Honourable Mr Justice Navaniti Prasad Singh
1. These four appeals arise out of Sessions Trial No 76 of 1996 in which trial the ten appellants of the respective appeals have been convicted for various offences and sentenced to life imprisonment by judgment dated 05th August, 2002 and sentence dated 08.08.2002 by the Additional Sessions Judge I, Bhojpur at Ara.
2. In Criminal Appeal No 561 of 2002, the appellants are Sarju Yadav @ Saryug Yadav and Baban Yadav. In Criminal Appeal No 593 of 2002, the appellants are Amir Chand Mahto, Ram Singasan Yadav and Ram Chandra Yadav. In Criminal Appeal No 603 of 2002 the appellants are Shiv Dayal Yadav, Chandeshwar Yadav, Parmanand Yadav and Chandrika Yadav. In Criminal Appeal No 580 of 2002, the sole appellant is Shambhu Yadav. It may be noticed that Ram Chandra Yadav who is the appellant in Criminal Appeal No 593 of 2002 died during pendency of the appeal and on 08.03.2010 order was passed that appeal against him stands abated. It may also be noticed that one Bhuneshwar Mahto was also chargesheeted and charges were framed against him but in course of trial, on 08.01.1999, he died and, as such, has not been tried and sentenced, his trial having abated.
3. It would be convenient to note the charges for which these appellants were tried. All the ten appellants were charged first u/s 395 of Indian Penal Code (IPC) for committing dacoity in the house of Harendra Singh, Prabhu Nath Singh, Sarjug Singh and Raj Kishore Singh. Out of them, Shiv Dayal Yadav and Sarjug Yadav were separately charged u/s 323 IPC for voluntarily causing hurt to Shivdas Singh. Seven appellants that is Baban Yadav, Chandeshwar Yadav, Parmanand Yadav, Chandrika Yadav, Ram Singasan Yadav, Ram Chandra Yadav and Amir Chand Yadav were charged u/s 147, IPC for being members of unlawful assembly with common object to commit murder of Dharmendra Singh in course of rioting in course of which Dharmendra Singh was killed. Nine appellants, with the exception of Shambhu Yadav, were charged under Sections 302/149 of IPC for having unlawfully assembled in furtherance of common object and forming unlawful assembly to commit the murder of Dharmendra Singh. Shambhu Yadav was separately charged for causing the death of Dharmendra Singh by shooting him u/s 302, IPC read with Section 27 of the Arms Act. Appellants Sarjug Yadav, Shambhu Yadav and Shiv Dayal Yadav were then separately charged u/s 148 of IPC for being members of unlawful assembly armed with deadly weapon which was likely to cause death in furtherance of a common object.
4. The trial Court, on basis of evidence as led before it, acquitted Shiv Dayal and Sarjug Yadav of charge u/s 323 of IPC. All the appellants were convicted u/s 395 of IPC. Shambhu Yadav was held guilty for offence u/s 302 of IPC read with Section 27 of the Arms Act and, accordingly, the rest of them were held guilty of offence under Sections 302/149 of IPC. Appellants Sarjug Yadav, Shambhu Yadav and Shiv Dayal Yadav were convicted u/s 148 of IPC whereas appellants Baban Yadav, Chandeshwar Yadav, Parmanand Yadav, Chandrika Yadav, Ram Singasan Yadav, Ramchandra Yadav and Amir Chand Mahto were held guilty u/s 147 of IPC as well. When it came to sentencing Shambhu Yadav, he was sentenced to life imprisonment and rigorous imprisonment for three years for offence u/s 302 of IPC and Section 27 of the Arms Act. The appellants, who had been convicted under Sections 302/149 of IPC, were sentenced to life imprisonment. All persons having been found guilty of offence u/s 395 of IPC were further sentenced to 10 years rigorous imprisonment and pay a fine of Rs 5,000/- each. No separate sentence was awarded for offence under Sections 148 and 147 of IPC. All sentences were ordered to run concurrently.
5. The prosecution case starts with the Fardbayan (Exhibit-2) of one Harendra Pratap Singh (PW 6) recorded by G N Mandal, Officer-in-charge (not examined), Ara Mufassil Police Station (PS) on 30.12.1994 at 2 pm at village Barauli under the Mufassil PS. It has been recorded, as noted above, by the Officer-in-charge upon the statement of Harendra Pratap Singh. It, inter alia, alleges that on 30.12.1994, at about 10 am, about 500 people surrounded the village Barauli. They were shouting slogans with regard to taking revenge for the murder of Lal Bahadur Yadav. They entered various houses in the village and looted them which included the Gumti of Jai Nath Singh, house of Prabhu Nath Singh, house of Saryug Singh. It may be noted that none of these three persons have been examined in course of trial. It is further alleged that they committed dacoity in the house of Raj Kishore Singh (PW 3). Then they entered the house of the informant. Then some of the named appellants, having entered the house, caught hold of Dharmendra Yadav who was about 18 years of age and dragged him out. Having been taken out of the house, Shambhu Yadav shot him with his double barrel gun. Thereafter, the accused persons brutally assaulted him with lathis to make sure he is dead. They also entered into the house of Shiv Das Singh being the father of Prabhu Nath Singh and with deadly weapon, some named accused brutally assaulted him on legs, arms and back injuring him. From various houses, they looted buffalos, removed trunks, ornaments, beds and foodgrains and carried them away after killing Dharmendra. As endorsed on the Fardbayan itself, the Fardbayan being recorded at 2 pm, the Officer-in-charge immediately sent it for being registered a case which was ultimately registered as Ara Mufassil PS Case No 203 of 1994 at 9.45 pm under Sections 302, 149, 323, 307, 379, 380 of IPC and Section 27 of Arms Act.
6. Investigation, as per noting on the Fardbayan itself, was entrusted to Sub Inspector (SI) Satyendra Kumar Singh (PW 8) who was present at the time when the Fardbayan was recorded. The Investigating Officer (IO) then prepared the inquest report at 2.30 pm on the same day which inquest report is Exhibit 1. He, thereafter, sent the dead body with a dead body challan for post mortem at 3.30 pm which was received at Ara Sadar Hospital at 7.05 pm. Dr Ramadhar Sharma, who was the Civil Assistant Surgeon, conducted the post mortem examination, the report whereof is Exhibit-3 at 8.45 pm, the same day and drew up the report. In the meantime, the IO seized the blood-stained mud and chappals as per seizure list (Exhibit 4) prepared at 4 pm, the same day. It may be noted here that though the Officer-in-charge of Ara Mufassil PS was present and the IO also was present there and there were serious allegations of looting, dacoity, stealing buffalos, properties, no inventory of stolen goods was at all made nor in course of investigation, any effort made to seize and recover those properties though it is alleged to have been taken away by people of neighbouring villages.
7. Upon completion of investigation, chargesheet having been filed, the case having been committed to Court of Session and the accused persons having pleaded not guilty, the trial commenced.
8. In order to establish the charges, prosecution examined in all 8 witnesses. Out of whom PW 7 is the doctor who conducted the post mortem examination and PW 8 is the IO. PW 2 Ram Awadhesh Singh is a Panchayat Sevak and the only independent witness. It is suggested to him, inter alia, that being a Panchayat Sevak, he was not present in the village. He has explained that he was on strike on that day and, as such, was present in the village which was his home. The rest of the five prosecution witnesses are all closely related to one family. PW 1 Uma Shankar Singh is the own uncle of the informant and the deceased and he happens to be father of one Chitranjan Singh who was a co-accused in the case of murder of Lal Bahadur Yadav whose murder has caused this event allegedly. He is the signatory of the Fardbayan also. PW 3 Raj Kishore Singh is the first cousin of the informant and the deceased. PW 4 Kesra Devi is the mother of the informant and the deceased. Geeta Devi (PW 5) is the wife of the deceased. PW 6 is the informant who is the brother of the deceased. They all lived in the joint ancestral house at the relevant time. Defence has examined two witnesses being DWs 1 and 2.
9. It may be significant to note here that, as apparent from the evidence that has been brought in trial by the prosecution, one Lal Bahadur Yadav was killed on 28.12.1994 and his dead body was found near the house of Prabhu Nath Singh. For the murder of Lal Bhadur Yadav, inter alia, Prabhu Nath Singh being son of Shiv Das Singh and Chitranjan Singh, son of Uma Shankar Singh (PW 1) were being chargesheeted. It may also be noticed here that in the Fardbayan, it is alleged that the appellants entered the house of Prabhu Nath Singh where they brutally assaulted his father Shiv Das Singh injuring him for which two of the appellants have been charged but the said Shiv Das has not been examined in trial nor the injury report, if any, brought on record. Uma Shankar Singh (PW 1) being the father of Chitranjan Singh claims to be present in the house when the appellants entered and dragged his nephew Dharmendra Singh and shot him dead but curiously though the motive alleged is revenge for murder of Lal Bahadur Yadav, neither the father of Prabhu Nath Singh, who was accused of such murder, nor the father of Chitranjan Singh being Uma Shankar Singh (PW 1) were killed in retaliation. Dharmendra Singh, whose family had nothing to do with the killing, was picked up amongst them and killed leaving persons like Uma Shankar Singh and Shiv Das Singh which creates a cloud on the alleged motive. Then we may also notice here that it is alleged in the Fardbayan itself that first the Gumti of Jainath Singh was raided, house of Prabhu Nath Singh raided, then house of Sarjug Singh raided but none of these persons have been examined nor what was looted from their houses proved. In fact, as noted above, there is absolutely no inventory prepared to support the allegation of looting though there is vague mention of some of the articles in the Fardbayan itself. As noted earlier, police made no effort for recovery of any of the said alleged looted articles which included a number of buffalos, beds, furnitures, boxes etc.
10. Learned counsel for the appellants has brought to our notice another interesting aspect of the matter. As noted earlier, the Fardhayan was recorded at 2 pm. The FIR was formally registered at 9.45 pm at Ara Mufassil PS which was about 10 kilometers from Barauli village where the occurrence had taken place but when the body was received for post mortem at 7.05 pm on the same day at the Ara Sadar Hospital alongwith the inquest report, the dead body challan, it had the endorsement of the PS case number which, as noted above, was registered only at 9.45 pm. It was again brought to our notice that though as per the endorsement in the Fardbayan itself, the Fardbayan was dispatched immediately at 2 pm for registering the case. The case was registered only at 9.45 pm but the dead body reached Ara Sadar Hospital much earlier for post mortem. It was pointed out that this delay in registering the FIR, coupled with the fact that the case number was noted on the contemporaneous documents at the village long before the case was registered, creates a serious doubt on the whole prosecution story as sought to be established. It is further pointed out to us that prosecution was aware of this loophole and has tried to cover it up. When the IO (PW 8) was cross-examined, he categorically stated that he had not noted the PS case number either on the inquest report or in the dead body challan when the body was sent for post mortem but when the doctor (PW 7) is cross-examined, he clearly states that he had noted the PS case number on the post mortem report on basis of PS case number, as noted on the inquest report and the dead body challan which came with the dead body at 7.05 pm because the post mortem was conducted at 8.45 pm which was also before the case was registered. This clearly establishes that the IO has tried to conceal the truth or tried to mislead the Court with no reasonable explanation creating serious doubt upon the prosecution story.
11. Now coming to the evidences. We may first record that out of the 6 non-official witnesses, so far as PW 5 is concerned who happens to be the wife of the deceased being Geeta Devi, she is a hearsay witness so far as the murder of Dharmendra is concerned. She clearly admits that she was told by her mother-in-law about the said event. What is of significance is that she and the other prosecution witnesses admit that she alongwith her mother-in-law Kesra Devi (PW 4) and the deceased Dharmendra had hid themselves in a room inside the house. The accused persons entered the house, saw other people in the house, went to the room, broke the door, dragged Dharmendra, took him outside the house and shot him. They, thereafter, assaulted him with lathis to make sure he was dead. Why Dharmendra was picked up and killed in such a brutal manner is not explained especially when we find that the motive attributed was revenge for killing Lal Bahadur Yadav, a couple of days earlier. The father of Chitranjan and the father of Prabhu Nath Singh were present but were not killed. The prosecution itself exhibited the FIR and the chargesheet in case of the murder of Lal Bahadur Yadav which clearly established that Dharmendra, the deceased was not an accused in the case at all. The accused, inter alia, were Chitranjan and Prabhu Nath Singh. This, in our view, creates a doubt about the motive alleged doubting the whole prosecution story taken with other circumstances, as noted above.
12. Now coming to the manner of occurrence. It is alleged by the prosecution that the accused persons came into the house, found Dharmendra, dragged him outside the house, shot him and then brutally assaulted him with lathi to make sure he was dead. When we look to the post mortem examination report, which is Exhibit 4, we find other than a singular firearm injury with embedded pellet in the body, there are no other injuries whatsoever. The material exhibit that is blood-stained mud was not produced in the Court though the seizure list was exhibited nor was it sent to forensic examination. This again creates a grave cloud over the prosecution story including the reliability of witness deposing professing to be eye witness.
13. As noticed earlier, the persons, whose houses were looted and named in the FIR, have not been examined. Shiv Das Singh, the father of Prabhu Nath Singh, who is said to have been assaulted for which two of the appellants were chargesheeted u/s 323 of IPC, was neither examined nor his injury report proved. None of the looted articles were ever sought to be recovered nor any effort made in that regard again creates a serious doubt about the motive and the manner of occurrence. Not a single independent witness of this looting and killing, with the exception of PW 2, has come to depose supporting the prosecution case of over 500 people surrounding the village and looting and killing.
14. Now we must note another important aspect of the matter. The six prosecution witnesses, apart from the doctor and IO, there is a markable uncanny consistency in their deposition about the manner of occurrence but when the IO is cross-examined and their depositions are put to him vis-�-vis statements recorded of these witnesses u/s 161 of Criminal Procedure Code, it is full of contradictions. The story of being witness and the manner of occurrence, as deposed in Court, is not what they had deposed in course of investigation. The contradictions are proved through the cross-examination of IO. This, in our view, is virtually fatal to the prosecution case.
15. Learned counsel for the appellants were at pains to show that right from the Fardbayan, there is specific allegation that there were about 500 people of specified villages who had surrounded the village Barauli where the incident took place but apart from naming the 11 persons in the Fardbayan, no other person was named much less investigated during the entire investigation. Not a single person of any village was interrogated for his involvement nor could the prosecutions witnesses name any other person even though they identified those persons amongst the 500 people of different named villages which were all neighbouring villages. This shows that the entire investigation, from the beginning to the end, was faulty. It must be kept in mind that though the FIR was registered at 9.45 pm, some people had already been arrested, inquest, post mortem already conducted, the inquest report, post mortem report all had the registered case number which came to be noted only at 9.45 pm. If these are kept in mind, the only conclusion would be that the entire investigation and the prosecution story, sought to be projected, is made up or at least doubtful.
16. The only evidence which implicates the appellants is the ocular evidence given in Court which, as noticed above, has an uncanny consistency. There are no independent witnesses much less witnesses whose houses were supposed to have been ransacked and those who had been injured. In such circumstances how even a charge u/s 395 of IPC could be sustained, we are surprised? No effort was made to recover buffalos and goods which were alleged to be looted. Apart from the 11 named persons in the FIR, no one else is proceeded against. No one is found involved in course of the investigation even though 500 people had constituted the mob.
17. In the result, taking an overall view of these facts which appear from the records, we are unable to hold that the prosecution has been able to establish the guilt of the appellants on any count beyond reasonable doubt. They are all, thus, entitled to acquittal from all charges. Except appellant Shambhu Yadav in Criminal Appeal No 580 of 2002, the rest of the appellants in the respective criminal appeals are on bail. Their bail bonds are, thus, discharged as a consequence of their acquittal. Shambhu Yadav is directed to be released from jail forthwith consequent to his acquittal, if not required in any other case. All the appeals are allowed and the judgment and order of the trial Court is set aside.
