Patna High Court
Pawan Kumar Yadav And Ors. vs State Of Bihar [Alongwith Criminal ... on 14 May, 2007
Equivalent citations: 2007(2)BLJR2708
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
JUDGMENT Chandramauli Kr. Prasad, J.
Page 2709
1. All these appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment.
2. Appellants, altogether 27 in number, have preferred these appeals against the judgment and order dated 3rd of August, 2001, passed by the Additional Sessions Judge, Bhagalpur in Sessions Trial No. 592 of 1992 (T.R. No. 80 of 1995), whereby he has held all the appellants excluding sole appellant Niranjan Yadav of Criminal Appeal No. 437 of 2001 guilty under Section 302/149 of the Indian Penal Code. Niranjan Yadav has been found guilty under Section 302 of the Indian Penal Code simplicitor. By the said judgment, appellants Niranjan Yadav, Sri Mohan Yadav @ Mohan Yadav (Appellants of Cr. Appeal No. 400 of 2001), Umesh Yadav (sole appellant in Cr. Appeal No. 492 of 2001), Manth Lal Yadav and Anandi Prasad Yadav (Appellants in Cr. Appeal No. 412 of 2001) have also been found guilty under Section 27 of the Arms Act, Appellant Niranjan Yadav found guilty of offence under Section 302 of the Page 2710 Indian Penal Code has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- (five thousand), in default to undergo rigorous imprisonment for six months. All other appellants found guilty of offence under Section 302/149 of the Indian Penal Code have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-(one thousand) each, in default to suffer rigorous imprisonment for three months. Those appellants found guilty of offence under Section 27 of the Arms Act have been sentenced to undergo rigorous imprisonment for three years. Sentences were directed to run concurrently.
3. Prosecution started on the basis of a fardbeyan (Ext.6) given by Lalan Kumar Yadav (P.W.7) before the Assistant Sub Inspector of Police, Jokhu Singh of Jagdishpur Police Station (P.W.11) on 21.4.1991 at Chichori Pokhar Bahiyar in village Koili within police Station Jagdishpur in the district of Bhagalpur. According to the informant 4-5 days prior to the date of incident i.e. 21.4.1991 38-39 poles were dropped at village Koili for electrification. Those poles were removed by the appellants herein besides other persons, who belonged to village Khutha and were taken to their village. Two days after the poles were removed by the appellants and other accused persons to village Khutha; Mukhiya, Ashok Kumar Yadav, came alongwith the Engineer of the Electricity Department to make inquiry about the whereabouts of the poles. His cousin P.W.5 Diwakar Yadav informed the Mukhiya and the Overseer that the appellants besides other persons whose names have been disclosed in the First Information Report had lifted the poles.
4. Appellants being annoyed on that account, alongwith other 8 to 10 persons, came to the residence of his cousin Diwakar Yadav at 8.30 a.m., surrounded his house and protested as to why he had disclosed their names and stated that he shall be killed. According to the First Information Report, appellant Niranjan Yadav was armed with rifle, whereas appellants Manth Lal Yadav and Anandi Prasad Yadav were armed with Muskets. Appellant Umesh Yadav is alleged to have been armed with a single barrel gun and all other persons armed with small or big arms. At that time his cousin (Puhphera Bhai) Ranjit Kumar Yadav also of village Khutha came there on a Motorcycle and asked the accused persons to stop doing illegal act, whereupon appellant Niranjan Yadav caught hold of him and started saying that he shall be killed. Thereafter all the accused persons dragged Ranjit Kumar Yadav towards the Bahiyar (field outside the village) and threatened to kill him. In order to save him P.W.8 Mahendra Yadav also went alongwith him and requested the accused persons to leave him but they took him in the Bahiyar, Seeing this, the informant alongwith P.W.1 Ashwani Kumar, P.W.2 Bibash Chandra Yadav, P.W.4 Sahilendra Kumar Yadav and P.W.6 Dilip Kumar Yadav besides other villagers of Koili followed them. When they came to the Baihiyar they saw that appellant Niranjan Yadav had shot dead said Ranjit Kumar Yadav with his rifle, west of the pond of Chachori Baihiyar near a date tree and Suraj Narayan Yadav had shot at P.W.8 Mahendra Yadav with his gun causing serious injury. Seeing them, according to the First Information Report, accused persons resorted to indiscriminate firing, threw bombs but they concealed themselves: In the meanwhile, police came and the accused persons fled away from the place of occurrence.
5. The Assistant Sub Inspector of Police Jokhu Singh (P.W.11), who recorded the fardbeyan forwarded the same to the Officer-in-charge of Jagdishpur Police station and on that basis Jagdishpur P.S. case No. 86 of 1991 was registered under Page 2711 Section 147, 148, 149, 302, 307, 326 of the Indian Penal Code, Section 27 of Arms Act and Section 3/4 of the Explosive Substance Act. Police after usual investigation submitted charge-sheet against 33 accused persons, including the appellants herein and they were ultimately committed to the Court of Sessions. During the course of trial six accused persons died whereas one of the accused, namely, Soti Yadav absconded. They were charged for committing the murder of Ranjit Yadav in prosecution of their common object punishable under Section 302/149 of the Indian Penal Code. All of them were further charged under Section 148 of the Indian Penal Code of committing the offence of rioting punishable under Section 148 of the Indian Penal Code as also for possessing arms and ammunitions for unlawful purposes, punishable under Section 27 of the Arms Act. Appellant Niranjan Yadav in addition was charged for causing the death of Ranjit Yadav intentionally punishable under Section 302 of the Indian Penal Code and appellant Mohan Yadav for attempt to murder, Mahendra Yadav (P.W.8) punishable under Section 307 of the Indian Penal Code.
6. Appellants pleaded not guilty and claimed to be tried.
In order to bring home the charges prosecution altogether examined 12 witnesses out of whom P.W.1 Ashwani Kumar, P.W.2 Vibhash Chandra Yadav, P.W.4 Shailendra Kumar Yadav, P.W.6 Dilip Kumar Yadav, P.W.7 Lalan Kumar Yadav and P.W.8 Mahendra Yadav claim to be the eye witnesses of the occurrence. P.W.3 Gram Yadav is a witness to the seizure of the bloodstained earth, helmet, hawai chappal and iron rods. P.W.5 Diwakar Yadav has been examined to support the first part of the incidence and, has stated about the removal of the poles, and report by him to the Mukhiya and the Overseer and all the appellants coining to his house. P.W.9 Shyam Kishore Yadav is a Sub-Inspector of Police who had prepared the Inquest Report and proved the same. He is also a witness to the seizure. P.W.10 Dr. N.N. Bhagat is the doctor, who had conducted the post mortem examination of the dead body of the deceased, whereas P.W.12 Dr. Sunil Kumar Sinha has examined the injury of P.W.8 Mahendra Yadav. P.W.11 Jokhu Singh is the Investigating Officer of the case.
7. Appellants' plea is of false implication and from the trend of the cross-examination their defence seems to be that the prosecution has not come out with the true version. The sole appellant Niranjan Yadav in Criminal Appeal No. 437 of 2001 and appellant No. 1 Manth Lal Yadav in Criminal Appeal No. 412 of 2001, in addition pleaded alibi. Appellants in support thereof altogether examined five witnesses and further brought on record several documents.
8. The trial Court on appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced them as above.
9. First I will take up the evidence of those witnesses who claim to be the eye-witnesses of the occurrence.
9.1. P.W.1 Ashwani Kumar has stated in his evidence that 3-4 days prior to the date of incident i.e. 21.4.1991 the Electricity Department had stacked 38-39 electric poles in his village Koili and the appellants besides 8 to 10 other persons lifted those electric poles. His cousin P.W.5 Diwakar Yadav informed this incident to the Mukhiya and the Electricity Department and an inquiry was held by the Electricity Department. According to him on 21.4.1991 at about 8.30 A.M. while he was at Page 2712 the well, all the appellants armed with bhala, garasa, lathi etc, excepting appellant Niranjan Yadav armed with a rifle, Surya Narain Yadav, not sent up for trial with country made rifle, appellant Shri Mohan Yadav (since dead) with Musket, Narsingh Yadav, (since dead) with pipe gun came and started abusing Diwakar Yadav. They disclosed that it was Diwakar Yadav who had given the information to the Electricity Department and he shall be killed. While the appellants were abusing Diwakar Yadav deceased Ranjit Yadav came on a motorcycle and started pacifying the appellants but appellant Niranjan Yadav started dragging said Ranjit Yadav towards the Bahiyar and all the appellants were stating that he shall be killed. He alongwith P.W.8 Mahendra Yadav followed them in order to save Ranjit Yadav but appellant Niranjan Yadav shot him dead. Thereafter Surya Narayan Yadav shot at Mahendra Yadav and second shot was fired by appellant Srimohan Yadav and he fell down.
9.2. In the cross-examination this witness has stated that Khutha and Koili are two different villages and although deceased Ranjit Yadav was a resident of village Khutha but had a house at village Koili and none of his family members live in village Khutha. He has further deposed that dispute has arisen on account of 38-39 electricity poles, which were taken away by people of village Khutha. He has admitted in his cross-examination that on the same day two cases were registered one by the Chowkidar for mischief by fire and another by the Sub-Inspector of Police for recovery of the Arms and in both the cases he figured as an accused and in the case relating to recovery of arms five other persons were made accused. He has admitted that P.W.8 Mahendra Yadav is his brother P.W.5 Diwakar Yadav, P.W.7 Lalan Kumar Yadav is his cousin, so also the deceased Ranjit Yadav.
9.3. P.W.2 Vibhash Chandra Yadav has stated in his evidence that on the day and time of occurrence he was bathing at a well near the house of P.W.5 Diwakar Yadav, where other witnesses were also present. Suddenly from the northern direction the appellants besides Surya Narayan Yadav came and all of them were variously armed with small or big arms. Appellant Niranjan Yadav was armed with rifle, whereas appellant Srimohan Yadav was armed with gun. They surrounded the house of Diwakar Yadav (P.W.5) and started abusing them and were exhorting that he shall be killed as he has informed the Electricity Department. In the meantime, Ranjit Yadav came on a motorcycle and forbade the appellants to commit the crime, whereupon appellant Niranjan Yadav caught hold of Ranjit Yadav and threatened to kill him in the Bahiyar. At this all the appellants tried to take him, in the meantime P.W.8 Mahendra Yadav reached there and made request to leave him but the appellants did not listen to him and started dragging Ranjit Yadav towards east in the Bahiyar. According to this witness he alongwith other villagers followed them to save Ranjit Yadav, but Niranjan Yadav shot him dead near Chichori pond. He has further stated that appellant Srimohan Yadav and Surya Narayan Yadav fired at P.W.8 Mahendra Yadav from their respective arms and sustaining gun shot injury he fled away from there. Thereafter appellants resorted to indiscriminate firing but they hid themselves and saved their lives. In the meanwhile, Police came and seeing them, they fled away from the place of occurrence.
9.4. The occurrence according to this witness had taken place as the appellants had taken away 38-39 electric poles which led to an inquiry. In the cross-examination he has admitted that Dilip Yadav (P.W.6) and Ashwani Kumar (P.W.1) are his brothers, whereas Diwakar Yadav and Lalan Kumar Yadav (P.W.7) are his cousins. In the Page 2713 cross-examination he has admitted that beside the dispute relating to electric poles no other dispute is between them and no criminal case was instituted for its removal. According to him P.W.5 Diwakar Yadav had stated during inquiry that the appellants had committed theft of the poles. In the cross examination he admits his arrest on the date of occurrence by the police but denied that a case for illegal possession of licenced gun of Raghunandan Yadav was registered against him. He denied that any case for setting on fire the house of Dashu and Bashu on the date of occurrence was instituted against him but admitted that he is an accused in Jagdishpur P.S. case No. 85 of 1991. He had stated that till only after the arrival of the police the appellants had fled away and the police arrived about 10 to 15 minutes after P.W.8 Mahendra Yadav sustained the injuries. According to this witness there is a date tree on the western-northern corner of the pond and the deceased was shot at a distance of about 3 feet from the said tree.
9.5. P.W.4 Shailendra Kumar Yadav is another eye-witness and he has stated in his evidence that on the date of occurrence he was at village Koili, saw 30 to 40 persons attacking the house of Diwakar Yadav. According to him, the mob consisted of the appellants and others and they were shouting that as Diwakar Yadav had disclosed their names to the Electricity Department, he shall be killed. In the meantime deceased Ranjit Yadav came on a motorcycle and asked the accused persons not to use abusive language, whereupon appellant Niranjan Yadav caught hold of him and started dragging him towards the Bahiyar and despite request by P.W.8 Mahendra Yadav to spare him, took him to the Bahiyar where appellant Niranjan Yadav shot him dead and appellant Srimohan Yadav and Surya Narayan Yadav, (not sent up for trial) fired upon Mahendra Yadav causing injury to him. They also resorted to indiscriminate firing and in the meantime when the police arrived, they fled away. In the cross-examination he has admitted that on the date of occurrence itself he alongwith other persons were arrested and in the said case the allegation is that Dhirendra Yadav's gun for which he possessed licence was recovered from him and said Dhirendra Yadav is his uncle employed in the Electricity Department at Dhanbad. He admitted that no case was registered in relation to the removal of the electric poles.
9.6. According to P.W.6 Dilip Kumar Yadav, on 21.4.1991 at 8.30. A.M. he was at a well situated adjacent to the house of P.W.5 Diwakar Yadav, wherefrom he saw about 30 to 40 persons including the appellants and Surya Narayan Yadav variously armed with rifles, guns, muskets etc. coming to the house of Diwakar Yadav, abusing and threatening to kill him as he had reported against them to the Electricity Department. Ranjit Yadav, in the meantime, came there on a motorcycle and forbade the accused persons from hurling abuses, whereupon appellant Niranjan Yadav caught hold of him and said that he be killed as he is the helper of Diwakar Yadav. The accused persons started dragging Ranjit Yadav towards Bahiyar, despite request by P.W.8 Mahendra Yadav to spare him. According to this witness, he alongwith other persons followed them and appellant Niranjan Yadav shot dead Ranjit Yadav near Chichori pond with his rifle. Subsequently appellant Srimohan Yadav and Surya Narayan Yadav resorted to firing causing injury to Mahendra Yadav. According to him, all the accused persons resorted to indiscriminate firing but they hid themselves and thereby escaped the injury. In the meantime police came and accused persons fled away from there. In the cross-examination he had admitted that his two brothers Page 2714 P.W.1 Ashwani Kumar and P.W.2 vibhash Chandra Yadav are witnesses in the case and the informant (P.W.7 Lalan Kumar Yadav) and Diwakar Yadav (P.W.5) are his cousins. According to him, prior to this incident there was no dispute between the villagers of Khutha and Koili. According to him, a case of mischief by firing and another for possession of illegal fire arms said to have taken place on the same day as that of the present incident were registered against him. He admitted to be an accused in a case relating to throwing of bomb on appellant Niranjan Yadav and further incarceration in jail in relation to three cases of murder, involving Brahamdeo Yadav and Narsingh Yadav, accused in the present case. In regard to the recovery of fire-arm from him on the date of incident, according to him it was alleged that the gun recovered belonged to Jai Narayan Yadav. The accused persons had arrived at the house of P.W.5 Diwakar Yadav and at that time nobody was at his door and on hulla he alongwith P.W.2 Vibhash Chandra Yadav, P.W.1 Ashwani Kumar and others had gone there but before their arrival deceased Ranjit Yadav had already come on a motorcycle and he was being dragged. He alongwith others villagers, namely, Gram Yadav (P.W.3), Shailendra Kumar Yadav (P.W.4) besides other persons followed them. He claims to be at a distance of 150 to 200 feet from the place where Ranjit Yadav was fired upon. According to him, first Ranjit Yadav was shot dead and thereafter firing was made on P.W.5 Mahendra Yadav and although the accused persons resorted to firing for an hour, they did not retalliate. According to him, till the arrival of Sub-Inspector of Police they were behind the ridge to save themselves alongwith P.W.8 Mahendra Yadav and said Mahendra Yadav was arrested by the police.
9.7. P.W.7 Lalan Kumar Yadav is the informant of the case and according to him on the date and time of incident, while he was at his Darwaja, 30 to 40 persons including the appellants and Surya Narayan Yadav came to the door of P.W.5 Diwakar Yadav variously armed with rifles, guns, muskets, lathi and other weapons. They were abusing Diwakar Yadav saying that he had disclosed their names to the Electricity Department and he shall be killed. While abuses were going on Ranjit Yadav (deceased) came there on a motorcycle and asked them not to hurl abuses but it did not yield any result and appellant Niranjan Yadav caught hold of him saying that he is the helper of Diwakar Yadav and be killed after taking him to Bahiyar. Thereafter the accused persons started dragging Ranjit Yadav towards Bahiyar and P.W.8 Mahendra Yadav's plea for sparing him did not have any effect. He followed them and saw that near a tree at Chichori pond appellant Niranjan Yadav shot at Ranjit Yadav from his rifle causing his death there. Subsequently, according to him, appellant Srimohan Yadav and Surya Narayan Yadav fired at Mahendra Yadav causing injury to him. They also resorted to indiscriminate firing but they hid themselves and thus escaped injury. After sometime, the police arrived at the spot and accused persons fled away. According to him, Koili and Khutaha are adjacent villages dominated by Yadavs and most of them are related to each other. He has stated that Dasu and Basu had their house at Khutaha situated at a distance of about 700 to 800 yards from Chichori pond.
9.8. In the cross-examination he has stated that distance between Khutaha and Koili is about 100 yards and no dispute existed between the residents of the two villages. He has admitted that he figured as an accused in a case under the Arms Act lodged by the police and another of mischief lodged by the Choukidar which Page 2715 are said to have taken place on that date itself. However he denied any recovery of gun of Ram Prakash from him. This witness although showed his ignorance of his involvement in specific cases of throwing of bomb, firing and murder but has admitted that he is an accused in three cases of murder and is in jail. He claims to have seen the incident which had taken place near the house of Diwakar Yadav, his cousin from his door. According to him, he was at some distance when Ranjit Yadav was shot dead.
9.9. P.W.8 Mahendra Yadav claims to be an injured eye-witness to the occurrence. According to him, on the date of occurrence at 3.30 A.M. he had gone to take a bath at the Well and from there he saw about 40 persons, including the appellants and Surya Narayan Yadav variously armed with rifles, guns, muskets etc. coming to the house of Diwakar Yadav and hurling abuses. In the meantime Ranjit Yadav came on a motorcycle and enquired as to why they are hurling abuses, whereupon appellant Niranjan Yadav exhorted to kill him saying that he is helper of Diwakar Yadav. He caught hold of him and took him towards Bahiyar situated to the east. According to this witness, while Ranjit Yadav was being dragged he enquired as to why they are assaulting him and also pleaded to spare him but same did not yield any result and the accused persons took him to Chichori pond. He followed them but the accused persons asked him that in case he proceeds further he shall be killed. According to him, appellant Niranjan Yadav fired from his rifle on Ranjit Yadav at Chichori pond near the date tree as a result whereof Ranjit fell down. He out of fear started fleeing from there but appellant Srimohan Yadav fired at him from his gun causing injury near his left ear. According to him, Surya Narayan Yadav also fired at him with his rifle causing injury on his shoulder but he managed to flee away from there. His nephew and brother took him to the emergency ward of Mayaganj Hospital where he got treatment for 17 days. According to him, the reason of the occurrence is that appellant Niranjan Yadav and others of village Khutaha removed the electric poles piled at village Koili and P.W.5 Diwakar Yadav had informed their names to the overseer of the Electricity Department. In the cross-examination he has admitted that he had not lodged any case in regard to the removal of the electric poles but the officials of the Electricity Department were informed and application too was filed. The distance between village Koili and Khutaha, according to this witness, is about 200 yards and Chichori pond falls within Koili village situated at a distance of 600 to 700 yards. The well where he had gone to take bath, according to him, belonged to Diwakar Yadav and while he was still to take his bath, appellants and other accused cane there. His statement was recorded at emergency ward. According to him, witnesses were standing at a distance of about 100 yards west from Chichori pond and the appellants and other accused persons were firing towards north east of the said pond. He has stated that P.W.5 Diwakar Yadav is the son of his co-brother. According to him, excepting the dispute over the electric, poles, no dispute existed between inhabitants of village Koili and Khutaha. According to him, electric line was not provided in his village, so is the case of village Khutaha but there poles have been erected.
10. Now I refer to the evidence of P.W.5 Diwakar Yadav, at whose residence according to the eye-witnesses all the accused persons including the appellants came at the first instance. He has stated in his evidence that on 16.4.1991 Electricity Department had piled up 38 to so poles at village Koili. These were removed by Page 2716 villagers of Khutaha. He disclosed the names of those persons to the Mukhiya and overseer verbally. On 21.4.1991 at about 8.30 A.M. while he was at the door of his house, appellants besides 8 to 10 persons and Surya Narayan Yadav (not sent up for trial) came variously armed with rifles, muskets, guns, pistols etc. According to him, out of fear he went inside his house and shut the door. However he heard the appellants shouting to kill him as he had disclosed their names to the Mukhiya and the Engineer. He also heard the sound of a motorcycle stopping there. In the cross-examination he has admitted that excepting the oral information, nothing further was done in this regard. He has admitted that he is an accused in a case of setting on fire the house of Dasu and Basu on the same day registered under Section 436 of the Indian Penal Code. According to him, his brother Ram Prakash Yadav holds licence of a gun but denied any information as to the recovery of the said gun from P.W.7 Lalan Kumar Yadav.
10.1. P.W.3 Gram Yadav is a witness to the seizure of blood-stained earth, blood-stained helmet, one hawai-chappal and two iron-rods from beneath the date tree effected by the police on 21.4.1991. He identified his signature on the seizure-list. According to him, Lalan Kumar Yadav (P.W.7), informant of the case, is his cousin, who was arrested alongwith six other persons by the police on the same day but no arms were recovered from them.
10.2. P.W.9 Shyam Kishore Yadav is a Sub-Inspector of Police and according to him on 21.4.1991 the Inquest report of the dead body of Ranjit Yadav was made by Assistant Sub-Inspector of Police Jokhu Singh (P.W.11) in his presence. According to him, said Jokhu Singh also seized and prepared seizure list of helmet with bullet mark, hawai-chappal. iron-rods and blood-stained earth from the place of occurrence and he is a witness to both and has identified his signatures thereon.
10.3. P.W.10 Dr. N.N. Bhagat had conducted the postmortem examination on the dead body of Ranjit Kumar Yadav and found inverted wound of 1 c.m. diameter on left side of lower lip and another wound with everted margin of the size of 2 c.m., two inch below and behind right ear in upper part of neck.
10.4. According to him, both were antimortem wounds, communicating to each other and had fractured lower jaw and the projectile had come out from wound of exit passing through the floor of mouth lacerating muscle, right side of neck, injuring blood vessels and surrounding tissues. The first wound was wound of entry and the second was wound of exit. According to the doctor, the injury was caused by fire arm and time elapsed since death was 6 to 12 hours. He has proved the post mortem report (Ext-5).
10.5. P.W.11 Jokhu Singh is the Assistant Sub-Inspector of Police, who at the relevant time was posted as such at Jagdishpur Police Station. According to him, on 21.4.1991 at 10.05 A.M. he got telephonic message of firing having taken place in village Koili and after making entry in the station diary went there and recorded the statement of the informant Lalan Kumar Yadav (P.W.7). He sent the statement of the informant to the Police Station for instituting the case and took over its investigation. According to him, he prepared the Inquest report, sent the dead body for post mortem examination and visited the place of occurrence. According to him, the place of occurrence is situated about 1/2 kilometer east of village Koili near a date tree at Chichori pond in the field of Bhaggu Yadav of village Khutaha. He Page 2717 found the dead body of Ranjit Yadav at a distance of about 1.5 meter from the date tree. He had seized blood-stained earth, bullet ridden helmet, one hawai-chappal and two iron-rods from there and prepared its seizure list. He also prepared sketch map of the place of occurrence. After completing the investigation he submitted the charge sheet. In the cross-examination he has admitted that he had gone to the place of occurrence alongwith a section of force and police party had also come from Kotwali and Sabour Police Station. According to him, Jagdishpur P.S. Case No. 85 of 1991 was instituted on the same day earlier to the present case and the informant and the witnesses of the present case were arrested in the said case. He has stated that Jagdishpur P.S. case No. 87 of 1991 was instituted on the fard beyan of the Choukidar and the informant and the witnesses of the present case are accused in that case too. According to him, he had submitted charge sheet against the accused persons in Jagdishpur P.S. case No. 87 of 1991 and the case registered under the Arms Act against all the accused persons. According to this witness, the offence relating to Arms Act had taken place in Chichori Bahiyar.
10.6. P.W.12 Dr. Sunil Kumar Sinha had examined Mahendra Yadav (P.W.8) and found the following injuries on his person:
(i) Wound of entry - oval in shape 1.1/4 " in diameter at left scapular region with charring of skin margin and multiple small burnt area laterally.
Wound of exit - circular, 1/2" in diameter at left shoulder anterior.
(ii) Lacerated wound 3"x 1/2" x muscle deep with charred margin at left mandibular region below left ear extending upto neck.
10.7. According to him, the X-ray of chest (P.A. view) showed opacity of metallic density (splinter) in upper portion of left chest and no bony abnormality. In his opinion, injuries were caused by fire arm like gun and both the injuries were possible by two separate firings.
Besides the aforesaid, the prosecution had relied on the post mortem report (Ext-5), fard beyan (Ext-6), Inquest report (Ext-9), seizure list (Ext-11), seizure list relating to pole (Ext-12), besides the injury report of Mahendra Yadav (Ext-13). The case of the appellants is denial simplicitor, false implication and counter blast to the cases lodged against the informant and the witnesses under the Arms Act and of mischief by firing.
10.8. Apart from the aforesaid, appellant Niranjan Yadav (sole appellant in Criminal Appeal No. 437 of 2001) and Manth Lal Yadav (appellant No. 1 in Criminal Appeal No. 412 of 2001) a Constable had pleaded alibi. Niranjan Yadav in support of his plea of alibi had examined D.W.1 Dr. Narendra Mishra, a private practitioner, who claims to have examined him on 20.4.1991 and referred to Hospital. D.W.2 Dhananjay Kumar Pandey is the Branch Manager of a Branch of State Bank of India on 20.4.1991 where appellant Niranjan Yadav was posted as a Guard. D.W.3 is Dr. Hemendra Narayan Choudhary, a Medical Officer posted at Additional Primary Health Centre and stated that he treated appellant Niranjan Yadav.
11. To substantiate the plea of alibi appellant Manth Lal Yadav had examined two witnesses, namely, D.W.4 Anup Narayan Yadav and D.W.5 Upendra Prasad Yadav. D.W.4 Anup Narayan Singh, a police Officer, had stated that station diary entry at Chebera Police Station was in the hand-writing of appellant Manthlal Yadav. D.W.5 Upendra Prasad Yadav is a constable and stated about presence of appellant Manthlal Yadav on 21.4.1991 at Chebera Police Station.
Page 2718
12. The Court below on appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellant as above.
13. I have heard Mr. Kanhaiya Prasad Singh, Mrs. Anjana Prakash, Senior Advocates on behalf of the appellants in their respective appeals.
14. Mr. Lala Kailash Bihari Prasad, appears on behalf of the State, whereas the Informant is represented by Mr. Abhay Kumar Singh.
15. At the outset, learned Counsels for the appellants submit that according to the prosecution Ranjit Kumar Yadav was murdered in the occurrence and attempt was made to murder P.W.8 Mahendra Yadav but the case of the prosecution in relation to Mahendra Yadav having been disbelieved, the entire prosecution story-deserves to be rejected. They contend that assault on Mahendra Yadav is so intrinsically mixed with the story of murder of Ranjit Kumar Yadav that both cannot be separated.
16. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, submits that even if one part of the case of the prosecution is rejected it shall not entail rejection of the entire prosecution case. He submits that it is the bounden duty of the Court to separate the grain from the chaff and the case of the prosecution does not deserve to be rejected only on the ground that the prosecution failed to establish charge of attempt to murder Mahendra Yadav.
17. It is well settled that mere rejection of a part of the case of the prosecution shall not lead to the conclusion that the entire prosecution story is untrue. Hardly a case comes to the court in which embelishment or exaggeration is not made. In that view of the matter, it is the bounden duty of the Court to separate the truth from the embelishment and exaggeration and setting aside those embelishment and exaggeration, if prosecution case is found worthy of credence, accept the same. However, in a case in which the truth and the falsehood is so intrinsically mixed that it is not possible to separate that one may reject the case of the prosecution altogether. In the present case so far as the assault on Mahendra Yadav is concerned, it is not so intrinsically mixed with the other part of the case of the prosecution that in case it is rejected the entire prosecution story falls to ground. Accordingly, I reject this submission of the learned Counsels for the appellants.
18. Learned Counsels, then contend that according to the prosecution itself the motive and genesis of the occurrence is removal of the electric poles and complaint to the Electricity Department in regard, thereto but the prosecution has miserably failed to prove the same. They point out that neither any case for theft of electric poles has been lodged nor the Junior Engineer who is alleged to have made inquiry has been examined. They further submit that even recovery of the poles has not been made and further it is unexpected that they could remove individually such a large number of electric poles without using any transport vehicles. They submit that there is nothing on record that any vehicle was used for transportation of the electric poles. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Smt. Omwati etc. v. Mahendra Singh AIR 1993 Supreme Court 249 and my attention has been drawn to paragraph 10 of the judgment which reads as follows:
In the light of the aforesaid facts, if the case of the prosecution with reference to the motive for the accused to commit the offence is considered, there will Page 2719 be little difficulty in rejecting the same. No doubt, proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has got to be considered in order to judge the probabilities. It is well settled that motive for a crime is a satisfactory circumstance of corroboration when there is convincing evidence to prove the guilt of an accused person but it cannot fill up a lacuna in the evidence.
Mr. Prasad, however, submits that there is consistent evidence of the witnesses which proves beyond all reasonable doubt that in fact the electric poles were removed by the appellants and the other accused persons and their evidence deserve acceptance on this point.
19. I do not find any substance in the submission of the learned Counsels for the appellants. A large number of witnesses examined on behalf of the prosecution have clearly stated that appellants besides other persons had removed the electricity poles and further that information to that effect was given by P.W.5 Diwakar Yadav to the Electricity Department. Not only this, the witnesses are consistent that an Engineer from the Electricity Department came to make inquiry. Merely on the ground that no First Information Report was lodged and no recovery was made, the consistent evidence of the witnesses on this point cannot be ignored. It is well settled that in case the prosecution is able to prove its case on the basis of the evidence the motive takes a back seen. Hence I am not inclined to reject the case of the prosecution on this ground.
20. Learned Counsels for the appellants then submits that all the eye-witnesses, on whose testimony the entire prosecution case is based are "related witnesses" and with independent witnesses being present, it shall be unsafe to sustain the conviction of the appellants on the testimony of interested witnesses. Mr. Prasad does not dispute that the witnesses examined are related and other independent witnesses though were present but have not been examined. However, he submits that this by itself shall not render their evidence unworthy of reliance. I am not inclined to reject the case of the prosecution on this ground. It is well settled that mere relationship of the witnesses itself do not render their evidence doubtful. The only caution which a Court is to take in such situation is to appreciate their evidence with care and caution.
21. Learned Counsels for the appellants submits that all the eye-witnesses, namely, P.W.1 Ashwani Kumar, P.W.2 Vibash Chandra Yadav, P.W.4 Shailendra Kumar Yadav, P.W.6 Dilip Kumar Yadav and P.W.7 Lalan Kumar Yadav were in fact arrested on the same day at about same time from near the place of occurrence as of the present case variously armed and all those witnesses have admitted their arrest but no explanation at all has been furnished by them in this regard. They contend that from the aforesaid it is evident that the prosecution has not come out with the entire truth and, as such, the appellants deserve to be given the benefit of doubt. In this connection my attention has been drawn to the evidence of P.W.1 Ashwani Kumar Yadav in paragraph 8 of his cross-examination where he has admitted that on the date of incident the Sub-Inspector of Police has lodged a case in relation to recovery of illegal arms in which besides him five other persons were arrested. P.W. 2 Vibash Chandra Yadav also had stated in paragraph 5 of his cross-examination that on the date of incident itself he was arrested by the police near Chichori pond and forwarded Page 2720 him for trial. P.W.4 Shailendra Kumar has also admitted that on the date of incident from the place of occurrence police had arrested him and other witnesses. Similarly P.W.6 Dilip Kumar Yadav in paragraph 7 and P.W.7 Lalan Kumar Yadav in paragraph 6 admit institution of criminal case against them for recovery of unauthorised arms and their arrest. P.W.11 Jokhu Singh, Assistant Sub-Inspector of Police and Investigating Officer of the case has also admitted the arrest of the witnesses alongwith arms.
22. Mr. Prasad as also Mr. Singh, appearing on behalf of the Informant contend that although the witnesses were put on trial in relation to the recovery of the arms from them but they have already been acquitted and, as such, that cannot be taken into consideration to decide the truth or otherwise of the present case.
23. Having given my most anxious consideration, I am of the opinion that mere acquittal of the witnesses in the case shall itself not wipe out their evidence in the present case. As stated earlier the witnesses altogether have denied their arrest with arms but at the same time admitted their arrest in relation to case of possessing illegal arms on the date and time of the present incident from the place of occurrence. P.W.11 the Investigating Officer of the case although in paragraph 22 at the first instance denied the fact of arrest of any person but later on, on further cross-examination in paragraph 24 has categorically stated that arms were recovered from 5 to 7 persons and they were arrested and taken to the police station. The Prosecution has not made any attempt to explain as to what these witnesses were doing which led to their arrest with arms. From the aforesaid, I am of the opinion that the prosecution has not brought on record the entire truth and in such circumstances, I have no option than to give the appellants the benefit of doubt.
24. Accordingly, I am of the opinion that prosecution has not been able to prove its case beyond all reasonable doubt and, as such, the appellants deserve to be given the benefit thereof.
In the result, all the appeals are allowed, their conviction and sentence is set aside. All appellants are on bail, except Niranjan Yadav Appellant of Cr. Appeal 437 of 2001, they are discharged from the liabilities of their respective bail bonds Appellant Niranjan Yadav who is in jail is directed to be set free forthwith unless required in any other case.
Abhijit Sinha, J.
46. I agree.