Patna High Court
Baleshwar Yadav And Ors vs State Of Bihar on 9 October, 2017
Author: Mohit Kumar Shah
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.284 of 1992
Arising Out of PS.Case No. -142 Year- 1985 Thana -Paliganj District- PATNA
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1. Ram Das Yadav son of Baleshwar Yadav.
2. Ram Prasad Yadav, son of Sadhu Yadav.
3. Sidheshwar yadav son of Jhapsu Yadav, all residents of village Bhagjoga,P.S.
Paliganj, Distt. Patna.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr.Jagdish Prasad Bhagat, Adv.
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
For the Informant : Mr. Vijay Kumar Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 09-10-2017
The present appeal was preferred against the
judgment of conviction and sentence dated 17.07.1992 passed in
Sessions Trial No. 704 of 1986/ 93 of 1986 by the learned 6 th
Additional Sessions Judge, Patna, arising out of Paliganj P.S. Case
No. 142 of 1985.
2. The aforesaid Criminal Appeal was preferred by five
appellants, however, appellants No. 1 and 3, namely, Baleshwar
Yadav and Ramdeep Yadav died during the pendency of the aforesaid
appeal, hence the appeal, as against the appellants no. 1 and 3, has
abated vide order dated 08.07.2015. Therefore, the present appeal
Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017
2/28
survives against the following appellants:-
1. Ram Das Yadav son of Baleshwar Yadav.
2. Ram Prasad Yadav son of Sadhu Yadav.
3. Sidheshwar Yadav son of Jhapsu Yadav.
3. The appellants have been convicted under Section
302 read with section 34 of the Indian Penal Code, hence sentenced to
undergo rigorous imprisonment for life.
4. The short facts of the case are that on the basis of
fardbeyan of the informant, namely, Shrikant Yadav son of Madho
Yadav, an FIR vide Paliganj P.S. Case No. 142 of 1985 was registered
on 20.07.1985 at 11.30 A.M. for the offence punishable under Section
302/34 of the Indian Penal Code against Ram Prasad Yadav, Ramdeep
Yadav and Sidheshwar Yadav. It has been alleged by the informant
that on 20.07.1985, at about 8.30 A.M. in the morning, his elder
brother Shri Bhagwan Yadav was coming from Paliganj market to his
residence and when he reached at the western side of the village, he
was surrounded by Ram Prasad Yadav (Appellant No.1), who was
armed with Pasuli, Ramdeep yadav (now dead) armed with pistol in
his hand, Sidheshwar Yadav (Appellant No.3), whereafter Ramdeep
Yadav fired on the elder brother of the informant i.e. Shri Bhagwan
Yadav, resulting in his brother falling down whereupon Sidheshwar
Yadav (appellant no.3) and Ram Prasad Yadav (Appellant No.1) slit
the neck of the brother of the informant. The informant had further
Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017
3/28
stated that on the western side of the village, Ramjit Yadav,
Sidheshwar Yadav, Ram Prasad Yadav etc. were quarreling with
regard to the land of the widow and the informant as well as his
brother did not have any quarrel with the said persons. The informant
has further stated that his brother was killed by the said persons
without any reason. The said occurrence was witnessed by Sitaram
Yadav, Madho Yadav and several people of the village.
5. The case was investigated by the police and
thereafter, charge sheet was filed on 16.10.1985 and the cognizance
was taken on 17.10.1985. After completion of supply of police papers
the case was committed to the court of Sessions on 07.08.1986 and
charges were framed on 16.11.1987 against Ramdeep yadav,
Sidheshwar Yadav (Appellant No.3), Ram Prasad Yadav (Appellant
No.2) and on 06.04.1989 against Ram Das Yadav (Appellant No.1)
and Baleshwar Yadav (now dead).
6. It may be pointed out that the accused persons,
namely, Ram Das Yadav and Baleshwar Yadav were summoned by
the learned trial court by an order dated 17.01.1989 to face trial and
thereafter charges were framed against them on 06.04.1989. It is
pertinent to mention that the learned trial court by an order dated
17.7.1992had directed for rectification of the numbering of the witness numbers to the effect that the evidence recorded after fresh Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 4/28 charge should be numbered from serial no.1 onwards and in such view of the matter, witness no. 5, namely, Shrikant Yadav was re- numbered as P.W. 1 and, accordingly, the subsequent witnesses were also re-numbered in continuance. As far as P.W. 1 to P.W. 4 are concerned, they were firstly examined/ cross-examined in between the period 21.6.1988 to 7.9.1988 and then they have again been examined/ cross-examined afresh after fresh framing of charges on 6.4.1989 as P.W. 12, P.W. 11, P.W. 10 and P.W. 9, hence the said deposition is being considered herein.
7. During the course of the trial, the prosecution produced altogether 11 witnesses to prove its case. P.W. 1 Shrikant Yadav is the informant and brother of the deceased as well as an eye witness. P.W. 2- Shiv Kumar Yadav, P.W. 7- Vidyanand Yadav, P.W. 9 Musafir Yadav (injured), P.W. 6 Keshavlal Yadav (injured), P.W. 7 Brij Bihari Yadav and P.W. 8- Raj Kumar Yadav are said to be eye witnesses. P.W. 13 Dr. Kameshwar Prasad Yadav has examined the injuries sustained by Musafir Yadav, Keshavlal Yadav, Ram Das Yadav and Chandeshwar Yadav while P.W. 10- Dr. Md. Afzal has conducted the autopsy on the dead body of Bhagwan Yadav and Sakaldeep Yadav. P.W. 15 i.e Girishi Kumar Jha is the Investigating Officer of the present case.
8. The learned counsel for the appellants has argued that Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 5/28 the actual fact is that the appellants are innocent and no occurrence as alleged had taken place at their behest. It is contended that the present case has been filed as a counter-blast to Paliganj P.S. Case No. 141 of 1985 wherein the prosecution witnesses are accused and, in fact, they had engaged in assault by garasa and bomb resulting in death of Sakaldeep yadav and Jagdishi Yadav as well as other persons sustaining injury. It has further been contended that one of the person of the prosecution side was carrying bomb and while he was hitting Sakaldeep yadav by bomb, the bomb had exploded and killed one of the persons of the prosecution side. Hence, the death of the deceased, namely, Bhagwan Yadav has been properly explained and the same cannot be attributed to the appellants. It has also been stated that the appellants are innocent and no evidence has been brought on record to show that the appellants herein had murdered Bhagwan Yadav so as to attract them under section 302/34 of the Indian Penal Code. Lastly it has been submitted that the mode and manner of occurrence is also not beyond pale of all reasonable doubts and does not stand corroborated from the evidence laid out by the prosecution.
9. Shri Ajay Mishra, the learned Additional Public Prosecutor appearing for the State, has submitted that there is ample evidence on record to sustain conviction of the appellants herein. According to him, various witnesses, who are eye witnesses to the Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 6/28 occurrence, have supported the prosecution case and there is no contradiction or infirmity in the evidence of the said witnesses, as such the evidence of the witnesses produced by the prosecution are sufficient to show that the learned trial Judge has rightly passed the judgment of conviction. The learned Counsel appearing for the informant, has adopted the arguments advanced by the learned Additional Public Prosecutor appearing for the State.
10. We have heard the learned counsel for the parties and besides going through the materials on record have also perused the evidence. At this juncture it would be apt to deal with the evidence of the prosecution witnesses at length.
11. P.W. 1 i.e. Shrikant Yadav is the informant of the present case as well as brother of the deceased. He has stated in his evidence that while he was taking bath at about 8.30 in the morning, he saw that the accused persons, namely, Ram Prasad Yadav, Jagdish Yadav, Sakaldeep Yadav, Ramdeep Yadav, Baleshwar Yadav, Ram Das Yadav and Raj Kumar Yadav were going to prevent them from ploughing the field. The said witness was taking bath at the Well of Bhola Yadav where Bhikhari Yadav told him that Ram Prasad Yadav has hit Keshavlal Yadav by fasuli. On hearing this, P.W. 1 went towards the western side at a distance of about 50 yard and saw that his brother Shri Bhagwan yadav was surrounded by Ram Prasad, Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 7/28 Jagdish, Sakaldeep, Ramdeep Yadav, Baleshwar Yadav, Ramdas Yadav and Sidheshwar Yadav. P.W. 1 ran and went near his brother where he saw that Ramdeep Yadav had fired from his pistol and shot his brother, whereafter his brother fell down. Then Sidheshwar Yadav cut the neck of the brother of P.W. 1 by fasuli. Thereafter, Baleshwar Yadav exhorted to kill the people present there and then Ram Das Yadav hit on the leg of Keshavlal. Jagdish Yadav fired gun shot on Musafir yadav and Sakaldeep Yadav took out a bomb and threw it whereafter he ran away, however, he fell down and the bomb exploded. It has also been stated by P.W. 1 that apart from him, the occurrence was witnessed by Madhav yadav (P.W. 5), Raj Kumar Yadav (P.W.8), Keshavlal Yadav (P.W.6), Musafir Yadav (P.W. 4), Brij Bihari Yadav (P.W. 7) and Vidyanand Yadav (P.W. 3). The said witness had identified his signature on the fardbeyan which was marked as Exhibit-3.
12. P.W. 1 has stated in paragraph-3 of his cross-
examination that one case is pending in the court of Sub-Judge-II regarding the land pertaining to gift deed. It has been stated in paragraph-8 of his cross-examination that the police had come after Sakaldeep and Jagdish had died and only thereafter, the police had engaged in arresting the people and had thereafter arrested Shrikant, Sita Ram Yadav, Musafir Yadav and Kesholal Yadav. P.W. 1 has Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 8/28 denied that he was arrested in the sugarcane field. In paragraph-10 of his cross-examination, P.W. 1 has denied to have taken the name of any other accused persons, except Ram Prasad, Ramdeep and Sidheshwar in the FIR. P.W. 1 has further denied the suggestion that he had not stated before the police that when Sakaldeep was fleeing away after throwing the bomb, he fell down. In paragraph-11 of his cross-examination P.W. 1 has stated that he had not seen his brother's neck being cut by Musafir.
13. P.W. 2 i.e. Shiv Kumar Yadav has stated in his evidence that on 20.07.1985 at about 8.30 in the morning he was ploughing his field, which had been given by way of gift to his brother Raj Kumar Yadav by Rajbanshi Yadav. His brother Keshavlal Yadav was also sitting at the Boring and in the meantime, Ram Prasad Yadav, Baleshwar Yadav, Ramdas Yadav, Jagdish Yadav, Sakaldeep Yadav and Sidheshwar Yadav came to the field. Ram Prasad Yadav and Baleshwar Yadav told them not to plough the field, whereafter P.W. 2 said that since the field belongs to him, he would plough the field. Thereafter, Baleshwar Yadav said that this people will not listen, hence beat them, whereafter Ram Prasad Yadav hit the brother of P.W.2 namely Keshavlal Yadav by fasuli and Sakaldeep Yadav threw the bomb which he was carrying in his bag. When P.W. 2 and others were running away, the accused persons surrounded them and Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 9/28 Ramdeep Yadav fired a gun shot on Shri Bhagwan Yadav, resulting in him falling down. Sidheshwar Yadav cut his neck by fasuli and in the meantime, Sakaldeep Yadav, who was carrying bomb in his bag fell down and the bomb exploded. Thereafter, P.W. 2 and others fled away while the police came there and caught his brother. In paragraph-3 of his cross-examination, P.W. 2 has stated that he had stated before the police that he was ploughing the gifted land and it is not a fact that he had told the police that at the time of occurrence, he was not near the place of occurrence. In paragraph-3 of his cross- examination, P.W. 2 had stated that Shri Bhagwan Yadav did not have anything to do with the disputed land. He has denied that his brother Keshawlal yadav was sitting at the Boring with bomb. P.W. 2 has also denied that he and other accused of the counter case had gone to plough the field of Jotia Devi, armed with pistol, garasa and bomb and assaulted the people present there resulting in murder of Sakaldeep and Jagdish and that death of Bhagwan Yadav had occurred during the course of them throwing bomb.
14. P.W. 3 i.e. Vidyanand Yadav had stated in his evidence that while he was sitting in his Verandah on 20.07.1985 at about 8.30 in the morning and his field was being ploughed then Ram Prasad Yadav, armed with fasuli, Sakaldeep Yadav armed with bomb, Jagdish Yadav armed with pistol, Ramdeep Yadav armed with pistol, Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 10/28 Ramdas and Baleshwar armed with lathi and Sidheshwar Yadav were passing by, whereafter he and Musafir Yadav started following them. The said accused persons reached at the field of this witness and then Baleshwar Yadav asked him not to plough the field, whereupon father of P.W.3 told that the field was of his, hence, he would plough the field. Baleshwar Yadav exhorted to assault the persons present there, whereafter, Ram Prasad Yadav hit Keshavlal Yadav by fasuli on his head. Sakaldeep Yadav had exploded bomb. When P.W. 3 and others tried to flee away, they were surrounded by the accused persons. Shri Bhagwan Yadav was coming from market and he was also surrounded by the accused persons. Then, Ramdeep Yadav fired a gun shot on Bhagwan Yadav whereupon Shri Bhagwan Yadav fell down and then Sidheshwar Yadav cut his head by fasuli. Jagdish Yadav had hit Musafir Yadav by gun shot and Ramdas hit Keshavlal on his leg by lathi. Sakaldeep Yadav was trying to flee away after throwing the bomb, but the bomb exploded there and he remained there. Thereafter, P.W. 3 ran away and had come to his house. P.W. 3 in paragraph-No. 2 of his cross-examination has denied that he had told the police only about three accused persons, namely, Ram Prasad, Ramdeep and Sidheshwar. In paragraph-2, P.W. 3 has denied the fact that upon exhortation by Baleshwar Yadav, Ram Prasad had hit Keshavlal Yadav on his forehead by fasuli. P.W. 3 had also denied the Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 11/28 suggestion that he had not disclosed before the police that Sakaldeep Yadav had exploded bomb. In paragraph-3 of his cross-examination, P.W. 3 had stated that in the said occurrence Sakaldeep and Jagdish were killed. In paragraph-4 of his cross-examination, P.W. 3 has stated that Sidheshwar was not armed and he was empty handed.
15. P.W. 4 i.e. Musafir Yadav has stated that the occurrence pertains to four years back at about 8.30 in the morning when he was sitting in the verandah of Raj Kumar along with Vidyanand Yadav. He saw that Ram Prasad came out from his house with fasuli in his hand. Baleshwar was carrying lathi, Jagdish Yadav was carrying pistol, Sakaldeep Yadav was carrying a bag, Ramdeep Yadav was carrying a pistol and Sudarshan Yadav was empty handed and all the said accused persons were going somewhere, hence P.W. 4 and others started following them. These people went to the field near the boring where Ram Kumar Yadav was ploughing the field. Then Ram Prasad Yadav told him not to plough the field, but Ram Kumar Yadav said that the field was his, hence he would plough it. Thereafter, Baleshwar exhorted to assault them whereupon Ram Prasad Yadav hit Keshavlal Yadav on his head by a fasuli. Ramdas Yadav hit Keshavlal Yadav on his leg by lathi. Sakaldeep Yadav took out a bomb and exploded the same. When P.W. 4 and others tried to flee away, the accused persons surrounded them and then they also Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 12/28 surrounded Shri Bhagwan who was coming from Paliganj. Ramdeep Yadav fired at Shri Bhagwan, who fell down. Whereafter Sakaldeep Yadav threw bomb and Sudarshan Yadav cut the throat of Shri Bhagwan. Jagdish Yadav had fired a gun shot on P.W. 4 which hit him on his arm and he fell down. In paragraph-4 of his cross- examination, P.W. 4 has stated that Sakaldeep and Jagdish were killed and he is one of the accused in the said case. In paragraph-5 of his cross-examination, P.W. 4 has stated that at the place of occurrence and at the said time when the occurrence had taken place, Keshavlal Yadav, Ram Kumar and Shiv Kumar were ploughing the field and at the time of occurrence he had come to his village. In paragraph-6 of his cross-examination, P.W. 4 has stated that since three years prior to the date of occurrence Raj Kumar was ploughing the field and the accused persons did not use to tell them not to plough the field. In paragraph-7 of his cross-examination, P.W. 4 had stated before the police that on the date of occurrence he was sitting at the verandah of Ram Kumar. P.W. 4 has also stated that when Shri Bhagwan was coming from Paliganj, he was shot by Ramdeep Yadav. He also disclosed that when Shri Bhagwan fell down, Sakaldeep had hit him by a bomb as well as Sidheshwar had cut the neck of Shri Bhagwan by a fasuli. In paragraph-9 of his cross- examination, P.W. 4 has stated that he had no enmity with the accused persons and he was not Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 13/28 an accused in any case. He has denied the suggestion that they had gone to the field of Jotia Devi for capturing the same and had assaulted the accused persons and with a view to save themselves from the said case, they had filed a false counter case.
16. P.W.5 i.e. Madhav Yadav has stated in his evidence that the occurrence pertains to four years back and the time was at about 8.30 in the morning when he was going to graze his buffalo and at that time Ram Prasad, Ramdeep, Sakaldeep, Jagdish, Baleshwar, Ram Das and Shiv Kumar came there while Keshavlal and Ram Kumar were sitting at the boring. Baleshwar and Ram Das were carrying lathi, Sakaldeep was carrying bag and Jagdish and Ramdeep were carrying pistol while Ram Prasad was carrying fasuli. Sidheshwar Yadav was also going behind the accused persons. Vidyanand and Musafir Yadav were also going behind them. The accused persons told not to plough the field whereupon Ram Kumar said that the field was his, hence why he should not plough the field. At that point Baleshwar exhorted that he will not listen, hence beat him. Then Ram Prasad hit Keshavlal by fasuli on his head. Sakaldeep threw the bomb. Thereafter, Ram Kumar, Shiv Kumar etc. started running but the accused persons ran and surrounded them. In the meantime, Shri Bhagwan was coming from Pali and the accused persons also surrounded him and Ramdeep fired a gun shot at Shri Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 14/28 Bhagwan. Sakaldeep exploded the bomb and Sidheshwar Yadav took a fasuli from Ram Prasad and slit the neck of Shri Bhagwan, resulting in death of Shri Bhagwan. Thereafter, Jagdish Yadav hit Musafir Yadav on his right leg, Ram Das hit Keshavlal by lathi whereafter, Sakaldeep Yadav and Jagdish Yadav started running away, resulting in bag of Sakaldeep Yadav falling down and thereafter the bomb exploded and Sakaldeep was killed. The said witness i.e. P.W. 5 had then gone to his home. P.W. 5 has further stated that the occurrence was witnessed by Musafir, Ram Kumar, Shiv Kumar, Keshavlal, Brij Bihari etc. It has also been stated that the police reached at his house and arrested Shrikant and Sitaram. Musafir was also arrested along with Kesho.
In paragraph-4 of his cross-examination P.W. 5 has stated that he is an eye witness to the occurrence. In paragraph-5 of his cross-examination P.W. 5 has stated that the first occurrence took place at 8' 0 clock in the morning and after first occurrence the accused persons came and surrounded the victims at a distance of 50 yards. In the 2nd occurrence, the accused and the prosecution side were running side by side. P.W. 5 stated that he was not beaten by the accused persons. P.W. 5 has denied the suggestion that Shri Bhagwan had died on account of the bomb by which Sakaldeep and Jagdish were attacked.
Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 15/28
17. P.W. 6 i.e. Keshavlal Yadav has stated in his evidence that on 20.07.1985 when he was at his boring, his brother Shiv Kumar Yadav was ploughing the field and Ram Kumar (his brother) was also there. Thereafter, Ramdas Yadav, Baleshwar Yadav, Ram Prasad Yadav, Sakaldeep Yadav and Ramdeep Yadav came at the field. Ramdas Yadav and Baleshwar Yadav were carrying lathi, Sakaldeep was carrying a bomb in his hand. Ramdeep Yadav and Jagdish Yadav were armed with pistol and Ram Prasad Yadav was carrying fasuli. Thereafter, Musafir Yadav, Vidyanand Yadav and Brij Bihari Yadav came at the field. The accused persons told not to plough the field whereupon all the brothers said that the field belongs to them, hence they would plough the field. On this, Ram Prasad Yadav gave a blow by fasuli on the head of P.W. 6 i.e. Keshavlal, Sakaldeep Yadav threw the bomb and after hearing the sound of bomb explosion, they ran towards their home, however, at some distance the accused persons surrounded them. In the meantime, Shri Bhagwan was coming from Paliganj market and he was also surrounded by the accused persons and thereafter, Ramdeep Yadav fired a gun shot on Shri Bhagwan, resulting in Shri Bhagwan falling down whereupon Sakaldeep Yadav threw a bomb and the same also hit Shri Bhagwan. Then Sidheshwar Yadav took fasuli from the hand of Ram Prasad Yadav and cut the neck of Shri Bhagwan Yadav. Jagdish Yadav fired Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 16/28 gun shot which hit Musafir Yadav on his right hand. In the meantime, Baleshwar Yadav was exhorting to fire gun shot. Ramdas Yadav hit Keshavlal i.e. the present witness. During the course of commission of the crime, explosion took place on account of falling of the bomb from the hand of Sakaldeep Yadav and he died there. Thereafter, all the people went home and while they were preparing to go to the police station, the police came there and caught the prosecution side.
18. In cross-examination, P.W. 6 has denied the suggestion that he had not stated before the police that Baleshwar was carrying lathi and Sakaldeep was carrying bomb in his hand as well as Ramdeep yadav and Jagdish yadav were carrying pistol and Ram Prasad Yadav was carrying fasuli. P.W. 6 has also denied the suggestion that it is not a fact that he had not said that Sidheshwar yadav had cut the neck of Shri Bhagwan Yadav after taking fasuli from the hand of Ram Prasad Yadav. P.W. 6 has also stated that it is not a fact that he had not told the police that 2-3 years prior to the date of incident, his cousin brother Rajbabanshi Yadav had given the land to his brother Ram Kumar Yadav by way of gift and he was in possession of the gifted land. P.W. 6 has also denied the suggestion that he had not stated before the police that Ram Prasad had hit him on his head by farsa, resulting in him falling down and then he could not see anything. This witness has admitted in his cross-examination Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 17/28 that a counter case is going on wherein he is an accused and in the said case some people were killed.
19. P.W. 7 i.e. Brij Bihari Yadav had stated in his evidence that on 20.07.1985 at about 8.30 in the morning, while he was standing near the boring, Shiv Kumar Yadav, Keshavlal Yadav, Ram Kumar Yadav etc. were ploughing the field. Ram Kumar and Keshavlal were helping in the field. At that moment, Ram Prasad carrying fasuli, Ramdeep carrying pistol, Jagdish carrying pistol, Sakaldeep carrying bomb in his bag came there. Ramdas and Baleshwar armed with lathi had also come there. Subsequently, Sidheshwar had also arrived there. All the accused persons had told Shiv Kumar Yadav not to plough the field, whereupon Ram Kumar Yadav said that since the field belongs to them, they would plough the field. Thereafter, the accused persons started quarrelling and in the meantime, Musafir and Vidyanand also reached there. Then Baleshwar Yadav exhorted to kill the persons of prosecution side whereupon Ram Prasad Yadav gave a fasuli blow on the head of Keshavlal Yadav, Ramdas Yadav threw the bomb whereupon Keshavlal, Ram Kumar, Shiv Kumar, Musafir and Vidyanand started running towards their house. However, all the accused persons ran and surrounded them. In the meantime, Shri Bhagwan was coming from Paliganj and he was also surrounded by the accused persons. Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 18/28 Ramdas Yadav had then fired gun shot which hit Shri Bhagwan and he fell down. Sakaldeep Yadav threw bomb which hit Shri Bhagwan. Sidheshwar Yadav took fasuli from the hand of Ram Prasad and cut the neck of Shri Bhagwan. Jagdish Yadav fired gun shot which hit Musafir Yadav. Thereafter, all the accused persons started running away and while Sakaldeep was running, carrying bomb in his bag, he fell down and the bomb exploded and Sakaldeep remained lying there.
In paragraph-3 of his cross-examination, P.W. 7 has stated that it is not a fact that he had not stated in his statement made before the police that Baleshwar Yadav had exhorted and told to kill the persons of prosecution side since they will not listen and thereafter Ram Prasad had hit Keshavlal Yadav by fasuli on his head, Sakaldeep Yadav had thrown bomb which had hit Shri Bhagwan and Jagdish Yadav had fired gun shot which hit Musafir Yadav. In paragraph-4 of his cross-examination, P.W. 7 has stated that Sakaldeep died on account of bomb explosion and he was not knowing as to where Jagdish was killed.
20. P.W. 8 i.e. Raj Kumar Yadav has stated in his evidence that on 20.07.1985 at about 8.30 in the morning he was at the gifted land along with his brother Rajbanshi Yadav. P.W. 8 has further stated that he was in possession of the disputed land since two years prior to the date of occurrence and mutation had also taken Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 19/28 place in his name. On the date of occurrence he was ploughing his field when his co-villager Ram Prasad Yadav armed with fasuli, Jagdish Yadav carrying pistol, Sakaldeep yadav carrying bomb in his bag, Ramdeep Yadav carrying pistol, Baleshwar and Ramdas Yadav carrying lathi came at the field. Brij Bihari Yadav, Musafir Yadav and Vidyanand Yadav came from behind. The accused persons told him not to plough the field. In the meantime, Sidheshwar Yadav came there. When the accused persons came and told P.W. 8 not to plough the field, he told them that since it was his gifted land, he would definitely plough the field. Thereupon, Ram Prasad Yadav hit Keshavlal on his head by fasuli, Sakaldeep Yadav threw bomb and then the people of the prosecution side started running away, however, after going for some distance, they were surrounded by the accused persons. In the meantime, Shri Bhagwan Yadav was coming from the market and he was also surrounded by the accused persons. Thereafter, Ramdeep Yadav fired a gun shot which hit Shri Bhagwan on his head. Sakaldeep Yadav again threw a bomb which hit Shri Bhagwan and he fell down. Thereafter, Sidheshwar Yadav took fasuli from the hand of Ram Prasad Yadav and cut the neck of Shri Bhagwan. Jagdish Yadav fired gun shot which hit Musafir Yadav. Ramdas Yadav hit Keshavlal Yadav on his leg. During the course of this occurrence, Sakaldeep Yadav fell down and the bomb exploded, Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 20/28 whereupon he fell there and remained there. In his cross-examination P.W. 8 has described as to how the gift was prepared. In paragraph-9 of his cross-examination, P.W. 8 has stated that earlier the gifted land was in his name, however, upon the order of the Commissioner, the receipt was prepared in the name of Jotia. P.W. 8 has stated in his cross-examination that it is not a fact that the gifted land was not in his possession. In paragraph-12 of his cross-examination P.W. 8 has stated that after one and half months of the occurrence, his statement was recorded by the police. In paragraph 17 of his cross-examination, P.W. 8 has stated that when Sakaldeep fell down, the bomb had exploded there. In paragraph-18 of his cross-examination, P.W. 8 has stated that the entire occurrence took place in a span of ten minutes.
21. P.W. 9 is Dr. Kameshwar Prasad Singh, who was posted as Medical Officer, State Dispensary, Paliganj on 20.07.1985 and on the said date at 11 A.M. he had examined the injuries of Musafir Yadav and found the following injuries on his persons:-
"(1) Lacerated punctured wound 1/3x ¼" on top front of right shoulder. Another lacerated punctured wound ¾" x ½" on upper and outer and back part of right arm. Both wounds were communicating thereon a common channel 5" in length. The first wound is the wound of entry and the second wound is the wound of exit."
The injuries were grievous in nature and caused by Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 21/28 firearm. The injury report was marked as Exhibit No.8.
On the same day i.e. 20.07.1985 at about 11.15 A.M., P.W. 9 had examined the injuries of Keshavlal Yadav and found the following injuries on his person:-
"(1) one lacerated wound 3"x1/4"x1/4" on left side of head.
(2) One lacerated wound ½"x ¼"x ¼" on right side and back front of head.
(3) Swelling 4"x 3" on right leg."
P.W. 9 has opined that all the injuries were caused by hard and blunt object like lathi and were simple in nature. The said injury report has been marked as Exhibit-8/1.
22. P.W. 10 is the Doctor, namely, Dr. Md. Afzal who was posted as Medical Officer at Sub-Divisional Hospital at Danapur on 21.07.1985 and he had held the postmortem examination at about 8.00 A.M. on the dead body of Shri Bhagwan Yadav and had found the following injuries:-
"External examination- Rigor mortis is present, Eyes closed, mouth closed.
Injury No.1: One lacerated wound at the back of head 3" in diameter with charring of hair and skin. The skull bone has shattered and brain matter coming out. There was multiple small injuries on the adjacent area. (2) Incised wound on the neck extending across Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 22/28 size 6"x 2" x cutting all the neck vessels and the trachea and the esophagus extend upto the vertebra.
(3) Multiple small injuries with charring was present on the back of the neck.
Internal Examination- throat, heart-empty and lung-pale, abdomen- stomach empty. Small gut, Gas, Large gut, Gas and feces, Spleen-pale, Liver-Pale, Kidney- Pale, Bladder-full.
Nature of injury- All injuries are ante mortem.
No.1 and 3 caused by some explosive substance and No.2 caused by sharp cutting weapon.
Cause of death- Hemorrhage and shock caused by injuries due to explosives and sharp cutting weapon.
Time since death- within 24 hours."
In the opinion of P.W. 10 the injuries have been caused by some explosive substance as well as by sharp cutting weapon. The postmortem report has been marked as Exhibit-4.
23. P.W. 11 i.e. Girish Kumar Jha is the Investigating Officer of this case and on 20.07.1985 he was posted as Officer-in- charge of Paliganj Police Station. On 20.07.1985 at about 11.30, Paliganj P.S. Case No. 142 of 1985 was registered on the basis of the statement of Shrikant Yadav under Section 302/34 of the Indian Penal Code. The FIR is in the writing of Shri Rameshwar Singh, Munsi Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 23/28 (clerk of the Thana) of the police station and also bears the signature of P.W. 11. The FIR has been marked as Exhibit 5. P.W. 11 has stated in his evidence that he had taken the re-statement of the informant and then prepared the inquest report of the deceased Shri Bhagwan yadav as well as prepared the dead body chalan and sent the dead body for postmortem. He had then recorded the statement of Keshavlal Yadav and Sitaram Yadav at the police station. P.W. 11 is said to have gone to the place of occurrence and reached there at 13 hours and inspected the same. According to P.W. 11, the place of occurrence is at a distance of 150 yards towards the east of the field of Jotia Devi, where path is situated. This path runs from east to west and it is about 6 feet wide and at this place huge quantity of blood was lying and remains of bomb were also found. At this place 12 bore empty cartridges were also found. P.W. 11 has also stated that from the said place, at a distance of about 30 yards, the place of occurrence of Case No. 141 of 1985 is situated. P.W. 11 had seized blood stain mud, remains of the bomb and empty cartridges from the place of occurrence and prepared a seizure list. P.W. 11 is said to have arrested accused Sidheshwar Yadav and recorded the statement of Ram Kumar Yadav on 13.8.1985. P.W. 11 has stated that for the treatment of Musafir Yadav and Keshavlal Yadav, he had prepared the injury report and sent them to the Medical Officer, Paliganj. The said injury report has been Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 24/28 marked as Exhibit-6. P.W. 11 had also prepared the inquest report of the deceased, which is in the writing of Shri Rameshwar Singh and also bears his signature. The said inquest report was marked as Exhibit-7. The blood stain mud was sent to the forensic Science Laboratory through the Sub-Divisional Judicial Magistrate. P.W. 11 has further stated in paragraph-7 of his cross-examination that Shrikant Yadav was arrested and brought to the police station and he was arrested for an occurrence which had taken place on that day in a case which is a counter case to the present case i.e. Case No. 141 dated 20.07.1985. The FIR of Case No. 141 of 1985 was marked as Exhibit-C. This witness has stated in paragraph-8 of his cross- examination that he had reached the place of occurrence at 1 P.M. in the day time. The Armed police had already been sent to the place of occurrence whose commander was N. Rahman, Sub-Inspector of Police. In paragraph-9 of his cross-examination, he has stated that it has not been mentioned in his case diary that Most. Jotia had gone to the police Station. Along with Srikant three more persons, namely, Keshavlal Yadav, Musafir Yadav and Sitaram Yadav were arrested and their statements were taken during the course of their arrest. In paragraph-12 of his cross-examination, P.W. 11 has stated that witness Ram Kumar did not say before him that Musafir was hit by gun shot by Jagdish Yadav and Keshavlal Yadav was hit by fasuli and Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 25/28 that Ramdas had hit Keshavlal by lathi. In paragraph-13 of his cross- examination, P.W. 11 has stated that the witness Srikant Yadav did not say before him that he was taking bath at the well and that Ram Kumar had told him not to plough the field. In paragraph-14 of his cross-examination, P.W. 11 has stated that Musafir Yadav had not stated before him that Shri Bhagwan was coming from Pali.
24. We have examined the materials on record and it is apparent that P.W. 1, P.W.2, P.W.3, P.W. 4, P.W. 5, P.W.6, P.W. 7 and P.W. 8 are the eye witness to the occurrence and there is consistency in their evidence and there is no reason to raise any doubt. On going through the evidence of P.Ws. 1,2,3,4,5,6,7 and 8, it is evident that the appellant No.1, i.e. Ram Das Yadav had hit on the leg of Keshavlal Yadav causing grave injuries, Appellant No.2 i.e. Ram Prasad yadav had hit Keshavlal Yadav on his head by fasuli causing grave injuries and appellant no.3, namely, Sidheshwar Yadav had slit the neck of Shri Bhagwan Yadav by fasuli resulting in grave injuries as also contributing to his death. Apart from the aforesaid P.Ws. being consistent on the specific injuries having been inflicted by the appellants herein on the person of the prosecution party, it is evident from the evidence of the P.Ws. No. 1 to 8 that the appellants herein were the members of unlawful assembly and had assembled with common intention of inflicting grievous and serious injuries on the Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 26/28 persons of the prosecution party, which had ultimately resulted in injury to Keshavlal Yadav and Musafir Yadav as well as the death of Shri Bhagwan Yadav. Thus, it is evident that the accused persons including the appellants herein had killed the deceased Shri Bhagwan Yadav with common object.
25. The Doctor i.e. P.W. 9, namely, Kameshwar Prasad Singh, who had examined the injuries on the person of Keshavlal Yadav and Musafir Yadav has also substantiated the injuries received by the said person. The Doctor- P.W. 10, namely, Md.Afzal, who conducted autopsy on the dead body of the deceased Shri Bhagwan has also corroborated the cause of death of the deceased and has substantiated the fact that the deceased Shri Bhagwan Yadav died due to hemorrhage and shock on account of injuries caused by explosive substance as also by sharp cutting weapon, hence, further corroborating the case of the prosecution.
26. Moreover, all the witnesses are consistent on the point that the accused persons including the appellants herein, who were variously armed were present at the place of occurrence and had assaulted the deceased persons as well as other injured witnesses and inflicted grievous and grave injuries.
27. Upon perusal of the entire evidence brought on the record of the case and after going through the same, there is no reason Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 27/28 to doubt the case of the prosecution. The present case has been proved beyond all reasonable doubts, not only by the evidence of the prosecution witnesses, but also by the evidence of the Investigating Officer i.e. P.W. 11 and the Doctors i.e. P.W. 9 and P.W. 10.
28. Considering the facts and circumstances of the present case and the specific evidence which has been brought on record to prove the allegations leveled against the Appellants beyond pale of any reasonable doubt as well as the consistency in the evidence of the eye witnesses, which has not been discredited during the course of their cross-examination, there is no reason to create any doubt. We have examined the materials available on record and do not find any apparent error in the impugned judgment of conviction and sentence, hence, the same does not require any interference.
29. Accordingly, the present appeal i.e. Cr. Appeal (DB) No. 284 of 1985 stands dismissed.
30. Appellant No.1, namely, Ram Das Yadav and Appellant No.2, namely, Ram Prasad Yadav were granted bail by an order dated 27.08.1992 while appellant no. 3, namely, Sidheshwar Yadav was directed to be enlarged on bail by an order dated 04.09.1995. In view of dismissal of the aforesaid appeal, the bail bonds of the aforesaid appellants are hereby cancelled.
31. The Appellants herein are directed to surrender Patna High Court CR. APP (DB) No.284 of 1992 dt.09-10-2017 28/28 before the court below forthwith for serving the remaining period of sentence.
32. The appeal stands dismissed.
(Mohit Kumar Shah, J) Rakesh Kumar, J.:
I agree.
BTiwary/- (Rakesh Kumar, J) AFR/NAFR AFR CAV DATE 24-08-2017 Uploading Date 09-10-2017 Transmission 09-10-2017 Date