Yadav Vs. State of Bihar  INSC 9 (27 January 1999)
N.Santosh Hegde Nanavati.J.
appellant has been convicted under Section 396 of the Indian Penal Code and
sentenced to death. He has filed this appeal against the order of sentence only
in view of the limited leave granted by this Court.
the prosecution has been able to prove is that during the night between first
and second of June, 1989, the appellant along with 30 to 40 other docoits
committed docoity in the house of deceased Dhaneshwar, that the dacoits killed Dhaneshwar,
Surendra, Awadhesh, Kharha and Kanhai and also set on fire some of the articles
belonging to the family of the deceased. In all 24 accused were put up for
trial out of whom 13 were acquitted by the Trial Court. The other accused were
convicted under Section 396 and out of them only appellant Jagdish was
sentenced to death. All others were awarded sentence of life imprisonment. The
High Corut agreed with the findings recorded by the Trial Court after re-appreciating
the evidence and dismissed the appeals and accepted the death reference. While
confirming the death sentence the High Court observed as under :
the case before me, it has already been noticed that there are so many as six
eye witnesses, including the informat who have categorically stated that this
appellant shot at two innocent and unarmed persons from a close rante by rifle
with a full determination to commit their murder ......................For the
reasons stated above, I have no option but to confirm the death penalty against
appellant Jagdish Yadav." It was cintended by the learned counsel for the
appellant that the High Court wrongly proceeded on the basis that as found by
the Trial Court appellant Jagdish had invividually killed two innocent persons.
That was not the finding recorded by the Trial Court and, therefore, he
submitted that confirmation of death sentence by the High Court stands
vitiated. Learned counsel also submitted that there was really no special
circumstance which differentiated the case of the appellant from that of the
other accused who have been awarede only life imprisonment.
lastly submitted that this case cannot regarded as a rarest of rare case and,
therefore, the extreme penalty of death deserves to be set aside.
true that the Trial Court after appreciating the evidence held that it was not
proper to hold any individual accused guilty for the murders of Surendra, Awadhesh,
Kharha and Kanhai. What the witnesses had deposed regarding which accused had
killed whom was based upon what Mithilesh had told them. Mithilesh, however,
was not examined as a witness in the Court as he died during the pendency of
the trial. The trial Court, therefore, did not hold appellant Jagdish
individually responsible for the death of Awadhesh. Therefore, the High Court
was not right in proceeding on the basis that appellant Jagdish had killed two
innocent persons. This is not a case where on re-appreciation of the evidence
the High Court has recorded a different finding holding that appellant Jagdish
had killed two innocent persons. Therefore, it has to be held that the judgment
of the High Court to that extent stands vitiated.
reason given by the Trial Court for awarding higher punishment to the appellant
is that the appellant was the leader of the dacoits. We have gone through the
evidence and we do not find anything on record which would indicate that the
appellant was the leader. Shri BB Singh, learned counsel for the State also
fairly conceded that no such evidence was led by the prosecution. He, however,
submitted that there was a long standing enemity between the family of the
deceased and the accused and that various cases were filed against each other
and they were pending in various Courts. But that cannot lead to an inference
that the appellant was the leader of the docits. The courts below were,
therefore, not justified in differentiating the case of the appellant from that
of other accuse.
other circumstance that now remains to be considered is that he had killed Dhaneshwar
by firing a shot at him. We have gone through the evidence of P.W.2,3,4 and 5
who have deposed about the same. They have stated that Jagdish had fired the
shot which killed Dhaneshwar. The evidence as to why Jagdigh fired that shot and
under which circumstances that shot was fired is not consistent. Their versions
differ. Through it stands proved that the appellant killed Dhaneshwar it cannot
be said that this case is a rarest of rare case. the facts and circumstances of
the case do not justify such an inference. We, therefore, allow this appeal,
set aside the sentence of death imposed upon the appellant and reduce the death
sentence to imprisonment for life. The appeal is allowed to that extent only.