Malkha Yadav, (40) Nawal Yadav, (41) Dayanand Tiwary, (42) Gaya Tiwary, (43) Satya Narayan Bhagat, (44) Sarchan Yadav, (45) Sarjan Yadav, (46) Tini Yadav, (47) Upendra Yadav, (48) Congressi Yadav, (49) Parsadi Mandal, (50) Anil Mandal, (51) Vijay Yadav and (52) Shankar Yadav. The informant further told that the rioters killed his father Md. Kalam and his younger brother Md. Mahboob Alam, and also killed Md. Sauf, son of late Md. Habib and Md. Zahir Khan, son of Md. Doman Khan. He further stated that his villagers Md. Kamal Hussain, Md. Nizamuddin, Md. Fakruddin, Md. Nasim, Hafijan Bibi, and one Md. Rizwan of village Kol were the persons who were seriously injured. His villager Wasim @ Karoo was found missing and later on his dead body was also found. The fard-beyan signed by the informant, led to the registration of Sultanganj P.S. Case No. 213 dated 14.11.1989 under Sections 147, 148, 436, 307, 302, 295/364 of the Indian Penal Code and Section 27 of the Arms Act. Inquest reports of the deceased were prepared. The allegations were investigated into. The post mortem reports as well as the injury reports were obtained and after investigation, the case was found to be true and chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions where the charge under Section 302 Indian Penal Code was framed against Congressi Yadav, Arun Mandal, Jai Jai Yadav, Dayanand Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 5 Yadav, Dukhan Yadav and Dhrub Bhagat. Charges under Sections 302/149, 148, 436/149, 307/149 and 153 A (1) (b) of the Indian Penal Code were framed against Satyanarayan Bhagat, Dhrub Bhagat, Kishori Bhagat, Jai Jai Yadav, Tarkeshwar Yadav, Ram Bilash Yadav, Hari Kishore Yadav, Mahednra Yadav, Mogal Yadav, Dukhan Yadav, Tunna Tiwari, Ram Janam Yadav, Rajgir Yadav, Naro Yadav @ Naresh Yadav, Subelal Yadav, Sikandar Yadav, Raj Kishore Yadav, Nand Kishroe Yadav, Siya Ram Yadav, Ram Baran Yadav, Bahadur Yadav, Arun Mandal, Sanju Yadav, Anil Mandal, Sarjan Yadav, Sarchan Yadav, Congressi Yadav and Khelo Yadav and Charge under Section 27 of the Arms Act was framed against Jai Jai Yadav, Tunna Tiwari @ Shiv Kumar Tiwari, Mahendra Yadav, Tarkeshwar Yadav, Daya @ Daya Nand Yadav, Sajo @ Saji Yadav, Siya Ram Yadav, Rama Nand @ Kaila Yadav, Sikandra Yadav, Nandu Bhagat, Congressi Yadav, Raj Kishore Bhagat @ Raj Krishna Yadav, Subelal Yadav, Rama Nand Yadav, Sarchan Yadav, Malkha @ Mogal Yadav and Kishori Bhagat. 4. Though charges were framed against 28 persons but only 23 have faced the trial. Defence of the accused persons was of false implication and also that mere presence of the accused/appellants were not enough to establish that they, in any manner, were concerned with the occurrence. 5. In order to prove the charges, the prosecution has examined 23 witnesses. They are: Mir Mohammad Ali (PW 1), Md. Haider Ali (PW 2), Ainul Haque (PW 3), Sk. Kasim (PW 4), Abdul Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 6 Qudus (PW 5), Md. Nizamuddin (PW 6) (injured), Md. Kalam (PW 7) (injured), Md. Wali (PW 8), Abdul Gaffar (PW 9), Rahmatullah (PW 10), Md. Kamal Hassan (PW 11), Md. Sahabuddin (PW 12), Md. Hakim (PW 13), Azaj Ahmad (PW 14), Md. Raza (PW 15), Md. Afsar (PW 16), Soms Tavraz (PW 17), Md. Naseem (PW 18) (injured), Md. Badrul Islam the informant (PW 19), Dr. Nagendra Narayan Bhagat (PW 20), Md. Naushad Ali (PW 21), Prem Ranjan Sharma the Investigating Officer (PW 22) and Dr Kailah Jha (PW 23). 6. The defence has examined 10 witnesses. They are: Dr. Shiv Kumar Mahanraria (DW 1), Anil Mandal (DW 2), Fulchan Mandal (PW 3), Wakil Mandal (DW 4), Lukho Mandal (DW 5), Bhola Prasad Mandal (DW 6), Bharat Sah (DW 7), Dilip Kumar Yadav (DW 8), Dilip Kumar Yadav (DW 9) and Angad Yadav (DW 10). 7. PW 10 has been tendered by the prosecution whereas PWs 1 to 9, 11 to 13 and 21 were declared hostile. PW 22 is the Investigating Officer and PWs 20 and 23 are the doctors who have conducted the post mortem examination on the persons of the deceased. The occurrence has been supported by PWs 14, 15, 16, 17, 18 and 19. 8. On the basis of depositions, documents made available by both the sides and after considering the defence and prosecution witnesses, the trial court found the appellants guilty and acquitted others from the charges. 9. This Court is now required to see as to whether the trial court was justified in its conclusion and also as to whether the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 7 prosecution has been able to establish the charge against the appellants beyond the shadow of all reasonable doubts or not. 10. Dr. Nagendra Narayan Bhagat (PW 20) has conducted the post mortem examination upon the dead body of Md. Zahir Khan, son of Md. Demu Khan aged 65 years at 11.15 AM on 15.11.1989 and found following injuries: (i) Incised wound 3” x 1” x bone deep on left leg 3” above ankle cutting muscle vessels and bone, (ii) Incised wound 4‟ x 1½” x bone deep on right leg 4” above ankle and (iii) Bruises 4” x 1” on upper part of left side of abdomen. The injuries were caused by sharp cutting weapon and death was within 30 hours. The Post mortem report (Ext. 2) gives the detail of the ante-mortem injuries of Md. Zahir Khan. On the same day at 11.25 AM post mortem of Md. Kalam aged 60 was performed by this witness and he has found following injuries: (i) Incised wound 5” x 2” x bone deep on left side skull on left parital region, (ii) Incised wound 2½” x ½” x bone deep left temporal region cutting left ear. Injuries were ante mortem caused by sharp Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 8 cutting weapon. The post mortem report (Ext. 2/1) notes the detail of ante-mortem injuries of the deceased Md. Kalam. On the same day, PW 20 performed post mortem on the dead body of Md. Sauf son of late Habib of village Karamganj and prepared the post mortem report (Ext. 2/2) which noted following injuries: (i) Incised wound 7” x 3” x vertibera deep on left side and posterior part of neck (ii) Incised wound 3” x 1” x bone deep on left jaw. Injuries were ante-mortem in nature and caused by sharp cutting weapon. On that very day, again at 11.45 AM PW 20 performed post mortem examination on the dead body of Md. Mahboob Alam son of Md. Kalam of Kamarganj aged about 23 years and found following injuries: (i) Fire arm wound of entry 1c.m. diameter margin inverted, abraded 2” medial, 1” below left nipple, (ii) Wound of exit 2 c.m. diameter margin everted on back mid spinal line projectile passed through left lung, heat posterior wall, muscles spine out through wound of Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 9 exit. Blood was in the chest cavity, (iii) Incised wound 1¼” x 1/3” x muscle deep on chin and (iv) Fire arm grazing wound on right hand 2” x ½” x muscle deep. According to the opinion of the doctor, the injuries were caused by sharp cutting weapon and the post mortem report (Ext. 2/3) reveals the details of the ante-mortem injuries of Md. Mahboob Alam. PW 23, Dr. Kailash, on 18.11.1989 at 11.45 has conducted post mortem upon the dead body of Md. Washim @ Karoo aged about 20 years and found following ante mortem injuries:- (i) Firearm wound of entry at the eye cavity, tattooing around wound, (ii) Firearm wound of exit on occipital area head skull fracture wound, the projectile passed out of the body, (iii) Sharp cut on back of neck at root 1½” x 1” x bridge and (iv) Sharp cut on nose interior 1”x ½” x nose bridge. According to the opinion of the doctor, the death was 3-5 days prior to the post mortem examination. The Post Mortem examination report Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 10 (Ext. 2/4) reveals the details of the ante mortem injuries of Md. Wasim @ Karoo. 11. The death of aforesaid persons is not under challenge which is apparent from the trend of cross-examination and the prosecution has proved that the persons whose post mortem examinations were done were actually killed by means of firearm and sharp cutting weapons. The time and date of their killing is in tune with the prosecution version which has been detailed in the inquest report. Therefore, their killing has been established beyond the shadow of all reasonable doubts. 12. Once the prosecution has proved that the persons were killed, then the onus to establish is on the prosecution that the killing was by the accused persons and for that the evidence is required to be considered. 13. PWs 1 to 9, 11 to 13 and PW 21 have stated that a mob of about 2500 persons had assembled in the morning on the date of occurrence and they killed and injured the persons. Therefore, their evidence is only to that extent that rioters by forming unlawful assembly have burnt the houses, killed five persons and injured others. Therefore, from their evidence, though they have been declared hostile, it has been proved that the rioters have killed the persons belonging to muslim community, but their evidence does not disclose participation of any of the accused persons and so their evidence so far as identification is concerned, is of no use for the prosecution. PW 10 has been tendered by the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 11 prosecution. 14. Learned counsel for the appellants submitted that due to tendering of PW 10 the defence case has been prejudiced. It has further been submitted that the judgment in the case of Sukhwant Singh Versus State of Punjab reported in (1995) 2 Supreme Court Cases 367 shows that the tendering of witness for cross- examination without their being any examination-in-chief is not permissible and it amounts to giving up of the witness. 15. Section 138 of the Evidence Act prescribes the order of examination of a witness according to which a witness is firstly examined in-chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. The practice of tendering witness for cross-examination is not dealt with in this section. This practice only enhances the confusion and it does not assist the court in discovering the real issue. It is apparent that tendering of a witness for cross-examination only tantamount to giving up a witness. Therefore, tendering of one witness cannot be said to be the cause of causing prejudice to the defence. 16. The informant, PW 19 has described the occurrence. On 14.11.1989 at about 8.30 AM, his statement was recorded by the police (Ext. 1). Describing the occurrence, he stated that about 8.30 AM he was inside the house. Suddenly the sound of firing was heard and rioters raising the slogan of “Jai Bajrang Bali” attacked the village. The informant came out from his house and saw the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 12 rioters there. In order to save himself, the informant and other persons went upon the roof of Aziz Khan and from there he saw the persons with gun, sword, farsa etc. encircling the houses and they were firing indiscriminately. The informant‟s father was coming from the tea-stall situated towards east. The rioters indiscriminately assaulted his father, Abdul Kalam. The informant has identified the assailants, i.e. appellants, Arun Mandal and Dhrub Bhagat. He also subsequently named the appellant Mahendra Yadav, accused Raj Kumar Bhagat, and Raj Kumar Yadav. He also identified Jai Jai Yadav, Siya Ram Yadav, Sajo Yadav, Rambilash Yadav, Kalachand Yadav, Congressi Yadav, Daya Yadav, Chutput Yadav @ Ram Baran Yadav (dead), Tarkeshwar Yadav, Khalo Yadav, Dukhan Yadav, Raj Kumar Bhagat, Raj Kumar Yadav and Sudhir Yadav. He stated that his father was assaulted by sharp cutting instrument by Arun Mandal and others assaulted him by means of lathi. The informant‟s brother Mahboob ran to save his father, then he too was chased by Congressi Yadav and Shambhu Yadav and others and was assaulted by Sharp cutting instrument. Others also assaulted and subsequently Congressi Yadav fired upon the informant‟s brother who died there. Zahir Khan who was beaten and dragged towards the river by Jai Jai Yadav and that mob consisted of Khalo Yadv, Sajo Yadav and Tarkeshwar Yadav. According to the witness, the rioters have brunt 15-16 houses. The Mosque was destroyed. Books which were kept for Namaz were burnt. Jai Jai Yadav was armed with gun, Sajo Yadav was armed with rifle, Khalo Yadav having Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 13 lathi, Mashal and carried a can of kerosene oil, were committing various overt acts. Tarkeshwar was armed with gun, Siyaram with a rifle, Kalachand with gun, Mahendra with a gun, Congressi with a gun, Arun Mandal with a small gun and sharp cutting instrument, Rambilash was armed with a Dampola and can of Kerosene oil. Ram Kumar Bhagat and Raj Kumar Bhagat were armed with sharp cutting instruments and lathi. Daya Yadav with gun, Ram Baran Yadav with small gun, were identified by the informant. 17. Altogether five persons were killed and five persons, namely, Md. Kamal, Ekbal, Badrujamma, Nizam and Rizwan were injured in rioting. The police came one and half hours after the commencement of the occurrence and opened fire, on the rioters which led to flee away. When the Superintendent of Police came to the place of occurrence then the informant and others came down and narrated in detail about the occurrence. Inquest reports were prepared by the Officer-In-charge and this witness put his signature on the inquest reports (Exts. 1/1 to 1/3). Md. Sahabuddin, Md. Bali, Md. Nasim, Md. Afsar, Md. Ezaz, Tabrez have came to identify Dukhan Ydav, Kishore, Naro Yadva and Satyanarayan Bhagat as rioters. 18. PW 14 has described the occurrence and he has supported the entire manner and stated that on 14.11.1989 at about 8.30 AM he heard shouts of “Jai Bajrang Bali”. Out of fear he went to his roof and saw Satynarayan Bhagat with a red flag. He was followed by others and PW 14 identified Satya Narayan Bhagat, Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 14 Arun Mandal, Sajo Yadva, Anil carrying country made pistols and Sajo Yadav carrying a rifle. The rioters indiscriminately fired and burnt 15-16 houses. According to him, he has identified only 4 persons and about others he has stated that they were not of his village. He has denied the suggestion that persons were killed on account of firing by the police. 19. PW 15 has described the manner of occurrence and has identified Naro Yadav, Nandu Bhagat carrying a gun and Mashal, Jai Jai Yadav also armed with a gun, Siyaram Yadav with a rifle, Chutput @ Rambaran Yadav (dead) with a gun, Subelal with a Bhala, Dukhan with a lathi, Rambilash with a Damkhola and tin of kerosene oil and Raj Kishore Bhagat with a gun. 20. PW 16 has identified Dhrub Bhagat, Dukhan Yadav, Hari Kishore Yadav assaulting Klam Sipahi. At that time Dukhan was carrying a Lathi, Hari Kishore was carrying a Bhala and Dhrub was carrying a khanti. This witness later on went upon the roof of Abul Khan and saw Sarchand Yadav and Mahendra Yadav firing. Raj Kishroe Yadav and Sikander Yadav were burning the paddy. He further saw Daya Yadav, Jai jai Yadav, Siya Ram Yadav, Subedar Yadav dragging Zahir Khan after killing him. At that time Daya Yadav was armed with a gun, Siyaram was carrying a rifle and Subelal was armed with a gun. According to him, Daya Yadav and Siya Ram Yadav fired on the police also. He further stated that Malkhu Yadav and Tarkeshwar Yadav have also fired on the police. He denied the suggestion that the police firing led to the death of Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 15 any person. He has seen Subelal Yadav and Siyaram Yadav near the Mosque which was destroyed and burnt. This witness has identified the persons who were present in the Court. 21. PW 17 has supported the occurrence and he has stated that among rioters Dhrub Bhagat was having Khanti. 22. PW 18 is an injured witness and has identified Mahendra Yadav, Tarkeshwar Yadav dragging and assaulting Zahir Khan. Other injured witnesses, namely, PWs 6 and 7 though have supported the factum of occurrence but they have not identified the accused. 23. The evidence of the witnesses can be summed up in tabular form for proper and smooth understanding of the prosecution case, as far as it relates to the identification of witnesses. Name of the appellants with their respective serial number in the accused column of FIR PW 14 Ezaz Ahmad PW 15 Md. Raza PW 16 Md. Afsar PW 17 Samar Tabrez PW 18 Md. Nasim PW 19 Badrul Islam No. of identification Ram Bilash Yadav at sl. No. 9 Para 1 Para 4 2 Naro Yadav at Sl. No. 32 Para 1, and 6 Para 11 2 Siya Ram Yadav at Sl. No. 6 Para 1, 2 and Para 2 Para 4 3 Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 16 6 Saryug hyadv @ Sajjo Yadav at Sl. No. 12 Para 1 Para 4, 7 and 8 2 Arun Mandal at Sl. No. 8 Para 1 Para 3, 4 and 5 2 Dhrub Bhagat at Sl. No. 31 Para 1 Para 1 Para 3 3 Jai Jai Yadav at Sl. No. 7 Para 1 Para 2 Para 7 & 8 3 Tarkeshwar Yadav at Sl. No. 10 Para 3 Para 1 Para 4, 7 and 8 3 Mahednra Yadav at Sl. No. 2 Para 2 Para 1 Para 3, 4 and 8 3 Rajkishore Yadav @ Raj Kishore Bhagat at Sl. No. 15 Para 6 Para 2 2 24. To sum up the prosecution evidence, Ram Bilash Yadav stands identified by PW 15 (Para 1), PW 19 (Para 4). Naro Yadav by PW 15 (Para 1 and 6) and PW 19 (Para 11), Siya Ram Yadav by PW 15 (Para 1, 2 & 6), PW 16 (para 2) and Pw 19 (para 4). Sarju Yadav @ Sajo Yadav by PW 14 (Para 1) and PW 19 (Para 4, 7 and 8). Arun Mandal by PW 14 (Para 1) and PW 19 (para 3, 4 and 5). Dhrub Bhagat by PW 16 (para1), PW 17 (para 1) and PW 19 (para 3). Jai Jai Yadav by PW 15