Patna High Court
Bam Shankar Yadav vs The State Of Bihar on 1 May, 2015
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 236 of 2008
WITH
Criminal Appeal (DB) No. 292 of 2008
WITH
Criminal Appeal (DB) No. 457 of 2008
WITH
Criminal Appeal (DB) No. 310 of 2008
WITH
Criminal Appeal (DB) No. 478 of 2008
===========================================================
Against the judgment of conviction, dated 07.02.2008, and
the order of sentence, dated 08.02.2008, passed, by Shri
Deepak Kumar Sinha, Additional Sessions Judge, Fast Track
Court No. II, Munger, in Sessions Trial No. 452 of 1989,
arising out of Muffassil Police Station Case No. 429 of 1988
===========================================================
Bam Shankar Yadav, son of Ram Govind Prasad Yadav, resident
of village Mayadariyapur, Police Station Munger Muffasil, district
Munger
........ Appellant (In Cr. App. No. 236/2009)
WITH
Devan Yadav, son of late Bhuneshwar Yadav, resident of village
Shankarpur, Police Station Muffasil, District Munger
........ Appellant (In Cr. App. No. 292/2008)
WITH
1. Suro Yadav, son of late Jitu yadav
2. Bauno Yadav, son of Late Kancheer Yadav
Both resident of village Mai Dariyapur, Police Station Muffasil,
District Munger
3. Tulo Yadav, son of Late Sukhdeo Yadav, resident of village
shankarpur, Police Station Mufassil, District Munger
........ Appellants (In Cr. App. No. 457/2008)
WITH
1. Binodi Yadav, son of Late Basudeo Yadav
2. Shankar Yadav, son of Late Lukho Yadav
Both residents of village Maya Dariyapur, Police Station Munger
Muffasil, P.O. Munger, District Munger
........ Appellants (In Cr. App. No. 310/2008)
WITH
Ramjee Yadav, son of Late Sunder Yadav, resident of village
Shankarpur, Tola Milki, Police Station Muffasil, District Munger
........ Appellant (In Cr. App. No. 478/2008)
VERSUS
The State of Bihar ........ Respondent (In all appeals)
===========================================================
Appearance :
Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015
2/28
(In CR. APP (DB) No. 236 of 2009)
For the Appellant : None
For the State : Mr. S. C. Mishra, A.P.P.
Mr. Praveen Kumar, Advocate as Amicus Curiae
(In CR. APP (DB) No. 292 of 2008)
For the Appellant : Mr. Dhirendra Nath Jha, Adv.
For the State : Mr. A. K. Sinha, A.P.P.
(In CR. APP (DB) No. 457 of 2008)
For the Appellants : Mr. Ajit Kr. Singh No. 2, Advocate
For the State : Mr. Dilip Kumar Sinha, A.P.P.
(In CR. APP (DB) No. 310 of 2008)
For the Appellants : None
For the State : Mr. Dilip Kumar Sinha, A.P.P.
Mr. Ravindra Kumar, Advocate as Amicus Curiae
(In CR. APP (DB) No. 478 of 2008)
For the Appellant : Mr. Dhirendra Nath Jha, Adv.
For the State : Mr. Ajay Mishra, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE MR. JUSTICE GOPAL PRASAD
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE GOPAL PRASAD)
Date: 01-05-2015
Under the judgment, dated 07.02.2008, passed, in
Sessions Trial No. 452 of 1989, by learned Additional Sessions
Judge, Fast Track Court No. II, Munger, the accused-
appellants, Bam Shankar Yadav, Devan Yadav, Suro Yadav,
Bauno Yadav, Tulo Yadav, Binodi Yadav, Shankar Yadav and
Ramjee Yadav, stand convicted under Sections 302, 364 and
201 read with Section 149 of the Indian Penal Code, Section
148 of the Indian Penal Code, and Section 27 of the Arms Act,
1959. The accused-appellant, Ramjee Yadav, has further been
convicted under Section 307 of the Indian Penal Code.
Following their conviction under Section 364 and 302 read with
Section 149 of the Indian Penal Code, all the accused-
Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015
3/28
appellants have been sentenced, under the order, dated
08.02.2008, to undergo imprisonment for life and, following their conviction under Section 148 and 201 of the Indian Penal Code and also under Section 27 of the Arms Act, 1959, all the accused-appellants have been sentenced to undergo rigorous imprisonment for a period of three years each. Following his conviction under Section 307 of the Indian Penal Code, the accused-appellant, Ramjee Yadav, has been sentenced to undergo rigorous imprisonment for a period of ten years. The sentences have been directed to run concurrently. However, all the accused-appellants have been ordered to pay a fine of Rs. 5,000/- each, and in default of payment of fine, to suffer rigorous imprisonment for a period of one year.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as under:
(i) On 22.12.1988, at about 07:00 AM, accused persons, namely, Punit Yadav, Ramjee Yadav, Chandi Yadav, Devan Yadav, along with 11-12 unknown miscreants, variously armed with fire-arms, came to the village of the informant, Chatri Kewat Choudhary (PW 9), and asked the informant and his co-villagers about the whereabouts of Solu Yadav of village Shankarpur and, on expressing their ignorance about the whereabouts of Solu Yadav of village Shankarpur, one of the accused, Chano Yadav, shot five bullets and one of the bullets, Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 4/28 so fired, hit the right thigh of Prakash Choudhary (PW 2). The miscreants also took away Gulab Kumar Choudhary, younger brother of the informant, and Brahmadeo Choudhary, Devendra Choudhary, Devan Choudhary, Sitaram Choudhary and Dobhi Singh Bind, with them towards diara forest. The entire occurrence had also been witnessed by Ramautar Choudhary, Mahadeo Choudhary, Chamru Choudhary and Binod Choudhary, along with other co-villages of the informant.
(ii) Sitaram Choudhary (PW 10), one of the abducted person, somehow, managed to flee away from the clutches of the abductors and hid himself in the forest for the whole night and, on the next morning, when police reached the diara forest, they recovered Sitaram Choudhary. The police also recorded his statement.
(iii) Brahmadeo Choudhary (PW 12), one of the two surviving abducted persons, too, succeeded in fleeing away from the clutches of the abductors and hid himself whole night in the diara forest and, on the next day, he reached his house.
(iv) The informant (PW 9), Chatri Kewat Choudhary, at 08:30 A.M, orally informed Mufassil Police Station about the occurrence and the said information was reduced into writing, as his fardbeyan, and treating the said fardbeyan as the First Information Report, Mufassil Police Station Case No. 429 of 1988 was registered, under Sections 147/148/149/324/307/ Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 5/28 364 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, against the accused aforementioned and, on completion of investigation, a charge sheet, under Sections 147/148/149/324/307/ 364/302 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, was laid against all the accused aforesaid.
3. At the trial, when charges, under Sections 302, 364, 201 read with Section 34 of the Indian Penal Code, Section 148 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed against the accused-appellants, they all pleaded not guilty.
4. In support of their case, prosecution examined altogether 18 (eighteen) witnesses. The accused were, then, examined under Section 313 (1) (b) of the Criminal Procedure Code and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial.
5. Having, however, arrived at the finding that the accused had been proved guilty of the charges under Sections 302, 364, 201 read with Section 34 of the Indian Penal Code, Section 148 of the Indian Penal Code and Section 27 of the Arms Act, 1959, the learned trial Court convicted them accordingly. Following their conviction, sentences, as Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 6/28 mentioned above, have been passed against the accused aforementioned.
6. Aggrieved by their conviction and the sentences passed against them, the convicts have preferred these appeals.
7. All these five appeals having, thus, arisen out of the impugned judgment of conviction, dated 07.02.2008, and the impugned order of sentence, dated 08.02.2008, these appeals have been heard together and are being disposed of by this common judgment and order.
8. We have heard Mr. Dhirendra Nath Jha, learned Counsel, appearing on behalf of the appellants, in Criminal Appeal (DB) Nos. 292 and 478 of 2008, Mr. Ajit Kumar Singh No. 2, learned Counsel, appearing on behalf of the appellants, in Criminal Appeal (DB) No. 457 of 2008, and Mr. S. C. Mishra, learned Additional Public Prosecutor, appearing for the State, in Criminal Appeal (DB) No. 236 of 2009, Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor, appearing for the State, in Criminal Appeal (DB) Nos. 457 and 310 of 2008, Mr. A. K. Sinha, learned Additional Public Prosecutor, appearing for the State, in Criminal Appeal (DB) No. 292 of 2008 and Mr. Ajit Mishra, learned Additional Public Prosecutor, appearing for the State in Criminal Appeal (DB) No. 478 of 2008. We have also heard Mr. Praveen Kumar and Mr. Ravindra Kumar, learned Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 7/28 Counsel, appearing as Amicus Curiae.
9. Out of the 18 witnesses, who have been examined, P.Ws. 4, 5 and 15 are the doctors, who have conducted post mortem examination and PW 6 is the doctor who examined the injured, Prakash Kumar Choudhary. P.Ws. 16, 17 and 18 are the police officers, who have participated in the investigation. P.Ws. 10 and 12 are the persons, who are said to have been abducted, but managed to escape from the captivity of the abductors. PW 1 is the son of Dobhi Singh Bind, PW 2 is the victim, who received the gun shot injury and he is son of Devan Choudhary, whose dead body was recovered, PW 3 has identified, in the Court, all the accused persons, PW 7 is a witness to the inquest, PW 8 claims to be an eye-witness, PW 9 is the informant, PW 11 identified the dead body of Dobhi Singh Bind and PW 13, Kesho Choudhary, also claims to be an eye- witness. PW 14, Rajani Devi, is the mother of the deceased, Gulab Choudhary, and claims to be an eye-witness.
10. Before we enter into the discussion of the evidence of the informant and his co-villagers, let us take note of the evidence of the doctors, who had performed post mortem examinations on the dead bodies of the deceased.
11. According to the doctor (PW 4), he, on conducting post mortem examination, on 05.01.1989, at about 09:30 AM, on the dead body of Devan Choudhary, found following ante Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 8/28 mortem injuries on the said dead body.
"ANTE MORTEM INJURIES:
1. The body was in the stage of advance decomposition with peeling of skin and heir of head. Bloated abdomen and protruded tongue.
2. There was sharp cup on neck on both sides and front just above adores apple. The wound was deep up to trachea and larynx with width 1-
1½"., laterally culls major blood vessels of neck.
3. There was sharp cut over abdomen or upper chest in mid portion.
Entire thickness of anterior abdominal wall and chest wall was cut through which abdominal weera and a part of the heart was protruding.
4. two sharp cuts over chin of 1" x 1" x 2" size.
ON DISSECTION:
There was sign of
decomposition of stomach, intestine,
spleen, lever and lungs."
12. In the opinion of the doctor (PW 4), the cause of death was injury No. 2 sustained by the said deceased and all the injuries had been caused by sharp cutting weapon, the time elapsed since death being 6 to 8 days.
13. According to the doctor (PW 15), he, on conducting post mortem examination, on 05.01.1989, at about Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 9/28 10:30 AM, on the dead body of Gulab Choudhary, found following ante mortem injuries on the said dead body.
"Ante Mortem injuries:
1. The body was in a advance of decomposition with peeling of skin, heir of head, eye, tongue protruded.
2. There was sharp cut over abdomen up to exiphisternum in mid portion. Entire thickness of abdomen wall was cut through with abdominal viscera protruding.
3. Sharp cut 1½" x 1" x 2" on left side of abdomen.
4. Sharp cut 2" x 1½" x 1½"
on back of right arm.
5. Sharp cut 2" x 1" x 1" on back of above wrist.
ON DISSECTION:
There was sign of decomposition of stomach, intestine, spleen, lever and lungs and heart."
14. In the opinion of the doctor (PW 15), the death was caused due to shock and hemorrhage as a result of the injuries sustained by the said deceased by sharp cutting weapon, the time elapsed since death being 6 to 8 days.
15. Apart from the fact that findings of the doctors and their opinion with regard to the cause of death of the said deceased have not been disputed by the defence, we, too, notice nothing inherently incorrect or improbable in the Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 10/28 evidence given by the doctors and their evidence clearly shows that the deceased, Gulab Choudhary and Devan Choudhary, died due to the ante mortem injuries sustained by them by sharp cutting weapons.
16. Bearing, therefore, in mind that the deaths of Gulab Choudhary and Devan Choudhary were homicidal in nature, let us, now, turn to the evidence of Chatri Choudhary (PW 9), who has been treated as the informant. According to the evidence of Chatri Choudhary (PW 5), on 28.12.1988, at about 07.00 A.M., the accused-appellants, Punit Yadav, Ramjee Yadav, Chano Yadav and Devan Choudhary, armed with fire- arms, along with 11-12 unknown persons, variously armed, came to his village and abducted not only his younger brother, Gulab Choudhary, but also Brahmadeo Choudhary and Devan Choudhary, the accused-appellants resorted to assault and were asking about Sulo Yadav of village Shankarpur. It is also in the evidence of PW 9 that on showing their ignorance about Sulo Yadav, accused-appellants, Ramjee Yadav, Chani Yadav, Puneet Yadav and Devan Yadav, came to his house, caught hold of his younger brother, Gulab Choudhary, at the point of fire-arms and took him away towards forest situated at diara. It is further in the evidence of PW 9 that he had seen the accused-appellants taking away Devan Choudhary and Brahmadeo Choudhary and while the accused were taking away Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 11/28 the abducted persons, the accused-appellants, Ramjee Yadav and Chano Yadav, fired from their fire-arms and one of the shots, so fired by them, hit Prakash Kumar Choudhary (PW 2) in his thigh. It is also in the evidence of PW 9 that he was not in his house, when the accused were taking away the abducted persons and, in the same breath, he (PW 9) has deposed that he was hiding inside his house.
17. On the basis of fardbeyan of PW 9, the First Information Report was registered. However, police, during investigation, found that six persons had been abducted and out of them, two abducted persons, namely, Sitaram Choudhary and Brahmadeo Choudhary, somehow managed to flee away from the clutches of the accused-appellants, whose statements were recorded under Section 164 of the Code of Criminal Procedure, and the dead bodies of three persons, namely, Gulab Choudhary, Devan Choudhary and Mahadeo Choudhary were recovered and headless body of Dobhi Singh Bind was recovered after 5-6 days of the occurrence.
18. However, PW 9 has supported the prosecution case, in his examination-in-chief, by naming the four persons, who were also named in the First Information Report, while he was standing near the temple of Bajrangbali in the middle of the village and claims that Gulab Choudhary, Brahmadeo Choudhary and Devan Choudhary were abducted at the point of Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 12/28 fire-arms and, further, in his evidence, stated that Ramjee Yadav and Chano Yadav had both fired and out of the bullets so fired, one bullet hit Prakash Kumar Choudhary. His (PW 9) attention has been drawn to his earlier statement, but his explanation during trial, is that he has not said so. However, the evidence of this witness is contrary to his evidence in the fardbeyan to the extent that though in his fardbeyan, he had stated that Chano Yadav fired five rounds causing injury to Prakash Kumar Choudhary, but, during the trial, he has deposed that Ramjee Yadav and Chano Yadav fired one round each and, out of two shots, one bullet hit Prakash Kumar Choudhary; so his evidence, on this aspect of the prosecution's case, suffers from contradiction as per the First Information Report and further suffers from uncertainty as to who had shot Prakash Kumar Choudhary on his thigh.
19. In his further cross-examination, in paragraph 6, PW 9 has stated that he hid himself in his house out of fear of accused persons/miscreants. He has further stated that in the house, his mother was only present. He has further stated, in paragraph 13 of his deposition, that there is only one room in his house made of straw and tati and there is no window in the room and it has only one door facing east, which is not fitted with any door and there is tati. He had hidden himself in this room till the occurrence was going on. He has further stated Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 13/28 that seeing the group of the criminals, he entered into the house/room and no criminal entered into the house/room in which he had concealed himself. In his further evidence, he (PW 9) has stated that his mother was only person present in the house, his father had hidden himself in some other house. He has further stated that first he reached in the house for hiding himself and, thereafter, Gulab Choudhary reached the house. He has further stated in his evidence that he kept himself hidden in the room and saw the occurrence by tearing the tati. He has further stated that he has shown tearing of tati to the Investigating Officer and also disclosed the Investigating Officer that he saw occurrence from there. However, PW 18, Investigating Officer, has stated that he did not find any tearing of tati/straw or any hole or the tati having been dislocated to have a hole. He has further stated that the informant had neither shown him the torn tati in his hut through which he had claimed to have seen the occurrence nor disclosed him about seeing the occurrence through the tati. Hence, from the evidence of this witness (PW 9), it is apparent that that he came to his house and hid in a room and, thereafter, Gulab Choudhary came and, thereafter, the accused-appellants came and abducted his brother, Gulab Choudhary. Since this witness remained hidden in the room, he has no occasion to see Gulab Choudhary and other accused.
Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 14/28
20. PW 18, the Investigating Officer, in his evidence, has stated that the informant has not shown him the tatia in his hut through which he claimed to have seen the occurrence and, hence, his evidence, about seeing the occurrence by tearing tati, is contradictory to the evidence of the Investigating Officer and does not inspire confidence.
21. When we turn to the evidence of PW 2, injured Prakash Choudhary, we find, in his evidence, that about 15 months ago, at about 7 AM, he saw about 10 to 20 persons of Mahuli Shankarpur village coming to his village and he identified six of the accused-appellants, namely, Chano Yadav, Ramjee Yadav, Devan Yadav, Dina Yadav, Tulo Yadav and Puneet Yadav, who were armed with fire-arms, and were asking from the father of PW 2 about Sulo Yadav and, on the ignorance being shown by Prakash Choudhary's (PW 2) father, the accused-appellants began to drag Prakash Choudhary's (PW
2) father and when PW 2 tried to save his father, accused- appellant, Ramjee Yadav, fired a shot from his fire-arm, at PW 2, which hit PW 2 on his right thigh. It is in the evidence of PW 2 that after receiving bullet injury, he (PW 2) hid himself in his house and was, therefore, unable to see the rest part of the occurrence.
22. In the cross-examination, PW 2 has deposed that in the injured condition, he went to the hospital from a Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 15/28 rickshaw and before going to hospital, he (PW 2) had gone to the Police Station and reported the entire occurrence, which a Sub-Inspector of Police wrote and he (PW 2) put his thumb impression on the said paper. However, the Investigating Officer (PW 18), in his evidence, has denied the fact that PW 2 came to the Police Station and reported the entire occurrence.
23. PW 1 (Bhukhan Singh), one of the eye-witnesses to the occurrence, has deposed that about 15 months ago, at about 7:00 AM., when he was in his house, 10-20 persons belonging to Shankarpur village, including the accused- appellants, Chani Yadav, Ramjee Yadav, Dewan Yadav, Puneet Yadav, Dina Yadav, Tulo Yadav, Shambhu Yadav and Awadh Yadav, came to his village, variously armed with fire-arms, in search of Sulo Yadav and when PW 1 expressed his ignorance about the whereabouts of Sulo Yadav, the accused-appellants abducted Dobhi Singh Bind, father of PW 1, Dewan Choudhary, Gulab Choudhary, Mahadev Choudhary, Sitaram Choudhary (PW 10) and Brahmadeo Choudhary (PW 12) and took them towards River Ganga in the north direction. It is in the evidence of PW 1 that two abducted persons, namely, PW 10 (Sitaram Choudhary and PW 12 (Brahmadeo Choudhary) somehow managed to flee away, while PW 10 returned one day after the occurrence, PW 12 returned to the village on the very night of the occurrence. It is further in the evidence of PW 1 that the Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 16/28 dead bodies of Dewan Choudhary and Gulab Choudhary were found, later on, at the bank of River Ganga and the beheaded dead body of his father, Dobhi Singh Bind, was found after eight days of the occurrence of abduction, near Maniar Chak Dhar of River Ganga and he was able to identify the dead body of his father, Dobhi Singh Bind, by the cloths and the knife, by which his father used to chew the nut after cutting.
24. The topography of the village, as per PW 18 (Investigating Officer), is that there was a pitch road from Shankarpur to Seetalpur and to the north of the pitch road, one kachha road passed through middle of the village and to the north of this kachha road, was an idol of Mahabirjee and to the west of kachha road and south of Mahabirjee, there was the house of the informant and to the east of this kachha road, there were houses of other victims, who were abducted.
25. The topography of place of occurrence, as indicated by the PW 1, Bukhani, the son of the victim- deceased, Dobhi Singh Bind, is that his house is in the tola situated in the north portion of the village, Terasi. After 5-6 houses south of his house there is house of Devan Choudhary (the victim). To the further south-west of the house of Devan Choudhary, there is house of Brahmadeo Choudhary and adjoining south of the house of Brahmadeo Choudhary there is house of Mahadeo Choudhary. PW 13 Kesho Choudhary claims Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 17/28 to be the eye witness and states that his house is 15 lagga east from the house of Mahadeo Choudhary and in between, there is house of Bambari Choudhary and Ramautar Choudhary and that the house of Dobhi stands 25 lagga east of his house and PW 9, the informant, says that the house of Devan Choudhary is 20 lagga east from his house.
26. Taking into consideration the topographical features of the place of occurrence, it is apparent that the informant cannot be an eye-witness to the abduction of the victims, Gulab Choudhary, Brahmadeo Choudhary and Devan Choudhary as per his evidence as discussed above taking the topographical features of the place of occurrence. The evidence of PW 1, who claims that the accused persons were 10 to 20 in numbers, armed with various weapons, came and amongst them, he recognized Chano Yadav, Ramjee Yadav, Devan Yadav, Punit Yadav, Dina Yadav, Tulo Yadav, Shambhu Yadav and Awadh Yadav and claimed that those accused persons abducted Dobhi Singh Bind, Devan Choudhary, Gulab Kumar Choudhary, Mahadeo Choudhary and Sitaram Choudhary from their houses. However, he says in his evidence that his house has got two rooms and both have one door each, one is facing south and the other is facing north. The room does not have any window and at the time of occurrence, he was in the room facing north and he saw the Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 18/28 occurrence from that room. In the room facing south, his three sisters and mother live. He has stated further in paragraph 15 of his deposition that he cannot say that all the persons abducted were caught from their house.
27. What needs to be noted is that when PW 1 was, according to his own evidence, was in his house, then, how he could know who was caught from which place? Apparently from the evidence of PW 1, it is apparent that PW 1 is not eye witness to the abduction of the victim-deceased. He has further said that the six persons were abducted, while he was in his room. He has further stated that at the time of occurrence, there were 10 to 15 male members in the village; but, out of fear, all had concealed themselves in their house. Hence, from the evidence of this witness, he is not an eye-witness to abduction or a witness to say specifically as to who had abducted whom. Hence, his evidence does not inspire confidence as regards his being an eye-witness to the abduction of the victims nor to the fact about the identification of the accused persons.
28. PW 3 (Ram Bahadur Choudhary), for the first time, was narrating the entire occurrence before the learned trial Court itself and before that he had not given his statement before the police. His evidence is, thus, excluded from the purview of this Court's consideration.
Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 19/28
29. According to prosecution case, P.Ws. 10 and 12 were also the victims, who have been caught by miscreants and abducted them. PW 10 has stated that while he was cooking his food at his house, at that time, one person dragged him by putting a towel around his neck and he indicates one person to have identified who was dragging him. He disclosed his name as Punit Yadav and he has stated that he was taken and put in the basa of one Suro Yadav, but Suro Yadav was not there and it was accused, Devan Yadav, who took him towards the forest and after reaching forest he saw 5-6 miscreants; out of whom he identified Chano Yadav and Ramjee Yadav. However, this witness does not state that he was being taken along with other victims by the accused persons, but, does not attribute any overt act by Chano Yadav and Ramjee Yadav.
30. It is in the evidence of PW 12, Brahmadeo Choudhary, who claimed to have been abducted along with others, namely, Mahadeo Choudhary, Devan Choudhary, Gulab Kumar Choudhary and Dobhi Singh Bind, that only seven miscreants took the abducted five persons to the diara forest. However, he (PW 12) has not named any of the accused persons. He has further stated that he (PW 12) does not know the name of any of the accused persons, but, claimed to identify them by face and he (PW 12) claims that all the nine accused persons, present in dock, were the kidnappers. It is Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 20/28 also in the evidence of PW 12 that he tried to know the name of the abductors, but he could not know their names till date of his evidence.
31. Since, PW 12 has identified the accused, who were present in dock, even without stating their names and without participating in the Test Identification Parade during investigation does not inspire confidence.
32. PW 8, Sudesh Choudhary, who has named accused Punit Yadav. Deema Yadav, Shambhu Yadav, Devan Yadav, Awadh Yadav, Tulo Yadav, Ramjee Yadav and Chano Yadav as well as Bauno Yadav, Suresh Yadav and Shankar Yadav, as the abductors of Brahmadeo Choudhary, uncle of PW 8, and Sitaram Choudhary, grand-father of PW 8, has stated that he has disclosed the occurrence to the Investigating Officer only. It is further in the evidence of PW 8 that on seeing the accused, variously armed with fire-arms, he fled away towards south and at that place, he was alone and the villagers were fleeing away after seeing the miscreants.
33. The evidence of PW 8, too, did not inspire confidence, for, as it is very strange that the person, whose uncle and grand-father will be abducted, will not disclose the occurrence to his neighbours/co-villagers raises suspicion on the testimony of PW 8.
34. PW 13, too, has been examined by the Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 21/28 prosecution as an eye-witness and it is in his evidence that 10 to 20 persons came, and amongst them, he (PW 13) identified Punit Yadav, Ramjee Yadav, Chano Yadav, Devan Yadav and Deena Yadav.
35. PW 13 was put to cross-examination and he (PW
13) has stated that at the time of occurrence, he had hidden himself in his house and saw the entire occurrence from a hole made in the wall of straw in his house, but did not show that hole to the Investigating Officer.
36. It is further in the evidence of PW 13 that there are several houses in between his house and the house of Brahmadeo Choudhary, Ramoutar Choudhary and Dobhi Singh Bind and, therefore, identification made by PW 13 is hereby rejected.
37. PW 14, Rajani Devi, is the mother of the informant (PW 9) and the deceased Gulab Choudhary, has stated that 10 to 20 persons came, variously armed with guns, rifles and lathis, and out of them, she identified Punit Yadav, Ramjee Yadav, Chani Yadav, Dina Yadav, Devan Yadav, Boni Yadav, Shankar Yadav, Suresh Yadav and Awadh Yadav. Out of accused persons who were present in dock, she identified by name and face to Punit, Devan, Chano, Ramjee, Dina and Suresh both from their face and name, but, she claimed to identify Suro Yadav, Tulo Yadav and Bam Shankar in dock by Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 22/28 face, and not by their names. PW 14 has further stated that accused persons came and asked from her about Sulo Yadav and on showing her ignorance, they caught hold of Gulab and took him towards Ganges and later the dead body of Gulab was found after five-six days of the occurrence.
38. PW 14 was put to cross-examination, wherein she (PW 14) has denied that she has not named accused Boni, Shankar and Suresh, before the Investigating Officer and PW 14 has further denied that she (PW 14) has taken the names of Boni and Shankar for the first time in her evidence and not earlier. It is further in her cross-examination that she did not identify the accused persons in Test Identification Parade during investigation. PW 14 has also not attributed any role to each of the accused persons, who caught hold of Gulab and who dragged her.
39. However, taking into consideration the evidence of prosecution witnesses, the evidence of P.Ws. 1, 3, 8, 9 and 13 are not of much concerned and, as discussed above, their evidences are not worthy of reliance as they had either hidden themselves in house or had fled away from the place of occurrence. It is apparent that they are not eye-witnesses to occurrence as discussed above.
40. When considered together the evidence of P.Ws. 1, 3, 8, 9 and 13, we find that PW 1 has claimed to identify Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 23/28 Chano Yadav, Ramjee Yadav, Devan Choudhary, Punit Yadav, Dina, Tulo, Shambhu and Arvind, but, in his cross-examination, he stated that his statement was recorded after five years. He is the son of Dobhi Bind Singh, one of the deceased, and his conduct, in giving his statement after five years, does not inspire confidence. He has further stated that he got feared seeing the accused, armed with weapons, and out of the fear, he was in his room which had no window and he remained inside the house and claimed to have seen the occurrence from the same room. PW 1 has further stated that he can not say that all the victims were abducted from their houses. On further probe, he has specifically stated when he himself has hidden in his house, how he could know who was caught by whom and, hence, evidence of PW 1 does not inspire confidence to believe his evidence particularity about the implication of the appellants. Similarly, evidence of P.Ws. 3 and 8 also do not inspire confidence as though they have narrated about the occurrence, but, PW 3 stated that he had not given any statement before police and though he claims to have seen the occurrence by hiding himself, but, stated that who caught whom (victims), he can not say. PW 8 in his evidence has stated that he disclosed to police that he fled away out of fear seeing the accused persons. PW 9 also claimed to be eye witness and claims that Punit and Ramjee Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 24/28 caught hold of Gulab Choudhary and abducted him. However, in his evidence he stated that he, out of fear, hid himself in a room having no window, except a door. At that time, his mother (PW 14) was there and, thereafter, Gulab Choudhary came and he (PW 9) saw the occurrence by tearing the tati, whereas the Investigating Officer, in his evidence, has stated that neither PW 9 disclosed him about tearing of tati nor the Investigating Officer found any tearing of tati. Hence, the evidence of PW 9 about identification of accused persons in abduction the victim, Gulab Choudhary, suffers from contradiction and does not inspire confidence. The evidence of PW 13 also stated to have hidden in a room and seen the occurrence from his room from the tati by making hole displacing the straw, but, neither the hole was shown to the Investigating Officer nor from the topography of his house, it is established that PW 13 would have seen the occurrence. Hence, his evidence does not inspire confidence. PW 10 has stated, he was abducted alone by Punit Yadav in place of Suro Yadav, but, Suro Yadav was not there in forest, sent Ramjee Yadav and Devan Choudhary, PW 12, though identified the accused by face, but, has neither named them nor participated in test identification parade. Hence, their evidences are not worthy of reliance.
41. However, so far evidence of PW 2 and PW 4 are Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 25/28 concerned, they are eye-witnesses to the occurrence. PW 2 is also an eye-witness, but his evidence is contradictory on the point of firing by Ramjee Yadav causing injury on the thigh and elbow of Prakash Kumar Choudhary.
42. What emerges from the above discussion is that the witnesses, examined by the prosecution were not only interested witnesses, but also were partisan in nature and that they have roped some of the accused falsely. Witnesses, who can go to the extent of falsely implicating an innocent person as a guilty one in a case as serious as offence of murder, cannot at, all be, believed in or relied upon.
43. Coupled with the above, it is worth pointing out that the entire genesis of the occurrence, as unfolded in the First Information Report, was clearly changed, at the trial, by the witnesses following the mutual consultations, which they had with each other. This becomes transparent, when we notice that all the remaining witnesses of the prosecution have deposed, in tune with the evidence of P.Ws. 1, 3, 8, 9 and 13,
44. Thus, the evidence of remaining so-called eyewitnesses clearly show that they, too, have fallen, in line, with P.Ws. 1, 3, 8, 9 and 13 and twisted and turned their evidence in order to ensure that the accused-appellants get convicted.
45. In view of the fact that the evidence of all the Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 26/28 witnesses, who have been examined by the prosecution as eye- witnesses to the alleged occurrence, stand on the same footing as do the evidence of P.Ws. 1, 3, 8, 9 and 13, it logically follows that the evidence, which has been adduced by the prosecution, is nothing, but admixture of half-truth and untruth and since the truth, if any, is so inextricably mixed with the falsehood that it is wholly impossible to disengage the truth from the half-truth and untruth, the prosecution's case has to be held as wholly unsafe to believe in or rely upon.
46. The above aspects of the case appear to have completely escaped the attention of the learned trial Court, which did not, in fact, make any attempt to determine if the parrot like descriptions of the occurrence, given by the so- called eye-witnesses, could have been believed in, and/or safely relied upon or not.
47. What crystallizes from the above discussion is that none of the incriminating circumstances, which the learned trial Court has relied upon, could be proved legally and convincingly. In the face of such a state of evidence on record, the accused- appellants aforementioned ought to have given benefit of reasonable doubt.
48. At any rate, in the light of the nature of the evidence on record, the prosecution could not have been held, and ought not to be held, to have proved their case beyond Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 27/28 reasonable doubt against the accused-appellants. Consequently, the accused-appellants deserve to be accorded, at least, benefit of doubt.
49. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been accorded, at least, benefit of doubt.
50. In the result and for the foregoing reasons, we allow these appeals. The impugned conviction of the accused- appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.
51. Since the accused-appellants, Suro Yadav, Bauno Yadav, Bam Shankar Yadav, Binodi Yadav and Shankar Yadav, are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.
52. As the accused-appellants, namely, Devan Yadav, and Ramjee Yadav, are in custody, they are directed to be released forthwith if not required to be detained in connection with any other case.
53. Let the Amicus Curiae be paid a fee of Rs.5,000/- each.
Patna High Court CR. APP (DB) No.236 of 2008 dt.01-05-2015 28/28
54. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.
(Gopal Prasad, J.)
I. A. Ansari, J: I agree
(I. A. Ansari, J.)
Prabhakar
Anand/
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