Allahabad High Court
Ram Briksha Yadav vs State Of U.P. on 18 January, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- CRIMINAL APPEAL No. - 4062 of 2008 Appellant :- Ram Briksha Yadav Respondent :- State of U.P. Counsel for Appellant :- R.P. Srivastava,Amit Kumar Singh,Anubhav Trivedi,Dilip Kumar,G.S. Hajela,H.K. Shukla,Nitin Sharma,R.P. Dubey,Rajiv Lochan Shukla,Ravindra Sharma,S.K.Dubey,Satish Trivedi,U.S.Shah,V.S. Mishra,Vikrant Pandey Counsel for Respondent :- Govt. Advocate,Jitendra Kumar Yadav,P.C.Srivastava Connected with Case :- CRIMINAL APPEAL No. - 3081 of 2008 Appellant :- Prem Singh Respondent :- State of U.P. Counsel for Appellant :- Ved Prakash Pandey,Amit Misra,Apul Misra Counsel for Respondent :- Govt.Advocate,Manoj Kumar,Vimlendu Tripathi And Case :- CRIMINAL APPEAL No. - 3082 of 2008 Appellant :- Subhash Yadav And Others Respondent :- State of U.P. Counsel for Appellant :- Anubhav Trivedi,Harish Kumar Shukla,R.P. Srivastava,Satish Trivedi Counsel for Respondent :- Govt.Advocate,P.C.Srivastava And Case :- CRIMINAL APPEAL No. - 3083 of 2008 Appellant :- Manoj Gupta Respondent :- State of U.P. Counsel for Appellant :- Anubhav Trivedi,Harish Kumar Shukla,R.P. Srivastava,Satish Trivedi Counsel for Respondent :- Govt.Advocate,P.C.Srivastava And Case :- CRIMINAL APPEAL No. - 3274 of 2008 Appellant :- Hanuman Yadav Respondent :- State of U.P. Counsel for Appellant :- Tripathi B.G. Bhai Counsel for Respondent :- Govt.Advocate Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)
1. The above appeals have been preferred by the accused appellants against the judgment and order dated dated 30.04.2008/02.05.2008, passed by Additional Sessions Judge/F.T.C., Court No.3, Basti, in Sessions Trial No.257 of 2006 (State Vs. Subhash Yadav and others) whereby they have been sentenced to life imprisonment alongwith fine of Rs.10,000/- each and in default of payment of fine to undergo one year additional imprisonment each under Section 302/149 IPC; three years rigorous imprisonment alongwith fine of Rs.1,000/- each and in default of payment of fine to undergo three months additional imprisonment each under Section 308/149 IPC; one year rigorous imprisonment each under Section 147 IPC; three months rigorous imprisonment each under Section 148 IPC; six months rigorous imprisonment each under Section 323/149 IPC. Accused Prem Singh has been convicted and sentenced to life imprisonment alongwith fine of Rs.10,000/- and in default of payment of fine to undergo one year additional imprisonment under Section 302 read with section 114 IPC. All the appeals have been heard together and are therefore being disposed of by this common judgment. Criminal Appeal No. 4062 of 2008 shall be treated as the leading case.
2. Panchayat elections were notified in Uttar Pradesh and 25th August, 2005 was the date fixed for cast of votes at Sant Kabir Nagar. Jai Narain Inter College, Maur, Sant Kabir Nagar was one of the polling centre (hereinafter referred to as ''centre') in the district. An incident occurred at 2.15 pm at this centre in which one Mahatam Yadav was shot dead and several others sustained injuries. Two distinct versions have surfaced in respect of the incident. We are concerned in the present set of appeals with the first version of the incident based on the report of the deceased's son namely Rakesh Kumar Yadav.
3. The written report (Ex.Ka.-1) made by the informant Rakesh Kumar Yadav (PW-1) on 25.8.2005 states that informant's sister-in-law, namely Champa Devi w/o Jai Prakash Yadav was a candidate for the post of Pradhan while Hanuman Yadav, was one of the other candidate who tried to rig the polls. On being opposed, one Manoj Gupta started abusing the informant. A squabble ensued between informant and Manoj Gupta, who was supporting Hanuman Yadav. Hanuman Yadav then called Ram Briksha Yadav from Gaighat Polling Booth who arrived alongwith his gunner Prem Singh and other associates and started assaulting the informant's side by baton and sticks (lathi danda). Those present there tried to mediate but Ram Briksha Yadav and his supporters did not pacify, instead Ram Briksha Yadav exhorted his associates to eliminate Mahatam Yadav and his family and snatched his bodyguard's Carbine and fired at the deceased. The bullet hit the deceased on his chest; he fell and died. Supporters of Ram Briksha Yadav also assaulted informant and his uncle Janardan Yadav, Jai Prakash Yadav and Onkar Yadav. On account of the injuries caused the informant became unconscious. This incident is alleged to have seen by large number of persons present at the polling centre. Enraged by the incident members of public chased the accused Ram Briksha Yadav and his associates and that is how the life of informant and his other family members could be saved. In this incident Ram Briksha Yadav, Ram Poojan Yadav, Subhash Yadav, Hanuman Yadav, Manoj Gupta, Virendra Yadav and gunner Prem Singh (appellants herein) are implicated as accused.
4. Pursuant to the above report a first Information Report (Ex.Ka-5) has been lodged at 4.20 pm on 25.8.2005 in respect of the incident occurred at 2.15 pm on the same date. Investigating Officer recovered bloodstained and plain earth vide Ex.Ka-3. Empty cartridge was recovered vide Ex.Ka-4.
5. Inquest was held in respect of the dead body of Mahatam Yadav on 25.8.2005 at 7.30 pm (Ex.Ka.-2) wherein cause of death is shown as gunshot injury. The dead body was sealed and sent for postmortem, which was conducted on the next day i.e. on 26.8.2005 at 4.00 pm wherein death was found to be due to shock and hemorrhage as a result of following ante-mortem injuries:-
"(1) wound of entry 1x1 cm, 6 cm medial to right nipple, 4 cm medial to the mid sternum cavity deep. Blackening present around wound under lying the 4th rib fractured. Margin of wound is inverted.
(2) wound of exit 1½ x 1½ cm cavity deep, 7cm lateral to the midline of back of 5cm distal to the inferior angle of left scapula, margin everted, between 4th & 5th rib, the track extending from wound of entry to right atrium to right lung to left lung to wound of exit.
(3) Contusion abraded contusion size 2x1 cm over left forearm 4cm around to wrist.
(4) contusion over left elbow posterior aspect size 4x2 cm (4) contusion 4 x 2 cm over dorsum of right hand (5) contusion 5x3 cm over anterior aspect of arm 8 cm proximal to right elbow (6) contusion 5x2 cm in right leg 25 cm distal to right knee (7) contusion 12x3 cm over back of side of chest extending right inferior angle of scapula to the middle of the posterior 13x2.5 cm extending inferior angle of left scapula to the middle line of the back (9) contusion 4x2 cm on left scapula.
(10) contusion 5x3 post. aspect of left shoulder"
6. Janardan Yadav, Rakesh Kumar Yadav and Jai Prakash sustained injuries in the incident and have been medically examined. Their injury reports are contained in Ex.Ka-7, Ex.Ka-8 and Ex.Ka-9, which are extracted hereinafter:-
Injuries of Janardan Yadav "(1) Contusion 4cm x 3cm x red colour over left side of head above ear.
(2) Contusion 10cm x 2cm x red colour over back of left side chest on upper ear.
(3) Contusion 5cm x 0.5 cm x red colour over left lateral side of chest below left axilla.
(4) Contusion 10cm x 4cm x red colour over outer side of dorsum of right hand and wrist."
Injuries of Rakesh Kumar Yadav "(1) L.W. 3cm x 0.5cm x bone deep over left side of head above ear. Fresh bleeding.
(2) L.W. 4 cm x 0.5 cm x bone deep over back of head. Fresh bleeding.
(3) L.W. 5cm x 0.5 cm x bone deep x fresh bleeding over front of head at midline.
(4) Linear abrasion 5cm long, oozing fresh blood over left malar area of face.
(5) Abrasion 3cm x 1cm x oozing fresh blood over right side face near outer canthus of right eye.
(6) Contusion 7cm x 1cm x red colour over left side front of lower neck and upper chest.
(7) Contusion 6 cm x 2cm x red colour over front of right shoulder.
(8) Contusion 5cm x 3cm x red colour over front of left arm middle part.
(9) Abraded contusion 6cm x 2cm x red colour over back of middle of right arm."
Injuries of Jai Prakash Yadav "(1) Abrasion 1cm x 0.5 cm x oozing fresh blood over right side of face near nose.
(2) Abrasion 1.5cm x 0.5 cm x oozing fresh blood over left side of face near nose.
(3) C/o pain right side chest and both thighs."
7. Injuries have also been caused to accused Ram Briksha Yadav, Subhash Chandra Yadav, Prem Singh and Manoj Kumar who were examined by DW-1 (Dr. Yogendra Pratap Singh) then posted as Medical Officer at Primary Health Centre, Haisar Bazar. Injuries to accused Ram Briksha Yadav included two bone deep lacerated wound on his head, which was on his vital part and in the opinion of doctor his condition was critical. In addition, abraded contusion/contusion was present on his hand in addition to contusion on Subhash Chandra Yadav and abrasion on Manoj Kumar. Testimony of this witness clearly shows that members of accused party were also assaulted in the incident.
8. Investigating Officer recorded statements of various witnesses under Section 161 Cr.P.C. and ultimately submitted two chargesheets against the accused on 24.10.2005 and 25.1.2006. Ram Poojan Yadav and Virendra Yadav were shown as accused in the chargesheet submitted on 25.1.2006, whereas all others were implicated in the first chargesheet. Consequently, two separate sessions trial were registered i.e. Sessions Trial Nos.257 of 2006 and 257-A of 2006. Accused appellants were charged of offences under Sections 147, 148, 149, 308, 302, 323, 504, 506 IPC, Section 7 Criminal Law Amendment Act and Section 134-B and 135 of the Representation of the People Act, Police Station Dhanghata, District Sant Kabir Nagar. All the accused denied the charges levelled against them and demanded trial.
9. The prosecution in order to prove its case has relied upon the documentary evidence in the form of written report Ex.Ka-1; First Information Report as Ex.Ka-5; recovery memo of bloodstained and plain earth as Ex.Ka-3; recovery memo of empty cartridge as Ex.Ka-4; injury report of Janardan Yadav as Ex.Ka-7; injury report of Rakesh Yadav as Ex.Ka-8; injury report of Jai Prakash as Ex.Ka-9; inquest report as Ex.Ka-2 and postmortem as Ex.Ka-10.
10. The prosecution in addition to documentary evidence also produced oral testimony of following prosecution witnesses:
(i) PW-1 (Rakesh Kumar) is the first informant. In his examination-in-chief, he stated that 25th August, 2005 was the polling day for panchayat elections and his sister-in-law (Bhabhi) Champa Devi w/o Jai Prakash was a contestant for the post of Pradhan. Accused Hanuman Yadav was also a contestant for the same office. Votes were being cast at Jai Narain Inter College, Maur. It is alleged by the witness that Hanuman Yadav tried to rig the polls by casting bogus votes, which he opposed. Manoj Gupta, a supporter of Hanuman Yadav started abusing the witness. An altercation started between PW-1 and Hanuman Yadav. Hanuman Yadav left the booth and brought with him accused Ram Briksha Yadav from Gaighat Polling Booth. His brother Ram Poojan Yadav, nephew Subhash Yadav, Virendra Yadav, Gunner Prem Singh were also with Ram Briksha Yadav. They came to Jai Narain Inter College. As soon as they arrived they indulged in violence. Supporters of Ram Briksha Yadav were carrying batons and sticks (lathi danda). Those present at the booth tried to defuse but Ram Briksha Yadav in an infuriated state exhorted to finish the family of Mahatam Yadav and snatched the Carbine of his gunner and with an intent to kill Mahatam Yadav fired at him. The bullet hit on his chest. Mahatam Yadav fell on the spot and died. The supporters of Ram Briksha Yadav, namely Ram Poojan, Subhash Yadav, Virendra Yadav, Hanuman Yadav, Manoj Gupta assaulted PW-1 and his associates. In this violence PW-1, his uncle Janardan Yadav, elder brother Jai Prakash Yadav also sustained injuries. PW-1 also lost consciousness for few minutes. The members of public present at the booth acted in retaliation by throwing bricks and stones as well as chased the accused party with batons and sticks (lathi, danda) due to which the informant party could be saved. PW-1 has moreover stated that there was no enmity between him and Ram Briksha Yadav. However, in the previous elections Ram Briksha Yadav was annoyed with his father. PW-1 has verified the written report written in his own handwriting at police station Dhanghata on the basis of which the FIR was registered. PW-1 was medically examined after registration of FIR at Primary Health Centre. The incident was allegedly seen by Janardan Yadav, Onkar Yadav, Jai Prakash Yadav, Lakshman s/o Jhangur, Chandrajeet Pathak etc. Statement of PW-1, on the aspect of casting of bogus votes, is extracted hereinafter:
"सुरक्षा कर्मियों से मैने इस बात की शिकायत कि हनुमान फर्जी वोट डलवा रहे है नही किया क्योंकि फर्जी वोट के समय मैं मौजूद नही था।
मुझे यह बात कि फर्जी वोट देने वाले पुरूष थे कि स्त्री, नही पता। फर्जी वोटर किस गांव के निवासी/निवासिनी थे, नही पता। फर्जी वोट के बारे में हनुमान फर्जी वोट डलवा रहे थे, यह बात एजेन्ट जनार्दन यादव जो मेरे चाचा भी है, से पता चली।
एजेन्ट जनार्दन यादव ने उक्त बात मुझे गेट के बाहर आकर नही बताई, अन्दर से ही आवाज दी।
आवाज सुनकर मेरे परिवार के 2-3 लोग अन्दर जाने लगे, पुलिस वाले उस समय हमे अन्दर नही जाने दिए।
फर्जी मत देने वाला वोटर पकडा गया कि नही, नही जानता।
घटना के बाद भी नही पता चला कि फर्जी वोट देने वाला पकडा गया कि नही। मैने पता ही नही किया।'' During cross examination PW-1 has admitted that cross case under sections 147/148, 308 IPC was registered against him after 16 days in which he was in jail for a week. Onkar Yadav, Jai Prakash Yadav, Janardan Yadav, Amarjeet Yadav were also accused in this case. PW-1 claimed to be a constable in Indian Army and was called guardsman. At the time of incident he was posted at Baramula in 46 R.R. and was on 14 days casual leave. PW-1 has stated that Ram Briksha, Ram Poojan, Subhash, Virendra were residents of village Tikara, which was at a distance of 1 km from village Maur. The accused also had a house in village Karampur and its polling booth was at Gaighat. He has feigned ignorance about his father being accused of offence under sections 395/397. His father was also an accused under section 307 IPC in the case of State vs. Pahalwan Singh and others. He claims to be the original resident of village Kanchanpur and has agricultural field also in village Maur. He has stated that together with Prem Singh the number of associates of Ram Briksha Yadav was between 20-25. PW-1 recognized only 3-4 of them. Name of other persons who indulged in violence and had assaulted them were not ascertained. Janardan and father of PW-1, Mahatam Yadav, were the polling agents of Champa Devi. As per him the altercation took place at the poling booth and not at a distance of 200 mtr. He has denied having received permission to enter the polling booth. He has also denied the knowledge of two life threatening injuries caused to Ram Briksha Yadav or that he was admitted in hospital for long. PW-1 also admitted that no complaint was made to security personnel about cast of bogus votes.
Since PW-1 was not present at the time of cast of such votes he also had no knowledge whether bogus votes were of ladies or gents. He claims that information about cast of bogus votes was received from agent Janardan Yadav, who was his uncle. Janardan Yadav had informed him of this fact from inside the polling booth. He did not know whether person casting bogus votes were apprehended or not. He has denied the suggestion that the allegation of bogus votes was made so as to give colour to his complaint. PW-1 has clearly admitted that polling booth of village Tikara, to which Ram Briksha Yadav belonged, was also at Jai Narain Inter College, Maur and Ram Briksha Yadav and his family members were to cast their votes at Jai Narain Inter College, Maur. He has also seen Ram Briksha Yadav and his family members earlier in the day at the polling booth. He claims that they came to cast vote and left thereafter. He has however denied the suggestion that Ram Briksha Yadav had come to the polling booth to cast his vote at the time of incident. He has also denied the suggestion that Ram Briksha Yadav was beaten and that is why he could not cast vote. PW-1 has also stated that Ram Briksha Yadav had come to cast vote at 10.00. The witness, in his cross stated that at 10.00 only family members of Ram Briksha Yadav had come. The family members who came to the polling booth at 10 included wife of Ram Poojan and no male member from the family of Ram Briksha Yadav had come to cast vote at 10. He denied that Ram Briksha Yadav as well as none of his family members could cast vote on that day. PW-1 has also denied having knowledge of the persons who threw stones and bricks at the accused or assaulted them with lathi danda as he himself was injured. He denied that these persons were criminals, who had been called by him or that there was a plan not to allow Ram Briksha Yadav to cast vote. PW-1 lastly denied that he had assaulted Ram Briksha Yadav or his associates.
(ii) PW-2 (Janardan Yadav) has stated that wife of Hanuman Yadav was a contestant for the post of Pradhan but her name was not known. He has stated that their opponents were trying to cast bogus votes. Seeing it he objected to cast of votes by relative of Hanuman Yadav, who had came from Gorakhpur. Accused Manoj Gupta, who was supporting Hanuman abused PW-2 and his elder brother Mahatam. Accused Hanuman claimed that he was going to Gaighat and would bring Ram Briksha Yadav with him. On the calling of Hanuman, Ram Briksha Yadav allegedly came with his associates. They came at 2 pm. Accused Ram Briksha Yadav allegedly exhorted to finish the family members of Mahatam Yadav. When Ram Briksha tried to enter from the gate he was stopped by the constable but Ram Briksha pushed him with baton and the constable returned. After opening the gate Ram Briksha entered and seeing Mahatam he snatched Carbine of his gunner Prem Singh and aimed at Mahatam Yadav and shot him dead. Supporters of Ram Briksha then assaulted PW-2 and his associates with lathi danda in which Jai Prakash and Rakesh sustained injuries. The members of public retaliated and chased away Ram Briksha and his associates with lathi danda.
During cross examination PW-2 stated that apart from the wife of Hanuman there were 12 other contestants for the post of Pradhan. Each contestant had three polling agents. None of the other polling agents objected to Hanuman because PW-2 and his associates had already objected to the cast of bogus votes. Polling agents of other candidates also protested but their names have not been disclosed. This witness has not produced any document to show that he was a polling agent. After information of incident was received, all senior officers including S.P., D.M., C.O. came on the spot and conducted investigation. PW-2 was also medically examined at about 05.00 PM alongwith Rakesh.
Statement of PW-2, on the aspect of cast of bogus votes is extracted hereinafter:
"गोरखपुर वाला जो वोटर वोट देने आया था, व जिसे मैने पहचाना वह 1 पी.एम. के करीब घटना थी।
इस फर्जी मतदान की शिकायत मैने मतदान अधिकारी से लिखित नहीं किया, मौखिक शिकायत किया।"
(iii) PW-3 (Jai Prakash) has stated that his wife Champa was contestant for the post of Pradhan and wife of Hanuman was also a contestant for the same post. He has stated that altercation regarding cast of bogus votes occurred with Manoj Gupta who was a supporter of Hanuman Yadav. He has supported the prosecution case that Hanuman after such altercation brought Ram Briksha Yadav and Ram Briksha Yadav snatched the Carbine of his gunner and shot dead Mahatam Yadav. He also claims to have sustained injury which was examined at about 05.00 PM.
(iv) PW-4 (Onkar) stated that 25.08.2005 was the date for casting of votes. His elder brother's daughter-in-law Champa was contestant for the post of Pradhan and wife of Hanuman was also contestant. On the polling day bogus votes were also casted. On account of it there was altercation between his brothers Mahatam & Janardan, who were polling agent, and Manoj Gupta, who was supporter of Hanuman. Hanuman then brought Ram Briksha Yadav from Gaighat. Ram Briksh Yadav came alongwith Ram Poojan Yadav, Subhash Yadav, Virendra Yadav, Hanuman and Gunner Prem Singh. Immediately after they arrived a scuffle began and Ram Briksha exhorted to kill family of Mahatam. Ram Briksha Yadav snatched the Carbine of his gunner and fired on the chest of Mahatam, who fell and died. The accused also beat PW-4, his nephew Rakesh, Janardan and Jai Prakash.
(v) PW-5 is the Head Moharrir, who has proved the chik FIR in Case Crime No.498/05 and G.D. Entry therein.
(vi) PW-6 is Dr. Yogendra Pratap Singh, posted at C.H.C. Haisar Bazar. He has verified the injury reports of Janardan Yadav, Rakesh Kumar Yadav, Jai Prakash, Ram Briksha Yadav and Subhash Chand.
(vii) PW-7 is Dr. Rakesh Kumar Verma, who has conducted autopsy of deceased Mahatam and proved the postmortem report.
(viii) PW-8 is Sub Inspector, Vansh Bahadur Yadav, who was the Investigating Officer in Case Crime No.498/05. He has verified the inquest report as also other police papers. He has arrested Ram Briksha Yadav, Subhash, Hanuman, Manoj Gupta and gunner Prem Singh. He has also recovered the Carbine from gunner Prem Singh. No recovery memo, however, in respect of the Carbine was prepared and only endorsement was made in the case diary. The Carbine has been produced during the course of trial wherein 27 live bullets were found in it. This witness has denied that the gunner had given any other written report apart from the one existing on record. He admitted that similar bullet is used in .9 mm pistol and Carbine. He has also admitted that bullet was not sent for forensic report.
During cross examination PW-8 denied that the statement was given to him by PW-1 that Prem Singh was not involved in violence on the relevant date.
(ix) PW-9 (Arun Kumar Singh) is the S.H.O. who was entrusted investigation of present case after the proceedings were transferred from Sant Kabir Nagar to Gorakhpur. He has specified the dates when he had recorded the statement of witnesses.
11. On the basis of above incriminating material produced by the prosecution the statement of accused appellants were recorded under section 313 Cr.P.C. All the accused have denied the accusations made against them and have stated that informant Rakesh Kumar Yadav was close to Bhal Chandra Yadav, who was the then Member of Parliament from Bahujan Samaj Party and, therefore, due to his interference the accused have been falsely implicated. It is also alleged that papers have been prepared under the influence exercised by the Member of Parliament. The accused have also stated that they came to cast vote and as soon as they reached the polling booth they were attacked by Mahatam, Onkar, Janardan etc. in which they sustained injuries and as the public turned violent the Gunner Prem Singh fired to save them and the bullet accidentally hit the deceased.
12. On behalf of defence the accused have produced witnesses, namely, Yogendra Pratap Singh (DW-1), Ravindra Singh (DW-2), Moharrir Ram Ashish Bhartiya (DW-3), Ashok Kumar Singh (DW-4), Dharam Deo Singh (DW-5) and Shriram (DW-7).
13. On the basis of above evidence led during trial the court below has found the charges levelled against the accused appellants to be proved beyond reasonable doubt and consequently has convicted them under Section 302 IPC alongwith other sections and sentenced to life imprisonment with lesser punishments.
14. Learned counsel for the accused appellants submitted that the accused appellants have been falsely implicated in the matter on account of political enmity. It is urged that the allegation against them of rigging the polls by cast of bogus votes is baseless since no complaint was made, in that regard, before the polling officials/security personnel and no details have otherwise been furnished at the stage of trial. It is then contended that Ram Briksha Yadav was a voter at Jai Narain Inter College, Maur and the entire story of his having been brought by Hanuman Yadav is nothing but figment of imagination. It is argued that the informant and his supporters actually attacked the accused appellants and the firing by the gunner was only in self defence, without any intention or knowledge to kill the deceased. Further submission is that no specific role has been assigned to anyone (except Ram Briksha Yadav) of assaulting the injured or the deceased. No weapon of assault is otherwise attributed to the appellants. It is lastly urged that there was no pre-meditation and the incident occurred at the spur of moment.
15. Smt. Archana Singh, A.G.A. for the State as well as Sri P. C. Srivastava, learned counsel for the informant states that the accused appellants have acted with deliberate intent to assault and kill the deceased in a broad day light incident. They submit that accused Hanuman tried to rig the polls and on being objected to by the informant brought Ram Briksha Yadav who snatched the Carbine of his gunner and shot dead the deceased. The accused were members of unlawful assembly who acted with common object in killing the deceased. Argument is that the court below has rightly appreciated the evidence led by the prosecution to convict and sentence the accused which merits no interference.
16. We have heard learned counsel for the parties and have perused the materials brought on record, including the original records of the court below.
17. From the evidence led by the prosecution and defence this much is clear that panchayat elections were being held and 25th August, 2005 was the polling date at Sant Kabir Nagar. The contestants on the post of Pradhan included daughter-in-law of the deceased, namely Champa Devi w/o Jai Prakash Yadav as well as wife of Hanuman Yadav. There was no prior enmity between the family of the deceased and the main accused Ram Briksha Yadav which fact is admitted to PW-1 Rakesh Kumar Yadav. No evidence of prior enmity is otherwise available on record. Although it is alleged that in the previous election differences had arisen between the deceased and accused Ram Briksha Yadav, but such differences are common amongst candidates and their family members/supporters at the time of poll, which cannot be equated with enmity.
18. The genesis of the incident as per prosecution is an altercation between Manoj Gupta (supporter of Hanuman Yadav) and the first informant as it was perceived that Hanuman Yadav is rigging the polls by casting bogus votes. This genesis needs to be scrutinized with reference to the evidence available on record.
19. PW-1 has admitted in his testimony that he had no personal knowledge of cast of bogus votes at the instance of Hanuman Yadav. The basis of information about cast of bogus votes is the information received from polling agent Janardan Yadav (PW-2). PW-1 claims that Janardan Yadav (PW-2) gave this information from within the polling booth.
20. So far as testimony of Janardan Yadav (PW-2) is concerned he has admitted that no protest or complaint was made to any election officer or security personnel present at the polling booth regarding cast of bogus votes. He alleges that one relative of Hanuman Yadav from Gorakhpur was trying to cast vote. However, neither his name has been disclosed nor his identity is established. No other evidence has otherwise surfaced on record to form an opinion that polls were being rigged. There were twelve other contestants also in the fray but none has come forward with such grievance. The evidence with regard to cast of bogus votes, therefore, does not seem reliable as material particulars in that regard are missing. There was no complaint otherwise made to the authorities. Evidence at best suggests that there were some apprehension in the minds of the informant or PW-2 about cast of bogus votes by the faction of Hanuman Yadav. However, the prosecution has failed to bring on record the evidence that bogus votes were attempted to be cast in the polls or that Hanuman Yadav tried to rig the polls.
21. The prosecution then alleges that upon being objected to by informant and his family members Hanuman Yadav left saying that he would bring Ram Briksha Yadav and that he actually returned to the polling booth with Ram Briksha Yadav and his supporters. As against this version of prosecution the other version is that Ram Briksha Yadav had come to cast his vote alongwith his family members.
22. There is also an issue on fact as to whether polling booth for accused Ram Briksha Yadav and his family was at Jai Narain Inter College, Maur or it was at Gaighat. This may help in understanding whether Ram Briksha Yadav had arrived with an intent to cast his vote or with an intent to take revenge for Hanuman Yadav from the informant side.
23. The Investigating Officer has not collected any evidence regarding the centre where accused Ram Briksha Yadav and his family members had to cast their vote.
24. The evidence of PW-1 is relevant in this context. In his cross examination PW-1 has clearly stated that polling booth of village Tikara of Ram Briksha Yadav was at Jai Narain Inter College, Maur. His version with regard to cast of votes by Ram Briksha Yadav and his family members is extracted hereinafter:
" रामवृक्ष यादव को गांव टिघरा का भी मतदान केन्द्र जयनरायन इंटर कालेज मौर में था।
मैं मतदान केन्द्र पर सुबह से था। रामवृक्ष व उनके परिवार वाले भी वोटर है, जिन्हे टिकरा मतदान केन्द्र पर वोट देना था।
इस मारपीट में घटना के पूर्व रामवृक्ष व उनके परिवार वालो को मतदान केन्द्र पर देखा था। वे वोट डालने आए थे। वोट डालकर वे चले गए थे।
यदि यह कहा जाय कि मैं झूठ बोल रहा हूँ गलत है। यह भी गलत है कि घटना के समय रामवृक्ष अपने परिवार के साथ वोट डालने आए थे, गलत है।
यह भी गलत है कि इसी दौरान हमने रामवृक्ष को मारा। यह भी गलत है कि इसी कारण रामवृक्ष व उनके परिवार के लोग वोट नही दे सके।
रामवृक्ष वोट करीब 10 बजे देने आए थे।
फिर कहा कि 10 बजे रामवृक्ष नही बल्कि उनके परिवार के लोग वोट देने आए थे। 10 बजे रामवृक्ष के परिवार में रामपूजन की औरत थी, उनके साथ एक लडकी थी, पुरूषों में रामवृक्ष के घर का कोई व्यक्ति 10 बजे वोट देने नही आया।
यह कहना कि रामवृक्ष के घर का कोई व्यक्ति या औरत उस दिन वोट नही दे पाया था गलत है। "
25. Although the prosecution case is that polling booth for accused Ram Briksha Yadav was at Gaighat but the above extracted statement of PW-1 clearly shows that the polling booth for Ram Briksha Yadav was at Jai Narain Inter College, Maur. PW-1 moreover claims to have seen Ram Briksha Yadav and his family members coming to the booth earlier in the day for cast of their votes but they allegedly returned, thereafter. He then stated that Ram Briksha Yadav had come to cast vote at about 10 AM. However, PW-1 later stated that at 10 AM other members of family of Ram Briksha Yadav had come to cast vote including wife of Ram Poojan but no male member of the family of Ram Briksha Yadav had come to cast vote. The statement of PW-1, read as a whole, clearly gives an indication that Ram Briksha Yadav alongwith family members were to cast vote at Jai Narain Inter College, Maur. It has also come in evidence of PW-1 that ladies of the family of accused Ram Briksha Yadav had come to cast vote at about 10 AM in the morning but Ram Briksha Yadav had not come to Jai Narain Inter College to cast his vote. Once it is admitted to PW-1 that Ram Briksha Yadav had to cast his vote at Jai Narain Inter College and he had not cast his vote earlier, his arrival at the polling booth can be for the purpose of casting his vote. In such a situation his presence at Jai Narain Inter College, Maur cannot be frowned upon.
26. The prosecution case that Ram Briksha Yadav had to cast his vote at Gaighat has not been proved by adducing any cogent evidence in that regard. In such circumstances, the possibility of Ram Briksha Yadav and his family members coming to Jai Narain Inter College for casting their vote cannot be ruled out.
27. We are thus not inclined to accept the prosecution version that Ram Briksha Yadav was called at Jai Narain Inter College, Maur by Hanuman Yadav on account of his fight with the first informant due to cast of bogus votes. We have already observed that the prosecution has failed to establish that polls were being rigged by the faction of Hanuman Yadav due to cast of bogus votes. Once that be so, the very genesis of incident, as per prosecution, is not established.
28. It is a matter of common knowledge that atmosphere in villages remain usually charged during elections to the post of Pradhan and differences often arise due to varying perception about the manner of polls. The apprehension that the polls were being rigged could have been generated by one faction even without there being any actual basis for such apprehension. Usual altercations or differences is very common in such circumstances.
29. The differences in perception regarding fairness in holding of polls leading to heated arguments; hurling abuses; scuffle etc. are not very unusual. We may also note that about 400 persons were actually present at the polling booth. In response to a query, PW-1 in his cross-examination has stated that about 400 persons were present at the polling booth. He also stated that about 25 persons had assaulted them alongwith Ram Briksha Yadav but he recognized only 3-4 of them.
30. The evidence on record suggests that it is in the above charged atmosphere that a fight erupted, at the spur of moment, on spot, between the two factions on account of perceived attempt by the faction of Hanuman Yadav to rig the polls and its countering by the side of informant. In this fight members of both sides have sustained injuries in addition to Mahatam Yadav getting killed.
31. Counter versions have surfaced about which side was the aggressor. Evidence is not very specific on this aspect except the manner in which Mahatam Yadav got killed.
32. It transpires from the evidence available on record that in the presence of about 400 persons at the polling booth the supporters of two contestants to the office of Pradhan fought with each other resulting in injuries being caused to both the sides. It is in this charged atmosphere and at the spur of moment that the accused Ram Briksha Yadav apparently snatched the Carbine of his gunner and fired at the deceased.
33. The prosecution witnesses of fact, namely PW-1 to PW-4, have specifically stated that the deceased was shot at by the accused Ram Briksha Yadav. The presence of these witnesses at the spot is not seriously doubted. The prosecution case is also supported by the postmortem report in which a gunshot injury is shown to have been caused to deceased Mahatam Yadav, which led to his death. The Carbine available with gunner Prem Singh has been produced at the trial wherein 27 live bullets have been found intact. It has also come in evidence that 28 live bullets were loaded in the Carbine. This also supports the prosecution case that it was from the Carbine of Prem Singh that the gunshot injury was caused to the deceased by the accused Ram Briksha Yadav after snatching the Carbine from his gunner. The prosecution evidence in that regard is consistent and we find no reason to disbelieve the evidence of prosecution witnesses as also the statement of accused Prem Singh under section 313 Cr.P.C. that the fatal gunshot injury was caused to the deceased by Ram Briksha Yadav.
34. On behalf of accused Prem Singh his brother Ravindra Singh has entered the witness box as DW-2 and has stated that accused Prem Singh was threatened to own the responsibility of firing at the deceased or else his dead body would come out of jail. Complaints in that regard were allegedly sent to police authorities.
35. We have also considered the testimony of three other defence witnesses produced on behalf of accused Ram Briksha Yadav, namely Ashok Kumar Singh (DW-4), Home Guard Dharm Dev Singh (DW-5) and Sri Ram (DW-6) as per whom the accused was assaulted by the informant side as soon as he entered the polling booth to cast his vote and it was his gunner Prem Singh who fired to save Ram Briksha Yadav.
36. The defence version about Prem Singh having fired at the deceased does not appear trustworthy. DW-4 in his statement has virtually set out the defence version and has admitted that he not only knows the accused Ram Briksha Yadav since childhood but he has close relations with him. DW-5 has been confronted with his statement under section 161 Cr.P.C. wherein he had not stated about Prem Singh having fired to save the accused Ram Briksha Yadav. This witness was otherwise on duty with the accused Ram Briksha Yadav. Similarly, DW-6 has been produced only at the stage of trial and his statement was not recorded by the Investigating Officer under section 161 Cr.P.C. He has virtually dittoed the defence version.
37. The court below has also not accepted the testimony of defence witnesses about the accused Ram Briksha Yadav not having fired at the deceased or Prem Singh having done so for cogent reasons with which we do not disagree in light of our discussions in the previous paragraphs.
38. So far as the injuries caused to PW-1 Rakesh Kumar Yadav, Jai Prakash, Janardan Yadav are concerned the evidence of prosecution is not specific as to who assaulted them and what was the weapon of assault used by the accused. None of the accused have been assigned any specific weapon of assault. Existence of nearly 400 persons at the polling booth is otherwise admitted to the prosecution. We have already observed that atmosphere was charged at the polling booth and a sudden fight erupted at the spot amongst supporters of two contestants on a perceived attempt at rigging the polls. Since no specific weapon of assault is assigned to any of the accused (other than Ram Briksha Yadav) we find it difficult to hold any specific individual guilty of assaulting Rakesh Kumar Yadav, Janardan Yadav and Jai Prakash Yadav. For arriving at such conclusion we also rely upon the fact that injuries were caused not only to informant side but also to the members of accused party.
39. Upon evaluation of the evidence on record we find that the incident occurred during the panchayat poll, at the spur of moment on a perceived attempt by one party at rigging the poll and the other objecting to it. About 400 persons were present at the polling booth. A fight had erupted between supporters of two contestant leading to assault and it was in this heat of passion that the accused Ram Briksha Yadav snatched the Carbine of his gunner and fired upon the deceased. The prosecution version that accused Ram Briksha Yadav was specifically brought by Hanuman Yadav to take revenge is not established.
40. No evidence exists on record to show that there was a common object or intent on part of accused persons to commit the murder of the deceased Mahatam Yadav. The action of Ram Briksha Yadav in suddenly snatching the Carbine and firing at the deceased appears to be his individual act. We have already disbelieved the prosecution case that Hanuman Yadav had brought Ram Briksha Yadav to avenge his fight. No other evidence exists to show that other accused acted with common object or intent for murdering Mahatam Yadav. The other injuries on the deceased Mahatam are in the form of bruises which were simple in nature. Accused appellants other than Ram Briksha Yadav, therefore, cannot be prosecuted under section 302 IPC with the aid of section 149 IPC.
41. In a charged atmosphere at the polling booth where 400 persons were present and sudden fight erupted between two rival factions and their supporters, the causing of injuries to either sides cannot be pin pointedly attributed to any individual when there is no evidence of any of these individual either carrying any weapon of assault or specific role of assault assigned to them.
42. Learned counsel for the accused appellant Ram Briksha Yadav strenuously submits that the accused Ram Briksha Yadav himself had sustained serious injuries on his head and that the gunshot wound to deceased was caused due to fire by the gunner Prem Singh. In the alternative learned counsel submits that the incident occurred at the spur of moment without any pre-meditation to commit murder of deceased and, therefore, the offence on part of the accused appellant Ram Briksha Yadav could at best be under section 304 Part II I.P.C. and he has been illegally punished under section 302 IPC. He further submits that the accused appellant Ram Briksha Yadav is in jail since 2005 and the actual period of incarceration undergone by him is above 17 and a half year and with remission the period of incarceration would be well over 20 years. Learned counsel submits that continued incarceration of accused appellant Ram Briksha Yadav, in such circumstances, is wholly unsustainable in law.
43. We have carefully examined the evidence on record and we find that the incident leading to death of Mahatam Yadav occurred in a charged atmosphere at the polling booth due to a sudden fight amongst supporters of two factions in which injuries have been sustained by both sides. Even if we accept the prosecution version that injuries of Ram Briksha Yadav were caused as the public retaliated and threw stones and chased them with batons and sticks (lathi danda), yet, the assessment of evidence would clearly reveal that the incident occurred at the spur of moment without any pre-meditation in which the deceased sustained gunshot injury at the hands of accused Ram Briksha Yadav. The act of firing with an intent to commit the murder of the deceased appears unlikely.
44. Learned counsel for the accused appellants has urged that the incident in question would be covered under the fourth exception to section 300 IPC, which reads as under:-
"Exception 4. --Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
45. We may at this stage refer to the judgment of the Supreme Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 wherein the Court examined Exception 4 to Section 300 IPC and observed as under:
"8. In Virsa Singh [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , in paras 16 and 17, it was observed and held as under : (AIR p. 468) "16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact;...."(emphasis supplied)
9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28) "11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused : (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows."
46. Necessary ingredients to attract 4th Exception to section 300 IPC are clearly present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; the offender has not taken undue advantage or acted in a cruel or unusual manner, therefore, the case in hand clearly falls under fourth exception to section 300 IPC. Another aspect to be noticed is that the accused Ram Briksha Yadav was not carrying any firearm/weapon with him and it was only at the spur of moment that the accused snatched the Carbine of his gunner and fired at the deceased. This circumstance also shows that the act on part of the accused was neither pre-meditated nor there was any prior meeting of mind between the accused persons to commit the murder of Mahatam Yadav and the incident occurred in the heat of moment, suddenly. The offender has not taken undue advantage or acted in a cruel or unusual manner. We are, therefore, of the considered opinion that the accused appellant Ram Briksha Yadav could at best be punished under Section 304 Part I IPC and not under section 302 IPC.
47. The court below has proceeded to accept the prosecution case relying upon the testimony of prosecution witnesses i.e. PW-1 to PW-4 without subjecting it to careful scrutiny. Court below while holding the prosecution to have proved the guilt of accused appellants beyond reasonable doubt has not noticed the anomalies, referred to above, in the prosecution story. The improbability of prosecution version regarding the genesis, events and the manner in which the events unfolded creates a doubt on the prosecution case which has not been examined by the court below in correct perspective. The finding of the court below that prosecution has established its case beyond reasonable doubt, therefore, cannot be sustained, except in the case of accused Ram Briksha Yadav in respect of whom the punishment is being altered to Section 304 (Part-I) as against Section 302 IPC.
48. For the reasons and discussions held above, the Criminal Appeal No.4062 of 2008 filed by the accused appellant Ram Briksha Yadav deserves to succeed and is therefore allowed in part. The conviction and sentence of accused appellant Ram Briksha Yadav vide judgment and order dated 30.04.2008/02.05.2008, under section 302 IPC, is altered and substituted under section 304 Part I IPC. Since the accused appellant has already undergone actual incarceration of over 17 years, and with remission the period of incarceration is more than 20 years, he shall be released on the sentence already undergone by him, from jail, forthwith, unless he is wanted in any other case, subject to compliance of section 437A Cr.P.C.
So far as the Criminal Appeal Nos. 3081 of 2008 (filed by accused appellant Prem Singh), 3082 of 2008 (filed by accused appellants Subhash Yadav, Ram Poojan Yadav & Virendra Yadav), 3083 of 2008 (filed by accused appellant Manoj Gupta) and 3274 of 2008 (filed by accused appellant Hanuman Yadav) are concerned, it is observed that none of these accused appellants have been specifically assigned any weapon of assault nor have been assigned the role of causing injuries to deceased Mahatam Yadav or the injured Rakesh Kumar Yadav, Janardan Yadav and Jai Prakash Yadav. Their appeals accordingly succeed and are allowed and conviction and sentence of accused Prem Singh, Subhash Yadav, Ram Poojan Yadav, Virendra Yadav, Manoj Gupta and Hanuman Yadav vide judgment and order dated 30.04.2008/02.05.2008 is set aside. If the abovenoted appellants are in jail, they shall be released forthwith or if they are on bail their sureties and bail bonds shall stand discharged and they shall be set at liberty, unless wanted in any other case, subject to compliance of section 437A Cr.P.C.
49. No order is passed as to costs.
Order Date :- 18.1.2023 Anil/Ashok Kr./Ranjeet Sahu (Shiv Shanker Prasad,J.) (Ashwani Kumar Mishra,J.)