Kuldip Yadav &
Ors. Versus State of Bihar
J U D G M E N T
P. Sathasivam,J.
1.
These
appeals are directed against the common judgment and final order dated 26.09.2003
passed by the Division Bench of the High Court of Patna in Criminal Appeal Nos.
293, 307, 311 and 371 of 2000 whereby the High Court upheld the judgment and order
dated 26/27.06.2000 passed by the Ist Addl. District & Sessions Judge,
Nawadah in Sessions Trial 1 No. 333/97/40/97 convicting the appellants herein for
the offence punishable under Section 302 of the Indian Penal Code (in short the
"IPC") read with Section 27 of the Arms Act, 1959, Section 302 read with
Section 149 of the IPC and Section 324 read with Section 149 of the IPC and
maintained the sentences imposed upon them.
2.
Brief
facts:
a. The present group of
appeals arises out of FIR No. 11 of 1997 registered at Police Station
Govindpur, at the instance of one Naresh Yadav (PW-9) leading to Session Trial No.
333/97/40/97 at the Court of Ist Addl. District & Sessions Judge, Nawadah.
b. There was a cross FIR
No. 12 of 1997 registered at the same Police Station at the instance of one Sunil
Yadav (accused No.9 in FIR No. 11 of 1997) which was lodged at the instance of
the accused in FIR No. 11 of 1997.
c. According to Naresh Yadav
(PW-9)-the informant in FIR No. 11 of 1997, on 28.04.1997, at 9:00 a.m., all of
a sudden, Brahamdeo Yadav, Darogi Mahto, Maho Yadav, Paro Mahto, Kuldeep Yadav,
Sudhir Yadav, Sunil Yadav s/o Bale Yadav, 2 Bale Yadav, Shiv Nandan Yadav, Sunil
Yadav s/o Musafir Yadav and Suraj Yadav armed with Saif, Bhala, lathis and gun came
in a mob where Suresh Yadav- informant's elder brother, since deceased, was getting
his diesel machine repaired through a mechanic Mohan Yadav. It was alleged that
accused Brahamdeo Yadav @ Bhonu Yadav shot a fire at Suresh Yadav in the
abdomen and when he went to help him, Sunil Yadav gave a saif blow causing
injury on his lips. It was also alleged that on hearing alarm Munshi Yadav, Ganuari
Yadav and Bindeshwar Yadav had come and they were also subjected to assault by
the accused persons. He also told that the victim Suresh Yadav died on the way
while being taken to the hospital.
d. On the basis of the farde
bayan of Naresh Yadav-the informant, FIR No. 11/97 was registered with Govindpur
Police Station under Sections 147, 148, 149, 323, 324, 307 and 302 IPC against
Brahamdeo Yadav, Sunil Yadav s/o Bale Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,
Kuldeep Yadav, Sudhir Yadav, Bale Yadav, Shiv Nandan Yadav and Suraj Yadav. Sunil
Yadav s/o Musafir Yadav was instituted. 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
v.
Ganuari
Yadav
vi.
Damodar
Yadav
vii.
Suresh
Yadav
viii.
Umesh
Yadav
ix.
Muni
Yadav
x.
Naresh
Yadav and
xi.
Manager
Yadav.
1.
2.
3.
The
investigations in both the FIRs were taken by S.I. Mohd. Shibli, Officer-in-charge
of Govindpur Police Station.
a.
b.
c.
d.
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- 2, Ganuari Yadav, PW-3, Bindeshwar Prasad @ Manager 4 Yadav,
PW-4, Basudeo Yadav, PW-5, Kesho Yadav, PW-6, Munshi Yadav, PW-7, Minta Devi,
PW-8, Naresh Yadav, PW-9 and Md. Shibli, Officer-in-Charge, Nawadh PS. PW-10.
g. After completion of the
trial, learned Sessions Judge convicted all the accused for the offences punishable
under Sections 302, 324 read with 149 IPC and sentenced them to undergo rigorous
imprisonment for life and further imprisonment of two years.
h. Aggrieved by the order
passed by the trial Judge, the accused preferred different sets of appeals, namely,
Criminal Appeal Nos. 293, 307, 311 and 371 of 2000 before the High Court of Patna.
By the impugned judgment and order, after accepting the prosecution case, the
Division Bench of the High Court upheld the judgment of the Sessions Judge and dismissed
all the appeals.
i. Aggrieved by the
decision of the High Court, Paro Mahto (A5), Kuldip Yadav (A6), Sudhir Yadav (A7)
filed Criminal Appeal No. 531 of 2005, Brahamdeo Yadav (A1) filed Criminal Appeal
No. 532 of 2005 and Darogi Mahto (A2), Bale Yadav 5 (A8) and Suraj Yadav (A11) filed
Criminal Appeal No. 534 of 2005 before this Court. 3) Heard Mr. Rajan K. Chourasia
learned counsel for the appellants in Criminal Appeal Nos. 531 & 534 of 2005,
Mr. J.P.N Gupta, learned amicus curiae for the appellant in Criminal Appeal No.
532/2005 and Mr. Manish Kumar, learned counsel for the respondent-State. FIR
Nos. 11/97 and 12/97
1.
2.
3.
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 Upendra Yadav, Rambalak Yadav, Basudev
Yadav, Anil Yadav, Manager Yadav, Ganuari Yadav, Damodar Yadav, Suresh Yadav,
Umesh Yadav, Muni Yadav and Naresh Yadav.
6.
The
investigation in both FIRs was taken by SI Md. Shivli, Officer-in-charge, Govindpur
Police Station. The charge-sheet bearing no. 12/97 was submitted in FIR No. 11/97
P.S. Govindpur, on 30.06.1997 against Brahamdeo Yadav, Sunil Yadav, Darogi
Mahto, Maho Yadav, Paro Mahto, Kuldeep Yadav, Sudhir Yadav, Bale Yadav, Shivan
Yadav and Suraj Yadav and Sunil Yadav who was later instituted.
7.
The
charge sheet bearing no. 36/97 was also submitted in FIR No. 12/97 P.S. Govindpur,
on 17.12.1997 against Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,
Manager Yadav, Ganuari Yadav, Damodar Yadav, Umesh Yadav, Muni Yadav and Naresh
Yadav except Suresh Yadav s/o Kesho Yadav as he had died. The cognizance was taken
by the Court and charge was framed under Section 307 and 149 IPC.
8.
It
was highlighted that the prosecution witnesses are not certain about the place
of death of the deceased Suresh Yadav. 7 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-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. Procedure in respect of cross cases
9.
In
order to understand the above issue, it is useful to refer Section 223 (d) of
the Code which reads as under: "223. What persons may be charged jointly.--The
following persons may be charged and tried together, namely:--
a. xx
b. xx
c. xx 8
d. persons accused of different
offences committed in the course of the same transaction;
e. xx
f. xx
g. xx"
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
The
above provision has been interpreted by this Court in the following decisions. In
Harjinder Singh vs. State of Punjab and Ors. (1985) 1 SCC 422, the question before
the Court was whether under Section 223 of the Code it is permissible for the
Court to club and consolidate the case on a police challan and the case on a complaint
where the prosecution versions in the police challan case and the complaint case
are materially different, contradictory and mutually exclusive. The question was
whether the Court should in the facts and circumstances of the case direct that
the two cases should be tried together but not consolidated i.e. the evidence be
recorded separately in both cases and they may be disposed of simultaneously except
to the extent that the witnesses for the prosecution which are common to both may
be examined in one case and their evidence be read as evidence in the other. After
analyzing the factual details, this Court has concluded:- "8. In the facts
and circumstances of this particular case we feel that the proper course to
adopt is to direct that the two cases should be tried together by the learned Additional
Sessions Judge but not consolidated i.e. the evidence should be recorded separately
in both the cases one after the other except to the extent that the witnesses for
the prosecution who are common to both the cases be examined in one case and their
evidence be read as evidence in the other. The learned Additional Sessions Judge
should after recording the evidence of the prosecution witnesses in one case,
withhold his judgment and then proceed to record the evidence of the
prosecution in the other case. Thereafter he shall proceed to simultaneously dispose
of the cases by two separate judgments taking care that the judgment in one
case is not based on the evidence recorded in the other case....." (underlining
supplied)
11.
In
Balbir vs. State of Haryana & Anr. (2000) 1 SCC 285, this Court considered
clauses (a) and (d) of Section 223 of the Code and held that the primary
condition is that persons should have been accused either of the same offence or
of different offences "committed in the course of the same transaction".
The expression advisedly used is "in the course of the same transaction".
That expression is not akin to saying "in respect of the same subject-matter".
For several offences to be part of the same transaction, the test which has to
be applied is whether they are so related to one another in point of purpose or
of cause and effect, or as principal and 10 subsidiary, so as to result in one continuous
action. Thus, where there is a commonality of purpose or design, where there is
a continuity of action, then all those persons involved can be accused of the
same or different offences "committed in the course of the same
transaction".
12.
In
Lalu Prasad vs. State thr. CBI (2003) 11 SCC 786, this Court held that
amalgamation of cases under Section 223 is discretionary on the part of trial
Magistrate and he has to be satisfied that persons would not be prejudicially affected
and that it is expedient to amalgamate cases.
13.
Regarding
the argument based on Section 210(2) of the Code, it is useful to refer the
decision of this Court reported in Pal @ Palla vs. State of U.P. (2010) 10 SCC
123 which reads as under:- "27. Sub-section (2) of Section 210 provides
that if a report is made by the investigating officer under Section 173 and on such
report cognizance of any offence is taken by the Magistrate against any person,
who is an accused in a complaint case, the Magistrate shall inquire into or try
the two cases together, as if both the cases had been instituted on a police
report. Sub-section (3) provides that if the police report does not relate to
any accused in the complaint case, or if the Magistrate does not take
cognizance of any offence on a police report, he shall proceed with the inquiry
or trial which was stayed by him, in accordance with the provisions of the
Code. 11 28. Although it will appear from the above that under Section 210 CrPC,
the Magistrate may try the two cases arising out of a police report and a private
complaint together, the same, in our view, contemplates a situation where
having taken cognizance of an offence in respect of an accused in a complaint case,
in a separate police investigation such a person is again made an accused, then
the Magistrate may inquire into or try together the complaint case and the case
arising out of the police report as if both the cases were instituted on a
police report. That, however, is not the fact situation in the instant case, since
the accused are different in the two separate proceedings and the situation has,
in fact, arisen where prejudice in all possibility is likely to be caused in a single
trial where a person is both an accused and a witness in view of the two separate
proceedings out of which the trial arises. 30. .....As was observed in Harjinder
Singh case1 clubbing and consolidating the two cases, one on a police challan
and the other on a complaint, if the prosecution versions in the two cases are materially
different, contradictory and mutually exclusive, should not be consolidated but
should be tried together with the evidence in the two cases being recorded separately,
so that both the cases could be disposed of simultaneously."
14.
In
the case on hand, we have already noted that the investigation was conducted by
the same I.O. in respect of the incident that took place on 28.04.1997 at Khalihan.
Though in the cross-case, that is, FIR No. 12/97, a complaint was made on the
next day i.e. on 29.04.1997 at about 5:30 A.M., from the materials available, both
the cases relate to the incident that took place at 9 A.M. on 28.04.1997 which
is also clear from the following information.
FIR No. 11/97 P.S. GOVINDPUR
|
FIR No. 12/97 P.S. GOVINDPUR
|
Informant-Naresh
Yadav (PW-9)
|
Informant-Sunil
Yadav (A9 in FIR 11/97)
|
Chargesheet
submitted on 30.06.1997 on Charge was framed on 19.03.1999 Date of Judgment
of Trial Court: 27.06.2000
|
Chargesheet
submitted 17.12.1997 Chargesheet submitted 17.12.1997 Date of Judgment of
|
Trial
|
Court:
18.11.2009
|
Accused Persons
|
Accused Persons
|
1.
Brahamdeo Yadav @ Bhonu Yadav (Gun)
|
1.
Upendra Yadav (Pistol)
|
2.
Darogi Mahto (Gun)
|
2.
Rambalak Yadav (Gun)
|
3.
Maho Yadav (Gun)
|
3.
Basudev Yadav
|
4.
Sunil Yadav s/o Bale Yadav (Gun) (Gandassa)
|
4.
Anil Yadav (Gandassa)
|
5.
Paro Mahto (Lathi)
|
5.
Bindeshwar Yadav @
|
6.
Kuldip Yadav (Gandassa)
|
6.Ganori
Yadav (Informant in FIR No. 12/97) (Gandassa)
|
7.
Sudhir Yadav (Bhala) Manager Yadav
|
7.
Damodar
|
8.
Balle Yadav (Gandassa) (Gandassa)
|
8.
Suresh Yadav (Stick)
|
9.
Sunil Yadav s/o Musafir Yadav (Saif)
|
9.
Umesh Yadav (Stick)
|
10.
Shivan Yadav (Gandassa)
|
10.
Muni Yadav (Gandassa)
|
11.
Suraj Yadav (Bhala)
|
11.
Naresh Yadav (Gandassa)
|
|
|
Injury to deceased Suresh
|
Injured Person
|
1.
An oral lacerated wound of =" diameter
|
1.
Brahamdeo Yadav @ With inverted and charred margin, =" Bhonu Yadav
(A1 in FIR 11/97) right to umbilicus of uncertain depth i.e. wound of
entry
|
2.
Multiple bruises of size 3" x 2" to 1" x =" 11/97)
four
|
2.
Sunil Yadav (A9 in FIR 11/97)
|
|
3.
Musafir Yadav in number over back right lower chest and abdomen
|
|
|
Injured
Persons
1.
PW-3 Ganauri Yadav (A6 in FIR 12/97)
2.
PW-4 Bindeshwar Yadav @ Manager Yadav (A5 in FIR 12/97)
3.
PW-7 Munshi Yadav (A10 in FIR 12/97)
4.
PW-9 Naresh Yadav (A11 in FIR 12/97)
15.
In
view of the above factual details coupled with the statements made by
prosecution witnesses and in the light of the principles enunciated by this Court,
the Investigating Officer ought to have brought to the notice of the trial Judge
about the two FIRs arising out of the same incident to avoid gross injustice to
the parties concerned. Discrepancies in the prosecution witnesses
16.
Among
various witnesses examined by the prosecution, it heavily relied on the
evidence of Naresh Yadav (PW-9), Ganauri Yadav (PW-3), Bindeshwar Yadav (PW-4),
Kesho Yadav (PW-6), Munshi Yadav (PW-7), Minta Yadav (PW-8) and Dr. R.K. Bibhuti
(PW-2).
17.
First,
let us discuss the evidence of Naresh Yadav (PW-9). He is the informant and
Suresh Yadav- the deceased was his brother. According to him, on Monday, i.e.
on 28.04.1997, he along with Suresh, Ganauri Yadav and Bindeshwar Yadav were busy
in getting the diesel machine repaired. Brahmdeo Yadav, Darogi Mahto, Sunil S/o
Bale Yadav, Maho Yadav, Kuldeep Yadav, Bale Yadav, Suraj Yadav, Shiv Nandan
Yadav, Sunil Yadav S/o Musafir Yadav, Sudhir Yadav and Paro Mahto, total 11 persons
forming a group came there and surrounded them. Brahmdeo Yadav, Sunil Yadav, Darogi
Mahto and Maho Yadav were armed with rifle. Bale Yadav, Kuldeep Yadav, Shiv Nandan
Yadav and Suraj Yadav were armed with Gandassa. Sunil Yadav S/o Musafir Yadav was
having saif in his hand. Sudhir Yadav was having spear with him and Paro Mahto was
having lathi in his hand.
The abovesaid persons
surrounded them whereupon they started running when Brahmdeo Yadav fired shot
from rifle hitting the abdomen of Suresh Yadav. He further deposed that when he
went to help Suresh to get up, Sunil Yadav (A-4) using his saif hit him on his upper
lip. Bale Yadav (A-8) gave a Gandassa blow on the neck of Ganauri Yadav and while
stopping the blow with his right hand, he sustained injury on his palm. Kuldeep
Yadav also gave him a Gandassa blow on the right hand. Shiv Nandan and Suraj
Yadav too gave Gandassa blows to Ganauri Yadav. Sudhir Yadav using Gandassa hit
on the forehead of Bindeshwar Yadav. Kuldeep Yadav gave gandassa blow to Munshi
Yadav. Paro Mahto also beat Ganauri Yadav with lathi. While they were taking Suresh
to Govindpur Hospital, just after some distance, he died on the way. When they
reached Govindpur Hospital, S.I. recorded his statement. In his statement under
Section 164 of the Code, he has not mentioned all the above details. According
to him, Suresh was alive at the spot but he died on the way to Govindpur
Hospital.
Even, in respect of
use of weapons by the accused, he was not consistent with his earlier statement
made under Section 164 of the Code. He also admitted that S.I. seized blood stained
earth in his presence. He also stated that even though S.I. saw the clothes
having blood spots but he did not seize them. He also asserted that at the relevant
time, he was repairing diesel engine and Mohan-Mechanic was present at that time.
In cross-examination, he also admitted that there is another counter case
against the very same incident and he informed the court that on that day he did
not see any injury on the person of Brahmdeo (A-1), Sunil Yadav (A-9) and Musafir
Yadav.
He also answered that
when Suresh was running ahead of all of them, he was hit by a bullet on his
abdomen. It is not the case of any one that Suresh was running towards the
accused. On the other hand, it is their definite case that the accused persons
were chasing and Suresh and others were running to escape from them. In such
circumstances, there is no plausible explanation how the bullet hit Suresh
Yadav - the deceased, on his abdomen. From his evidence, it is clear that though
diesel mechanic-Mohan was present, he denied his relationship with him in the
statements made later on. It was put to him that incident did not actually take
place as stated and all accused were not present. It is also clear from his evidence
that injury on the accused was not seen by him.
18.
The
next witness heavily relied on by the prosecution is Munshi Yadav (PW-7). According
to him, accused persons were armed and Brahmdeo Yadav (A1) fired a shot from gun
which hit Suresh Yadav on his abdomen and he fell on the ground and when Ganauri
Yadav (PW-3) went for his rescue, five accused persons, namely, Bale Yadav
(A8), Kuldeep Yadav (A6), Sunil Yadav (A4), Suraj Yadav (A11) and Shiv Nandan Yadav
(A10), all armed with deadly weapons, started beating him. Suresh Yadav died on
the way to hospital. His evidence also makes it clear that he did not deny the presence
of mechanic-Mohan at the place of occurrence. According to him, the incident started
when diesel engine was about to start. A specific suggestion was put to him
that Suresh Yadav died from the bullet fired by Upendra Yadav. It is relevant
to note the conduct of (PW-7). He admitted in his evidence that after the incident,
he went to take the cow for grazing. It is unnatural that after having seen the
incident, without associating with his fellow villagers about the crime, he
coolly went for grazing his cow which is unbelievable.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
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. He has not only added more names as accused persons but
also asserted that the bomb was exploded after firing of shots. He also mentioned
that Suresh Yadav died on the way to hospital. A specific suggestion was also
given to this witness that Suresh Yadav died from the bullet fired by Upendra Yadav.
Here again, by drawing our attention to his statement under Section 164 of the Code,
it was pointed out that there were lot of contradictions and inconsistencies in
respect of vital aspects.
20.
The
next witness relied on by the prosecution is Ganauri Yadav (PW-3). Like
Bindeshwar Yadav (PW-4), he also named 17 persons as accused who came at the place
of occurrence and (A1) fired from gun hitting the abdomen of Suresh Yadav and
other accused persons started beating. He said when he fell down, he was not
hit on neck with gandassa. He asserted that Suresh Yadav died on the spot. He
received one blow of spear and two blows of gandassa. He explained that the
said blow of spear was given by poking it into his body and not like hitting with
a lathi. He further deposed that the attack with spear caused a hole in the vest
also. As stated earlier, he asserted that Suresh Yadav died at the place of occurrence
itself, which is not in tune with the statement of other prosecution witnesses.
He said that blood did not fall on diesel engine, however, it fell at the spot.
He also informed the Court that the blood oozed out from the wounds of all the injured
and its stains were present up to Govindpur hospital. He admitted that he did
not see any injury on the persons of accused. He admitted that he was not in
full sense when he made the statement to S.I. under Section 164 of the Code. He
also referred to the use of bomb which was kept in a bag, though, he did not
say the same before the court.
21.
Another
witness relied on by the prosecution is Kesho Yadav (PW-6)-father of the
deceased. He admitted that he had diesel engine in the field towards north of village.
His sons, namely, Suresh Yadav and Naresh Yadav were repairing the said engine for
irrigation purposes. At that time, all the accused Brahmdeo Yadav (A1), Darogi Mahto
(A2), Maho Yadav (A3), Sunil Yadav (A4) armed with guns in their hands, accused
Kuldip Yadav, Shiv Nandan Yadav, Baleshwar, Suraj with gandassas, Sunil Yadav with
saif, Sudhir yadav with 20 spear and Paro Mahto with lathi came there. He further
explained that immediately on coming there, the accused persons surrounded them
and when they started running, they were caught in the field of Aziz Mian. Accused
Brahmdeo Yadav (A1) fired from gun and the bullet hit the abdomen of Suresh Yadav
and he fell down. Naresh Yadav went to lift Suresh from the ground when Sunil Yadav
hit him with saif causing injury to his lips. When Ganauri Yadav went to pick him
up, Kuldeep Yadav hit on his neck using gandassa. He also asserted that his son
Suresh Yadav died at the spot itself. He further informed the court that the bullet
made a hole in the vest of his son and the cloth got cut edges and that was handed
over to the police.
22.
Another
witness examined on the side of the prosecution is Dr. Basudeo Yadav (PW-5). He
attested the seizure memo which was prepared by SI before him. He also admitted
that Naresh Yadav affixed his thumb impression before him and he was present there.
He did not say anything about the occurrence. Minta Devi (PW-8)-wife of the
deceased, also did not elaborate anything about the incident.
23.
Dr.
R.K. Bibhuti, who treated injured Naresh Yadav (PW- 9) and other injured witnesses
was examined as (PW-2). He examined Naresh Yadav, Munshi Yadav, Ganauri Yadav, Bindeshwar
Yadav and after treatment issued a certificate about the same. Dr. Bipul Kumar,
who conducted the autopsy on the body of the deceased was examined as PW-1 and
found the following ante-mortem injuries:- "(1) An oval lacerated wound of
1/2" diameter with inverted and charred margin, half inch right to illeg.
of uncertain depth, i.e. wound of entry. (2) Multiple bruises of size 3"x2"
to 1"x1/2", in four in number over back, right lower chest and
abdomen. On dissection abdominal cavity filled with blood and blood clot,
multiple perforations four in number of small intestine locum and transverse
colon, linear ruptured, a metallic foreign body like bullet of 1 =" length
and 1/6" in diameter was lodged at L/1 spine after piercing the abdominal aorta.
Rest viscera were intact and pale, stomach contains fluids about 100 ml. Bladder
empty, heart all chambers empty. Cause of death - hemorrhage and shock produced
by above noted injuries. Injury No. 1 caused by firearm such as gun. Injury No.
2 caused by hard and blunt object such as lathi."
24.
The
analysis of the evidence of R.K. Bibhuti (PW-2) and the evidence of injured persons
about the nature of injury contradict each other. The analysis of witnesses
examined on 22 the side of the prosecution clearly show that they were not able
to identify the actual place of occurrence, namely, whether the incident
happened near the diesel engine or in the field of Aziz Mian. They all had a different
version about the nature of injuries and they are not consistent whether the deceased
died at the spot or on the way to hospital or in the hospital. All these contradictions,
uncertainties cannot be ignored lightly when some of the accused also suffered
bullet injuries in the same incident, which is a cross case, namely, FIR No.
12/97. Conviction under Section 149 IPC
25.
Apart
from conviction under Section 302, all the accused were also convicted under Section
149 IPC. Learned counsel appearing for the appellants demonstrated that, first of
all, there was no common object, even if, it is admitted that there was a
common object, the same was not known to anybody, in such circumstances,
punishment under Section 149 IPC is not warranted. On the other hand, learned
counsel appearing for the State submitted that when the charge is under Section
149 IPC, the presence of the accused as part of unlawful 23 assembly is sufficient
for conviction, even if, no overt act is imputed to them. In other words, according
to him, mere presence of the accused as part of unlawful assembly is sufficient
for conviction. In order to understand the rival claim, it is useful to refer
Section 149 which reads as follows:- "149. Every member of unlawful assembly
guilty of offence committed in prosecution of common object.--If an offence is committed
by any member of an unlawful assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that
offence."
26.
The
above provision makes it clear that before convicting accused with the aid of
Section 149 IPC, the Court must give clear finding regarding nature of common
object and that the object was unlawful. In the absence of such finding as also
any overt act on the part of the accused persons, mere fact that they were
armed would not be sufficient to prove common object. Section 149 creates a specific
offence and deals with punishment of that offence. Whenever the court convicts
any person or persons of an offence with the aid of Section 149, a clear finding
regarding the common object of the assembly must be given and the evidence
discussed must show not only 24 the nature of the common object but also that
the object was unlawful. Before recording a conviction under Section 149 IPC, essential
ingredients of Section 141 IPC must be established. The above principles have been
reiterated in Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC 755.
27.
In
Ranbir Yadav vs. State of Bihar (1995) 4 SCC 392, this Court highlighted that where
there are party factions, there is a tendency to include the innocent with the
guilty and it is extremely difficult for the court to guard against such a danger.
It was pointed out that the only real safeguard against the risk of condemning the
innocent with the guilty lies in insisting on acceptable evidence which in some
measure implicates such accused and satisfies the conscience of the court.
28.
In
Allauddin Mian and others Sharif Mian and another vs. State of Bihar (1989) 3
SCC 5, this Court held:- "....Therefore, in order to fasten vicarious responsibility
on any member of an unlawful assembly the prosecution must prove that the act constituting
an offence was done in prosecution of the common object of that assembly or the
act done is such as the members of that assembly knew to be likely to be
committed in prosecution of the common object 25 of that assembly. Under this section,
therefore, every member of an unlawful assembly renders himself liable for the
criminal act or acts of any other member or members of that assembly provided
the same is/are done in prosecution of the common object or is/are such as
every member of that assembly knew to be likely to be committed. This section creates
a specific offence and makes every member of the unlawful assembly liable for the
offence or offences committed in the course of the occurrence provided the same
was/were committed in prosecution of the common object or was/were such as the
members of that assembly knew to be likely to be committed. Since this section imposes
a constructive penal liability, it must be strictly construed as it seeks to punish
members of an unlawful assembly for the offence or offences committed by their associate
or associates in carrying out the common object of the assembly. What is
important in each case is to find out if the offence was committed to
accomplish the common object of the assembly or was one which the members knew to
be likely to be committed. There must be a nexus between the common object and
the offence committed and if it is found that the same was committed to accomplish
the common object every member of the assembly will become liable for the same.
Therefore, any offence committed by a member of an unlawful assembly in
prosecution of any one or more of the five objects mentioned in Section 141 will
render his companions constituting the unlawful assembly liable for that
offence with the aid of Section 149, IPC...."
29.
It
is not the intention of the legislature in enacting Section 149 to render every
member of unlawful assembly liable to punishment for every offence committed by
one or more of its members. In order to attract Section 149, it must be shown that
the incriminating act was done to accomplish the common object of unlawful
assembly and it must be within the knowledge of other members as one likely to
be committed in 26 prosecution of the common object. If the members of the assembly
knew or were aware of the likelihood of a particular offence being committed in
prosecution of the common object, they would be liable for the same under
Section 149 IPC.
30.
In
Rajendra Shantaram Todankar vs. State of Maharashtra and others (2003) 2 SCC
257=2003 SCC (Crl.) 506, this Court has once again explained Section 149 and
held as under: "14. Section 149 of the Indian Penal Code provides that if
an offence is committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person
who at the time of the committing of that offence, is a member of the same assembly
is guilty of that offence. The two clauses of Section 149 vary in degree of certainty.
The first clause contemplates the commission of an offence by any member of an
unlawful assembly which can be held to have been committed in prosecution of
the common object of the assembly. The second clause embraces within its fold
the commission of an act which may not necessarily be the common object of the
assembly, nevertheless, the members of the assembly had knowledge of likelihood
of the commission of that offence in prosecution of the common object. The common
object may be commission of one offence while there may be likelihood of the commission
of yet another offence, the knowledge whereof is capable of being safely attributable
to the members of the unlawful assembly. In either case, every member of the assembly
would be vicariously liable for the offence actually committed by any other
member of the assembly. A mere possibility of the commission of the offence
would not necessarily enable the court to draw an inference that the likelihood
of commission of such offence was within the knowledge of every member of the
unlawful assembly. It is difficult indeed, though not impossible, to collect direct
evidence of such knowledge. An inference may be drawn from circumstances such as
the background of the incident, the motive, the nature of the assembly, the
nature of the arms carried by the members of the assembly, their common object and
the behaviour of the members soon before, at or after the actual commission of
the crime. Unless the applicability of Section 149 -- either clause -- is attracted
and the court is convinced, on facts and in law, both, of liability capable of being
fastened vicariously by reference to either clause of Section 149 IPC, merely because
a criminal act was committed by a member of the assembly every other member thereof
would not necessarily become liable for such criminal act. The inference as to likelihood
of the commission of the given criminal act must be capable of being held to be
within the knowledge of another member of the assembly who is sought to be held
vicariously liable for the said criminal act...." The same principles have
been reiterated in State of Punjab vs. Sanjiv Kumar alias Sanju and others
(2007) 9 SCC 791. Summarization of the principles attracting S.149
31.
In
the earlier part of our order, we have analysed the evidence led in by the
prosecution and also pointed out several infirmities therein. In our view, no overt
act had been attributed to any other accused persons except Brahmdeo Yadav (A1)
towards the murder of Suresh Yadav. Had the other accused persons intended or
shared the common object to kill Suresh Yadav, they must have used the weapons allegedly
carried by them to facilitate the alleged common object of committing murder. The
Sessions Judge, on 28 analysis, held that no case under Section 307/149 against
all the 11 accused persons be made out for causing murderous assault and hurt
to Naresh Yadav, Munshi Yadav, Bindeshwar Yadav and Ganauri Yadav. The learned Judge
further observed that it appears that at least 4 of the accused persons were armed
with gun but no gun shot injury was inflicted against any of the aforesaid injured
prosecution witnesses. 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:
a. Though both the FIRs
(11/97 and 12/97) were investigated by the very same IO, he had not acted in
good discipline and not drawn the attention of the trial Judge about the cross cases
arising out of the same incident.
b. By reading the statement
of prosecution witnesses under Section 164 of the Code and their evidence before
the Court clearly show their improvements with due deliberation and consultation
and in the absence of credible explanation, conviction based on their testimony
cannot be sustained.
c. The prosecution is not
sure, especially about the actual place of occurrence since some witnesses
demonstrated that it occurred near diesel engine and some said the occurrence
had taken place in the field of Aziz Mian. We have already noted down the contradictions
among the prosecution witnesses on material facts and it is not safe to convict
all the accused based on the same.
d. Even, on description of
injuries alleged to have been sustained, the details furnished by the
prosecution witnesses and the medical evidence vary on material aspects.
e. Non-examination of
diesel mechanic-Mohan Yadav is fatal to the prosecution case. Though, his
presence at the scene of occurrence was mentioned by the prosecution witnesses
under Section 164, it is not clear why the prosecution did not examine him.
f. Likewise, though the
IO collected blood stained clothes and other objects including earth from the site,
there is no information whether the same were examined by the forensic science
laboratory and the outcome of the same.
g. There is no material
to show that all the accused shared in common object, the object itself not being
proved and their participation in it is not made out by credible evidence. 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.
n. The version given by eye-witnesses
who were also interested witnesses on account of their relationship with the deceased
and being inimically deposed against the accused persons is highly exaggerated,
contrary to each other and not fully corroborated with medical evidence and there
are discrepancies about the number of accused persons, weapons 32 and ammunitions
carried by them and they are not in tune with what (PW-9) informant has stated in
his deposition. In other words, the prosecution has not presented true version on
most of the material parts and therefore the witnesses and material placed on
their side does not inspire confidence and cannot be accepted on its face
value.
o. The findings of the High
Court and ultimate conclusion dismissing the appeals are perverse and resulted
in failure of justice.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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30.
31.
32.
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.
...............................................J.
(P. SATHASIVAM)
...............................................J.
(H.L. GOKHALE)
NEW
DELHI;
APRIL
11, 2011.
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