Basudeo Yadav vs Surendra Yadav & Ors

2. Background facts in a nutshell are as follows:

Munger road, he found the informant Basudeo Yadav, the brother of the deceased Vyasdeo Yadav and gave information in detail. Then Basudeo Yadav in companion with Mantu Yadav (PW3) and Baleshwar Yadav (PW2) went towards the place where the deceased was dragged by the accused- appellants but they could not find any trace of the whereabouts of the deceased as to where he had been taken. 3 Then Basudeo Yadav (PW6) accompanied by Mantu Yadav (PW3) and Baleshwar Pd. Yadav (PW-2) went to the residence of Superintendent of Police (Munger) on a rickshaw and there, on being directed by the Superintendent of Police concerned, (PW6) with his companions went to Muffasil P.S. and lodged information by giving fardbeyan which was recorded on that very night i.e. on 19.6.1993 at about 23 hours at the Muffasil P.S. It may be mentioned here that other two eye witnesses Muneshwar Yadav (PW1) and Shyam Yadav (PW4) after seeing the occurrence respectively went to their homes. Shyam Yadav (PW4) went to the house of Basudeo Yadav first and there he learnt that after knowing about this incident Basudeo Yadav had already left for police station. In the fardbeyan, a vivid description was given about the taking away of the deceased by the accused appellants including their other companions as mentioned above. On the basis of such fardbeyan (Ext. No.1) formal FIR was registered and then the same was sent to Kotwali P.S. for investigation as the place of occurrence wherefrom the deceased was dragged falling within the jurisdiction of Kotwali P.S. (Kasim Bazar). On the next day of 4 the occurrence Dhirendera Yadav (PW.5) found the dead body near Sita Charan and from there he brought the dead body by boat to steamerghat and then information was given to the informant and police. From the steamerghar the deadbody was brought home at Sheonagar and inquest was held over the dead body and then the same was sent for post mortem examination. Dr. Shashi Bhushan (PW7) held autopsy over the dead body of Vyasdeo Yadav and found the following injuries on his person:

According to the doctor, all the injuries were caused by fire arm and were anti mortem in nature and death was 6 caused due to shock and Haemorrhage resulting from the above injuries.

3. The accused persons pleaded that they have been falsely implicated because of land dispute, though they did not deny the homicidal death of the deceased. It was defence version that he was murdered near Saheb Diara at Jafar Nagar while he was returning from the house of the relations between 4/5 p.m. on the day of occurrence. After concocting a story at the P.S, the FIR was lodged with the motivated purpose. One witness was examined who happened to be a Priest and according to him he had seen from a distance that the deceased and his relatives were surrounded by unknown persons with armed weapons and deceased was killed. PWs. 1, 3 and 4 were stated to be eye witnesses along with PW 6 7 who was the informant. The Trial Court accepted the prosecution version and convicted the persons.

4. In appeal, before the High Court it was contended that the whole prosecution case is based on surmises and conjectures except the so called taking away by the accused- appellant of the deceased. There is no other material to show as to who had been the deceased, and whether there was a consensus of taking away of the deceased by the accused- appellant. Further, the so called eye witnesses PWs. 3 and 4 are got up witnesses and they were inimical to the accused persons. Additionally, they stated that the identification from the long distance in the night hours was impossible and, therefore, the prosecution version is without any foundation. The High Court found that there was no direct evidence and the case was based on circumstantial evidence. The High Court found that identification was not possible. The High Court noted that instead of filing the FIR at the correct police station, it was filed at a different police station and that gives an impression that the genesis of the occurrence has been 8 twisted. It was held that the evidence relating to kidnapping was inadequate. Accordingly, acquittal was directed.

15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.

16. The appeal is allowed.