Allahabad High Court
Rajesh Yadav vs State Of U.P. on 14 August, 2013
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 42 (1) Death Reference No. 9 of 2011 In Case :- CAPITAL CASES No. - 2883 of 2011 Appellant :- Rajesh Yadav Respondent :- State Of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. With (2) Case :- CAPITAL CASES No. - 3152 of 2011 Appellant :- Rajesh Yadav And Anr. Respondent :- State Of U.P. Counsel for Appellant :- Yogendra Yadav,Akhilesh Singh Counsel for Respondent :- Govt. Advocate,Daya Shankar Mishra,K.P.S. Yadav With (3) Case :- CAPITAL CASES No. - 3153 of 2011 Appellant :- Shiv Pujan Yadav And Anr. Respondent :- State Of U.P. Counsel for Appellant :- Yogendra Yadav,Satendra Pratap Singh Counsel for Respondent :- Govt. Advocate,K.P.S. Yadav With (4) Case :- CRIMINAL APPEAL No. - 3154 of 2011 Appellant :- Suresh Yadav Respondent :- State Of U.P. Counsel for Appellant :- Yogendra Yadav,Ajatshatru Pandey,Arvind Srivastava Counsel for Respondent :- Govt. Advocate,A.K. Barnwal,K.P.S. Yadav With (5)Case :- CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No. - 443 of 2011 Appellant :- Kapil Dev Yadav Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Ajay Kumar Barnwal,Vikrant Pandey Counsel for Respondent :- Govt. Advocate,Birendra Singh Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Dharnidhar Jha, J.)
1.The above noted death reference and the connected three appeals arise out of Judgment of conviction dated 27.4.2011 and order of sentence dated 30.4.2011 passed by the learned Additional Sessions Judge (Ex-Cadre), Ghazipur in Sessions Trials No. 24 of 2005, 25 of 2005, 26 of 2005, 229 of 2005 and 427 of 2007.
2.Five appellants of the three appeals were put on trial in the above noted Sessions Trials after being charged with committing various offences and were held guilty by the impugned Judgment. Appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav had been charged with committing offences under Sections 147, 148, 307, 149 and 302/149 I.P.C., 25 of the Arms Act as also Section 7 of the Criminal Law Amendment Act while appellant Suresh Yadav was charged with committing all the above offences for which the above noted four accused persons had been charged, except that under Section 302/149 I.P.C. All the appellants were acquitted of the charge under Section 7 of the Criminal Law Amendment Act. Appellant Suresh Yadav of Criminal Appeal No. 3154 of 2011 was also not held guilty of committing offence under Section 25 of the Arms Act but he was held guilty of committing offences under Sections 147, 148 and 307/149 I.P.C. and was directed to suffer simple imprisonment for one year and two years respectively under Sections 147 and 148 I.P.C. while he had to suffer rigorous imprisonment for eight years as also had to pay a fine of Rs. 10,000/- for being held guilty of offence under Section 307/149 I.P.C. The learned Trial Judge directed that in case of default in paying the fine, the appellant Suresh Yadav had to undergo simple imprisonment for another term of eight months.
3.So far as the other appellants, like, Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav were concerned, they were directed to suffer simple imprisonment for terms of one and two years respectively under Sections 147 and 148 I.P.C. and rigorous imprisonment for a term of eight years under Section 307/149 I.P.C. In addition to the substantive sentence, each of them was directed to pay a fine of Rs. 10,000/- else to suffer simple imprisonment for six months in respect of their individual conviction under Section 307/149 I.P.C. As regards their individual conviction under Section 302/149 I.P.C., each of the four appellants was directed to be hanged by his neck till he was dead and was further directed to pay a fine of Rs. 50,000/- or to suffer simple imprisonment for one year.
4.So far as the conviction of appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Mahendra Yadav and Shiv Pujan Yadav under Section 25 of the Arms Act was concerned, each of them was to suffer rigorous imprisonment for five years and had also to pay a fine of Rs. 5,000/-, else to suffer simple imprisonment for three months. This is how the learned trial judge made the reference to this Court under Section 366 Cr.P.C. for confirmation of sentence of death which was inflicted upon the four appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav who also preferred their appeals to challenge their conviction as may appear from the array of appellants in the connected four appeals.
5.Before we proceed to set out the facts of the case, we want to note that appellant Suresh Yadav of Criminal Appeal No. 3154 of 2011, though, had been convicted for offences, like, 147, 148 and 307/149 I.P.C. and was impressed also that he was being tried for being a member of unlawful assembly, the common object of which was to commit twin murders of Shyamdeo Yadav and Devkinandan Yadav, as may appear from the heading of charges framed by the learned II Additional Sessions Judge, Ghazipur on 18.7.2005, which is available to the court at pages 56 and 57 of the paper book, and besides being questioned under Section 313 Cr.P.C. that he along with other accused persons in prosecution of the common object had caused or had known the two murders to be caused, as appears from question no. 2 put to appellant Suresh Yadav, the trial Judge had omitted to frame a charge under Section 302/149 I.P.C. against appellant Suresh Yadav. As such, no conviction of that appellant under Section 302/149 I.P.C. was recorded. This is the reason that Criminal Appeal (Defective) No. 443 of 2011 was brought by the informant of the case, namely, Kapildeo Yadav with a prayer that his sentence be enhanced accordingly. In our opinion, in absence of any conviction of appellant Suresh Yadav under Section 302/149 I.P.C, the appeal against acquittal seeking the enhancement in sentence by convicting him under Section 302 I.P.C. was not maintainable and, as such, before we proceed further with the present Judgment, we have to dismiss Criminal Appeal (Defective) No. 443 of 2010 as not maintainable. It is ordered accordingly.
6.Having said the above, it is pertinent to point out that the trial was in respect of an occurrence dated 17.9.2004 having taken place at 8.15 am. As per written report Ex. Ka-1 presented by P.W.1- Kapildeo Yadav before the Officer-in-Charge of Bahariawar police station, the informant and his uncle Deep Chandra Yadav @ Lal Ji Yadav (P.W. 2) were taking tea at the tea-stall of one Doodhnath where his co-villagers Rajai Yadav (not examined) and Paltan Yadav (P.W.3) were also present. His uncle deceased Shyamdeo Yadav along with other deceased Devkinandan Yadav, came by a motor cycle from his house and no sooner the two had reached the road than the three accused persons, namely, Shiv Pujan Yadav, Mahendra Yadav and Suresh Yadav also came by another motor cycle which was being driven by appellant Suresh Yadav. Appellants Triloki Rajbhar @ Girija Shanker also came by another motorcycle which was being driven by appellant Rajesh Yadav and all the five persons surrounded deceased Shyamdeo Yadav and Devkinandan Yadav. Shiv Pujan Yadav is said to have remonstrated by stating that both of them be killed upon which Shyamdeo Yadav, the uncle of informant P.W.1, leaving his motorcycle aside ran into the field north of the road upon which Shiv Pujan Yadav armed with his gun and Mahendra Yadav and Suresh Yadav both armed with country made pistols started chasing Shyamdeo Yadav and also kept firing at him. When Devkinandan Yadav, the other deceased, ran towards the shop of Doodhnath Chauhan, both Rajesh Yadav and Triloki Rajbhar @ Girija Shanker followed him and fired shots at him and all of them sped away towards east after committing the murder of Shyamdeo Yadav and Devkinandan Yadav.
7.The informant stated that both Shyamdeo Yadav and Devkinandan Yadav had died at the spot. There was a panic all around and the shop-keepers downed their shutters and people started running helter and skelter, during which course, the accused persons also kept firing shots and might be, that someone amongst the public should have received an injury. The whole environment was charged with terror.
8.On the basis of Ex. Ka-1, F.I.R. of the case (Ex.Ka-5) was drawn up by P.W. 7-Constable Mool Chand Sharma, who was posted as Head Moharrir in the Bahariawar police station. P.W. 7 stated that after drawing the F.I.R., he created the copies of the written report and the F.I.R. by carbon process and made entries regarding the contents of those documents in the General Diary dated 17.9.2004 of the Police Station. The General Diary had been marked as Ex.-Ka-6.
9.It appears that S.I. Amarendra Nath Bajpayee (P.W.13), who was the Inspector of Police and was the Officer-in-Charge of the police station, took up the investigation of the case and recorded the statement of the informant at the police station itself. He along with some constables set out for the village of occurrence and held inquest upon the two dead bodies of Shyamdeo Yadav and Devkinandan Yadav by preparing inquest reports (Exts.Ka-13 and 14). He also drew up the sketches of the dead bodies and prepared the dead body challan as also letter addressed to the Chief Medical Officer, Ghazipur. After having sealed the two dead bodies, he forwarded them for post mortem examination through Constables Surendra Singh (P.W.11) and Surendra Nath Tiwari (P.W.12). The Investigating officer, thereafter, inspected the place of occurrence and during that course found blood splattered at places where the dead bodies of Shyamdeo Yadav and Devkinandan Yadav were found and seized blood by preparing seizure memos. He also found empty cartridges of 12 bore made of brass and two caps of the cartridges lying near the dead body of Shyamdeo Yadav and he seized them by preparing seizure memo (Ext.Ka-26). The Hero Honda motorcycle, which was used by Shyamdeo Yadav, was also seized by the Investigating officer (P.W.13) and he found that his left slipper was lying near his dead body while his right slipper was found near the Hero Honda motorcycle. Those two slippers were also seized by P.W. 13 by preparing seizure memo (Ext.Ka-27). The seizure memo in respect of motorcycle appears marked by the learned Trial Judge as Ext.Ka-28. Blood found near the dead body of Devkinandan was seized by preparing seizure memo Ex.Ka-29 and P.W. 13 found two empty cartridges of brass along with two cartridges of copper lying near the dead body of Devkinandan Yadav and those were also seized by preparing seizure memo Ext.Ka-30. P.W. 13 inspected the place of occurrence and prepared the site plan, which was marked Ext. Ka-31 by the court below. P.W. 13 recorded the statements of different witnesses and noted them into the case diary along with all the steps of investigation carried out by him.
10.P.W.13 stated that he learnt that one Om Prakash Kumhar had also been injured in the incident but he could not trace him out for recording his statement. However, what we find is that the said Om Prakash Kumhar was examined by a doctor, but there is no evidence as to what was the injury found by the doctor.
11.P.W. 13 searched for the accused persons during which, he came to know that appellant Triloki Rajbhar @ Girija Shanker was likely to come to the village from some other place and, accordingly, he was arrested on 22.9.2004 at about 5.05 am and, on search of his person, a country made pistol of 3.15 bore (marked 1/2005 for comparison and testing by FSL) was recovered along with a couple of cartridges (marked LC-1 & LC-2 by FSL for comparison). The arms and ammunitions were seized by preparing seizure memo Ex. Ka-33. For the recovery of the arms and ammunitions, a separate case was instituted under the Arms Act.
12.P.W. 13 learnt that appellant Shiv Pujan Yadav, Mahendra Yadav and Rajesh Yadav had surrendered themselves to the custody of C.J.M., Ghazipur and, accordingly, he came to District Jail, Ghazipur on 16.10.2004 and questioned appellant Shiv Pujan Yadav who pointed out that his gun was lying in the custody of his wife at his house. Accordingly, P.W.13 came to the house of appellant Shiv Pujan Yadav and seized the gun there in presence of witnesses by preparing seizure memo. The SBBL gun was marked by FSL as 4/2005 for comparison and testing. Appellants Mahendra Yadav and Rajesh Yadav were taken out of jail by order of remand passed by the court of C.J.M. and it appears that during the questioning by P.W. 13, both Rajesh Yadav and Mahendra Yadav led the Investigating Officer, P.W. 13, to different places and they produced the country made pistols, which they had concealed at two different places, before the Investigating Officer. The two pistols produced by Mahendra and Rajesh Yadav were marked 3/2005 and 2/2005 respectively for testing and comparison. This evidence of production of weapons by Rajesh and Mahendra Yadav appears at page 131 of the paper book. The two weapons were also seized by preparing two different seizure memos Exs.Ka-35 and 36 respectively.
13.It appears further that the seized arms and ammunitions as also the empties were sent to Forensic Science Laboratory (FSL) through P.W. 10-Constable Suresh Chaube. After examining them, the FSL submitted its report, which is available on the lower court records. It was found that the SBBL gun, which was seized from the house of appellant Shiv Pujan Yadav, had been used in firing the disputed empty of the cartridges marked EC-3 whereas the three different country made pistols, which were recovered from Triloki Rajbhar @ Girija Shanker , Rajeh Yadav and Mahendra Yadav, had also been used in firing different cartridges. Besides, on chemical analysis of the materials, which were found in the barrel of the weapons, i.e., the three country made pistols and the SBBL gun of appellant Shiv Pujan Yadav, they were containing firing residue nitrate, Lead and Copper and that indicated that the guns had been used recently in firing shots. These reports of FSL with the report on serological examination of bloodstained earth are at pages 48 to 52 of the paper book with its original on the lower court record which are admissible under Section 293 Cr.P.C. as evidence due to being the report of FSL, Lucknow submitted under the signature of its Joint Director. We are not sure whether these reports were marked exhibits for the prosecution but assuming that they had not been marked as such, we have read them in evidence by virtue of Section 293 Cr.P.C.
14.It appears that P.W.13 was transferred from the police station as a result of which the investigation was taken up by P.W. 8-SI Hari Ram Mishra who did not do any substantial part of the investigation and submitted the charge sheet only. The investigation of the case registered for recovery for arms from the accused persons was carried out by P.W. 14-SI Ram Bharose Yadav who had also submitted charge sheet after obtaining the requisite sanction for prosecuting the appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav for being in possession of different arms. This is how the trial was taken up which ended in the impugned Judgment and gave rise to the death reference and connected criminal appeals.
15.It appears that defence of the accused persons was that the deceased Shyamdeo Yadav had many enemies and possibly they had taken advantage of the cover of darkness in the night and had killed him. As regards appellant Suresh Yadav, who has not been found guilty and sentenced under Section 302/149 I.P.C. as he was not charged and tried under Section 302/149 I.P.C., he appears to have taken a specific defence of alibi by pleading that he was not present at the scene of occurrence and rather he was present in Pathankot with his Unit of 51 Brigade of the Indian Army and his implication was out and out false.
16.In order to proving the charges, the prosecution examined as many as 14 witnesses out of whom P.Ws. 1, 2 and 3 were eye witnesses to the occurrence. P.W.4-Dr.Sanjay Kumar Rai had held autopsy on the two dead bodies and had issued post mortem examination reports (Exts.Ka-2&3). P.W.5-Ram Siromani Verma was the Pharmacist who was posted in December 2004 in Sri Shiv Prasad Gupta Hospital, Kabir Chauraha, Varanasi where Dr. B.B.Prakash (not examined) was working as a Radiologist and who had submitted the radiological report Ex.Ka-4. The evidence of P.W. 4 is completely silent as to in whose respect the report had been submitted, but on looking to the evidence of P.W. 6-Dr. B.P. Bouhare, we find that the Radiologist's report was in respect of injury suffered by one Om Prakash, who was examined by P.W. 6 for his injuries in S.S. P.G. Hospital, Varanasi and had advised X-ray of his injuries. P.W.7 was the Constable Moharrir Mool Chand Sharm, who had drawn up the F.I.R. P.W.9-Constable-Munshi Prakash Chand had registered the cases under the Arms Act on the basis of the written report submitted in the police station with the seizure memos by P.W. 13-S.I. Amarendra Nath Bajpayee. P.W.10-Constable Surendra Nath Bajpayee had brought the seized arms and ammunitions and other articles to the court of C.J.M. for getting it forwarded to the FSL and took the seized articles to the FSL, Lucknow. P.W.11-Surendra Singh and P.W.12- Surendra Nath Tiwari had accompanied the two dead bodies to the mortuary for post mortem examination. P.W.13-Amarendra Nath Bajpayee, we have already noted, was the first Investigating Officer of the case and, on his transfer, the investigation was carried on by P.W.8-S.I. Hari Ram Mishra. P.W.14- S.I. Ram Darash Yadav had investigated the case under the Arms Act.
17.It may be noted that P.W.1-Kapil Dev Yadav was initially examined on 3.6.2005. We find from the order sheet of the trial court record is that the case of other accused persons had not been committed for trial to the court of sessions and as such the trial was temporarily held up and ultimately, cases were received by the court of sessions and, accordingly, they were tagged together as appears from an order passed on 1.8.2005. Thereafter the evidence of P.W.1 was recorded afresh on 2.9.2005, which was finally concluded on 3.9.2005. The defence examined the solitary witness Dalveer Singh, who was an employee of the Indian Army and who had brought certain records from his Unit 330 Brigade and stated that on the date of occurrence, the appellant Suresh Yadav, posted in the Indian Army as Hawildar, was present in Pathankot with 51 Brigade of the Army.
18.After considering the evidence available to him, the learned trial judge recorded the finding of guilt and passed the order of sentence upon the appellants and made the reference which has been noted at the very outset of the present Judgment.
19.Sri Gopal Swarup Chaturvedi, the learned Senior Counsel appearing on behalf of the appellants in support of the appeals and in opposition of the death reference, took us through the evidence of witnesses and submitted that the witnesses were not reliable as their presence at the place of occurrence was itself doubtful. It was contended by Sri Chaturvedi that both the witnesses Kapil Dev Yadav (P.W.1) and Deep Chand @ Lalji (P.W.3) were chance witnesses and the reason for their presence at the place of occurrence appears stated for the first time during trial and as such the court should reject their evidence. It was contended that P.W.3- Paltan Yadav had supported the prosecution story during his examination-in-chief, but during cross examination on 9.1.2006 and 8.11.2006, he turned round to go to the extent of stating that even those statements which had been made by him on oath before the learned Sessions Judge on 14.11.2005 during his examination-in-chief, had not been made by him and he did not have any reason to say as to how the learned trial court recorded those statements in his deposition sheets. During the course of his cross examination on 8.11.2006, submitted Sri Chaturvedi, P.W.3 stated that neither he was present at the tea-stall of Doodhnath Chauhan nor he was taking tea and, as such, the claim of P.Ws.1 & 2 that they were invited to have a cup of tea by P.W.3 Paltan and Rajai Yadav (not examined), appears not established. Sri Chaturvedi was, thus, submitting that the evidence of P.W.3, therefore, improbablizes the presence of P.Ws. 1 and 2. It was contended that the deceased Shyamdeo Yadav was the full brother of P.W.2-Deep Chand @ Lalji. P.W.1-Kapil Dev Yadav was the son of Musafir, who was the elder brother of Deep Chand @ Lalji (P.W.2) and the deceased Shyamdeo. The evidence was ample that there were some good number of witnesses, who were present at the place of occurrence, which was a small place of business-activity where many establishments were located, but none of those independent persons came to support the prosecution story. Submission was that evidence of P.Ws. 1 and 2 being that of interested and inimical witnesses, the court should reject the same and hold the charges not substantiated. The submission also was that the enmity between the accused and the prosecution party was undisputed and this could be the reason for the false implication of the appellants. The deceased Shyamdeo had many enemies, which has been admitted by P.W. 1 in his evidence, and possibly, he was killed sometimes in the night and an antedated report was collusively made and evidence in support of the false story was led, which ultimately ended in the impugned Judgment and the reference made by the learned Trial Judge under Section 366 Cr.P.C. Sri Chaturvedi, lastly, submitted that it could not be a case which should be the rarest among the rare ones and it was an ordinary murder out of enmity without any element of depravity as regards its execution and the learned Trial Judge, submitted Sri Chaturvedi, had misdirected himself on law in sentencing and has inflicted punishment, which was not proportionate to the act.
20.We had the privilege of hearing Sri A.K.Srivastava and Sri A.N. Mulla, the two Additional Government Advocates in opposition of the appeals. It was contended on their behalf that it is true that the deceased Shyamdeo was the full brother of P.W. 2-Deep Chand @ Lalji and uncle of Kapildeo Yadav (P.W.1) too, but on a cautious scrutiny of their evidence what appears is that they were telling the truth and they had assigned good reasons for their presence and that does not appear seriously challenged. Moreover, the scrutiny of their evidence probablized that they had been present there which fact is also corroborated by the evidence of the hostile witness P.W. 3. Their evidence is consistent on the manner of occurrence and the enmity is admitted and that was the motive for commission of the offence. The evidence was sufficient to indicate that the charges were proved to the hilt.
21.P.W. 1 Kapil Dev Yadav had stated in his evidence that his father Musafir Yadav had two brothers Deep Chand Yadav @ Lalji (P.W.2) and Shyamdeo Yadav (the deceased). It was further stated that P.W.2-Deep Chand @ Lalji had been adopted by one Nathai and this fact had also been stated by P.W. 2 in his evidence at page 82 of the paper book, but at the same time, he had stated in the same line at page 82 that he was the real son of Vishwanath, who was the father of deceased Shyamdeo Yadav and Musafir, the father of P.W.1. Thus, the inter se close relationship between the deceased and the witnesses is admitted. What we further find is that it was a well-knit family till the date of occurrence. It appears that the family was residing under one roof. They dined in one-mess and probably they were running the business or other affairs of the family jointly. This fact appears from the evidence of P.W.1 at page 71 of the paper book. The relationship in the family was of interdependence and there was confidence of one member into the other which is also exhibited by the same line of evidence, which appears at the foot of page 71 of the paper book that the deceased who was to go to Ghazipur, as per the evidence of witnesses, had confided about his proposed travel to Ghazipur into P.W. 1.
22.It has been often said by the Supreme Court and many other courts that members of a family, when faced with situation of great deprivation of another family member due to his murder or other such incident, have psychological pressure upon their minds and they have a tendency in such tense situation, to spin out stories out of suspicion. (Please see AIR 1984 SC 1622). But, that principle on appreciation of evidence could never be universally applied as that could be a case where the offence is committed under circumstances which are mysterious or unknown or is committed in the cover of darkness at such hours of night as may not make it possible for others to witness the same. Here, the offence had not been committed in night as appears from the evidence both oral and medical, as the death as per P.W. 4 should have occurred in case of both the deceased at about 8.15 am on 17.9.2004. It was a day-time murder. Thus, the question of the witnesses or the family members, who were very close to the deceased Shyamdeo Yadav, to have spun out an imaginary story, appears a far fetched situation. It is true that the witnesses are very closely related to deceased Shyamdeo and, in such a situation, the rule of prudence is that the court should approach their evidence with care and caution. When the court says that it has to approach the evidence of such related witnesses, like, P.W.1, who is also admittedly inimical as appears from the evidence of P.W. 2 also, then the cautious approach has to be more deeper so as to finding as to whether there was any circumstance appearing from the evidence of witnesses upon which their evidence merits rejection.
23.We approached the evidence of both the witnesses with an alert mind as the witnesses have admitted, as appears from the cross-examination of P.W. 1 at page 70 of the paper book, enmity between the parties. During his cross-examination, P.W. 1 was put certain questions on the topographical details of the place of occurrence and thereafter he was questioned as to whether there had been an incident of mar-peet in which one Ramkaji had lodged a report against P.W. 3-Paltan and others in which appellant Shiv Pujan and Triloki Rajbhar @ Girija Shanker had deposed against P.W. 3. Likewise, one Raj Narain had been murdered and it was suggested to P.W. 1 that the deceased Devkinandan was one of the accused in the case instituted for the said murder of Raj Narain. P.W. 1 showed his ignorance to the two cases and in case of trial relating to murder of Raj Narain, he was stating that the incident had occurred even before he was born. P.W.1 thereafter was put certain questions on the antecedent and traits of the deceased Shyamdeo Yadav and the first question related, as may appear from page 71 of the paper book, regarding his corrupt conduct of creating certain documents showing settlement of Gram Sabha land (public land) in the name of his wife while he was undisputedly holding the post of a Lekhpal and it was admitted that he had got the settlement, but P.W. 1 stated that the settlement was not collusive or spurious. Thereafter, defence again cross-examined P.W. 1 on a few instance of mar-peet and cases between the deceased and one Gurmari but he showed his ignorance about the incident, and again he was questioned regarding the litigation between Rajai, who invited both P.Ws. 1 and 2 for a cup of tea at the place of occurrence, and appellant Shiv Pujan but P.W.1 admitted that ill will between appellant Shiv Pujan and deceased Shyamdeo Yadav was coming for some times back on account of the electoral animosity in which the wife of appellant Shiv Pujan had contested and won against the wife of one Kamala Yadav. P.W. 1 stated that the loss of the candidate set up by his uncle Shyamdeo Yadav had hurt his family. These are some of the evidences which have been brought on record by the cross-examination of P.W. 1 and on account of which, we have approached the evidence of P.Ws. 1 and 2 who are the nephew and uncle between themselves with cautious approach.
24.P.Ws. 1 and 2 had stated that they had set out from their house together on a motorcycle and had come at the chowk from their village by the chak-road which has been shown in the site plan as also which has been described by P.W. 1 to run from his village which was situated to the South of the place of occurrence and which merged into the pitch road. On the right side of the chak-road, was installed the pump set of Doodhnath and to the south of the road, there were structures in one of which the clinic of Dr. S.K. Lahsar was located and in the other room of the same structure, the miscellaneous articles shop of Doodhnath Chauhan was situated. The tea shop was located to the east of the miscellaneous articles shop of Doodhnath Chauhan and, as per P.Ws. 1&2, when they had come in front of the tea stall of Doodh Nath Chauhan, they were invited for a cup of tea by Rajai Yadav (not examined) and Paltan (P.W. 3) and as such they parked their motorcycle and went inside the tea stall to have a cup of tea. But, it further appears that they had come out of tea stall on to the road in front of it and started sipping tea. The two deceased Shyamdeo Yadav and Devkinandan Yadav arrived by one motorcycle. No sooner the two had arrived there, the five appellants are also said to have arrived there by two motorcycles. On one motorcycle appellants Shiv Pujan Yadav and Mahendra Yadav were sitting with SBBL gun and country made gun respectively which was driven by appellant Suresh Yadav. The second motorcycle was driven by appellant Rajesh Yadav and appellant Triloki Rajbhar @ Girija Shanker was the pillion rider armed country made gun. It is stated by witnesses that appellant Shiv Pujan Yadav remonstrated to kill the deceased upon which deceased Shyamdeo Yadav, leaving aside his motorcycle on the road, ran into the field north of the road and was chased by appellants Shiv Pujan Yadav and Mahendra Yadav and Suresh Yadav who started firing at him and, accordingly, Shyam Dev Yadav was hit and fell down there. The other deceased Devkinandan also ran for safety towards the tea-stall, but he was chased by appellant Triloki Rajbhar @ Girija Shanker and appellant Rajesh who also fired simultaneously by their respective fire arms and Devkinandan fell near the tea-stall and died there. Both P.Ws. 1 and 2 had stated that they hid themselves behind the tea-stall and were thus spared and after having achieved their goal, the appellants ran towards east and then had went back in the western direction.
25.The evidence of witnesses as regards the description of place of occurrence and the manner of occurrence appear corroborated not only their individed evidence, but also from the evidence of the Investigating officer P.W.13. The sketch map Ext. Ka-31, is part of the prosecution evidence and the description of different structures as per the sketch map tallies very well and completely with the evidence of P.W.1 as appears from deposition at page 69 of the paper book. The places, where the two dead bodies were found by P.W. 13 and where the inquest was held by him, have been depicted by P.W. 13 by letters 'A' and 'C' in Ext. Ka-31. These were the places where blood was found and seized by preparing seizure memoes. The empties of cartridges were also found near the dead bodies and they were also seized by preparing seizure memoes. P.W. 1 described the existence of shops, etc. at different places and their location in respect of the road which was in north of them and parallel to them and the same descriptions appear recorded by the Investigating officer of the case. These evidences of the P.W. 1 do not appear challenged. What is found from the sketch map further is that the dead body of Shyamdeo was found in the field north of the road whereas that of Deokinandan was found lying at point B also on the road and in front of the tea-stall of Doodhnath. These evidences of P.W.1 and the objective findings of P.W. 13 recorded in sketch map are corroborating each other on important aspects of the case.
26.Both P.Ws. 1 and 2 stated that they had started from their house for going to Hurmujpur Halt where they had a shop of tether and other rope materials. The submission was that this fact had not been stated in the F.I.R. by P.W.1 and that P.W.2 had not stated this fact during the course of investigation to the Investigating Officer.
27.We find from the cross-examination of P.W. 1 that he had admitted that he had not stated this fact in the written report. We do not find it unusual that this fact was not mentioned in the written report. P.W. 1 had stated in the F.I.R. that he and P.W. 2 Deep Chandra @ Lalji had left their house on 17.9.2009 and stopped at the tea-stall of Doodhnath Chauhan for taking tea where Rajai Yadav (not examined) and Paltan Yadav were also taking tea at about 8 am. It is too well known to be stated that all facts need not be stated in the F.I.R.. In fact, during his cross-examination, P.W. 1 had admitted that he had not stated that he was going to Hurmujpur halt, but no question was put to him that that particular fact was not stated by him before the Investigating Officer. So it becomes very difficult for us to reject the claim of the witness as regards the purpose in connection whereof he happened to be at the place of occurrence while he was on way to Hurmujpur halt. Likewise, attention of P.W. 2 was drawn to a statement which was allegedly made by him to the Investigating Officer when he stated that he and Kapildeo Yadav had gone to Laxmanpur Chatti for taking tea. The witness denied that he had made the statement. In order to verifying as to whether the witness had made that particular statement and the further statement, we went through the evidence of P.Ws. 13 and 8 S.I. A.N. Bajpayee and S.I. Hari Ram Mishra respectively and we find that no proof of that fact was obtained by cross-examining the two police officers to that fact. The next fact which was put to P.W. 2 in his cross-examination was that he had not stated that he was going to Hurmujpur halt by the motorcycle and the witness said that he had made that statement to the Investigating Officer. Again, we find the proof of that particular fact regarding going to Hurmujpur halt and making no statement to that effect was not proved by cross-examining P.Ws. 8 and 13- the Investigating officers. Thus, in absence of any evidence from the Investigating Officers that P.Ws. 1 and 2 had not stated before them that they had proceeded on a motorcycle for Hamijpur halt together and they had stopped at the tea stall of Doodhnath Chauhan at the request of Rajai (not examined), we have to accept that they had the same purpose and they had, accordingly, set out together from their house as is claimed by P.W.1 at page 71 and by P.W. 2 at page 78 of his deposition.
28.Sri Chaturvedi was criticising the evidence of two witnesses as chance witnesses. What Sri Chaturvedi was arguing was that both P.Ws. 1 and 2 had no reason to remain present at the scene of occurrence and they being inimical might be motivated to make a false statement. A chance witness is one who by co-incidence or chance happens to be present at the place of occurrence at the time when it had taken place (AIR 1976 Supreme Court 2032, Bahal Singh vs State Of Haryana) and if such person happens to be the relative or friend of the victim or inimically disposed towards the accused, then he being a chance witness is viewed with suspicion. But what again was held in Bahal Singh (supra) is that such a piece of evidence is not necessarily incredible or unbelievable, but does require cautious approach and scrutiny. The other view, which appears from Jai Singh Vs. State of Karnataka reported in 2007 Criminal Law Journal 2434 at pages 2435 and 2436, was that where, if such witnesses did not explain the circumstances which brought them to the place of occurrence from the village coupled with the fact that they did not inform the incident to anyone even though one of them was related to the deceased being a cousin and kept silent for about six days, it was held that such witnesses were not reliable. Therefore, what appears from Jai Singh(supra) is that if the witnesses are giving sufficient reasons, which may be acceptable to the courts regarding their presence at the scene of occurrence, then the evidence of such witnesses could not be rejected by merely lebelling them as chance witnesses. Here in the present case both P.Ws. 1 and 2 have stated that they started from their house for going to Hurmujpur Halt for looking after their small business of tether and rope materials. The evidence which we have scanned in the previous paragraph of the present Judgment, appears satisfactory as regards their claim for leaving their house by a motorcycle to go to that place. There is no denial or even a challenge by the defence that they did not have any such establishment at Hurmujpur Halt and there was no cross-examination further to show that there was no establishment of the witnesses there as was claimed by them. Moreover, the presence of both P.Ws. 1 and 2 at the place of occurrence may appear per chance but their stoppage there also appears on account of a particular reason. P.W. 3, who turned hostile after more than two months of giving evidence in examination-in-chief, had also stated that when P.Ws. 1 and 2 arrived there by the motor cycle, he and Rajai invited Deep Chand @ Lalji (P.W. 2) and Kapil Dev Yadav (P.W.1) to have tea and, accordingly, they came to the tea stall and started sipping the tea. P.W. 2-Deep Chand @ Lalji had stated that if he and P.W. 1 would not have been stopped for having tea by P.W. 3 and Rajai, both of them ought not have stopped there. This evidence appears in the last paragraph of cross-examination dated 13.9.2005 of P.W. 2 at page 82 of the paper book. Thus, their stoppage at the place of occurrence might have been per chance, but the reason for their stay appears quite convincing and, on that account, we do not find their presence improbable.
29.In our opinion, if a witness claims his presence at the scene of occurrence merely due to that reason, he should not be trusted. The Court should still hold an inquiry by scanning the evidence given by such a witness as to whether the reasons which were assigned by him for his presence at any particular place was really acceptable and convincing. If the court found the witness trustworthy on that claim, then only the witness could be said to be reliable else his evidence could not be utilized for any purpose. Here in the present case, we find that both P.W.1 and P.W.2 have stated that while they were on way to Hurmujpur Halt for attending to their small business there, they stopped near the place of occurrence on account of being requested to have a cup of tea by P.W. 3 and Rajai Yadav and we do find the reasons sufficient to accept the same. Thus, what we find is that P.Ws. 1 and 2 were not mere chance witnesses. They had good reasons to stop and for remaining present at the scene of occurrence. Might be, the occurrence had taken place at the time when they were very much present at the scene of occurrence.
30.The evidence of P.Ws. 1 and 2 was scanned by us quite deeply and we find that the cross-examination of P.W. 1 on the manner of occurrence which appears at page 74 of the paper book further inspires our confidence. The witness was put many searching questions on the manner of occurrence and he was responding convincingly by describing the manner in which both the deceased were chased and killed. P.W. 2 was also cross-examined on the manner of occurrence as appears from the perusal of his evidence at pages 83 and 84 of the paper book and we find that the evidences of both the P.Ws. are quite consistent with each other and not even a single line was found by us which could discredit them as eye witnesses.
31.P.W. 3, of course, had turned hostile, so much so that he had the audacity of saying that the evidence, which was given by him in his examination-in-chief on 14.11.2005 and which was recorded by the learned trial Judge was never stated to the Court as appears from his cross-examination done by the prosecution after recalling him. But we have to consider some of the circumstances. The examination-in-chief of P.W. 3 was completed on 14.11.2005 and when the turn came for the defence to cross-examine the witness, an application was filed on that very day for adjourning the hearing of P.W. 3 as a result of which the case was adjourned and the witness did not turn up on many dates till he appeared finally on 9.1.2006 when he made statement in cross-examination completely nullifying the effect of his evidence in examination-in-chief. He had stated that he and Rajai were sitting in the tea shop of Doodhnath Chauhan on the date of occurrence at about 8.15 a.m. when P.Ws. 1 and 2 came there and they were requested by him and Rajai to have a cup of tea. Accordingly, P.Ws. 1 and 2 stopped there when the two deceased came by a motor cycle and immediately succeeding them came the five accused persons and surrounded the two deceased, and on remonstration of appellant Shiv Pujan Yadav to kill them, the deceased Shyamdeo Yadav, leaving aside his motorcycle ran into the field situated in the north of the place of occurrence who was chased by appellants Shiv Pujan Yadav, Mahendra Yadav and Suresh Yadav who were respectively armed with regular gun and country made guns and was shot dead. Likewise, when Devkinandan the other deceased ran towards the shop of Doodhnath Chauhan, appellants Rajesh Yadav and Triloki Rajbhar @ Girija Shanker also chased him and fired at him and killed him. During the cross-examination on 9.1.2006, he stated that he was never present at the place of occurrence,i.e., in the tea shop of Doodhnath and P.Ws. 1 and 2 had never come and he had not witnessed the occurrence. The prosecution recalled him for cross-examination and he appeared after 10 months of his turning round on his evidence in examination-in-chief during his cross-examination on 9.1.2006, and what we find is that he did not have any hesitation in even stating that whatever was recorded in his examination-in-chief evidence had not been stated by him on oath before the learned trial Judge and he does not know how the same was written by the learned Judge. Thus, the witness appears so completely gained over by the defence that he was not even hesitating in branding the learned Judge who was recording his evidence as partial. The time which was purchased by the defence after filing an application for adjournment on 14.11.2005 and two months which intervened between 14.11.2005 and 9.1.2006 was more than enough for the defence as appears from the conduct of P.W. 3 to produce him and make statements in cross-examination not only to nullify the effect of his evidence in examination-in-chief but also to shamelessly castigate the court proceedings. We have to discard the evidence of P.W.3 in cross-examination and we have to hold that he was also supporting P.Ws. 1 and 2 on material parts of the prosecution case.
32.The evidence of P.W. 4-Dr. Sanjai Kumar Rai, who held post mortem examination on the two dead bodies, has also to be considered so as to finding out as to whether the medical evidence was supporting the oral testimony. P.W. 4 stated that he found the following ante mortem injuries on the dead body of Devkinandan Yadav :-
(i) A wound of entry 0.5cm x 0.5cm x bone deep on the right side of face two cm below the right eye the margins of the wound was inverted and collar abraded.
(ii) A wound of exit measuring 2.5cm x 2cm x bone deep on the right side of forehead just lateral to the right eye. Margin of the wound was everted.
(iii) A wound of exit 2cm x 1cm x cavity deep on the right side of back 22 cm below the right shoulder. Margin of wound was everted.
(iv) A wound of entry measuring 0.5cm x0.5cm x cavity deep present on the right side of the chest. Margins were inverted and blackening and tattooing were present in an area of 4cm x 4cm around the wound.
(v) A wound of entry 0.5cm x 0.5cm x bone deep on the left palm three inch below the wrist. Margin of the wound was inverted. Blackening and tattooing was also present around the wound in an area of 3cm x3cm.
(vi) A wound of exit 3 cm x 1cm x bone deep present on the back of left hand 3cm below the left wrist. Margins were everted.
33.P.W.4 stated that injuries nos. 1 and 2 were communicating to each other. While injury no. 3 was communicating to injury no. 4 and injury no. 5 was communicating to injury no. 6. In the opinion of the P.W. 4, the cause of death was due to shock and haemorrhage as a result of ante mortem injuries. During the dissection the doctor found that the left lung had been lacerated.
34.Dr. Sanjay Kumar Rai found the following ante mortem fire arm injuries on the dead body of Shyamdeo Yadav:-
(i) A wound of exit 2.5 cm x 2 cm x bone deep present on the forehead 4 cm above the root of nose. Margin was everted.
(ii) A wound of entry measuring 1 cm x 1cm x bone deep resent on the right side of chin. Margin of the wound was inverted and the collar was abraded with blackening present around the wound and 3cm below the lower lip.
(iii) A wound of entry measuring 2.5 cm x 2.5 cm x cavity deep on the right side of back. Margin of the wound was inverted and collar was abraded. The would was located 28cm below the right shoulder.
(iv) A wound of exit 3 cm x 3cm x cavity deep present on the left side of abdomen 16 cm below the left nipple. The margin of the wound was found everted.
(v) An abrasion measuring 1cm x 1cm in front of right leg 7.5 cm above the right ankle.
35.P.W. 4 stated that injury no. 1 was communicating to injury no. 2 and injury no. 3 was communicating to injury no. 3 and all the injuries on the dead body were caused by fire arms.
36.During dissection of dead body of Shyamdeo Yadav, the pleura was found lacerated with the pedium. Mandible, palate and the frontal bone of the head were found fractured. The membranes and brain matter were found lacerated along with the fracture of skull. In case of Devkinandan also P.W. 4 had found that his maxillary bone was fractured and the right lungs was lacerated. In the opinion of P.W. 4, death of the two deceased was due to shock and haemorrhage as a result of ante mortem fire arm injuries found on the two dead bodies. In the opinion of P.W. 4, both the deceased could have been killed on 17.9.2005 at 8.15 a.m.
37.The evidence of P.W.2 indicates that while deceased Shyamdeo Yadav was being chased, he had looked back also. There is no cross-examination to this fact. In our opinion too, a person when finds himself so confronted by peril out of natural urge instinct to escape it, starts running and during that course, often looks back to see as to whether he had indeed succeeded evading being hurt or killed. It is ordinary human reaction and behaviour in such a situation. The evidence further indicates that three accused were chasing Shyamdeo Yadav and they were firing at him as well. It may not be humanly possible for any witness to give shot by shot account of such incident. One may only narrate the main story of the manner of chase and being fired at. As such, the finding of injuries at the face of deceased Shyamdeo Yadav may not be telling a story different from that narrated by the two P.Ws.
38.The other evidence which corroborates the occurrence is the evidence of the Investigating Officer. He had found and recovered empty cartridges near and from the two dead bodies of Shyamdeo Yadav and Devkinandan Yadav and had prepared the seizure memos Exs. Ka-16 & Ka-13. P.W.13-SI Amarendra Nath Bajpayee had stated that he arrested appellant Triloki Rajbhar @ Girija Shanker on 2.9.2004 on 4.30 a.m. and had recovered from his possession a country made pistol of 3.15 bore and had prepared the seizure cum recovery memo (Ext.Ka-33) in that respect. He further stated that he had questioned appellant Shiv Pujan Yadav in jail and he had pointed out that the gun, which was used by him, was lying in the custody of his wife in his house and, accordingly, he came to his house on 16.10.2005 and took into possession. Appellants Mahendra yadav and Rajesh Yadav had been taken on remand on 21.10.2004 and, during questioning, they had led the Investigating Officer to two different places as per description appearing at page 137 of the paper book, and after bringing out the two country made pistols, each of them produced the same and, accordingly, the seizure memos in respect of those weapons were also prepared. What we find is that the seized empty cartridges and recovered SBBL gun and three country made pistols, which were recovered from the possession of Triloki Rajbhar @ Girija Shanker and and Shivpujan Yadav and produced by appellants Mahendra Yadav and Rajesh Yadav were sent for test and report to the FSL, Lucknow and those were examined and a report dated 14.6.2005, which appears at pages 48 and 49 of the paper book, was furnished. As per the report of the FSL, Lucknow, the SBBL Gun, which was probably licensed to appellant Shiv Pujan Yadav, was used in firing cartridge marked EC-3, which was recovered from the place of occurrence. Likewise, the three country made pistols, which had been marked 1/2005 the 2/2005 and 3/2005, were also found to have been used in firing shots, and cartridges marked EC-1, EC-2 and EC-5 were fired from those respective country made pistols. The cartridge EC-4 had not been fired from any of the three country made pistols. The evidence of the Investigating Officer further indicated that he had found the dead bodies at the place of occurrence and he had held inquest by preparing the inquest reports Exs.Ka-13 & Ka-14 in presence of the witnesses. He also found blood lying at two places where the dead bodies were found and he seized the bloodstained earth by preparing the seizure memos Exs.Ka-25 & Ka-26. We find that the bloodstained earth was also sent for examination analysis to the FSL and the report is available to us at pages 51 and 52 of the paper book and the Joint Director, FSL, Lucknow reported that seized earth at serial nos. 1 and 14 were bearing human blood in the area as indicated in the report. Moreover, there is no challenge that the two deceased had been shot and killed at the place of occurrence. Thus, what we find is that the report was submitted by the FSL after tallying the seized empties of cartridges and seized weapons and those empties were recovered from near the dead bodies while SBBL gun was recovered from the constructive possession of the appellant Shiv Pujan Yadav. A country made pistol was recovered, as we have already noted, from the possession of Triloki Rajbhar while Suresh and Mahendra Yadav had produced the two other country made pistols after bringing it out of the places where they had been concealed by each of them. Thus, there is a support from these circumstances also that the accused persons had used the weapons in killing the two deceased.
39.Sri Chaturvedi had submitted that there were number of persons who were present at the scene of occurrence as there were tea-stall and other establishments like the clinic of a doctor, miscellaneous article shop of Doodhnath Chauhan, etc. Not only that at 8.15am, the place of occurrence being amidst two villages, i.e., the village of the informant and the other village Laxmanpur Chatti, there could have been many other independent persons who would have witnessed the occurrence, but were not examined and only interested and inimical witnesses were examined. As such, their evidence should be discarded.
40.We have appreciated the evidence of witnesses with great care and caution and we have considered the criticisms which were targeted at their credibility and we have found that the witnesses were appearing telling the truth. Sri Chaturvedi was submitting that there would have been many more independent persons who had been there and who ought to have been examined. We have to appreciate that is not it a changed social behaviour which we find daily in court rooms that independent persons, who could have witnessed an occurrence, avoid appearing before the court of law for many reasons; sometimes it is fear of earning the wrath of persons against whom they could be deposing and sometimes it is their indifference towards commission of offence treating it as personal or private matter that they refrain from appearing before the courts. On many occasions, persons of society sulk in coming forward in support of any particular story on account of unfavourable situation. They find themselves being cross-examined by being put various questions which simply unnerve and embarrass them and cause a sense of disgust and frustration in coming out in help of the cause of justice. No one wants to take up the cudgels against anyone in favour of the cause of justice and, in many cases, even the family members of the victim of an offence are found turning away from court proceedings and refuse to appear before the court of law. These are the situations in which we live. We cannot draw adverse inference against prosecution for not producing independent persons.
41.After having considered the evidence of prosecution in light of arguments of the sides, what we find is that the evidence was sufficient and meritorious and fit to be accepted and the learned trial Judge does not appear falling in any error in appreciating the evidence and also does not appear raising any inference which should not have been raised by him.
42.However, what has intrigued us the most is that while the evidence could be acceptable as regards establishing the charges under Sections 148, 302/149 I.P.C. against appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav, how could they, on that basis, be said to have committed the offences under Sections 147 and 307 read with Section 149 I.P.C. which charge was also framed against them as also against appellant Suresh Yadav who was also convicted of committing the said offence. Similarly, we have also not been able in appreciating as to how the charge under Section 25 of the Arms Act could be said to be established against appellant Shiv Pujan Yadav whose defence was that the SBBL gun was licensed to him and as such, in our opinion, he could not have been held guilty of committing the said offence under the Arms Act and then ought not have been punished under Section 25 of the Arms Act.
43.The evidence on record does establish that there was an unlawful assembly with a particular common object in prosecution whereof the murders were committed. The evidence also establishes that the members of the assembly were each armed with gun or country made pistols, which are definitely deadly weapons. As such, the offence, which is established against the four appellants, namely, Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shivpujan yadav and Mahendra Yadav may be punishable under Section 148 I.P.C. and not under Section 147 I.P.C. These four appellants appear wrongfully convicted and punished under Section 147 I.P.C.
44.We further find that appellant Shiv Pujan Yadav had filed his written statement in defence in the light of Section 233 (2) Cr.P.C. and that was available on the record as copy thereof is also part of the paper book and appears at page 187 of the same. In his statement of defence, appellant Shiv Pujan Yadav had stated that the police illegally seized his gun from his house and after firing the same sent the cartridge and the weapon for chemical analysis and obtained a collusive report. There is no evidence either on the record of the case that the gun was in illegal possession of Shiv Pujan Yadav. In the absence of that evidence, the charge could not be said to be established. Moreover, the fact that appellant Shiv Pujan Yadav was in possession of an illegal gun had not been put to him under Section 313 Cr.P.C. and as such charge under Section 25 of the Arms Act against Shiv Pujan Yadav appears not established to the hilt.
45.Shiv Pujan Yadav has to be acquitted also under Section 307/149 I.P.C as in our opinion that particular charge was without any basis. There were two murders which were committed by the unlawful assembly formed by the accused persons in prosecution of the common object of murdering the two persons. How could the case be said to be one under Section 307/149 I.P.C. In that light other accused persons namely Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Mahendra Yadav and Suresh Yadav have also to be acquitted under Section 307/149 I.P.C. and we order accordingly. Resultantly, while upholding the conviction of appellants Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav under Sections 148, 302/149 I.P.C., as regards the charge under Section 25 of the Arms Act against the three appellants, namely, Rajesh Yadav, Triloki Rajbhar @ Girija Shanker and Mahendra yadav, we also do not have any hesitation in upholding their conviction and sentence inflicted upon them for that offence.
46.As regards the conviction of appellant Suresh Yadav and the merit of his appeal, we find that he had been convicted of offences under Section 147, 148 and 307/149 I.P.C. We have already held that the charge under Section 307/149 should not have been framed as there was no sufficient ground in that behalf for proceeding against any of the accused persons. We have already noted that it was a case of murders of two persons and no one had been established by evidence to have received any injury by gun shot on account of being targeted and further being fired at. The evidence is completely silent that anyone other than the two deceased had been hit by the shots fired by any of the five accused persons. In that light, the conviction of appellant Suresh Yadav under Section 307/149 I.P.C. could not be upheld. He has been held guilty under Section 147/148 I.P.C. also and the evidence clearly indicates that he had come with the other appellants on one of the two motorcycles by himself driving the motorcycle and had chased the deceased Shyamdeo Yadav and had also fired at him in prosecution of the common object of the unlawful assembly which was to commit the murders of two deceased Shyamdeo Yadav and Devkinandan Yadav. In the fitness of things, it was highly desirable that he ought to have been charged under Section 302/149 I.P.C. But what we find, to our utter dismay, is that the charges were framed on three different dates, i.e., on 28.1.2005, 18.7.2005 and 24.1.2008 but none of the three Judges, who had framed the charges, appear applying their minds to the facts of the case to appreciate as to what were the offences which appeared committed by the accused for which they were to be tried. In our opinion, the case is an example of as to how the lower court Judges are working in the State of U.P. without being concerned to their duties as, in our opinion, it is the duty of the court, after hearing the parties, to find out as to whether the accused appeared to have committed any offence for which he was required to be tried which plainly follows from the provision of Section 228 Cr.P.C. We do not have any hesitation in noting that it is an illustrative case of abdicating one's judicial function and not acting with an alert mind after duly applying it to the facts of the case. The charge framed by the Second Additional Sessions Judge, Ghazipur on 18.7.2005 was specific and only against appellant Suresh Yadav and the charges related to offences said to be committed by him under Sections 147, 148, 307/149 and 504 I.P.C. as also under Section 7 of Criminal Law Amendment Act. After the framing of the charge against Suresh Yadav on 18.7.2005, other charges were framed by two officers, i.e., Sri Ramesh Chandra Mishra, Additional Sessions Judge, Court No. 2, Ghazipur and Sri K.P. Tripathi, Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-5, Ghazipur on 24. 1. 2008 and 28.1.2005 respectively. None of the officers appear applying their minds to the above aspect of the case, which is one of the most important aspects in a criminal court, as a result of which Suresh Yadav appears neither tried for offence under Section 302/149 I.P.C. which charge was definitely required to be framed against him and as such there was no Judgment against him. The non-application of mind is exhibited more by the fact that they were continuing with the charge under Section 307/149 I.P.C. for the whole trial and that was continued by the fourth Judge, namely, Sri Anupati Ram Yadav who had delivered the Judgment of conviction in respect of Suresh Yadav for that charge without even looking to the recorded evidence also. It is highly deplorable and smacks deeply upon the competence of those four officers to man as senior a court as like that of the court of Sessions.
47.The question is as to whether in the absence of full-fledged charge framed against appellant Suresh Yadav, could he be held guilty of committing that particular offence by this Court. We find that the appellant was examined under Section 313 Cr.P.C. and he was put a question, vide question no. 2 which appears at page no. 177 of the paper book ,that he along with other accused persons in prosecution of the common objection of the unlawful assembly had caused the death of the two deceased Shyamdeo Yadav and Devkinandan Yadav but that is not the end of the matter as we find that the charge could have indeed conveyed to him as to for what offence he was being tried by the court. There is a provision under Section 464 Cr.P.C., which reads as under:-
"464. Effect of omission to frame, or absence of, or error in,charge. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge ;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
48.A bare perusal of the above provisions indicates that the jurisdiction of the court of appeal, confirmation or revision may arise only when there is finding, sentence or order (of conviction) by a court of competent jurisdiction recorded, inflicted or passed against any accused without framing of a charge or in case where there is an error, omission or irregularity in the charge including any misjoinder of the charges. There are a huge series of Judgments right from Willie Slaneyline Vs. State of Madhya Pradesh, AIR 1956 SC 116, to Dalbir Singh Vs. State of U.P., 2004 (5) SCC 334, to Mahendra Singh Vs. State of Bihar (2011) 9 SCC 272 which have held that if error or omission or irregularity in framing of charges does not appear causing any prejudice to the accused so as to depriving him of a fair trial then the trial court may in absence of a charge, convict him of an offence which appeared committed by him from evidence adduced in the case. For judging as to whether the accused had been prejudiced or not in getting a fair trial, what the court has to see is that he knew as to for what he had been tried and he had the opportunity of offering his defence appropriately by being again put those circumstance to him during his examination under Section 313 Cr.P.C. as appearing against him so as to elicit his explanation in that regard. It is true that in this case, a question appeared put to appellant Suresh Yadav but the charge was completely absent and what was impressed upon him was that he had attempted to commit the murder. But, again that charge was erroneous as it was not pointing out to appellant Suresh Yadav as to whose murder was attempted to be committed by him specially when the accused persons had already caused two deaths intentionally or knowingly by firing at the deceased. In this view of the matter, what appears to us is that we cannot exercise any power at this stage of the proceedings to go into the question of non-framing of the charges specially when 464 (2) Cr.P.C. requires that in case the court of appeal, confirmation or revision was of the opinion that a failure of justice might have been occasioned on account of error or omission or irregularity in the charge, such a court of appeal or confirmation or revision rather has a duty to direct a new trial to be had upon a charge framed in whatever manner it thought fit. In our opinion, because there was no charge and because also that appellant Suresh Yadav had not been tried for that particular charge under Section 302/149 I.P.C.,and finally, because, no finding of his guilt has been recorded by the learned trial Judge invoking his powers under Section 464 Cr.P.C., we do not have any jurisdiction to proceed to reappraise the evidence for holding him guilty of that particular offence. His conviction has to be set aside and, accordingly, we set aside his conviction. In pursuance to the provisions of Section 464(2) Cr.P.C., the only option left to us is to issue a direction to the trial court, i.e., Additional Sessions Judge (Ex-cadre), Ghazipur by whom the bunch of sessions trials was disposed of by Judgment dated 27.4.2011 and 30.4.2011 to frame charge under Section 302/149 I.P.C. to retry accused Suresh Yadav. We trust, the trial Judge shall not be influenced or prejudiced by any of our findings recorded in the present Judgment, while delivering his Judgment.
49.We, accordingly, after setting aside the Judgment of conviction in respect of appellant Suresh Yadav, direct the above noted court or any court successor to that court to frame an appropriate charge under Section 302/149 I.P.C. against accused Suresh yadav and retry him for the said charge as also for all the charges he had been tried earlier. We direct that after framing of the charges the court below shall recall only three witnesses, i.e., P.Ws. 1, 2 and 3, who are eye witnesses to the occurrence, for their further cross-examination on the new charge and no other official witness shall be recalled for cross-examination by accused Suresh Yadav unless the court is satisfied that such a recall of any witness was required to be ordered for giving a fair trial and as also in the ends justice. The trial court shall thereafter, if it so desired, may put further questions to the accused Suresh Yadav in the light of the new charge and the evidence under Section 313 Cr.P.C. while examining him under that provision and after hearing the arguments of both the sides shall proceed to deliver the Judgment against the said accused. We direct that the whole exercise including the delivery of Judgment shall be completed in a maximum period of three months from the date of receipt of the relevant records by the trial court.
50.This brings us to consider as to whether sentence of death, which was imposed upon appellants Shiv Pujan Yadav, Triloki Rajbhar @ Girija Shanker, Rajesh yadav and Mahendra Yadav, was justified under the facts and circumstances of the case was required to be inflicted upon each of them. We find from the impugned Judgment that the learned Trial Judge has devoted a huge space of more than six pages of Judgment on the question as to what sentence would have been appropriate under the facts of the case to be inflicted upon the above noted four appellants. The learned Trial Judge has rightly referred to Section 354(3) Cr.P.C. which requires, in case the trial court had decided to inflict death sentence upon a convict to assign special reasons for so doing. Thereafter, the learned Trial Judge proceeded to consider a few decisions regarding cases in which death sentence could be inflicted and, in that connection, he appears considering Jag Mohan Singh Vs. State of Uttar Pradesh, 1973 Criminal Law Journal 370; Bachan Singh Vs. State of Punjab, 1980 Criminal Law Journal 636; Machhi Singh Vs. State of Punjab, 1983 Criminal Law Journal 1457; and State of Punjab Vs. Gurmej Singh, 2002 Criminal Law Journal 341. The learned Trial Judge was also referring to a couple of other decisions, which appear at page 65 of the Judgment, and then he went on to hold that it was a murder committed in day light and the facts indicated that the commission of the twin murders was under conspiracy hatched by the accused persons and further that, it was a cruel murder, the execution of which was exhibiting mercilessness and extreme cruelty.
51.We respect the Judgments of the Supreme Court and we have highest deference for the principles laid down in them but, in our opinion, there is no case which have been cited by the learned Trial Judge, which could be asking a Judge to order execution of the convict merely because of the offence has been committed in day light and under conspiracy and the manner of occurrence being cruel. We have doubt that the two murders, which were committed in the present incident, could be said to be committed in a manner as would have made inflicting imprisonment for life an insufficient sentence. Merely that the murder was committed cruelly is not enough to inflict the extreme sentence on a convict held guilty of committing murder. The circumstances of the case should show that the commission of murder was diabolically conceived and cruelly executed so much so that it is revolting to the conscience of the society at large. We have to appreciate that any act of murder is always cruel. Murders committed in prosecution of the common object or in furtherance of the common intention always envisages some element of conspiracy and only then the acts are accomplished. As such mere cruel conspired murders are never to invite the extreme penalty. The legislative intent of assigning 'special reasons' has to be viewed in terms of the exhibition of depravity in execution of the act which has the larger effect on the Society of revolting its conscience. Depravity may envisage an act which is of such brutality which simply defies ordinary human behaviour of acting in rage or acting in order to take revenge. It may be an act which exhibits in its fullness a demonly behaviour, a behaviour which could be a pre-historic animal behaviour which does not have any co-relation with sanity, sensibility and evolution of a man, as such. Likewise, when we have to consider the effect of the act so as to revolting the conscience of the society, one has always to think in terms that on account of the commission of the offence or at the end of the same, the whole society was so shocked that there could be general feeling of shock and shame to a human being being born as such, so much so that the people were getting reconciled as to how and why this could have been done by a human being. The act must have aroused a complete aversion to a human being after having perceived the act by any sense of perception. If these could be some of the features of a murder then, in our opinion, this could be said to be revolting to the conscience of the society else other murders could not be inviting the extreme penalty.
52.One has always to keep in mind that in order to finding that the act was committed with extreme depravity, which was revolting to the conscience of the society, the courts are free to consider the evidence while pondering over the situation of inflicting sentence appropriately upon a convict. When we consider the evidence, we find that there was no specific evidence against any particular accused out of the four like Rajesh Yadav, Triloki Rajbhar @ Girija Shanker , Shiv Pujan Yadav and Mahendra Yadav that a shot fired by any of them had hit either of the two deceased which was the cause of his death. The evidence is in terms general and indefinite in effect as regards the firing of shots by the four accused persons. The witnesses stated that while chasing the two deceased in two different directions, they were also firing at each of them as a result of which both of them fell down and died. We, therefore, find it very difficult to ascertain any particular shot and any particular accused as the author of a shot which could have caused the death of either of the two deceased. This is one aspect which ought to have been considered by the learned Judge who was considering the quantum of sentence which was to be passed by him against the abovenoted four appellants . In the light of the evidence, we find it a case in which the death sentence was at all not called for.
53.In the result, we commute the sentence of death to rigorous imprisonment for life as regards the sentence passed upon the four appellants. They shall serve accordingly. As regards the sentence which were passed against each of them for their conviction under Section 148 I.P.C., we do not have any reason to interfere with it nor we disturb the sentence which were passed upon appellant Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Mahendra yadav under Section 25 of the Arms Act. The fines, which were imposed upon the appellants, are also left undisturbed. What we further direct is that the amount of fine in case of its realization from the accused persons, shall be equally distributed between the widows or the next of kins of the two deceased persons as compensation under Section 357 Cr.P.C. We acquit appellant Shiv Pujan Yadav under Section 25 of the Arms Act and all of the four appellants under Sections 147 and 307/149 I.P.C. and, accordingly, set aside the sentence passed upon each of them for committing those offences.
54.The death reference is negatived and the appeals of Rajesh Yadav, Triloki Rajbhar @ Girija Shanker, Shiv Pujan Yadav and Mahendra Yadav are here by dismissed with above modification in the order of their conviction and sentence. Criminal Appeal No. 3154 of 2011 filed by appellant Suresh Yadav is allowed by ordering retrial as we have already ordered in the earlier part of the Judgment. We direct that in order to facilitate retrial of Suresh Yadav, the lower court record in its entirety along with all exhibits be ensured to be dispatched with the copy of the present Judgment immediately to the court below.
55.Before we part with the present Judgement, we want to highlight that the state of criminal trial in this State requires special attention by the Court. We have already highlighted that a charge, i.e., that under Section 307 I.P.C. which was not required to be framed was framed by the trial Judges against appellant Suresh Yadav which was rank exhibition of not only non-application of mind but acting in a most detached manner as regards the discharge of judicial functions by the Judges who framed the charges. The height was that in spite of having framed charges under Sections 147 and 148 and also having framed charges against four accused persons, who were ultimately sentenced to death under Section 302/149 I.P.C., it never occurred to any of the four judges including the one who passed the Judgment that if there was an unlawful assembly with a common object of committing two murders and indeed the murders were committed then it was required that a charge under Section 302/149 I.P.C. ought to have been framed against accused Suresh Yadav also. While we were perusing the papers we were always distressed to note that Judges of such higher level could be so indifferent and sterile to imagining the appropriate application of provisions of law as regards commission of offence so as to deciding that accused persons were required to be tried for committing that particular offence. It exposed complete lack of sensitivity and alertness of mind in performance of duty. The worst was that the Judge, who passed the Judgment, was enthusiastic to sentence four persons to death and, at the same time, was sentencing Suresh Yadav for being a member of unlawful assembly whose common object was to commit the two murders but again was not amenable to thinking that could not it be a case in which Suresh Yadav should have been charged with offence under Section 302/149 I.P.C. In our opinion, the four Judges appear proceeding in the most mechanical manner and probably lacked in knowledge of law and procedure.
56.While hearing other appeals and death references, we have been finding that the officers, who exercised the jurisdictions in the court of sessions, are at all not trained in the field of framing charges. Most cases failed in want of framing charges alternatively, when the facts could have required framing of charges alternatively also so as to judging the whole incident from various angles in the light of evidence which would be led in a particular trial. We require the Registrar General to place our views before the Hon'ble the Chief Justice so that a special training programme is organised on criminal trials and different aspects of it including the framing of charges, examination of accused under Section 313 Cr.P.C. and passing Judgments and orders in the light of provisions like 464 Cr.P.C. We further desire that our views about the four officers lacking in knowledge of law and procedure be communicated to them individually.
Dt/-August, 14th, 2013 Ram Murti