Ramashray Yadav & Ors Vs. State of Bihar [2005] Insc 628 (8 November 2005)
H.K. Sema & G.P. Mathur G. P. Mathur, J.
1. This appeal, by special leave, has been filed against the judgment and
order dated 15.1.2004 of Patna High Court, by which the appeal preferred by the
appellants was dismissed and their conviction under Section 302 read with
Section 34 IPC and Section 27 Arms Act and the sentence of imprisonment for
life under the first count and three years R.I.
under the second count imposed by Second Additional Sessions Judge, Hilsa,
Nalanda, in Sessions Trial No.612 of 1998 were affirmed.
2. The case of the prosecution may be stated in brief. The deceased Ram
Parvesh Yadav was carrying on timber business and was running a saw mill at
Hilsa. The appellants, Ramashray Yadav (A-1), Tanikan Yadav (A-2) and Rajdeo
Yadav (A-3), were bullies or goondas of the locality and they used to demand
"rangdari tax" (Goonda Tax) from the deceased, but he refused to pay
the same. Due to this reason, the appellants were hostile to the deceased and
wanted to teach him a lesson. On 10.4.1998, the deceased Ram Parvesh Yadav
along with his brother PW.12 Sidheshwar Prasad and some others went on a
tractor trolley to bring timber from village Dabaul. After loading the timber, they
returned from there and reached west of village Shekhopur at about 3.30 p.m. Suddenly, the three appellants and two other unknown persons came out from the
bushes and started firing with country-made pistol and rifle. The labourers,
the driver of the tractor and Ram Parvesh Yadav jumped from the tractor and
started running towards eastern side. The accused chased Ram Parvesh Yadav and
after covering some distance reached near him and fired number of shots, which
hit him and he fell down dead.
Sidheshwar Prasad gave his fard bayan to S.I. Deo Nath Bhagat, of Police
Station, Hilsa at about 5.00 p.m. The formal FIR of the incident was registered
at the Police Station at 7.30 p.m. on the basis of which Crime Case No.139 of
1998 was registered. S.I. Prabhu Nath Singh commenced investigation of the case
and after recording statement of witnesses under Section 161 Cr.P.C. and
completing other formalities submitted charge sheet against the three
appellants. The post-mortem examination conducted on the body of the deceased
Ram Pravesh Yadav revealed that he had sustained large number of gunshot
injuries.
3. After commitment of the case to the Court of Sessions, the appellants
were charged under Section 302 read with Section 34 IPC and Section 27 Arms
Act. The appellants pleaded not guilty and claimed to be tried. In order to
establish its case, the prosecution examined in all 15 witnesses, out of whom 7
witnesses turned hostile. PW.12 Sidheshwar Prasad, brother of the deceased who
had accompanied him on the tractor to village Dabaul for bringing the timber,
gave the complete version of the incident in his deposition in Court. PW.3 Karu
Beldar was the driver of the tractor. He deposed that he had driven the tractor
trolley on which Ram Parvesh Yadav and Sidheshwar Prasad had gone to village
Dabaul for bringing timber. When they were returning to village Hilsa at about 3.00- 4.00 p.m. and had reached near village Shekhopur, two-three people whom he could not
recognize, came there and started firing upon the tractor. Ram Parvesh Yadav
ran towards eastern side, but after receiving gunshot injuries he fell down and
died on the spot. When confronted with his statement under Section 161 Cr.P.C.,
wherein he had mentioned that the three appellants namely, Ramashray Yadav, Tanikan
Yadav and Rajdeo Yadav were present amongst the assailants and had fired from
country- made pistol and rifle upon the deceased, he denied to have given any
such statement, though he admitted that the police had recorded his statement
at the police station. He also denied to have stated in his statement under
Section 161 Cr.P.C. that the accused appellants used to demand "rangdari
tax" (Goonda Tax) from the deceased and on account of non-payment thereof,
they had committed his murder. PW.5 Arjun Prasad stated that at about 3.30 p.m. on 10.4.1998, he was returning from village Tamara and when he reached near
Lehra Dak river, he heard sound of several gunshots being fired. He along with
others rushed towards Mahua Khandha and saw one person lying on the ground who
had received large number of injuries. Sidheshwar Prasad was standing nearby
and on enquiry he informed him that on account of non-payment of "rangdari
tax", Ramashray Yadav, Tanikan Yadav and Rajdeo Yadav had killed his
brother Ram Parvesh Yadav by causing gunshot injuries. PW.14 Dr. S.B.
Singh had conducted post-mortem examination on the body of the deceased at 7.30 a.m. on 11.4.1998 and had prepared the post-mortem report. In his deposition, he
proved the aforesaid report and stated that the deceased had sustained gunshot
injuries on his face, mouth, lumber region, arms and hand. Three bullets were
found inside the body which were taken out. In his opinion, death had occurred
16 to 24 hours prior to the holding of post- mortem examination.
4. The learned Sessions Judge believed the case of the prosecution and
convicted all the three appellants under Section 302 read with Section 34 IPC
and Section 27 Arms Act, whereunder sentence of imprisonment for life and a
sentence of three years R.I. respectively were awarded. The appellants
preferred an appeal before the High Court, which affirmed the findings of the
learned Sessions Judge and dismissed the appeal.
5. Learned counsel for the appellants has submitted that as many as 7
witnesses examined by the prosecution had turned hostile. Only PW.12,
Sidheshwar Prasad, who is the brother of the deceased, had supported the
prosecution case and in these circumstances, it was highly unsafe to record the
conviction of the appellants on the solitary testimony of a witness who is an
interested witness, being brother of the deceased. Shri B.B. Singh, learned
counsel for the State, has, on the other hand, submitted that the testimony of
PW.12 Sidheshwar Prasad finds ample corroboration from the testimony of PW.3 Karu
Beldar and PW.5 Arjun Prasad, who are independent witnesses. The eye-witness
account of the incident is corroborated by the medical evidence and in these
circumstances, the trial Court and also the High Court were perfectly justified
in recording the conviction of the appellants. Learned counsel has also
submitted that conviction can be based on solitary testimony of an eye-witness,
if the same inspires confidence and in the present case the evidence of PW.12
Sidheshwar Prasad was of unimpeachable character and there is no reason for
discarding the same. It has thus been submitted that there is no valid ground
which may warrant interference by this Court under Article 136 of the
Constitution with the findings of fact recorded by the two Courts.
6. PW.12, Sidheshwar Prasad is the brother of the deceased Ram Parvesh
Yadav. He has deposed that the deceased was carrying on timber business and had
also a saw mill. The appellants were bullies or goondas of the locality and
they used to demand "rangdari tax" (Goonda Tax) from his brother, but
he refused to pay the same and due to this reason, the appellants wanted to
teach him a lesson. This shows the motive for commission of crime and also
explains the reason why as many as 7 witnesses turned hostile and even PW.3,
Karu Beldar who was driving the tractor, did not mention the names of the
appellants in his deposition in Court, though they were named and were assigned
the specific role of causing gunshot injuries in his statement under Section
161 Cr.P.C. PW.3 Karu Beldar has stated that the deceased Ram Parvesh Yadav and
Sidheshwar Prasad had gone to village Dabaul to bring timber and he was driving
the tractor. He has further deposed that while returning at about 3.00-4.00 p.m., when they reached near village Shekhopur, two-three people suddenly
appeared and started firing from their weapons. He jumped from the tractor and
ran away. He also saw that Ram Parvesh Yadav had run towards eastern side,
where he received gunshot injuries and fell down dead. Except for mentioning
the names of the three appellants, he has completely corroborated the
prosecution version of the incident. He corroborates the fact that PW.12
Sidheswar Prasad had also gone with the deceased Ram Parvesh Yadav to village
Dabaul for bringing timber on a tractor of which he was the driver. He
corroborates the fact that the incident took place at about 3.00-4.00 p.m. near village Shekhopur when two-three persons suddenly appeared and started firing
upon the tractor. He also corroborates the fact that he saw Ram Parvesh Yadav
being hit by gunshots and falling down dead towards eastern side of the
tractor. He further corroborates the presence of Sidheshwar Prasad at the time
when the assailants resorted to firing upon Ram Parvesh Yadav.
7. PW.5 Arjun Prasad has deposed that he was returning from village Tamara
at about 3.30 p.m. on 10.4.1998 and when he reached near river Lehra Dak, he
heard sound of several gunshots. He along with others ran towards that side and
saw a person lying badly injured in Mahua Khandha and PW.12 Sidheshwar Prasad
was standing there. On enquiry, he told him that on account of non-payment of
"rangdari tax", appellants Ramashray Yadav, Tanikan Yadav and Rajdeo
Yadav had killed his brother Ram Parvesh Yadav by firing upon him. PW.5 had not
seen the incident but he heard the sound of gunshots and rushed to the place of
occurrence where he saw the deceased lying in a badly injured condition and
Sidheshwar Prasad who was standing nearby narrated the incident to him. It
needs examination whether the testimony of PW.5 Arjun Prasad can be used as a
corroborative piece of evidence.
8. Section 157 of the Evidence Act reads as under :
"157. In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact, at or about the time
when the fact took place, or before any authority legally competent to
investigate the fact, may be proved." The import of this Section was
examined and explained in considerable detail in State of Tamil Nadu v. Suresh
& Anr. (1998) 2 SCC 372 and paragraphs 26 to 28 of the reports are being
reproduced below :
"26. The section envisages two categories of statements of witnesses
which can be used for corroboration. First is the statement made by a witness
to any person "at or about the time when the fact took place". The
second is the statement made by him to any authority legally bound to
investigate the fact. We notice that if the statement is made to an authority
competent to investigate the fact such statement gains admissibility, no matter
that it was made long after the incident. But if the statement was made to a
non-authority it loses its probative value due to lapse of time. Then the
question is, within how much time the statement should have been made ? If it
was made contemporaneous with the occurrence the statement has a greater value
as res gestae and then it is substantive evidence. But if it was made only
after some interval of time the statement loses its probative utility as res
gestae, still it is usable, though only for a lesser use.
27. What is meant by the expression "at or about the time when the fact
took place"? There can be a narrow view that unless such a statement was
made soon after the occurrence it cannot be used for corroboration. A broader
view is that even if such statement was made within a reasonable proximity of
time still such statement can be used for corroboration. The legislature would
not have intended to limit the time factor to close proximity though a long
distance of time would deprive it of its utility even for corroboration
purposes.
28. We think that the expression "at or about the time when the fact
took place" in Section 157 of the Evidence Act should be understood in the
context according to the facts and circumstances of each case. The mere fact
that there was an intervening period of a few days, in a given case, may not be
sufficient to exclude the statement from the use envisaged in Section 157 of
the Act. The test to be adopted, therefore, is that : Did the witness have the
opportunity to concoct or to have been tutored ? In this context the
observation of Vivian Bose, J. in Rameshwar v.
State of Rajasthan AIR 1852 SC 54 is apposite :
"There can be no hard and fast rule about the 'at or about' condition
in Section 157. The main test is whether the statement was made as early as can
reasonably be expected in the circumstances of the case and before there was
opportunity for tutoring or concoction." (emphasis supplied)"
9. In Smt. Chander Kala v. Ram Kishan & Anr. AIR 1985 SC 1268, an
incident which took place on 10th March was narrated by the victim to some of
her colleagues on 11th March and it was held that the testimony of her
colleagues was admissible under Section 157 of the Evidence act and could be
used for the purpose of seeking corroboration to the testimony of the victim.
Thus, the testimony of PW.5 Arjun Prasad who had reached immediately after the
incident had happened and to whom PW.12 Sidheshwar Prasad had narrated the
incident and the role played by the three appellants in causing the death of
his brother by firing upon him lends complete corroboration to the testimony of
PW.12 Sidheshwar Prasad.
10. No infirmity of any kind has been pointed out in the testimony of PW.12
Sidheshwar Prasad, who is the brother of the deceased. His going along with his
brother for the purpose of bringing timber is most natural.
There is substantial corroboration to his testimony by the statements of PW3
Karu Beldar and PW.5 Arjun Prasad. His version of the incident is consistent
with medical evidence on record. In these circumstances, we have no hesitation
in holding that the prosecution has established the participation of the
appellants in the crime in question beyond any reasonable doubt. We do not find
any error or illegality in the findings recorded by the trial Court and also by
the High Court. The appeal is accordingly dismissed. The appellants shall
undergo the sentences as awarded by the Second Additional Sessions Judge,
Hilsa, Nalanda.
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