Gaya Yadav & Ors Vs. State of Bihar & Ors
 Insc 96 (18 February 2003)
Y.K. Sabharwal & H.K. Sema Sema, J.
Appeal (crl.) 484 of 1996
A-1 Gaya Yadav s/o Raj Dev Yadav, A-2 Madheshwar
Yadav s/o Rohan Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav s/o Ram Laxman Yadav,
A-5 Bhagwat Yadav s/o Ram Kishan Yadav, A-6 Mukhiya Yadav s/o Shiv Nandan Yadav,
A-7 Ramashish kr. @ Karu Yadav s/o Shiv Pd. Yadav, A-8 Deo Pasad Yadav s/o Chandrika
Yadav (since dead) were convicted for the offence under Sections 302/34, 120-B,
147 and 148 of the Indian Penal Code and were sentenced to rigorous
imprisonment for life under the first two counts. No separate sentences were
awarded for the offences under Sections 147 and 148 IPC. Being aggrieved, two
appeals were preferred before the High Court. Criminal Appeal No. 213 of 1989
was preferred by five accused and Criminal Appeal No. 216 of 1989 was preferred
by three accused. By a common judgment the High Court has dismissed their
appeals and confirmed the conviction as recorded by the Trial Court. Before
this Court, Criminal Appeal No. 483 of 1996 is preferred by A-1 Gaya Yadav, A-5
Bhagwat Yadav and A-6 Mukhiya Yadav. Criminal Appeal No. 484 of 1996 is
preferred by A-2 Madheshwar Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav, A-7 Ramashish
Kr. @ Karu Yadav and A-8 Deo Prasad Yadav. During the pendency of the appeal
before this Court, A-8 Deo Prasad Yadav, expired and his appeal stands abated.
Shorn of necessary details, the prosecution
story, briefly stated is that ferd-beyan (Ext.2) was lodged by Lallan Bharti
(PW3) that on 15.3.1987 at about 7.30 p.m. the deceased Jagannath Singh, who
was the Mukhiya of Mau Gram panchayat, was meeting people in Mau Bazar, where
the informant was also present and talking to him. The accused Gaya Yadav who
belongs to the neighboring village Kurkut Bigha came there and requested the
deceased for supper for the night in his village on the occasion of "Holika
Dahan". The deceased was reluctant to accept the invitation on the ground
that he has to meet several people and it would become late. At this time, the
accused Karu Yadav, who is also of the village Kurkut Bigha arrived there and
both the accused namely Gaya Yadav and Karu Yadav, insisted upon Mukhiya for
the supper and assured him that he would be allowed to return soon and there
would be no delay. The deceased succumbed to the request of the accused and
decided to go and PW-3 the informant also accompanied him. It is stated that it
was a moonlit night.
The deceased Mukhiya, PW-3 Lallan Bharti and accused
Gaya Yadav and Karu Yadav started for village Kurkut Bigha. As they came out of
Mau village, PW-3 saw 9-10 persons coming from the opposite direction. PW-3
thought that these persons might be going somewhere on the occasion of "Holika
Dahan". Soon those persons came closer to them and the accused Gaya Yadav
and Karu Yadav gave a push to the deceased Mukhiya and thereafter all other
accused persons surrounded him. Out of them he could recognize Bhagat Yadav, Mukhiya
Yadav, Madeshwar Yadav, Rahish Yadav, Deo Prasad Yadav and Khalitra Yadav.
Having seen the accused surrounding the deceased the informant retreated about
10-15 steps backward and thought that the accused persons would leave the
deceased Mukhiya but instead accused Khalitra Yadav and Rahish Yadav caught
hold of Mukhiya and accused Gaya Yadav and Bhagat Yadav fired at him from
country made pistol. Thereupon, Mukhiya fell down. Thereafter, the accused Mukhiya
Yadav who was armed with pausli bent over Mukhiya as if he was cutting the neck
of Mukhiya. Simultaneously, all of them were uttering that Mukhiya should not
survive. Being frightened the informant fled away from the scene. While fleeing
he also saw 2-3 persons in the neighboring fields. He came back to Mau village
and narrated the story about the occurrence. He further mentioned in ferd-beyan
that while the accused Gaya Yadav and Karu Yadav were inviting Mukhiya for
supper in the village Kurkut Bigha some persons of villages Sukata and Mau were
also present. The ferd-beyan was recorded at 11.30 p.m. on the same night.
PW-3 Lallan Bharti is the sole eyewitness.
Nothing has been brought to our notice that the witness is related to the
deceased. There is also no material, which would disclose the animosity between
the witness and the accused. A suggestion was put to this witness that he is
distantly related to the deceased to which he flatly denied. On the other hand,
evidence disclosed that this witness was close to the deceased Mukhiya, would
suggest that at the time of incident this witness was with the deceased Mukhiya
would be quite natural and plausible, which would fortify his statement that he
was with Mukhiya at the time of incident. Undisputedly, this witness is an
independent witness. Similarly, being close to the deceased, the witness in the
ordinary circumstances would not depose falsely against the accused and allow
the real assailants being escaped unpunished.
He has consistently deposed during the trial
what has been stated by him in the ferd-beyan. At the risk of repetition we may
recapitulate the sum and substance of what this witness has stated during the
trial. In the evening of 15.3.1987 when the deceased Mukhiya was meeting people
in Mau bazar on the eve of "Holika Dahan" the witness was also with
him. First the accused Gaya Yadav requested the deceased to have supper in Kurkut
Bigha on the occasion of "Holika Dahan" followed by the accused Karu Yadav
which was reluctantly accepted by the deceased. The deceased along with the
informant accompanied by two accused then started for village Kurkut Bigha to
take supper. It was bright full moonlit night. When they came out of Mau
village the witness saw 9-10 persons coming towards them at about 7.45 pm. and
when they were near the Kahua tree accused Gaya Yadav and Karu Yadav pushed the
deceased down and then all the accused surrounded the deceased. The informant
went back 4 or 6 steps from where he saw that Rahish Yadav and Khalitra Yadav
were catching hold the two arms of the deceased and the accused Gaya Yadav and Bhagwat
Yadav each fired a shot from the pistol at the deceased who fell down.
Thereafter, the accused Mukhiya Yadav began to cut the neck of Mukhiya by pausli.
Being frightened, the informant fled away from the spot and came to the darwaja
of the deceased and narrated about the occurrence, when among others Jaiprakash
Narayan Lal Singh (PW9) also reached there. He further stated that he wanted to
go to the police station but people told him that the officer- incharge had
gone to Agar village for Holi duty. This witness, further, stated that Mukhiyajee
was a nice man of the area and the witness supported him in every election. He
further stated that the firing was done from a distance of about 1- yards.
Accused Gaya Yadav fired from the west and Bhagwat fired from south-west and
the deceased was facing towards the west.
The statement of PW-3 with regard to the
invitation extended by the accused to the deceased Mukhiya on 15.3.1987 is well
corroborated by the statements of PW-4 and PW-5. PW-4 Ram Ashray Sharma and
PW-5 Girish Narain Singh had seen the deceased in the company of the accused Gaya
Yadav and Karu Yadav along with the informant when those two accused were
inviting the deceased for supper. PW-4 Ram Ashray Sharma stated that on
15.3.1987 at about 1.30 p.m. he had gone to Mau Bazar and before him accused Gaya Yadav, Mukhiya
Yadav and Bhagwat Yadav had met Mukhiyajee. Gaya Yadav had invited him for
supper which the victim accepted saying that he would try to come after 6.00 p.m. This witness further
stated that the Investigating Officer had met him at about 11.30 p.m. near the dead body. He
further stated that he had not made any attempt to give information, as his
priority was to search the body. He also stated that he told the police that
PW-3 Lallan Bharti had given out the names of the murderers. He further stated
that the police had recorded the statement of Lallan Bharti at 11.30 p.m. He further stated that
he had voted for Mukhiya in the election, as he was a good candidate.
PW-5 Girish Narayan Singh stated that on
15.3.1987 at about 5.00 p.m. he had gone to Kuldip Mochi and while returning from there at
had met the deceased at the crossing of the land near the house of Krishan Sao.
The deceased was with the informant, accused Gaya Yadav and Karu Yadav. PWs 6,
9 and 11 also deposed about meeting the deceased in the bazar. PW-6 deposed
that he met the deceased in the Mau bazar while PW-3, accused Gaya Yadav and Karu
Yadav were with the deceased and on his inquiry as to where they were proceeding,
the deceased Mukhiya told him that he was going to the place of Gaya Yadav
being invited for supper.
The testimony of PW-3 has been assailed by
counsel for the appellants on the ground that his ocular testimony is in
contradiction with the medical evidence. Mr.Anoop G. Choudhary, learned senior
counsel, strenuously urged that PW-3 deposed that Gaya Yadav and Bhagwat Yadav
fired at him by a country made pistol upon which the victim fell down, whereas
PW-10 Dr.Mithlesh Kumar Sinha found only one gun shot injury. Dr.Mithlesh Kumar
Sinha conducted the post mortem and found the following injuries:-
(1) "Incised wound over front side of neck
and middle. All structures were found sharply cut including by injuries, ocosophagus,
blood vessels, nerve muscles and thin fourth cervical vertebra. Head was found
attached with neck with skin of neck only. Margins of wound were well defined.
(2) Incised penetrating wound over front chest
on upper part " below suprasternal notch into chest cavity deep. Body of sternkon
was sharply cut and both lungs were found I lacerated. Chest cavity was found
with blood and blood clot.
(3) Incised penetrating wound on right part of
abdomen 2" right from umbilicus size 1" x " abdominal cavity
deep peritoneum and coil of intestine were sharply cut at places. Penetonium
cavity was found filled with blood clots.
(4) One circular wound of entry of size "
with inverted and blacked margin over left part of lower part of chest with
tattooing of area three inches around the main wound of entry. Direction sound
was from left side towards right horizontal. Bullet was lodged into substance
of soft issues of right side chest which had been recovered and was forwarded
in sealed cover.
There was laceration of spleen, lever and coil
of intestinal." According to the learned counsel this discrepancy is
substantial and fatal to the prosecution case and therefore the evidence of
PW-3 does not inspire any confidence which would form the basis for conviction.
In this connection Mr. Choudhary has drawn our attention to the deposition of
PW- 3 in cross-examination in paragraph 44 of the statement where he stated as
under:- "Mukhiyaji was rounded up while he was standing. He fell down
after being hit by two gunshots. The bullets hit him immediately one after the
other. Yet I stood there. I remained there for 1 minutes after that." In
his statement in chief the witness succinctly stated in para 8 as under:-
"Due to fear I went behind 5-6 (DEC) steps. After turning when I moved
ahead I saw that Rahis Yadav and Khalidar Yadav were holding the arm of Mukhiyaje.
Gaya Yadav took out the country made pistol from
his waist and fired shot at. Bhagbat Yadav fired from the country made pistol
which hit him. Mukhiyaji fell down." From the statement in chief it
clearly appears that out of the two shots fired one by accused Gaya Yadav and
the other by accused Bhagwat Yadav, the one fired by Bhagwat Yadav from the
country made pistol hit the deceased. The word "which hit him" is
qualified by the word "Mukhiyaji fell down". It would, therefore, be
clear from the statement in chief that only one bullet hit the deceased. From
the above statement of PW-3 one thing is very clear that two shots were fired.
PW-3 saw the firing at the distance of 5-6 steps from where it would be humanly
difficult to see which of the bullet hit the deceased and which one not. It was
a moonlit night and although there was a visibility, at a little distance the
vision would be obscure. There was every possibility of one shot being missed
the target even at a close range, unless the shot is fired by an expert hand.
This apart, the I.O. PW-12 Raghunath Choudhary seized two empty cartridges vide
recovery memo (Ext.3/1). This would clearly corroborate the testimony of PW-3
that two shots were fired. In the circumstances aforesaid the discrepancy
appearing in chief and cross-examination in the deposition of PW-3 is too
tenuous ground for rejecting or even doubting otherwise the credibility and
truthful testimony of PW-3. We are, therefore, clearly of the view that the
testimony of PW-3 is trustworthy, inspires confidence and on the basis of which
the prosecution has established its case beyond all reasonable doubts.
Mr. Choudhary next contended that the
prosecution has not been able to establish the place of incident inasmuch as
the dead body of the deceased was said to have been recovered 200 yards away
from the place of incident.
The sketch map shows that there were bloodstains
at both the places
(1) near the kahua tree (the place of
(2) the place where the dead body was recovered.
PW-1 Umesh Sharma deposed that he had seen the
accused talking with the deceased. He also said that on 15.3.1987 he was
watching his gram field which is at a distance of about 60 yards towards west
from the Kahua tree and heard the sound of two fires and also alarm of PW-3
that Mukhiyajee is being killed. He was running towards the east and while
moving further he saw 8-10 persons carrying the dead body. He further stated
that he could identify the accused. Two persons had country made gun/pistol.
One of them had pausli. The others had guns. Accused Gaya Yadav and Bhagwat Yadav
had pistols. He identified all the eight accused in a moonlit night. He had
also seen PW-2 Jai Prakash Bharti running towards Mau village. PWs 2 and 3
reached the dalan of the deceased earlier than the witness. Thereafter, they
went in search of the dead body with patromax and the dead body was found in
the field of Rajdeo Singh, 200 yards away towards the south from the Kahua
tree. PW-2 has also seen the dead body of the deceased being taken away by the
accused. He stated that he was in his Mueshari field. He further stated that
towards the south of the road is a Kahua tree. He stated that he heard the
sound of gun fire from the side of the kahua tree. He went running towards the
road and saw PW-3 crying and running towards the east. He also saw the accused
lifting away the dead body of the deceased. He then went running towards the
door of Mukhiya and on search the dead body of Mukhiya was found in the field
of Rajdeo Singh. From the statements of PWs 1 and 2 it is noticed that the
deceased was murdered near Kahua tree and the dead body was carried away to a
place 200 yards away from where it was found.
Mr. Choudhary further contended that as the deceased
suffered formidable bodily injuries including the slitting of throat, a lot of
blood must have oozed out, but there was no trail of blood in between the
distance of kahua tree where the incident alleged to have taken place and the
place of recovery of the dead body which would render the prosecution story
about the place of occurrence doubtful. We are not at all impressed by such
submission. It is in the evidence on record that after the dead body was found
there was a melee and huge gathering of villagers at the spot. In such a
situation the trail of blood would get disintegrated. Since the IO had arrived
at the place of incident only at 11.30 p.m. there would be no evidence of the trail of
blood left at the time of the arrival of the IO. Serious attempts have been
made to discredit the prosecution story for non- mentioning kahua tree in the ferd-beyan.
Kahua tree was mentioned by PWs to indicate the place of occurrence. As
noticed, bloodstain was collected from the place of occurrence (near kahua tree).
This would clearly establish that the first occurrence had taken place near the
place of kahua tree. Non- mentioning of kahua tree in the ferd-beyan is,
therefore, irrelevant, for establishing the place of occurrence.
Contention has also been raised by the learned
counsel for the appellants that sanha no.2000 dated 15.3.1987 at the outpost
Mau village was given by PW-14 Satyendra Narain Singh, son of the deceased
without naming the accused. PW-14 Satyendra Narain Singh was examined and he
has denied to have given any information at the outpost. On the other hand, it
is revealed from the evidence of IO PW-12 Raghunath Choudhary that the sanha
2000 dated 15.3.1987 has been entered in the Mau outpost on hearing a rumour
that somebody has been murdered. Contention has also been raised that there was
delay in lodging the ferd-beyan. Ferd-beyan was lodged at 11.30 p.m. though the Mau outpost
is about 150 yards away from the residence of the deceased, it is contended.
PW-3 the informant has stated that he was busy in searching the body and he
could not lodge the ferd-beyan in time. He also stated that people told him
that the officer incharge of Mau outpost had gone to Agar village for Holi
duty. He has also stated that Tekari police station is about 5 miles away from
the place of occurrence and conveyance was not easily available. In the
aforesaid circumstances lodging of ferd-beyan at 11.30 p.m. is inconsequential.
What is deduced from the aforesaid facts and
circumstances is that the prosecution has been able to establish its case
against accused A-1, Gaya Yadav, A-5 Bhagwat Yadav, A-6 Mukhiya Yadav and A-7 Ramashish
Kr. @ Karu Yadav beyond all reasoanble doubts and the appeals in respect of
them are, accordingly, dismissed. As already noticed, A-8 Deo Prasad Yadav had
died during the pendency of the appeal and his appeal stands abated.
So far as A-2 Madheshwar Yadav, A-3 Khalitra Yadav
and A-4 Rahish Yadav are concerned, there is no evidence to show that they have
shared the common intention to murder the deceased. No overt act has also been
attributed to them. Therefore, the prosecution has failed to establish its case
against them for the offence under Sections 302/34 IPC beyond reasonable
doubts. Their appeal is, accordingly, allowed. They are acquitted of all the
charges levelled against them. Their conviction and sentence are set-aside.
They are set at liberty if not wanted in connection with any other case. Their
bail bonds are cancelled and sureties discharged.
A-1 Gaya Yadav, A-5 Bhagwat Yadav, A-6 Mukhiya Yadav
and A-7 Ramashish Kr. @ Karu Yadav are on bail. They are directed to surrender
to their bail bonds and serve out the sentence.
The appeals are disposed of in the above terms.