Bachhu
Narain Singh Vs. Naresh Yadav & Ors [2003] Insc 677 (19 December 2003)
N. Santosh
Hegde & B.P. Singh
Appeal (crl.) 256-258 of 1997
State
of Bihar Naresh Yadav and others B.P. SINGH In these appeals the appellants
impugn the common judgment and order of the High Court of Judicature for Patna
in Criminal Appeal Nos. 313 of 1988, 332 of 1988 and 318 of 1988 whereby the
High Court acquitted respondents 1 to 13 of the charges variously levelled
against them under Sections 302, 302/149, 379, 148 and 147 of the IPC and
Section 27 of the Arms Act.
Criminal
Appeal Nos. 1969, 1970 and 1971 of 1996 have been preferred by Bachhu Narain
Singh, informant who was examined as PW-9 before the trial court. He happens to
be the younger brother of one of the deceased Keshri Nandan Singh. Criminal
Appeal Nos. 256, 257 and 258 of 1997 have been preferred by the State of Bihar against the acquittal of the
aforesaid respondents by the impugned judgment and order.
Respondents
1 to 13 were put up for trial before the Second Additional Sessions Judge, Gaya
in Sessions Case No. 57/86 / 8/86.
The
trial court by its judgment and order dated June 6, 1988 found respondent Naresh Yadav
guilty of the offence punishable under Section 302 IPC and sentenced him to
imprisonment for life.
Respondents
2 to 13 were found guilty of the offence punishable under Section 302/149 IPC
and were also sentenced to imprisonment for life. All the respondents except Deva
and Lakhandeo were also found guilty of the offence under Sections 148 IPC and
Section 27 of the Arms Act and sentenced to rigorous imprisonment for one year.
Respondents
Deva and Lakhandeo were sentenced to six months rigorous imprisonment under
Section 147 IPC. Three appeals were preferred against the judgment and order of
the trial court, namely, Criminal Appeal No. 313 of 1988 preferred by Lakhandeo
Yadav ;
Criminal
Appeal No. 332 of 1988 preferred by Shiba Yadav and Criminal Appeal No. 318 of
1988 preferred by the remaining eleven accused. These appeals were initially
heard by a Division Bench of the High Court but the learned Judges differed in
their opinion while N.S. Rao, J. was of the view that the appeals ought to be
allowed and the respondents acquitted, S.K. Chattopadhyaya, J. was of the view
that the appeals had no merit and ought to be dismissed. In view of the
difference of opinion the matter was placed before D.P Sinha, J. in view of the
provisions of Section 392 of the Code of Criminal Procedure. The third Judge,
after hearing the matter at length by his judgment and order of December 22, 1995 agreed with the view of N.S. Rao,
J. and allowing the appeals acquitted respondents 1 to 13 of all the charges levelled
against them. The appellants have impugned the aforesaid judgment and order of
the High Court by special leave.
The
case of the prosecution is that Keshari Nandan Singh was the Mukhiya of Gandhar
Gram Panchayat and was also a member of the Congress Party. He was also
practicing as an Advocate at Jehanabad. On April 19, 1985 while he was
proceeding to the Jehanabad Court in a jeep driven by him accompanied by seven
other persons including his personal security officer, his jeep was attacked by
a group of persons who were variously armed with guns, rifles, Pasuli etc. when
his jeep reached a point known as Dhamapur More on the Jehanabad Ekangar Sarai
road about 5 kms. from the police station. The case of the prosecution is that
a shot fired by respondent Naresh Yadav hit him as a result of which the
vehicle went out of control and landed in an agricultural field which was at a
slightly lower level than the road. The occupants of the vehicle tried to
escape but they were fired upon by the members of the mob as a result of which
six of them died at the spot while two of them were seriously injured. The case
of the prosecution is that the two injured victims were removed to the Jehanabad
hospital where they succumbed to their injuries. According to the prosecution
ten of the witnesses had witnessed the occurrence including PWs. 1, 2, 3, 5, 6,
8 and 9. PWs. 4, 7 and 11 were tendered for cross-examination at the trial. The
post mortem examination on the dead bodies of the deceased conducted by PW-13
Dr. Mithlesh Kumar Singh revealed that they had died homicidal death. The post
mortem reports were exhibited at the trial as exhibit 6 series. PW-12 Tufail
Ahmad (officer incharge Ghosi police station) who had reached the place of
occurrence at about 7.20
a.m. investigated the
case and ultimately submitted the charge sheet against 13 respondents herein.
We
shall first of all notice the evidence of PW-12 Tufail Ahmad, the investigating
officer, who had received an oral information at about 7.00 a.m. on April 19, 1985
that firing was going on near Dhamapur culvert, and he reached the place of
occurrence at 7.20 a.m. with police force. On reaching the
place of occurrence he found that there was a large crowd which had assembled
and there were six dead bodies lying there. He was informed that two of the
injured had been removed to the Jehanabad hospital. He also saw the jeep
standing in the field towards north of the place of occurrence. He also saw the
headless body of Keshari Nandan in the jeep. After reaching the place of
occurrence he started preparing the inquest reports relating to the dead
bodies. He had prepared five inquest reports between 7.30 a.m. and 8.45 a.m.
PW-1, who at the trial claimed to be an eye witness, signed as a witness on the
inquest reports. According to him by about 8.50 a.m. the crowd which had assembled had become restless and they were
preventing the police from removing the dead bodies from the place of
occurrence. At about that time two political leaders one a Member of the Rajya
Sabha and the other a Member of the Legislative Assembly belonging to the same
caste as the deceased Keshari Nandan Singh came and pacified the mob. There was
a commotion while he was preparing the inquest reports and he learnt that the
hut of respondent Naresh Yadav had been set on fire in Gulgulia Tola. He alongwith
Deputy Superintendent of Police and the Inspector of Police, who had reached
the place of occurrence by then rushed to the 'dalan' of respondent Naresh Yadav
and found that the roof of the 'dalan' had been set on fire. After deputing
Sub-Inspector N.K. Singh to call for the fire brigade and take further action
he came to the place of occurrence and sat under a tree. At about 9.00 a.m.
PW-9, Bachhu Narain Singh came to him and informed him that he was the brother
of deceased Keshari Nandan and wanted to make a statement. He, therefore,
recorded the statement of PW-9 at 9.00 a.m. which was marked as Ext. 4 on the basis of which formal first
information report Ext. 5 was drawn up at the police station. He searched for
the respondents but they were not found. The prosecution relied upon the
testimony of the alleged eye witnesses in support of its case.
Some
other facts may be noticed at this stage.
According
to the first information report lodged by PW-9, while he was proceeding towards
his pump house and was near the place of occurrence he had noticed the presence
of 40 or 50 people including respondents 1 to 13 herein variously armed near
the house of respondent Naresh Yadav. They were armed with rifles, guns and
other weapons. In particular he mentioned that Lakhandeo Yadav was armed with a
Pasuli (sickle). He noticed his brother's jeep coming from the eastern
direction and proceeding towards the west on way to Jehanabad. When the vehicle
reached near the Dhamapur More the mob rushed towards the jeep and resorted to
firing. A shot fired by respondent Naresh Yadav struck the head of Mukhiya Keshari
Nadan who was driving the jeep and as a result he lost control over the vehicle
which came and fell in a field towards the north of the road.
The
members of the mob continued firing at the occupants of the jeep who were
trying to escape. Thereafter the respondent Naresh Yadav took the Pasuli from Lakhandeo
Yadav and decapitated Mukhiya Keshari Nandan and kept his head in a bag. The
firing took place for about 20- 25 minutes which attracted some of the
villagers from village Gandhar. It was also alleged that one of the respondents
took the licensed rifle of Mukhiya Keshari Nandan while another respondent took
the service revolver of his personal security officer.
The
culprits ran towards north except Lakhandeo Yadav, who after running towards
north turned towards east and was apprehended by the villagers coming from
village Gandhar. Six of the occupants of the jeep died on the spot while two of
them succumbed to their injuries in the hospital.
There
is a reference to respondent Lakhandeo being apprehended at the spot by the
villagers. But it appears that Lakhandeo had come to the place of occurrence
later and was surrounded by the villagers and assaulted by them at about 10.00 a.m.
The defence
of Lakhandeo was that one of the victims Rama Nand Yadav was his cousin as well
as co-brother. Coming to know about the occurrence he had rushed to the place
of occurrence to know about his cousin and co-brother and there he was
apprehended by the villagers who had assembled there and who assaulted him. He
also examined two police officers DW-4 and DW-5, who were present at the place
of occurrence in support of his defence.
The
case of the defence is that the prosecution witnesses were got up witnesses who
had not witnessed the actual occurrence. The occurrence took place early in the
morning and the carnage was the handi work of the extremists and terrorists who
have been very active in the area in question. The respondents had no motive to
commit such a gruesome crime taking the lives of as many as eight persons.
The
mere fact that there was some political rivalry between followers of the
Congress Party and the Communist Party, was not a good enough reason for them
to commit such a gruesome crime. Relying upon the evidence adduced at the trial
by the prosecution itself it was contended that none of the persons present at
the place of occurrence claimed to be an eye witness when the officer incharge
of the Ghosi police station came there at 7.20 a.m. He prepared inquest reports between 7.30 a.m. and 8.45
a.m. but no one
approached him claiming to be an eye witness. Two political figures belonging
to the Congress Party came to the place of occurrence and it appears that only
thereafter a false case was concocted against the respondents since the
culprits were unknown and since the respondents were not the supporters of the
Congress Party but had supported the Communist candidate in the elections to
the Legislative Assembly held in the month of March. It was further submitted
on behalf of the defence that all the alleged eye witnesses belonged to the
same caste, namely the caste of Mukhiya Keshari Nandan. Moreover none of them
was examined by the investigating officer on the date of occurrence.
Some
of them were examined one or two days later and one of them was not examined at
all in the course of investigation. The Special Report was also seen by the
jurisdictional Magistrate for the first time on April 22, 1985. This only indicated that the first information report was
concocted later after deliberations. They also pointed out the discrepancies in
the statements of the witnesses recorded in the course of investigation and
their depositions in courts.
On the
other hand prosecution contended that in view of the evidence of a large number
of witnesses and in view of the fact that the first information report was
lodged within 2 = hours of the incident, there was no reason to doubt the case
of the prosecution.
The
respondents had a strong motive to commit the crime and, therefore, the
prosecution had proved its case beyond reasonable doubt.
D.P. Sinha,
J. in a very well considered judgment has critically scrutinized the testimony
of the alleged eye witnesses. After noticing the evidence of the alleged eye
witnesses and the investigating officer, PW-12, he came to the conclusion that Fardbeyan
appears to have been lodged within 2 = hours of the occurrence, but there is no
plausible explanation as to why the report was not lodged by any of the eye
witnesses after the investigating officer had reached the place of occurrence
at 7.20 a.m. He was there at the spot preparing inquest reports between 7.30 a.m. and 8.45 a.m. and
yet no one claimed before him to be an eye witness. It was only at 9.00 a.m. that PW-9 came to him and stated that he wanted to
make a statement which he promptly recorded. He also found that the defence of Lakhandeo
that he was not caught while running away from the place of occurrence but when
he came to the place of occurrence much later on coming to know that his cousin
was also one of the victims was true. He was apprehended by the mob but was got
released from their clutches by the police officers there. It was also found
that though the first information report was registered on April 19, 1985 but first order recorded in the
concerned G.R. case record is dated April 22, 1985.
However,
he did not attach much importance to this delay since he was satisfied that the
information was given by PW-9 to the investigating officer at 9.00 a.m. As regards motive he found that though no such
motive was mentioned in the Fardbeyan, Ext.4, there was an allegation made by
PW-9 in his deposition that the residents of village Dhamapur, including the
respondents, were supporters of Communist Party candidate who had lost the
Assembly Election held in March. Since a victory procession had been taken out
headed by Mukhiya Keshari Nandan 10 15 days prior to the date of incident to
which they were strongly opposed, they had taken revenge by killing Mukhiya Kehsari
Nandan. The learned Judge was of the view that assuming all these facts to be
correct the facts did not disclose that the respondents had such a strong
motive to commit an offence of this nature. However, he observed that the
failure to prove sufficient motive by itself was not decisive and that the
evidence of the witnesses had to be considered on its own merit. He noticed
that all the witnesses belonged to the same caste and to the same village. No
eye witness was examined who belonged to the village where the occurrence took
place. According to the case of the prosecution the eye witnesses were present
when the occurrence took place yet none of them claimed to be an eye witness
when the investigating officer came to the place of occurrence. That apart,
none of them was examined by the investigating officer on the date of
occurrence.
Some
were examined on the following day and some still later and one of them, PW-8,
was not at all examined in the course of investigation. The learned Judge then
examined the evidence of each witness and noticed the discrepancies/ inconsistencies
in their evidence. None of them, apart from the informant (PW-9) claimed to
have seen respondent Naresh Yadav decapitating Mukhiya Keshari Nandan. The
evidence also disclosed that though an allegation had been made that one of the
accused had taken away the licensed revolver of Mukhiya Keshari Nandan after
the occurrence, PW-9 in the course of his deposition had to admit that the
licensed revolver of Mukhiya Keshari Nandan was found under his pillow during
investigation. The learned Judge also found that the prosecution case that
respondent Lakhandeo was arrested while running away from the place of
occurrence could not be accepted to be true since the evidence on record
disclosed that he had come to the place of occurrence later. Having considered
the deposition of each of the eye witnesses, the learned Judge did not find
their evidence reliable. He, therefore, concluded that none of the eye
witnesses could be considered trust worthy and reliable and it appeared that
the killing of so many persons was the handi work of the extremist elements who
have been active in that area for sometime. In fact from the evidence of the
investigating officer it appeared that during the course of investigation some
of the witnesses had stated that the culprits included some persons dressed in
khaki which is usually worn by the extremists to create an impression that they
belong to the police force.
Having
found their testimony to be not credible and trust worthy and having regard to
other findings, he came to the conclusion that the prosecution had not proved
its case beyond reasonable doubt.
We
find no reason to take a different view because the findings recorded by the
learned Judge are fully supported by the evidence on record and the
circumstances of the case. In the first instance there appears to be no reason
why no one stated before the investigating officer who came to the place of
occurrence at 7.20 a.m. that he had witnessed the
occurrence as an eye witness. Since they claimed to be eye witnesses and large
number of persons had gathered at the place of occurrence when the
investigating officer reached that place with police force, the normal course
of human conduct would have been, for any of the eye witnesses to immediately
inform the investigating officer that he had witnessed the occurrence. We fail
to understand why from 7.30
a.m. till 8.45 a.m., while the investigating officer was preparing
inquest reports no one came before him claiming to be an eye witness. The most
interesting part of the story is the role of PW- 1, Ramji Singh. He is a
witness to the inquest report and obviously he was present when the
investigating officer was preparing the inquest reports. He also claims to be
an eye witness and has deposed as such.
One
fails to understand why he could not tell the investigating officer that he
himself was an eye witness. This was sought to be got over by an argument that
the villagers must have been shocked by the ghastly incident and therefore they
did not make such a statement before the investigating officer. The argument is
to be stated to be rejected. If PW-1 could be a witness to the inquest reports
which were being prepared on the spot, there is no reason why he could not be
the first informant in the case.
It has
not been disputed and could not be disputed that the investigating officer came
to the place of occurrence at 7.20 a.m. If
the alleged eye witnesses were present, and there are as many as 10 of them,
there is no reason why none of them came forward to lodge the report about the
occurrence. PW-9, the informant was a brother of the deceased Mukhiya Keshari Nandan.
If he had seen the occurrence, nothing prevented him from lodging the report
immediately. He appears to have come on the scene more than an hour and a half
after the investigating officer had come to the place of occurrence. His
presence, therefore, at a time of occurrence appears to be highly doubtful. The
fact that the report was lodged within 2 = hours of the occurrence and was,
therefore, not unduly delayed does not explain why it was not lodged earlier in
the peculiar facts and circumstances of the case. The High Court has observed
that if this was an ordinary case of murder, the time taken to lodge the report
could be explained by reason of the fact that it may take some time for the
members of the family to recover from the shock, to console each other, to make
other arrangements before proceeding to have the matter reported.
This
is not one such case because the occurrence had taken place at about 6.30 a.m.
and the investigating officer having reached the place of occurrence at 7.20
a.m. there was no explanation for the delay in lodging the report thereafter,
which was lodged at 9.00 a.m. If the investigating officer was present at the
place of occurrence and the eye witnesses were also present they would not have
kept quite till about 9.00
a.m. when, for the
first time, PW-9, appeared before him and lodged the report. There is,
therefore, serious doubt about the presence of the eye witnesses when the
investigating officer came to the place of occurrence, and this also casts a
serious doubt as to their presence at the time when the occurrence took place.
It is not a case of the prosecution that after the occurrence the eye witnesses
had gone else where. In fact the evidence of the investigating officer is to
the effect that a large crowd had gathered at the place of occurrence.
It is
not necessary for us to consider the various discrepancies and inconsistencies
found in the evidence of the eye witnesses by the High Court. Suffice it to say
that their evidence does not inspire confidence and we entertain serious doubt
about their being eye witnesses.
The
case of the prosecution is that Lakhandeo respondent was one of the culprits
and he also ran towards north alongwith all his companions. He, however,
changed course and started running in a different direction only to be
apprehended by the villagers coming from the side of village Gandhar. This
story of the prosecution has been found to be untrue and for good reasons. As
the High Court has observed, if really Lakhandeo had been apprehended by the
villagers before the arrival of the police force he would have been immediately
handed over to the police force if he had not been lynched earlier by the mob. This
apart, there is direct evidence of two police officers who were present at the
place of occurrence alongwith the investigating officer. They are DW-4 and
DW-5, who were Inspector and Sub-Inspector of police respectively. They have
deposed that at about 10.00
a.m. i.e. after one
hour of the lodging of the report, there was a commotion and they found that
one person was being assaulted by the villagers. They went to the rescue of
that villager and found that the victim was Lakhandeo. Lakhandeo has pleaded
that having come to know that his cousin, who also happens to be his co-brother
may be one of the victims, he had rushed to the place of occurrence to find out
about his welfare. However, when he came to the place of occurrence he was
surrounded by the villagers and assaulted till he was rescued by the police
party. The High Court has found that this part of the prosecution case is
untrue and the defence of Lakhandeo appears to be truthful. To us also it
appears that the prosecution is guilty of introducing false facts which have
considerably shaken the credibility of the prosecution case.
Similarly,
PW-9 in the report had stated that the revolver of Mukhiya Keshari Nandan had
been taken away by one of the accused.
However,
in the course of his deposition he had to admit that the revolver of Mukhiya Keshari
Nandan was found under his pillow in the course of investigation. The High
Court has adversely commented on the credibility of PW-9. We may notice that
according to this witness respondent Naresh Yadav decapitated Mukhiya Keshari Nandan
with Pasuli held by Lakhandeo. Apart from the fact that the presence of Lakhandeo
has been found to be doubtful, none of the other witnesses has mentioned about Naresh
Yadav beheading Mukhiya Keshari Nandan. This also shows the extent to which the
informant could go in making out a false case because if what is stated was the
fact, nine other eye witnesses noticing the same occurrence from different
places could not have missed noticing this fact.
Having
considered all aspects of the matter we find ourselves in agreement with the
view taken by the High Court, and this being an appeal against acquittal, no
interference is called for even if it was possible to take another view on the
basis of the same evidence on record. However, we may hasten to add, having
regard to the evidence on record, it is not possible to take any other view in
the matter.
We,
therefore, find no merit in these appeals and the same are accordingly
dismissed.
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