Patna High Court
The State Of Bihar vs Vijay Yadav @ Vijay Kumar Yada on 24 January, 2011
Author: Mridula Mishra
Bench: Mridula Mishra, Dharnidhar Jha
DEATH REFERANCE No.8 OF 2010
Death Reference made by Additional Sessions Judge,
FTC-I, Lakhisarai in Sessions Trial No. 561 of 2000
against appellant Vijay Yadav alias Vijay Kumar Yadav son
of Late Govind Prasad Yadav on 16th July 2010 and 19th of
July, 2010;
THE STATE OF BIHAR---------------------------------Appellant
Versus
VIJAY YADAV @ VIJAY KUMAR YADA--------------Respondents
With
CR. APP (DB) No.930 oF 2010
VIJAY YADAV @ VIJAY KUMAR YADAV-------------Appellant
Versus
STATE OF BIHAR-------------------------------------Respondents
For the Appellant:- Mr. Shakil Ahmad Khan, Senior Advocate
& Mr. Kanhaiya Pd. Singh, Senior Advocate
For the State :- Mr. Dilip Kumar Sinha, A.P.P.
For the Informant:- Mr. Devendra Kumar Singh, Advocate.
-----------
PRESENT
THE HON'BLE JUSTICE SMT. MRIDULA MISHRA
THE HON'BLE MR. JUSTICE DHARNIDHAR JHA
Mridula Mishra,J:- The criminal reference for confirmation of death
sentence as referred under Section 366 of the Code of Criminal
Procedure, 1973, has been heard analogous with Criminal Appeal No.
930 of 2010, preferred by sole appellant, against the judgment dated
16th July, 2010 and order of sentence dated 19th of July, 2010,
passed by Additional Sessions Judge, Fast Track Court no.I,
Lakhisarai in Sessions Trial No. 561 of 2000, whereby the appellant
has been convicted under Section 302 of the Indian Penal Code and
sentenced to death and fine of Rs. 50,000/-, for conviction under
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Section 27 of the Arms Act, he has been sentenced R.I. for five years
and fine of Rs. 5,000/-.
2. The incident, with regard to which Halsi P.S. case no. 2 of
2000 was instituted under Section 302/34 of the Indian penal Code
and 27 of the Arms Act, is based on the fardbeyan of Yogendra Singh,
recorded at 4 P.M. on 1.1.2000 at Ramgarh Chowk by the Officer
Incharge of Halsi Police Station, for an occurrence which took place
at 2.30 P.M. on the sameday at Ramgarh Chowk. Informant Yogendra
Singh ( P.W.2) was coming from Lakhisarai market on a bicycle and
reached Ramgarh Chowk at about 2.30 P.M. He saw 10-15 persons
assaulting some persons near three storied building of Vijay Yadav
(appellant). He parked his bicycle, went towards place of occurrence
and saw Vijay Yadav armed with rifle, Kampany Yadav, Padarath
Yadav, Brijnandan Yadav and two nephews of Vijay Yadav, armed
with lathi, brutally assaulting his nephew Pintu Kumar, son-in-law,
Sunil Kumar and one villager Dipak Kumar. There were other 15-20
persons, who were also enhancing help to the accused persons. The
accused persons were uttering that since these three persons are
members of criminal gang of Thepari Singh, as such they should be
killed. The accused persons tied rope around the neck of Pintu and
Sunil Kumar. Dipak Kumar fell on his knee and started begging for
his life, in response to this Vijay Yadav fired on Dipak. Vijay Yadav
also fired on Pintu and Sunil and all three died at the spot. On
direction of Vijay Yadav one pistol was put in the Jacket's pocket of
Sunil Kumar, some Wads and one live cartridge was also placed near
the dead body of deceased, in order to create evidence against them.
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3. The fardbeyan of Yogendra Singh was recorded by
Dhananjay Kumar ( P.W.6) Officer In-charge of Halsi Police Station at
about 4 P.M. on 1.1.2000 at Ranmgarh Chowk, which is the place of
occurrence. The formal First Information Report of Halsi P.s. case No.
2 of 2000 was instituted on the same day at 6 P.M. against seven
named accused and 15-20 unknown accused persons. Investigation
of the case started immediately, by I.O. (P.W.6). He prepared inquest
report of all three deceased persons (Exts-1,1/1 and ½) and these
inquest reports were signed by Jai Kisun Singh and Baiju Singh
(P.W.2). Dead bodies were brought to the police Station and on the
next day i.e. 2.1.2000 these were sent for post mortem. Dead body
was received by doctors. P.W. 8, P.W. 9 and P.W. 10, who conducted
post mortem on the dead body of these deceased. Dr. Krishna Mohan
Purbey ( P.W.9), conducted post-mortem on the dead body of Sunil
Kumar, Dr. Rakesh Kumar Sinha (P.W.8), conducted post mortem
on the dead body of deceased Deepak Kumar and Dr. Ramesh
Chandra Jha, (P.W. 10) conducted post-mortem on the dead body of
Pintu Kumar. The Investigating Officer ( P.W.6) interrogated
witnesses and finally submitted charge-sheet on 20.5.2000 against
all accused persons, namely, Brijnandan Yadav, Kamapany Yadav,
Padarath Yadav, Vijay Yadav, Sudhir Yadav and Sujit Yadav.
Charge-sheet was submitted against Vijay Yadav, Sujit Yadav, and
Sudhir Yadav showing them absconder. Sujit Yadav and Sudhir
Yadav appeared on 29.8.2000 and took plea of juvenility, as such
their case was referred to Juvenile Justice Board. Appellant Vijay
Yadav remained absconder for eight years and he was arrested on
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9.2.2008. Cognizance for offence was taken by the Magistrate and
case of all accused was committed to the Court of Sessions vide
Sessions Case No. 327 of 2000. Since Vijay Yadav was absconding,
the trial Court issued permanent warrant of arrest against him and
also issued process for attachment. The trial Judge, separated his
trial from Sessions Trial No. 327 of 2000 and passed an order that
whatever evidence will come forward against accused facing trial, will
also be relevant for absconding accused under Section 299 of the
Code of Criminal Procedure.
4. A counter case was filed by Vijay Yadav vide Halsi P.S.
case No. 3 of 2000 alleging that three accused i.e. Pintu, Sunil and
Deepak, members of Thepari Singh's Criminal gang, came and
started indiscriminate firing on Vijay Yadav. In order to save his life
and in exercise of right of private defence, he fired on them and all
three died, receiving the fire arm injury. Halsi P.s. case No. 3 of 2000
was investigated and found false by the Investigating Officer. First
Information Report of Halsi P.S. case No. 3 of 2000 was brought as
evidence and marked as Ext. A in Sessions Trial No. 327 of 2000 to
show that there was an admission of shooting by Vijay Yadav and
despite this fact that Halsi P.S. case No. 3 of 2000 was found false,
admission of Vijay Yadav that he fired on three deceased could not be
wiped out.
5. The separated Sessions Trial No. 561 of 2000 started
against Vijay Yadav on 9.2.2008 after his arrest. In the separated
trial, charge was framed against Vijay Yadav on 27.4.2008.
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6. The prosecution in order to prove charges framed against
sole accused Vijay Yadav, examined 10 witnesses. Baiju Yadav
(P.W.1) Yogendra Singh (P.W.2), Uma Singh ( P.W.3), Naresh Singh
(P.W.4) and Permanand Singh ( P.W.5) were examined as eye-
witnesses and they fully supported the case of the prosecution.
P.W.7 Dinesh Yadav was declared hostile as he did not support the
case of the prosecution. The Investigating Officer Dhananjay Kumar
Singh (P.W.6) Dr. Rakesh Kumar Sinha ( P.W.8), Dr. Krishna Mohan
Purbey ( P.W.9) and Dr. Ramesh Chandra Jha ( P.W.10) were the
official witness, who investigated the case, submitted charge-sheet
and conducted post mortem on the dead body of the deceased and
submitted post mortem report.
7. All witnesses examined as eye-witnesses were residents of
village Nandnama, which was also village of all three deceased
persons as well as P.W.2, the informant.
8. Baiju Singh ( P.W.1) reached Ramgarh Chowk at about
2.30 P.M. on Ist of January, 2000, when coming from village Sarmera
and going to his village Nandnama. He alighted at Ramgarh Chowk
from aTata Mexi vehicle and saw 10-15 persons standing near the
house of Vijay Yadav. He heard sound of assault and out cry of
persons being assaulted. He went near the house of Vijay Yadav and
saw that his villagers Deepak, Pintu and Pintu's brother-in-law Sunil
were being assaulted with lathi by Kampany Yadav, Sujit Yadav and
Sudhir Yadav. Vijay Yadav armed with rifle was standing there and
watching them being assaulted. He directed other accused to kill
Deepak, Pintu and Sunit as they belonged to village Nandnama.
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Kampany Yadav and others tied rope around the neck of Pintu, Dipak
and Sunil and started tightening it. These victims, started begging
for their lives, on which Vijay Yadav fired at each of them, one by
one. Vijay Yadav directed to put one country made revolver in the
jaket's pocket of Sunil and three wads and one life cartridge near
his dead body. P.W.1 admitted, in his cross examination, that his
father Brahmdeo Singh and Jai Kishun Singh, father of Yogendra
Singh (P.W.2) were brothers. Yogendra ( P.W.2), Birendra and
Devendra Singh are brothers and deceased Pintu was son of
Devendra and deceased Sunil was his son-in-law. In this way,
P.W.1, P.W.2 and two deceased Pintu Singh and Sunil were closely
related to each other. P.W.1 has deposed that after the occurrence he
stayed for one hour at the place of occurrence and thereafter
proceeded for his village home on foot. P.W. 1 has disclosed that
village Nandnama is situated at a distance of two and half kilometers
from Ramgarh Chowk. He after reaching village, gave information
regarding occurrence to his uncle Jai Kisun Singh (father of
informant) and both of them, along with some other villagers, again
came to the place of occurrence at Ramgarh Chowk. Other villagers
who had also came with them were not examined as witness. He
reached at the place of occurrence at about 4.30 or 4.45 P.M., but
till then sun has not set. Besides P.W. 1, at the place of occurrence
Permanand Singh (P.W.5), Bachu Singh (not examined since dead)
Naresh Singh (P.W.4) and Yogendra Singh (P.W.2) were also present.
The Investigating Officer has already reached there and was doing
some writing work. P.W.1 and Jai Kisun Singh both put their
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signature on some papers but as he did not read it, could not know
what was that paper. He came back to his village thereafter. He was
interrogated by the I.O. No other witnesses were interrogated by the
I.O. in his presence. P.W.1 has admitted in Para 2 and Para 7 of his
evidence that there were more than 100 people at Ramgarh Chowk,
when he alighted from vehicle and near-about 40-50 persons when
he came back to the place of occurrence from his village. He has
denied the suggestion that deceased persons were members of
Thepari Singh's gang, and had come to kill Vijay Yadav, who fired on
them to save his life and for that Halsi P.S. case No. 3 of 2000 had
been instituted.
9. P.W.2 is the informant of the case. He came at Ramgarh
Chowk near-about 2.30 P.M., while coming back from Lakhisarai. He
heard crying and shouting of Pintu, Sunil and Deepak, who were
being assaulted by Kampany Yadav and others. He saw Vijay Yadav
armed with rifle, commanding his associates to hang three victims,
as they were resident of village Nandnama. Kampany Yadav and other
accused persons tied rope around their neck. Deepak, Sunil and
Pintu were begging for their life and is retaliation Vijay Yadav fired
from his rifle on all three of them. Vijay Yadav ordered Kampany
Yadav to bring a pistol and put it in the Jacket of Sunil. The
occurrence was witnessed by Baiju Singh ( P.W.1), Uma Singh
(PW.3), Permanend Singh ( P.W.5), Naresh Singh ( P.W.4) and Bachu
Singh (dead). P.W.2 saw that all three persons, who were shot by
Vijay Yadav died at the place of occurrence. Police came at the place
of occurrence and his fardbeyan was recorded, on which he put his
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signature. P.W.2 has admitted that the deceased Pintu was his
nephew and son of his brother Devendra. He saw more than 100
persons at Ramgarh Chowk, who were not known to him. Those
persons, left the place of occurrence, prior to arrival of Investigating
Officer. When Investigating Officer came at the place of occurrence,
sun has not set. The Investigating Officer recorded his fard-beyan,
after verification of dead body of three deceased persons. P.W. 2 has
stated that he had not given any information to his father about the
occurrence, but he came at the place of occurrence and put his
signature on inquest report. In order to justify his presence at the
place of occurrence, P.W.2 has stated that he had gone to purchase
diesel from Lakhisarai Bazar but could not purchase due to
insufficient money and a hole in the container. He has given full
detail of the occurrence right from the assault on the deceased by
other accused persons, tying of rope around the neck of the deceased
and firing made on them by Vijay Yadav. He has denied the
suggestion that deceased persons were members of the criminal gang
of Thepari Singh, and had come to fire upon Vijay Yadav, who in
exercise of his right of private defence, fired on them from his
licensed rifle and in this regard Halsi P.s. case No. 3 of 2000 was also
instituted by him. P.W. 2 has denied the suggestion that the original
FIR on which Jai Kisun Singh and Baiju Singh had put their
signature as attesting witness was torn and in connivance with the
Investigating Officer another First Information Report was drawn,
which is the FIR of Halsi P.s. case No. 2 of 2000.
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10. Uma Singh ( P.W.3) had reached at Ramgarh Chowk at
2.30 P.M. on Ist of January, 2000 while coming from village Aure and
going to his village Nandnama. He alighted from a bus at Ramgarh
Chowk and saw 10-15 persons standing near the house of Vijay
Yadav. He came forward and saw Deepak, Pintu and Sunil being
assaulted by Kampany Yadav with lathi and bamboo. Vijay Yadav
was standing there with rifle and ordering his people to kill them.
The accused persons tied rope around the neck of all three victims
who were begging for their lives. Vijay Yadav fired on all three of
them, one by one and they died there at the place of occurrence itself.
P.W.3 has stated that out of fear, he went towards the southern
direction. Thereafter the Investigating Officer came at the place of
occurrence and he was also interrogated. Dead bodies were brought
at Lakhisarai P.S.. He also came at the police station and remained
there for whole of night and in the next morning went with the dead
bodies when forwarded for post mortem. He has also stated that at
the place of occurrence Baiju (P.W.1) Jai Kisun Singh ( not examined)
Yogendra Singh (P.W.2), Permanend (P.W.5) and Bachhu were
present and they were also interrogated by I.O. As per the statement
of P.W.3, Deepak and Pintu had received two shots and three firings
were made at Sunil. He has admitted that the deceased Deepak was
his nephew. He has denied the suggestion regarding falsely deposing
in the case. He has also denied that three deceased were members of
the criminal gang of Thepari Singh, who with an intention to kill had
made an attack upon Vijay Yadav and in exercise of his right of
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private defence Vijay Yadav fired on them and in this regard Halsi
P.S. case no. 3 of 2000 had been instituted.
11. Naresh Singh ( P.W.4) has come at Ramgarh Chowk
at about 2' 0 clock, while coming from Salonachak and going to his
home at Nandnama. He saw a crowd and went near it. He saw
Deepak Singh, Pintu Singh and Sunil Singh being assaulted by Vijay
Yadav, Kampany Yadav and others with Lathi. Vijay Yadav was
armed with rifle. Ropes were tied around the neck of all three
persons and thereafter they were shot by Vijay Yadav from his rifle.
He has admitted that deceased Sunil was his brother-in-law. He has
also admitted that the occurrence was witnessed by Jai Kishun
Singh, Yogi Singh, Bachchu Singh, Baiju Singh, Uma Singh and Paro
Singh. He has given details of his traveling from Salonachak to
Ramgarh Chowk in Para 3 of his deposition. P.W.4 has stated that
his statement was not recorded by the Investigating Officer and for
the first time he has come to depose in the Court. However,
deposition of P.W.4 in Para 4 has completely been contradicted by the
I.O., who has stated that Naresh Singh ( P.W.4) was interrogated by
him. This witness has stated that deceased Deepak was brother of
Thepari Singh and deceased Sunil was the son-in-law of Yogi Singh,
who is the informant of the case.
12. Permanand Singh ( P.W.5) has admitted in Para 14 of his
deposition that deceased Deepak was his nephew. Davesh Singh alias
Thepari Singh was own brother of deceased Deepak. P.W.5 was at
Ramgarh Chowk on 1.1.2000 at about 2.30 P.M. as he had gone to
make some purchase. In his presence Sunil, Pintu and Deepak
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came on a motorcycle at Ramgarh Chowk and were taking betel from
the shop of Chaurasia. Vijay Yadav came there from his house. He
called his people and asked them to drag all three persons upto his
house. These three persons were assaulted, dragged and brought
near the house of Vijay Yadav. They started begging for their lives
but Vijay Yadav fired at Deepak, Sunil and Pintu. All of them died at
the place of occurrence itself. In para 17 of his deposition P.w.5 has
stated that when he came at Ramgarh Chowk, none of his villagers
were there but within half an hour of his arrival, P.w.2 came there.
I.O. reached at Ramgarh Chowk, after half an hour of arrival of P.w.2.
This witness has also stated in his deposition that at the time of
occurrence there were no shops at his village and shops were at
Ramgarh Chowk. He has admitted that near about 100 peoples were
present at the place of occurrence, when the occurrence took place.
He has also denied the suggestion regarding the right of private
defence claimed by Vijay Yadav, due to which he claimed to have fired
on three deceased persons.
13. The Investigating Officer Dhananjay Kumar ( P.w.6) was
posted as Officer In-charge of Halsi P.s. on Ist of January, 2000. He
had recorded the fardbeyan of Yogendra Singh ( P.w.2) on 1.1.2000
aat 4 P.M. at the place of occurrence which is Ramgarh Chowk, on
which Permanand Singh ( P.W.5) and Naresh Singh( P.W.4) had put
their signature as attesting witnesses. Place of occurrence as per the
deposition of the I.O. was a vacant land adjacent to three storied
building of Vijay Yadav at Ramgarh Chowk. Three dead bodies were
found by him at the vacant space in front of the house of Vijay Yadav.
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He found blood on the soil at the place of occurrence. He also found
one live cartridge, three wads and one country made pistol kept in
the jacket's pocket of deceased Sunil. People, present at P.O.
disclosed that Vijay Yadav was taking liquor at the first floor of his
house, prior to the occurrence. I.O. (P.W. 6) found one chowki, two
chairs, three empty bottles of liquor, 2-3 glasses, one packet of
cigarette and match boxes at first floor of the house of Vijay Yadav.
He did not find any sign of firing either on wall or at any place of
Vijay Yadav's first floor house which could have indicated any firing
made by deceased persons on Vijay Yadav.. There was no sign of
firing present there, whatever sign of firing he found, that was at
vacant land in front of the house of Vijay Yadav. Persons present near
the place of occurrence, at the time of investigation, disclosed that
three deceased persons came on a black coloured Rajdoot motorcycle
bearing No. BP-IL-5486 and were taking betel from the betel shop of
one Chourasia. Vijay Yadav also came there and asked his associates
to drag them upto the place near his house. The associates of Vijay
Yadav, assaulted and dragged all three deceased upto his newly
constructed house. All three persons were assaulted and finally shot
dead near the house of Vijay Yadav. The motorcycle on which the
deceased persons had come, was seized by the I.O. and a seizure list
was prepared, on which Suryadeo Mistri and Lakhan Sah ( not
examined) had put their signature. P.W.6 had inspected first floor of
the house of Vijay Yadav, but did not find any mark of firing, which
could have supported the plea taken by Vijay Yadav regarding right of
private defence. He prepared inquest report of all three deceased
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persons, on which Jai Kishun Singh and Baiju Singh (P.W.2) had put
their signature. He also issued command for sending dead bodies for
post mortem on 2.1.2000. On 5.1.2000 he interrogated P.W.1, P.W.3,
P.W.4 Bachu Singh, ( now dead) and some persons at Ramgarh
Chowk. Persons examined at Ramgarh Chowk have not been
examined as witness. P.W. 5 was examined by him on 21.6.2000.
P.W. 6 in para 23 of his deposition has stated that Halsi P.s. case no.
3 of 2000 instituted by Vijay Yhadav was also investigated by him
and his claim that firing was made by him in exercise of his right of
private defence was found false. He has denied the suggestion that
investigation was not done properly by him and the accused persons
were charge-sheeted by him in connivance with the prosecution
witnesses.
14. P.Ws. 8, 9 and 10 had conducted post mortem on the
dead body of the three deceased persons. Dr. Rakesh Kumar P.W.8
had conducted post mortem on deceased Pintu kumar and found
four ante mortem injuries. Three injuries were caused by fire arms
and one injury by hard and blunt substance. Dr. Krishna Mohan
Purbey P.W.9 had conducted post mortem on the person of Sunil
Kumar and found three fire arm injuries. He did not find any
charring on the site of the injuries. According to P.W.9 firing might
have been made from a distance of 4 feet. Dr. Ramesh Chandra Jha
P.W.10 had conducted post mortem on the dead body of Deepak
Kumar. As per the opinion of P.W.10 injuries found on the dead body
were caused by hard and blunt substance as well as by fire arm and
cause of death was both asphixia as well as fire arm injuries.
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15. From the order-sheet of the trial Court, it transpires
that sufficient time was allowed to the accused for examining defence
witnesses but not a single defence witness was produced for
examination. Appellant's statement was recorded under Section 313
Cr.P.C., but he refused to sign his statement recorded under Section
313 of the Code of Criminal Procedure, as such his Advocate Shri
Janardan Prasad Mahto put his signature on it.
16. The appellant was represented by two learned Senior
Counsels, Shri Kanhiya Prasad Singh and Shri Shakil Ahmad Khan.
Counsels appearing for the appellant have assailed impugned
judgment of conviction stating that the Trial Court has completely
misjudged the quality of prosecution evidence, before awarding
highest punishment of death to the appellant. Prosecution was never
interested in examining independent and trustworthy witnesses.
There were eight charge-sheet witnesses, out of which only five have
been examined. One of the charge-sheet witness, Bachhu Singh died
before his deposition, as such he was not examined, but Jaikisun
Singh, Monikant Singh, Ramakant Singh and Kedar Singh whose
names have been mentioned by P.W. 1 in his evidence and who were
also charge-sheeted witnesses were also not examined. The
Prosecution has not shown any reason for their non examination.
P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 who have been examined
as eye-witnesses, are resident of village Nandnama. All three
deceased also belonged to village Nandnama. There was no natural
reason for presence of these witnesses at Ramgarh Chowk at the time
of occurrence. Evidence of all these witnesses show that distance of
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village Nandmana from Ramgarh Chowk is 2 to 3 Kms. The date of
occurrence was 1st January, i.e., first day of the year. This is not the
case of prosecution that no other person than these villagers was
present when the occurrence took place. On the other hand P.W. 1,
P.W. 2 and P.W. 3 have admitted that more than 100 people were
present at Ramgarh Chowk. The question is why only such witnesses
were examined for supporting prosecution version, who are closely
related and interested witnesses. In reply to the submission, counsel
for the State has submitted that P.W. 2 in his deposition has stated
that there were more than hundred person present at the time of
occurrence, but those persons were unknown to him and they left the
place of occurrence before the arrival of IO. Everyone present at the
place of occurrence could not have been examined, due to their
reluctance. Now a days people usually do not show any willingness to
assist the prosecution, in order to bring wrong doers within the fold
of law. Most of the time the reason being fear of criminals. In the
present case also no one present at the place of occurrence willingly
came forward to support the case of the prosecution, considering the
involvement of person like appellant, whose criminality and dare devil
attitude is apparent from his action. In the broad day light at the
busy market place, in presence of several persons, he shot three
persons at a time. This was the reason that no persons than the
witnesses who are co-villagers and family members came forward to
depose. The prosecution evidence can not be discarded for this
reason only, when other evidence, like medical evidence and the
evidence of IO, fully corroborates the deposition of the witnesses
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examined as eye-witness. We find substance in the submission of the
State counsel. Simply because the witnesses are related to the
deceased and their co-villagers, their evidence can not be ignored,
when corroborated by other evidence.
17. Counsel for the appellants has also questioned the
genuineness of fard beyan exhibit X and FIR, exhibit X/1. It has been
submitted that it does not seem that the FIR has been instituted on
the basis of real and original fard beyan. The evidence of P.W. 2 in
para 2 indicates that the fard beyan was singed by Jaikisun Singh
and Baijju Singh (P.W. 1) as attesting witnesses. The present fard
beyan, exhibit X bears signature of Parmanand Singh (P.W. 5) and
Naresh Singh, (P.W. 4) as attesting witness. This show that the
original and real fard beyan which was singed by Jaikisun Singh and
Baijju Singh was replaced by the present fardbeyan exhibit X, for the
reason that it did not disclose a substantial offence. P.W. 1 has also
admitted in para 6 of his deposition that on the document written by
IO, he and Jaikisun Singh had signed but the FIR and the fard beyan
exhibit X and exhibit X/1 do not bear the signature of Baijju Singh,
(P.W. 1) and Jaikisun Singh. Counsel for the appellant submits that
it creates a doubt regarding the genuineness of the fard beyan. This
was a reason that a suggestion was given to P.W. 2 that original fard
beyan was torn and replaced by a present fard beyan, (exhibit X). It
has also been submitted that the conviction of the appellant on the
basis of a prosecution case, which is concocted, imaginary and
fabricated, is illegal and fit to be set aside. Counsel appearing for the
State has contradicted the submission of the appellant giving
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reference of the evidence of P.W. 1, P.W. 2 and the Investigating
Officer, P.W. 6. P.W. 1 has stated that he and Jaikisun Singh both
had put their signature on some papers but he could not know that
which was that document as he did not read it. P.W. 2 in para 10 of
his deposition has specified his statement in para 2 by stating that
on inquest report IO had taken his signature and signature of his
father Jaikisun Singh and Baiju Singh. This has been corroborated in
paragraph two of the deposition of I.O. P.W. 6 that he prepared
inquest reports of all three deceased persons which were signed by
Jaikisun Singh and Baiju Singh. This is further corroborated by the
inquest report of the deceased persons (exhibit 1, 1/1, ½). On all the
inquest reports there are signatures of Jaikisun Singh and Baiju
Singh. There is no substance in the submission of the counsel that
original fard beyan was replaced by exhibit X and on the basis of a
concocted story, FIR was registered. The submission made by the
appellant's counsel that entire criminal proceeding is tainted and
illegal has no substance. The evidence of P.W. 1, P.W. 2, P.W. 6,
supported by inquest reports, only indicate that on the basis of
original and genuine fard beyan recorded by the IO, FIR was
instituted and there is no deliberation and concoction in the
prosecution story.
18. Other contention of the appellant's counsel is that deposition
of P.W. 1 should not have been taken into consideration by the Trial
Court for proving the case of prosecution. P.W. 1 has claimed that he
alighted from Tata Maxy at Ramgarh Chowk at about 2.30 P.M. and
saw his villagers being assaulted by Kampany Yadav and others.
18
Finally he saw his villagers being shot by Vijay Yadav with his rifle.
P.W. 1 in his deposition has stated that he remained at the place of
occurrence for one hour and thereafter left for his village
Nandnama.. He walked upto his village, which is at a distance of 2 to
3 Kms and again came back with Jaikisun Singh and other villagers.
He has claimed to have reachd again at the place of occurrence at
4.30-4.45P.M. i.e, before setting of the sun. The claim of P.W. 1 that he witnessed the occurrence at 2.30 and again at 4.30, before arrival of the IO, he reached at the place of occurrence, traveling six kilometers distance within such a short time, is unbelievable, and humanly not possible. So far his presence at the time of preparation of inquest report is concerned, is proved from his signature on the inquest report. But his presence at 2.30 p.m. at the PO, at the time of occurrence is doubtful, considering the fact that within one hour he could not have travelled six kilometers, without using any vehicle.
19. Presence of P.W. 1 at the time of occurrence has been admitted by the other witnesses as well as the IO (P.W. 6). P.W. 1 is an inquest witness and his signature is on the inquest report. So far traveling of six kilometers within one hour is concerned; it depends upon person to person. Villagers who are in habit of walking can cover the distance. This can not be a reason for disbelieving the evidence of P.W. 1 specially when P.W. 1 wan not cross examined on this point that he could not have covered six kilometers, distance within an hour.
20. Counsel for the appellants further submitted that as per the case of prosecution, the place of occurrence is at Ramgarh Chowk, 19 which is situated at a distance of 2-2 ½ - 3 kilometer from village Nandnama. This has been admitted by almost all prosecution witnesses. Considering the distance in between the village Nandnama and Ramgarh Chowk, it seems difficult to believe that in normal circumstances, at a time, so many villagers will remain present at the place of occurrence, unless they have any specific reason for it. None of the witnesses examined by prosecution had any genuine, natural and convincing reason for their presence at the place of occurrence. They all are chance witnesses and their deposition have to be scrutinized very cautiously and strictly. P.W. 1 claimed to have reached Ramgarh Chowk on the date of occurrence at 2.30 P.M., while coming from village Sarmera and going to village Nandnama. He has desposed that he alighted at Ramgarh Chowk from a Tata Maxy vehicle and saw the occurrence. His statement has been contradicted by the Investigating Officer in para 17 of his deposition that no such statement has been made by P.W. 1 before the I.O. PW 2 has claimed that he came at Ramgarh Chowk at the time of occurrence, while returning from Lakhisarai. He had gone to Lakhisarai for purchasing Diesel. The presence of P.W. 2 can not be believed considering his own admission that he did not purchase diesel due to insufficiency of money and finding a leakage in container. A person who has specially gone to purchase the diesel, is presumed to carry at least sufficient money and a proper container for it. The admission of pw 2, show that in fact he did not have any reason for his presence at the place of occurrence, to witness the occurree. P.W. 3 was going from village Aurey and reached Ramgarh 20 Chowk at 2.30 p.m. i.e. at the time of occurrence. His statement has been contradicted by the IO in paragraph 18 of his deposition, stating that P.W. 3 had not made any such statement before him. So far P.W. 4 is concerned, he has deposed that his statement was not recorded by the Investigating Officer and for the first time he has come to depose in the Court. The submission of the counsel for the appellant is that when evidence of prosecution witness is compared with the evidence of P.W. 6, the Investigating Officer, it transpires that none of them had made such statement before the I.O. and have developed the story of their presence at P.O. during the trial. However, on comparison of the evidence of witness with evidence of PW 6, there is no contradiction that P.W.1 and P.W. 3 had stated about their coming at the place of occurrence. P.W. 1 had simply not mentioned about Tata Maxy and contradiction in the evidence of P.W. 3 was on some other point and not on the point that he arrived at the place of occurrence at 2.30 P.M.. So far P.W. 2 is concerned; his presence at the place of occurrence has been corroborated by P.W. 5, whose presence at the place of occurrence has not been questioned by the counsels appearing for the appellant. P.W. 5 has only been considered as a natural witness by counsels appearing for the appellant. Even though, these witnesses are chance witnesses, there is no discrepancy in their evidence. They all have good reason for their presence at the place of occurrence and it can not be disbelieved.
21. Counsel for the appellant has further submitted that the evidence of prosecution witnesses suffer from serious infirmity. P.W. 21 1 has claimed that he covered 6 kilometers distance within one hour, which is humanly not possible. P.W. 2 in Para 10 has stated that all witnesses remained present at Halsi Police Station for the whole night till next morning but none of them were interrogated on 1.1.2000. The question arises that why the witnesses were not interrogated by the IO, on the same day and examined on the next day, as evident from the deposition of P.W. 6 in para 2 of his deposition. P.W. 5 was interrogated on 26.1.2000, if at all witnesses would have been present at the place of occurrence; there was no reason for interrogating them on the next day or after such a long delay.
22. Counsel appearing for the State and the informant in reply to the submission have stated that there is no infirmity in the evidence of any of the witnesses. They were not interrogated by the IO on the date of occurrence itself and there are good reason for it. The occurrence had taken place at 2.30 P.M. The IO arrived at the place of occurrence at 4.30 P.M. He recorded fard beyan, prepared seizure list, and inquest repots of deceased. By that time it must have become dark. He also had to make arrangement for bringing dead bodies to the Police Station and for sending dead bodies for post- mortem. The dead bodies were sent for post-mortem in the morning of 2.1.2000 as evident from the evidence of P.Ws. 8, 9 and 10 and the post-mortem report. It was very natural that IO could not interrogate witnesses on the same night and witnesses were interrogated on 2.1.2000. We find no infirmity in the evidence of witnesses, simply because they were interrogated by the IO on the next day of the occurrence or later on.
22
23. Counsel for the appellant has stated that all prosecution witnesses are closely related and interested witnesses. P.W. 1, P.W. 2 are closely related with deceased Pintu and Sunil. P.W. 1 is the son of Brahamdeo, own brother of Jaikisun Singh. Deceased Pintu is the nephew of the informant, son of his brother Devendra Singh. Sunil is the son in law of Devendra Singh. P.W. 5, Parmanand Singh is the uncle of deceased Dipak. In this way, no other witness, except closely related persons of the deceased have been examined as eye-witnesses in this case. All these witnesses being chance witnesses as well as highly interested witnesses, their evidence need to be scrutinized in a stricter manner. Their evidence unless fully proved on the touch stone of genuineness of their presence at the place of occurrence, should not have been believed. Counsel for the State submits that presence of all these witnesses is proved from the fact that before arrival of Investigating Officer, they were present at the place of occurrence. The evidence of P.W. 1 and 2 shows that the Investigating Officer, P.W. 6 reached at the place of occurrence within half an hour of the occurrence. There was no reason to presume that the witnesses who have been examined by the prosecution have not witnessed the occurrence and falsely deposed.
24. Counsel for the appellant has also submitted that the deposition of witnesses regarding the manner of occurrence has not been proved by the medical evidence. This indicates that in fact they have not witnessed the occurrence. All these witnesses have stated that three deceased were assaulted by Lathi by Kampany Yadav and others. Rope was put around their neck and it was tightened. Vijay 23 Yadav finally fired at each of them. The manner of occurrence as disclosed in the prosecution story and in the deposition of witnesses is not corroborated by the medial evidence. There was no sign of dragging on the person of deceased and no injury caused by hard blunt substance. Doctors, conducting post mortem did not find any injury caused due to tightening of the rope around the neck of the deceased. Post mortem report revealed only injury which found on the person of deceased, being injury caused by fire arms. It has been submitted by the counsel for the appellant that it is well settled that graver the offence, stricter should be the proof. In the present case, stricter proof is lacking, which only indicates that prosecution has not been able to prove its case. We find that the submission made by the appellants counsel is not correct. The post-mortem report and the inquest report fully corroborated the manner of occurrence as disclosed in the evidence of the witnesses. The inquest report of Dipak Kumar indicates that there was black sign on his neck which seems to be caused by tightening of rope. Similar injury is indicated in the inquest report of Pintu Kumar. In the post-report of Sunil Kumar injury no. (iii) is one wound lacerated ¾ X ½ " X bone deep lateral to left sygomatic prominence caused by hard and blunt substance. In the opinion of the Doctor one of the cause of death was asphyxia, due to forceful pressure over the neck. Injury No. (i) on the person of deceased Dipak Kumar, as per the opinion of the Doctor was caused by hard and blunt substance and injury no. 2 by fire arms. Injury no. (v) found on the person of Pintu Kumar was contusion over the anterior aspect of the neck ½" X 4". In the opinion 24 of the Doctor injury no. (v) was caused by hard and blunt substance. We find that the manner of occurrence, as disclosed in the FIR has completely been corroborated by the Post-mortem report and the evidence of the Doctors, who conducted post-mortem on the dead body of the deceased.
25. Counsel for the State has submitted that there may be some minor discrepancies in the deposition of the witnesses due to various reason such as the place from which they have witnessed the occurrence and the way they have perceived the occurrence. On account of such minor discrepancies, entire prosecution case can not be disbelieved. Specially in a case in which three persons have been murdered in the broad day light by appellant, in presence of several persons, in front of his house, in a most cruel and diminish manner, counsel for the State has placed reliance upon a judgment of the Supreme Court in the case of Syed Ibrahim Vs. State of A.P. (2007) 1, SCC (Cri) 34.
26. This fact is completely proved that all three deceased were shot by Vijay Yadav, as per his own admission in the FIR of Halsi P. S. Case No. 3 of 2000. FIR of Halsi P.S. Case of 3 of 2000 was instituted by Vijay Yadav himself, admitting firing on the deceased persons by him in exercise of right of private defence. This case was investigated and found to be false as apparent from the evidence of P.W. 6. The claim of Vijay Yadav relating to his right of private defence was found to be false, and final form was submitted in Halsi P.S. Case No. 3 of 2000. Despite submission of final form, disbelieving claim of Vijay Yadav regarding his right of private 25 defence, admission of Vijay Yadav that he fired on three deceased persons can not be denied by him. FIR of Halsi P. S. Case No. 3 of 2000 was brought as evidence in Sessions Trail No. 327 of 2000 and marked as exhibit A. The Sessions Judge who tried Sessions Trial No. 327 of 2000, while separating the trial of Vijay Yadav from trial of other accused persons as he absconded, has passed order on 20.05.2000 that whatever evidence will come forward against accused facing trial, will also be relevant for absconding accused under section 299 Cr.P.C. In this way exhibit A, though not brought on record of this trial, will be relevant for the purposes of this trial also. Suggestion has also been given by the defence to all prosecution witnesses regarding institution of Halsi P. S. Case No. 3 of 2000, this also amounts an admission on the part of the appellant that he fired on all three deceased Pintu Singh, Sunil Singh and Dipak Singh due to which they received injuries and died at the spot.
27. On consideration to the submissions of the counsels appearing on behalf of the State and the informant, we find no infirmity in the impugned judgment so far it relates to conviction of appellant under Section 302 I.P.C and 27 of the Arms Act.
28. Now the crucial question which arises for consideration is as to what should be the sentence imposed upon the appellant. Whether the sentence of death awarded by the trial Court be affirmed or a lesser sentence be awarded.
For awarding death sentence the trial Court has given following reasons- (i) The crime has been committed in a very planned manner and executed in extreme brutality (ii) Three helpless innocent 26 persons of very tender age of 19-24 years were murdered in broad day light, without there being any provocation from their side. (iii) Victims were undefended and subjected to atrocities and cruelty before their murder, as per evidence on record. (iv) The motive of crime was to terrorize the people of that locality and to establish appellants' supremacy in the world of crime. (v) The appellant is an adult preparator of crime, who has committed this heinous offence with full knowledge and conscience, while in stable state of mind. (vi) It is the case which comes within the category of rarest of rare cases, according to law laid down in Bachan Singh Vs. State of Punjab ( AIR 1980 SC 267) and Machi Singh Vs. State of Punjab ( AIR 1983 SC.
957).
29. Counsel for the State has submitted that facts of the case and evidence on record bring this case in the category of rarest of rare case. The object of sentencing in case of conviction of a criminal is two fold:- (a) reformative and (b) deterrent. This appellant being an adult person deeply involved in the crime and crime being his profession, there is not scope for his reformation. In cases, like the present one only object while awarding sentence can be deterrent, so that a message should go to the society and people in general should come to know that this will be the final fate of a person indulging in such crime. It has been held in several decisions of the Apex court that in cases of pre planned, calculated, cold blooded murder, imposition of death penalty is justifiable.
30. The aggravating circumstances in which the Court may impose the penalty of death in its discretion are as follows:- 27
"(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
31. In the present case the facts as disclosed by the prosecution and the evidence brought on record makes it clear that there was no previous planning and the offence was not committed in calculated manner. The appellant for some specific reason which has not been disclosed in his statement under Section 313 Cr.P.C., became excited on finding three victims present at Ramgarh Chowk. Suddenly he decided to bring them at his place and kill them. Undoubtedly the manner in which the offence was committed, was brutal. But, there is no evidence that appellant was earlier also convicted for such heinous crime. No piece of evidence was brought by the prosecution to indicate that appellant has a long criminal history. There is all probability that it was the first serious crime committed by the appellant. In such cases there is still a ray of hope and probability of appellant's being reformed. After balancing all the aggravating and mitigating circumstances of the crime, I am of the view that instead of extreme penalty of death, it will be proper to commute the death sentence into life imprisonment. The life imprisonment, in the case of this appellant will mean till life. He will not be entitled for his premature release on account of any remission provided under the Jail Manual or under section 432 of the Code of Criminal Procedure. The sentence awarded to the appellant under section 27 of the Arms Act and fine imposed is confirmed. The death reference and the appeal preferred by the appellants are being 28 dismissed with modification in the sentence awarded to the appellants.
( Mridula Mishra,J.) Dharnidhar Jha,J;-
(Dharnidhar Jha,J.) Patna High Court Dated 24 th 01.2011 A.Kumar/NAFR