Kuldip Yadav & Ors vs State Of Bihar

2) Brief facts:

On 29.04.1997, S.I. Anil Kumar Gupta recorded the statement of Sunil Yadav s/o Musafir Yadav at Nawadah Sadar Hospital and on the basis of his statement FIR No. 12/97 was registered with Govindpur Police Station under Sections 147, 148, 149, 323, 324, 307 and 447 IPC against (i) Upendra Yadav (ii) Rambalak Yadav (iii) Basudev Yadav (iv) Anil Yadav

(e) After investigation, charge sheet No. 12/97 was submitted in FIR No. 11/97 and charge sheet bearing No. 36/97 was submitted in FIR No. 12/97 against the accused persons and thereafter the case was committed to the Court of Sessions Judge and registered as Sessions Trial No. 333/97/40/97.

(f) The prosecution examined ten witnesses in support of its claim, namely, Dr. Bipul Kumar, PW-1, Dr. R.K. Bibhuti, PW-

4) On the basis of the farde bayan of the informant Naresh Yadav, F.I.R. No. 11/97 was registered with Govindpur P.S. under Sections 147, 148, 149, 323, 324, 307 and 302 IPC against Brahmdeo Yadav, Sunil Yadav, Darogi Mahto, Maho Yadav, Paro Mahto, Kuldeep Yadav, Sudhir Yadav, Bale Yadav, Shiva Nandan Yadav and Suraj Yadav. Sunil Yadav was instituted.

5) On 29.04.1997, about 5:30 a.m., at Nawada Sadar Hospital, SI Anil Kumar Gupta recorded the statement of Sunil Yadav s/o Musafir Yadav and on the basis of his statement FIR No 12/97 was registered with Govindpur P.S under Sections 147, 148, 149, 323, 324, 307, 447 IPC against 6 Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav, Manager Yadav, Ganuari Yadav, Damodar Yadav, Suresh Yadav, Umesh Yadav, Muni Yadav and Naresh Yadav.

At least three eye-witnesses stated, either in their statement under Section 164 of the Code of Criminal Procedure, 1973 (in short the "Code") or during their examination under Section 313 that the deceased died at the spot which is contrary to the statement of Naresh Yadav (PW-9) eye-witness who stated that he died on the way to hospital and which is consistent with the statement of Sunil Yadav informant in FIR No 12/97.

Sunil Yadav stated in his farde bayan that during altercation Suresh Yadav received fire-arm injury which was shot by Upendra Yadav and died. A perusal of the documents and cross examination on behalf of the accused persons probabilize the version of the accused as set up in FIR No. 12/97 which culminated into charge sheet No. 36/97 against the informant/prosecution party.

19) Another witness relied on by the prosecution is Bindeshwar Prasad @ Manager Yadav (PW-4). In his evidence, he mentioned 17 persons as accused who were present at the place of occurrence and, according to him, on seeing them, he got afraid of his life but did not run away and remained standing. He said, when bullet hit Suresh, they started running. He further deposed that except Suresh Yadav, no other fell down due to beating, all continued running and some of them reached their homes and some remained there.

23) Dr. R.K. Bibhuti, who treated injured Naresh Yadav (PW-

Summarization of the principles attracting S.149

Had the accused persons intended to kill the witnesses, they must have used the surest weapon of committing murder i.e. gun against any of the aforesaid witnesses. In view of the fact that common object was not known to anybody and in the light of the principles enunciated over application of Section 149 IPC and with the available material on the side of the prosecution, we hold that it is not safe to convict the accused persons under Section 149 IPC.

32) Summary of all the issues:

Without a clear finding regarding common object and participation therein by each one of the accused members, there can be no conviction with the aid of Section 149 IPC.

h) The place of occurrence has been shifted by informant and the investigating officer has admitted not making any site plan of the place of occurrence and casually acted on the basis of the statement of the informant without carrying its own investigation to ascertain the actual place of occurrence.

i) As it was morning time, at least some villagers in their routine work must have been present in neighbouring field who could have deposed regarding the occurrence and manner in which it did take place, if they were examined.

j) The injuries on the accused, particularly, fire arm injury on Brahmdeo Yadav has not been explained by the prosecution despite the fact that the informant parties were chargesheeted for causing those injuries on the person of Brahmdeo Yadav, Darogi Mahto, Musafir Yadav and Sunil Yadav.

k) The weapons alleged to be used in the offence were not seized and no effort was made to recover them. Hence, there is nothing on record to link the accused persons to the crime.

l) The blood stained clothes, blood stained earth of the place of occurrence were not sent to forensic laboratory for chemical examination.

m) The bullet found by the doctor who conducted the post-

mortem of the deceased was not seized and preserved for court's observation.

o) The findings of the High Court and ultimate conclusion dismissing the appeals are perverse and resulted in failure of justice.

33) Under these circumstances, the impugned judgment of the High Court dated 26.09.2003 in Criminal Appeal Nos. 293, 307, 311 and 371 of 2000 and the judgment and order dated 26/27.06.2000 passed by the Ist Addl. District & Sessions Judge, in Sessions Trial No. 333/97/40/97 are set aside. All the accused are directed to be released forthwith unless their presence is required in some other case. Appeals are allowed.

APRIL 11, 2011.