1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.254 of 2005 ---------- Against the judgment of conviction dated 14.03.2005 and order of sentence dated 15.03.2005 passed by Sri A. K. M. M. Qureshi, IInd Additional District and Sessions Judge, Naugachia in Sessions Trial Case No. 303 of 2003. ========================================================== Baudhi Yadav, Son of Sri Bachi Yadav, resident of Village and Post Bhawanipur, Police Station-Gopalpur, District-Bhagalpur………….……….….…….Appellant. Versus The State of Bihar………………………………….………….….……Respondent. with Criminal Appeal (DB) No. 312 of 2005 ========================================================== Bhuto Yadav, Son of Late Mishri Yadav, resident of Village and Post- Bhawanipur, P.S. Gopalpur, District-Bhagalpur……….……..………..Appellant. Versus The State of Bihar……………………………………….….…………Respondent. ========================================================== Appearance: For the Appellants(In both appeals) : M/S. Sumant Singh & Rakesh Kumar “Raka”, Advocates. For the State(In both appeals) : Mr. Ashwini Kumar Singh, Advocate. ========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) S.K.Sharma & D.K.Singh,JJ. Both these appeals have been filed against the judgment of conviction dated 14.03.2005 and order of sentence dated 15.03.2005, passed by the learned IInd Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 2 Additional District and Sessions Judge, Naugachia, in Sessions Trial No.303 of 2003, whereby the appellant Bhuto Yadav has been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo R.I. for seven years, whereas, both the appellants namely, Bhuto Yadav and Baudhi Yadav have also been convicted under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo R.I. for life and R.I. for five years, respectively, and all the sentences were directed to run concurrently. 2. The prosecution case as enumerated in the fardbeyan of Hari Lal Yadav(P.W.16) recorded by S.I. Naveen Kumar(not examined) on 21.02.2002 at 9.00 P.M. at village-Bhawanipur is to the effect that at 7.00 P.M., the informant and his younger brother, Girish Yadav(deceased) and the son of the informant, Arun Yadav(P.W.3) went to the house of Kaladhar Yadav in village-Bhawanipur on invitation. It is claimed by the informant that the informant and other two were sitting at the door of Kaladhar Yadav at 7.30 P.M. and when Mantu Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 3 Kumar Yadav (P.W.4) was serving snacks, Bhuto Yadav(appellant),Bhuchi Yadav @ Bishundeo Yadav, Kami Yadav, Manoj Yadav, Rajesh Yadav, Satto Yadav, Bachchi Yadav, Sadanand Yadav, Awadhesh Yadav and Baudhi Yadav, all residents of village-Bhawanipur came alongwith 8-10 unknown criminals, armed with firearms and surrounded the informant and others when Bhuto Yadav(appellant) ordered to take revenge with regard to his brother. Bhuto Yadav fired from the police rifle at Kaladhar Yadav causing injury on other side of right knee as a result of which Kaladhar Yadav fell down. Thereafter, Manoj Yadav fired from his licensed rifle on the forehead of Girish Yadav, who happens to be the younger brother of the informant, as a result of which Girish Yadav died on the spot. Thereafter, all the accused persons opening fire in the air, escaped towards the northern side of the village. After the accused persons disappeared from the place of occurrence, the informant and others took the injured Kaladhar Yadav to Naugachhia Hospital, but by time Kaladhar Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 4 Yadav reached the hospital, he died. In the First Information Report, Subash Yadav (P.W.5) is the attesting witness. The signatures of the informant and the attesting witness have been marked as Exts. 2 and 2/A and transmitted to the learned trial court on 23.02.2002. 3. On the basis of the aforesaid fardbeyan, Gopalpur P.S. Case No. 25 of 2002 was registered on 22.02.2002 under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The First Information Report was lodged against 10 accused persons. 4. The police, after investigation, submitted charge sheet against two appellants, whereas the investigation was kept pending against others. Accordingly, the cognizance was taken and the case was committed to the court of sessions. The charge under Section 307/34 of the Indian Penal Code was framed against the appellant Bhuto Yadav, whereas both the appellants were charged under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 5 5. The prosecution, in order to substantiate its case, examined 19 witnesses, out of which P. Ws. 1,6,7,8 and 9 have been declared hostile, whereas P.Ws. 3,4,12,14,16(informant) and 18 have claimed themselves to be eye witnesses. P.W. 13(Devdhi Prasad Yadav), A.S.I. of police is the Investigating Officer. P.W.15(Dr. B. P. Singh) conducted the post mortem on dead bodies of both the deceased. All the eye witnesses are related to the informant and the deceased as P.W.3 (Arun Kumar)is the son of the informant. P.W.4 (Mantu Kumar Yadav)is the brother of the deceased Kaladhar Yadav. P.W. 12(Dhano Devi) is the sister of one of the deceased Girish Yadav. P.W.14(Umda Devi) is the mother of Kaladhar Yadav. P.W.16(Hari Lal Yadav) is the informant and brother of the deceased(Girish Yadav). P.W.17(Gita Devi) is the wife of deceased Girish Yadav. P.W.18(Kranti Devi) is the sister-in- law(Bhabhi of deceased Kaladhar Yadav). P.W. 19(Pinki Devi @ Pinku Devi)is the wife of Kaladhar Yadav. Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 6 On the basis of the aforesaid evidences, the learned trial court convicted both the appellants. 6. Now this Court has to see whether the evidences on record prove the case beyond the shadow of reasonable doubt or whether the learned trial court has appreciated the evidence in its true perspective. 7. Since there is serious inconsistency in the evidence with regard to place of occurrence, hence it is desirable to discuss the same as the first issue. 8. As per the fardbeyan of P.W. 16, the place of occurrence is the door of Kaladhar Yadav whereas as per the evidence of P.W.3 in paragraph nos. 8,9,10,11 and 18, the place of occurrence was the Baithaka (sitting place) of Kaladhar Yadav which was five hands away from Kaladhar‟s house whereas P.W. 4 in paragraph no. 1 of his evidence describes the place of occurrence as the door of Kaladhar Yadav. P.W.12, in paragraph no.1 of her evidence, claims to have seen the Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 7 occurrence from the courtyard (Aangan) of the house of Kaladhar Yadav. Hence, as per her evidence, the occurrence took place in the courtyard, as she could not have visualized the occurrence which occurred outside the house, as per the evidence of other witnesses. P.W. 17 has not specified the place of occurrence, but in paragraph no.1 of her evidence she said that she was celebrating birthday of her sister‟s son in Kaladhar Yadav‟s house. P.W.18, in paragraph no.4 of her evidence, describes the place of occurrence as the door of Kaladhar Yadav. P.W.19, the wife of deceased Kaladhar Yadav, in paragraph no.1 of her evidence, also describes the place of occurrence as the door of Kaladhar Yadav, whereas the Investigating Officer (P.W.13), in paragraph no. 2 of his evidence, has described two places of occurrence. First one, suggested and shown by the informant, i.e., P.W. 3, which is the Baithaka of Kaladhar Yadav, but the Investigating Officer neither found any blood or any Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 8 incriminating materials suggesting the occurrence taking place at the Baithaka of Kaladhar Yadav, which has been described by the Investigating Officer as first place of occurrence, whereas the second place of occurrence is 50 feet east to the place of occurrence i.e., half constructed house of Jai Narain Yadav(not examined), where blood was found and from where the dead body of Girish Yadav was recovered and in the northern direction the house of Babloo Kumar Yadav (not examined) is situated, on which the signs of fresh firing was noticed by the informant. The second place of occurrence was stated to be 40 feet west to the house of Kaladhar Yadav. The Investigating officer has neither found blood at the first place of occurrence i.e., the Baithaka of Kaladhar Yadav nor anywhere between Baithaka of Kaladhar Yadav and half constructed house of Jai Narayan Rai and in view of the injury as alleged by the prosecution and as found by the doctor during post mortem, the injury must have caused excessive bleeding and the same has been accepted by the informant (P.W. 16) in Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 9 paragraph no. 25 of his evidence that there was excessive bleeding as a result of the injury. Hence, the absence of traces of blood between two places of occurrence clouds the prosecution version that the occurrence took place at the Baithaka of Kaladhar Yadav. 9. The evidence of eye witness with regard to place of occurrence is not only inconsistent with the evidence of Investigating Officer, but it is also inconsistent with the evidence of P.W.10, the only seizure list witness, who has been examined by the prosecution, as the other seizure list witness P.W.2 (Ram Briksha Yadav) has not supported the seizure. As per the evidence of P.W. 10, it has been specifically stated that blood stained earth was seized from half constructed house of Jai Narain Rai and he has also specified the distance between the half constructed house of Jai Narain Rai and the Baithaka of Kaladhar Yadav, as 10-20 steps. The evidence of the so-called eye witnesses, who are related to the deceased, are also contradictory, so far as the place Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 10 of occurrence i.e., Baithaka of Kaladhar Yadav, is concerned. While on the one hand P. Ws. 4 12 and 18 have stated that the place of occurrence was the door of Kaladhar Yadav, P.Ws. 3, 14, 16 and 19 have stated that the place of occurrence was the Baithaka of Kaladhar Yadav, which as per the evidence of P.W. 3, is situated five hands away from the house of Kaladhar Yadav which was bounded by a boundary wall of five feet high. 10. In the circumstances, in our view the prosecution has failed to prove the place of occurrence and the learned trial court has not appreciated the evidence so far as the question of place of occurrence is concerned in its true perspective. 11. Since the prosecution has measurably failed to prove the place of occurrence, obviously it has seriously clouded the manner of occurrence also. As per the evidences of P. Ws. 3,12,16,17,18 and 19, 10-20 persons came at 7.30 P.M. and surrounded the door/Baithaka of Kaladhar Yadav, when Bhuto Yadav asked Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 11 the accused persons to take revenge of murder of his brother and Bhuto Yadav fired from his police rifle on Kaladhar Yadav which hit on upper side of his right knee. Thereafter, Bhuto Yadav asked his son Manoj Yadav to fire, when, Manoj Yadav fired from his licensed rifle on Girish Yadav which hit on his forehead, as a result of which he fell down and died on the spot. Thereafter, the accused persons resorted to firing in the air and fled away from the place of occurrence. Admittedly, as per the evidence of P.W. 3, the distance of Baithaka and the house of Kaladhar Yadav is about five hands and the house was bounded by a boundary of five feet height, but the P. Ws. are inconsistent in their evidences as to whether firing was resorted to at the door of Kaladhar Yadav or the Baithaka. P.W. 3 has suggested the place of firing at the door, whereas P.W. 12 has stated that she was in the courtyard(Aangan) of Kaladhar Yadav when occurrence took place. P.W. 16 described place of occurrence as the Baithaka of Kaladhar Yadav whereas P.W. 17 described the place of occurrence to be the Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 12 Aangan of Kaladhar Yadav which creates doubt about presence of eye witnesses at the place of occurrence. 12. The manner of occurrence not only creates doubt due to inconsistencies between the evidence of eye witnesses but also with the evidence of Investigating Officer(P.W.13) who has not found any blood or incriminating materials, though it is claimed by P.W. 4 that he was serving snacks at the place of occurrence i.e., the Baithaka/door of Kaladhar Yadav, rather the Investigating Officer has found blood in the half constructed house of Jai Narayan Yadav. P.W. 10, the seizure list witness, has also supported the version of the Investigating Officer when he deposed by saying that seizure was made from the half constructed house of Jai Narayan Yadav. The Investigating Officer has further deposed that dead body of Girish Yadav was recovered from the house of Girish Yadav itself and distance between the house of Girish Yadav and Kaladhar Yadav was 200 to 300 yards, whereas P.W. 16, the informant, in paragraph no. 27 of his evidence has specifically Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 13 stated that dead body of Girish Yadav was recovered at the door of Kaladhar Yadav. It is the consistent case of the prosecution that Girish Yadav died on the spot after receiving gun shot injury on his forehead. Hence, as per the evidence of the informant, the dead body of Girish Yadav ought to have been recovered from the Baithaka of Kaladhar Yadav instead of the house of Girish Yadav itself. Hence, to that extent the evidence of the informant is not reliable. P.W. 17, the wife of Girish Yadav, in paragraph no. 2 of her evidence, has admitted that after receiving injury she took her husband‟s dead body to her house, which corroborates the finding of the Investigating Officer that the dead body was found at the house of Girish Yadav. The evidence of P.W. 15, the doctor, who conducted post mortem, also creates doubt with regard to the manner of occurrence as claimed by the prosecution, as admittedly the Baithaka of Kaladhar Yadav was about three feet raised from the ground level and the accused persons surrounded the Baithaka from the ground level, whereas the Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 14 injuries received by Kaladhar Yadav were found to be straight in line, communicated to each other, with regard to which it has been stated by the doctor that the said injury was not possible as alleged by the prosecution. 13. It is consistent case of the prosecution that the accused persons surrounded the small Baithaka and resorted to fire from a close range but no blackening or charring marks has been found by the doctor during post mortem. 14. So far as the bleeding is concerned, P.W. 3 has stated that excessive bleeding was caused due to the injury. P.W. 16 in paragraph no. 25 has stated that excessive blood was oozing out and blood was collected from the place of occurrence but no blood was found by the Investigating Officer either at the Baithaka or the door/house of Kaladhar Yadav, which clearly clouds the manner of occurrence as claimed by the prosecution. Each inconsistency not only creates doubt about manner of occurrence but also it creates doubt about presence of eye Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 15 witnesses at the place of occurrence. The enmity is admitted by the prosecution witnesses. The fardbeyan also talks about claim of taking revenge by the appellant (Bhuto Yadav) and some of the prosecution witnesses have admitted that the deceased had been in custody in murder case of brother of Bhuto Yadav. In the background of enmity, the suggestion of the defence that the murder of Kaladhar Yadav and Girish Yadav took place in a cross firing between the two groups of the criminals, one led by Kaladhar Yadav and Girish Yadav and other led by Kumodi Yadav. Suggestion of cross firing has also been put to the witnesses of which, P.W. 1 in paragraph no. 2, P.W. 3 in paragraph nos. 15 and 19, P.W. 4 in paragraph no. 19 and P.W. 16 in paragraph no. 18 of his evidence have denied it, while it has been admitted by P.W.6 in paragraph nos. 1 and 2 and by P.W. 11 in paragraph no. 2 of their evidence. This inspires confidence that the murder took place in the manner as suggested by the defence rather than the manner as claimed by the prosecution. Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 16 Admittedly, the occurrence took place in the night, as there is no dispute with regard to time of occurrence, which is 7.30 P.M. on 21.02.2002, but the prosecution witnesses have not tried to prove the means of identification right from the recording of fardbeyan to the evidences of prosecution witnesses during trial which also creates doubt about the manner of occurrence as suggested by the prosecution. Admittedly, firing was made by only two persons, Bhuto Yadav and Manoj Yadav. Manoj Yadav was not put on trial. So far as the other appellant, namely, Baudhi Yadav, is concerned, he has been convicted with the aid of section 34 of the Indian Penal Code. 15. Section 34 of the Indian Penal Code makes the accused liable for his criminal act committed alongwith several persons in furtherance of the common intention of all. While dealing with the purposes and scope of Section 34 of the Indian Penal Code, the Apex Court, in the case of Girija Shankar Vs. State of U.P. reported in 2004(3) S.C.C. 793, observed as follows: Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 17 “Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 18 necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.” 16. In the case of Vaijayanti Vs. State of Maharastra reported in (2005) 13 S.C.C. 134 in paragraph no. 9 the Apex Court observed as follows:- “9. Section 34 of the Penal Code envisages that „when a criminal act is done by several persons in furtherance of the common intention of all each of such persons Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 19 is liable for that act in the same manner as if it were done by him alone. The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.” 17. Considering the aforesaid two judgments, the Apex Court in the case of Bengai Mandal alias Begai Mandal Vs. The State of Bihar reported in 2010(2) S.C.C. page 91 in paragraph no. 13 observed as such:- “Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore, very difficult, if not Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 20 impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such interference can be drawn with a certain degree of assurance.” 18. With the aforesaid legal position in mind, we have considered the evidences on record where we found that no overt act has been alleged against Baudhi Yadav by the prosecution, rather most of the eye witnesses have not even named the appellant Baudhi Yadav. Though some of the witnesses have said that Baudhi Yadav was also armed with gun but in absence of any active role played by the appellant, Baudhi Yadav or any overt act being made, it can not be said with certainty that the appellant Baudhi Yadav had accompanied Bhuto Yadav to the house of Kaladhar Yadav with a common intention to kill Kaladhar Yadav or Girish Yadav. Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 21 19. From perusal of evidences we found that the prosecution has also not taken any effort to prove that Baudhi Yadav was sharing common intention with Bhuto Yadav or the other accused persons. Hence, the conviction of Baudhi Yadav under Section 302 with the aid of Section 34 of the Indian Penal Code can not be sustained. 20. Admittedly, no independent witnesses have been examined by the prosecution, as the prosecution witnesses have admitted that they are either related with each other or with the deceased but as it has been held by the Apex Court in the case of Arjun Marik and others Vs. The State of Bihar reported in 1994(supplementary)(2) S.C.C. 372 that “mere relationship of the witnesses can not be the sole basis to discard the evidence if it is otherwise found to be believable and trustworthy”. In the present society, in serious offences, no independent witness comes forward to depose in the aid of prosecution. The court has to only to scan the evidence of related witnesses with care and circumspect, as to whether the evidence of Patna High Court CR. APP (DB) No.254 of 2005 dt.29-09-2011 22 the related witnesses is found to be believable and trustworthy. However, when the Court has to appreciate the evidence of any interested witnesses it has to be very careful in weighing their evidence. In other words, while scrutinizing the evidence of an interested witness, it requires greater care and caution. The Court has to address to itself whether there are any infirmities in the evidence of such