Girdhari Yadav, S/O Sakhichand Yadav vs The State Of Bihar

In Criminal Appeal (DB) No.03 of 2012, Bihari Yadav is

the appellant, in Criminal Appeal (DB) No.79 of 2012, Anirudh

Yadav is the appellant and in Criminal Appeal (DB) No.110 of 2012,

Girdhari Yadav and Adalat Yadav are the appellants, which arise out

against the common judgment of conviction, dated 22.11.2011 and

sentence, dated 30.11.2011 passed by the Additional Sessions Judge,

Fast Track Court-IV, Begusarai in Sessions Trial No.251 of 2009, on

account thereof, have been heard analogously and are being disposed

of by a common judgment.

As per judgment of conviction, appellant Girdhari

Yadav has been found guilty for an offence punishable under Section

302 / 120B of the I.P.C., whereunder directed to undergo rigorous

imprisonment for life as well as also fine of Rs.10,000/- in default

thereof, to undergo simple imprisonment for six months, additionally,

under Section 307 / 120B of the I.P.C. and sentenced to undergo

rigorous imprisonment for 10 years as well as also to pay fine of

Rs.5,000/- in default thereof, to undergo simple imprisonment for

three months additionally, Adalat Yadav, Anirudh Yadav and Bihari

Yadav for an offence punishable under Section 302 / 149 of the I.P.C.

read with Section 120B of I.P.C. and sentenced to undergo rigorous

imprisonment for life as well as to pay fine Rs.10,000/- and in default

thereof, to undergo simple imprisonment for six months

independently, Section 307 / 149 read with Section 120B of the I.P.C.

and further, directed to undergo rigorous imprisonment for 10 years as

well as also slapped with fine appertaining to Rs.5,000/- in default

thereof, to undergo simple imprisonment of three months additionally,

to undergo rigorous imprisonment for seven years for an offence

punishable under Section 27 Arms Act with a further direction to run

the sentences concurrently.

PW-5 had filed written report before Officer-in-

charge, Balia P.S. disclosing therein that in usual way while he was

returning from Begusarai Court to Bhagatpur his native place with his

brother Ram Sharan Yadav, Baijnath and his son Ganesh Yadav

accompanied them from Balia Bazar. At about 5.00 p.m., they reached

near grocery shop of Suresh Mahto of Bhagatpur, where Adalat,

Anirudh, Bihari, Vijay, Shivji along with 3-4 unknown persons armed

variously encircled Ram Sharan Yadav and further, ordered to kill.

Adalat Yadav shot at forehead of Ram Sharan Yadav as a result of

which, he died instantaneously. Anirudh Yadav also fired at Ram

Sharan Yadav. Shivji, Bihari and Vijay fired at him as well as

Baijnath and Ganesh Yadav, during course thereof, the firing having

made by Shivji Yadav struck over his right leg. It has further been

disclosed that whole conspiracy relating to a murder as well as

murderous attack upon them have been hatched by Girdhari Yadav,

who happens to be under custody in relation to murder case. In one

murder case relating to Mahesh Paswan, he along with his brother

deceased Ram Sharan Yadav were a witness as well as doing

necessary pairvi. Ram Sharan Yadav was to depose and for that, there

was persistent demand at the end of Girdhari not to depose. Having

been refused at their end, he had threatened to do away with life.

On the basis of the aforesaid written report, Balia P.S.

Case No.222 of 2008 was registered under Sections 302, 307, 324, 34,

120B of the I.P.C. and Section 27 of the Arms Act followed with an

investigation. After completing the investigation, chargesheet was

submitted and on the basis thereof, trial commenced and concluded in

a manner as indicated above, the subject matter of these appeals.

Defence case as is evident from mode of cross- examination as well as statement having been recorded under Section

313 of the Cr.P.C. is that of complete denial as well as false

implication. Furthermore, it has also been pleaded that prosecution

party themselves happen to be notorious criminals, who have

sustained the death as well as injury at different place in different

manner by different persons, but in the background of prevailing

animosity, got them involved with false and frivolous allegations.

Though no oral evidences were adduced, however, certain

documentary evidences have been adduced at their end.

While challenging the judgment of conviction and

sentence, the learned defence counsel has raised manifold argument.

The first and foremost is that from the own deposition of the

witnesses, it is crystal clear that none of the prosecution witnesses

happen to be an eye witness. Apart from this, the informant PW-5 also

speaks with regard to an incidence having been committed in different

manner at different place than the earliest prosecution version as

flashed by way of written report. That being so, the prosecution

version as is exposed by way of written report has not been

substantiated by the witnesses themselves apart from contradictory

objective finding of the I.O. with regard thereto. Therefore, the

apparent inconsistency prevailing on the record completely

demolishes the prosecution version whereupon the conviction and

sentence having been recorded by the learned trial Court would be

found vanished.

Furthermore, it has also been submitted that

prosecution had not brought up on record the relevant papers relating

to murder of Mahesh in order to suggest that these appellants, for the

reason assigned by the prosecution virtually happens to be an

aggrieved to that extent provoking them to cause murder of Ram

Sharan Yadav as well as to cause injury to Sunil, the informant.

Consequent thereupon, there was no occasion for these appellants to

cause murder of Ram Sharan Yadav as well as to cause murderous

attack upon Sunil, PW-5.

Apart from this, from own conduct of the prosecution,

it is evident that the narration with regard to commission of the

occurrence was not at all convincing as well as probable. To

substantiate the same, it has been submitted that from the written

report itself, it was not Ram Sharan Yadav alone, but Ram Sharan

Yadav as well as Sunil both, who were doing necessary pairvi in a

murder case relating to Mahesh. It is evident that on the way to their

house, they met Baijnath and his son Ganesh. It has further been

alleged that all the four were intercepted and were encircled by the

accused persons. While Ram Sharan Yadav was shot at by Adalat,

there was no firearm injury on Baijnath as well as Ganesh Yadav

while Sunil, PW-5, who sustained single injury at his leg, was not at

all attempted by the appellants in order to murder him that too, when

there was no intervening circumstance, which could have prevented

the appellants. It has also been submitted that improbability of the

prosecution version is visible from the further conduct of the

prosecution as none of the witnesses have stated that they came or

they were carrying paper, then how the written report was prepared by

Baijnath on dictation of PW-5, informant in presence of police

officials is another circumstance which belies the prosecution case.

Had there been a genuine conduct, the fard-bayan would have been

given to the police official by the PW-5, Sunil at the place of

occurrence itself. The aforesaid activity casts doubt on presence of

PW-5 at the place of occurrence, more particularly in the background

of the evidence of the I.O.

Another circumstance which also casts doubt over the

genuineness of the prosecution version is further apparent from the

record. From the evidence of PW-5, it is evident that when the police

came at the place of occurrence, he was present there and in presence

of police officials, he dictated written report, which was scribed by

Baijnath and then thereafter, he was sent for treatment on account of

firearm injury having been sustained by him. From the evidence of

doctor, it is apparent that no police requisition was ever received by

him at the time of admission of PW-5. Contrary to it, it has been

deposed by Dr. Ashok Kumar Sharma, PW-8 that he had sent

requisition to the police with regard to arrival of PW-5 in an injured

condition on account of having sustained firearm injury. In

cumulative effect, it has been submitted that the assertion of the

prosecution that Sunil, Baijnath, Ganesh were along with Ram Sharan

Yadav, deceased happens to be palpably false and as, it has been

flashed in a pre-planned manner to implicate these appellants, on

account thereof, such kind of inconsistency, variance in their evidence

is found. Apart from this, it has also been submitted that objective

finding of the I.O. completely demolished the prosecution version. As

per prosecution version, it is apparent that while they were on way to

Bhagatpur and reached near grocery shop of Suresh Mahto, they were

intercepted by the accused persons followed with commission of the

crime and that happens to be consistent prosecution version, but

contrary to it, from inquest report having been prepared by PW-9, it is

apparent that dead body was found in front of house of Jago

Choudhary. Furthermore, as per objective finding relating to place of

occurrence by the I.O., PW-9 as detailed under Para-5, he completely

ruled out presence of dead body in front of grocery shop of Suresh

Mahto. Therefore, the place of occurrence found by the I.O. happens

to be inconsistent with the place of occurrence shown by the

prosecution witnesses. In the aforesaid background, it has been

submitted that on account of inconsistency creeping amongst eye

witness amongst themselves as well as with the I.O. coupled with

improbableness of the prosecution version, makes the whole

prosecution case unreliable, unacceptable. Consequent thereupon,

prosecution case is fit to be thrown outrightly as a result of which, these appeals are fit to be allowed.

Furthermore, it has been submitted that for the

purpose of attracting conviction under guise of criminal conspiracy,

there should be positive as well as conclusive evidence over meeting

with an agreement, which from perusal of the evidence of respective

evidence is found completely lacking, save and except showing

suspicion, which could not justify the finding recorded by the learned

Trial Court on this score. Therefore, the judgment impugned loses its

vitality.

The learned Additional Public Prosecutor along with

learned counsel for the informant has extraneously rebutted the

argument having been raised on behalf of appellants. It has been

submitted that appreciation of evidence in piecemeal manner is not at

all warranted. Evidence in totality is to be considered, and accepted,

adopting such exercise during course of appreciation of the evidences

of the witnesses, will clearly indicate that all the witnesses inspire

confidence as well as substantiate prosecution case in its entirety. In

likewise manner, it has also been submitted that post mortem report

happens to be another limb which supports the manner of prosecution

case.

Now, coming over theme of conspiracy, it has been

submitted that appellants have not denied nor controverted during

course of cross-examination of the PWs with regard to status of Sunil

as well as Ram Sharan Yadav to be witness against Girdhari Yadav,

who was under custody relating to murder of Mukesh and further,

deceased was to depose. It is further evident that Girdhari was making

persistent demand by himself as well as through the appellants

forbidding the prosecution party to depose against him otherwise to

face dire consequence. The activity of the appellants since before the

occurrence giving repeated threatening not to depose against Girdhari

Yadav is indicative of the fact that they were very much concerned

with the welfare of Girdhari and in case, deceased would have

deposed against Girdhari would have suffered irreparable loss and in

the aforesaid background as well as considering the ultimate

beneficiary to be Girdhari Yadav at whose instance the appellants

were working since before, manifest action of the appellants to be at

the instance of Girdhari and for that, they have had rightly been found

guilty for an offence of committing murder under the theme of

criminal conspiracy. So, submitted that these appeals are fit to be

dismissed.

In order to substantiate its case, prosecution had

examined altogether 10 PWs, out of whom, PW-1 is Dhara Yadav,

PW-2 Ganesh Yadav, PW-3 Anil Yadav @ Anil Kumar Yadav, PW-4

Baijnath Yadav, PW-5 Sunil Yadav @ Sunil Kumar Yadav, PW-6

Chandeshwar Prasad, PW-7 Dr. Ashok Kumar Jha, PW-8 Ashok

Kumar, PW-9 Ganesh Singh and PW-10 Dinesh Chandra Mandal.

Side by side also exhibited the documents as Exhibit-1 writing of

written report, Exhibit-2 signature of PW-5 over written report,

Exhibit-3 post mortem report, Exhibit-4 injury report, Exhibit-5

endorsement over written report, Exhibit-6 formal F.I.R., Exhibit-7

police requisition, Exhibit-8 inquest report, Exhibit-9 series

chargesheet of different cases, Exhibit-10 series certified copy of the

judgment.

At the other end, though the defence had not

examined any DW, but had exhibited certain documents viz. Exhibit-

A certified copy of agreement, dated 14.09.1990, Exhibit-B certified

copy of F.I.R. of Balia P. S. Case No.104 of 2009, Exhibit-C certified

copy of deposition of Ram Sharan Yadav in Sessions Trial No.17 of

1997, Exhibit-D certified copy of chargesheet of Balia P.S. Case

No.87 of 1993.

Before coming to ocular evidence, it looks desirable

for better appreciation to notice medical evidence first. PW-7 had

conducted post mortem over the dead body of Ram Sharan Yadav on

05.12.2008 and found following ante-mortem injuries:-

(1) One circular whole -" diameter,

inverted margin and charring of skin around 4" area-one

on the back of skull 1 -" away (Rt side) from midline-

On dissection the wound passed upward and

forward & finally comeant anterarly just at upper base of

nose. In between it damaged occipital & Rt side of brain.

The injury is caused by firearm which passed through &

through.

(2) Abrasion Rt temple 1 -" size aur face-

caused by hard & blunt substance time since death-12 to

18 hrs.

Death is due to shock & haemorrhage

produced by brain injury.

So, from the evidence of PW-7, there happens to be

no dispute with regard to presence of ante-mortem fatal gun-shot

injury. Furthermore, the injury is found to be caused from close range

in the background of being categorized as charred wound.

PW-8 is Dr. Ashok Kumar Sharma, who had

examined PW-5, Sunil on 04.12.2008 at about 7.20 p.m. and found

following injuries over his person No.1 lacerated would 4" x 2" x

bone deep with charred margin right leg below knee lateral side with

fracture of right tibia. In the opinion of doctor, the age of the injury

happens to be within six hours caused by firearm and the nature of

injury shown by the doctor happens to be grievous one. It is further

stated by the doctor that the required police requisition is of

05.12.2008, though, he had informed the police immediately after

arrival of the patient.

During cross-examination, it is evident that he was

not at all cross-examined on the score of nature of the injury.

However, it is apparent from Para-2 that informant had come to his

clinic without any police requisition and on account thereof, he

immediately informed the police and started treating the injured

without awaiting arrival of the police. From Para-5, it is evident that

when police came to his clinic, injured was present there. Police

requisition was received by him on 05.12.2008. As such, presence of

firearm injury over the person of Sunil, PW-5 is also found duly

substantiated by the evidence of PW-8, who also opined the injury to

have been caused from close proximity on account of presence of

charring wound.

PW-1 had stated that on the alleged date and time of

occurrence, he was going to Bhagatpur chowk to purchase household

articles. During course thereof, he saw Baijnath Yadav, Ram Sharan

Yadav, Sunil Yadav and Ganesh Yadav coming from opposite side.

They reached near grocery shop of Suresh Mahto where Adalat

Yadav, Anirudh Yadav, Shivji Yadav, Bihari Yadav, Vijay Yadav,

Ram Balak Yadav, Subodh Yadav, Neti Yadav armed with pistol,

encircled them. Adalat Yadav ordered to kill. Then thereafter, Adalat

Yadav shot at on head of Ram Sharan Yadav, Anirudh Yadav also

fired at Ram Sharan Yadav. Ram Sharan fell down and died

instantaneously. Shivji Yadav, Bihari Yadav, Vijay Yadav shot at

Sunil Yadav, Baijnath Yadav and Ganesh Yadav. The firing having

been made by Shivji Yadav struck over right leg of Sunil Yadav. The

aforesaid offence was committed in conspiracy with Girdhari Yadav,

who was under custody. About an hour, thereafter police came,

prepared inquest report over which he put his L.T.I.

The motive for occurrence is traced to the murder of

Mahesh Paswan and Ram Chandar Sah in the Year 2003, for which

case was instituted. Ram Sharan Yadav, Sunil Yadav were doing

pairvi in the aforesaid case for which they were regularly forbidden by

Girdhari Yadav. It has also been disclosed that 10-11 months after

murder of Mahesh Paswan and Ram Chandar Sah, Adalat Yadav and

others had attempted upon the life of Baijnath Yadav, but anyhow, he

managed to escape. It has also been disclosed that four days after the

aforesaid occurrence, Girdhari Yadav, Adalat Yadav and others made

indiscriminate firing at the house of Ram Sharan Yadav, wherein

daughter of Ram Sharan Yadav was killed. It has also been disclosed

that Adalat Yadav has been sentenced to undergo rigorous

imprisonment for life for the murder of Shivji Yadav. Janardan

Yadav, Sunil Yadav, Anil Yadav, Baijnath Yadav, Ganesh Yadav,

Karelal Yadav and others have been cited as a witness. Furthermore,

he identified the accused in dock. During cross-examination, he had

stated that Baijnath Yadav, Ram Sharan Yadav was uncle and

nephew. He had further stated that he had got no knowledge with

regard to land dispute in between Baijnath and Adalat Yadav. He had

further admitted that Adalat Yadav had launched a case against

Baijnath Yadav, Ram Sharan Yadav including himself for amputation

of hand of Girdhari Yadav as well as damaging his eye. He had

further stated that he had got no information with regard to cause of

dispute amongst Adalat Yadav and Baijnath Yadav. He had further

stated that Balia P.S. Case No.104 of 2009 has been launched by

Dinesh Yadav, wherein his brothers are accused. In Para-10, he had

stated that Adalat Yadav is presently living for the last 9-10 years at

village Pratappur which lies 7-8 kilometers away from the P.O. In

Para-11, he had stated that his family members have instituted series

of litigation against Adalat Yadav. In Para-12, he had stated that no

other shop is present near the grocery shop of Suresh Mahto. Other

houses are lying at a distance, but he is unable to tell the names of

occupant thereof. His house lies 5-6 lagga away from the grocery

shop of Suresh Mahto. Police Station lies two kilometers away from

the grocery shop of Suresh Mahto. When he reached at the shop of

Suresh Mahto, it was closed. He had not seen anybody. He had not

stayed at the shop, again he corrected, he stayed there for about one

and half hour. During course thereof, he had not talked about the

incident with anybody. However, during midst thereof, so many

villagers came including Janardan, Anil, Baijnath, Sunil, Ganesh, who

are his family members. In Para-13, he stated that P.O. is road as well

as some portion of land adjacent to it, but again corrected that P.O. is

road covering 10 feet. P.O. is Eastern side of the road. It happens to

be pakka road. Blood had fallen at only one place covering 2-3 hands

of area. He had not seen more than that. In Para-14, he had stated that

he heard sound of 15-20 rounds of firing. Firing was made one by

one. After seeing firing, he became afraid and hid in a Banana cluster,

which he had shown to Darogaji. All the accused persons have not

fired from all side over the prosecution party rather they have fired

from Western side. At that very time, Ram Sharan Yadav was

standing on Southern front. Sunil Yadav, Ganesh Yadav, Baijnath

Yadav were also standing in the same posture. He is unable to say

whether Ganesh Yadav had sustained injury or not. He had not seen

injury over Baijnath Yadav. In Para-15, he had stated that Sunil

Yadav had sustained only one injury by means of firearm. In Para-16,

he had stated that Ram Sharan Yadav had sustained only one firearm

injury over his head from back side. Ram Sharan Yadav fell down

East to the shop of Suresh Mahto by the side of pakki road. 20-25

persons have assembled there including Janardan, Anil, Sunil,

Baijnath. In Para-17, he had stated that there was no sign of firing at

the P.O. In Para-19, he had stated that his statement was recorded by

the police three days after the occurrence. Para-20 is the contradiction

however not relating to the main occurrence. Although, the same has

not been corroborated from the evidence of PW-9, the I.O.

PW-2 had stated that on the alleged date and time of

occurrence, he along with his father Baijnath Yadav, cousin brother

Ram Sharan and Sunil Yadav were returning from Balia. When they

reached near the grocery shop of Suresh Mahto, he saw Adalat Yadav,

Bihari Yadav, Anirudh Yadav, Shivji Yadav, Vijay Yadav, Ram

Balak, Subodh along with one unknown person, who intercepted

them. They were armed with pistol. Adalat Yadav abused and then,

stated that in spite of repeated instruction given by Girdhari Yadav to

leave doing pairvi relating to murder case of Mahesh Paswan and

Ram Chandar Sah, still they have not left the pairvi and so, his whole

family will be eliminated. Thereafter, Adalat Yadav ordered to kill.

Adalat Yadav fired from his pistol over head of Ram Sharan Yadav

from back side. Anirudh Yadav had also fired, Ram Sharan Yadav

died instantaneously. Shivji Yadav, Bihari Yadav and Vijay Yadav

began to fire at them and during course thereof, the firing having been

made by Shivji Yadav struck over right leg of Sunil Yadav.

Thereafter, the accused persons left the place after making firing in

the air, after an hour, police came and prepared inquest (exhibited).

The motive for occurrence has been shown as Sunil Yadav and Ram

Sharan Yadav were doing pairvi against Girdhari Yadav to the

disliking of accused. At an earlier occasion, Ram Sharan Yadav was

shot at by the accused persons. On 28.11.2003, accused persons

raided house of Ram Sharan Yadav, made indiscriminate firing,

exploded bomb, wherein daughter of Ram Sharan Yadav namely

Prem Kumari was killed. He identified the accused in dock. During

cross-examination at Para-7, he had admitted that since 1977, Adalat

Yadav and Baijnath Yadav are having strained relationship. He had

shown ignorance over pendency of different cases amongst the parties

since before. In Para-10, he had stated that his cousin brother Ram

Sharan Yadav was Munshi in the Court. He had further stated that his

uncle Shivji Yadav was murdered in the Year 1977. Now, remains his

father Baijnath Yadav and uncle, Vasudev Yadav. In Para-11, he had

stated that he along with his father had gone to Balia at about 3.00

p.m. He had not met with any family members during midst of way.

He had not met with any family members at Balia Bazar. He had gone

to Balia only for wondering. He stayed there one and half hour. He

simply loitered at Balia Bazar. He had not stayed at any shop. In Para-

12, he had stated that they were coming from Balia bare-foot. While

he was returning from Balia, met with Ram Sharan Yadav, Baijnath

Yadav and Sunil Yadav and none other. In course of returning, he had

not met with anybody at place of occurrence. There happens to be no

house in between Balia to P.O. In likewise manner, there happens to

be no house in between P.O. to his house. The road is isolated one.

One shop belonging to Suresh Mahto lies in between. He remained at

the place of occurrence from 5.00 p.m. to 7.00 p.m. During midst

thereof, about 10 persons came at the place of occurrence. Police

came after an hour at the place of occurrence. After arrival of the

police, so many persons came at the place of occurrence, but he is

unable to disclose their names. In Para-7, he had stated that grocery

shop of Suresh Mahto lies near about place of occurrence. He is

unable to say whether people remained present throughout at his shop

or not. In Para-8, he had stated that he was about one lagga East to

grocery shop. Other persons were 2-3 steps South to him. As soon as

they reached near shop of Suresh Mahto, all the accused persons

encircled them. Firing did not follow soon after encircling, rather 2-3

minutes thereafter. All the accused persons were armed with some

kind of weapon. In Para-9, he had detailed, who fired whom and

during course thereof, he had stated that Vijay Yadav and Shivji

Yadav fired from Western side over Sunil Yadav. Thereafter, they

escaped there from, others have also fired in the air. He is unable to

disclose the exact rounds of firing. He had further stated that firing

was made from Eastern-Western side. At that very moment, Ram

Sharan Yadav and Sunil Yadav were standing having Southern front.

Firing was made from a distance of one hand. In Para-11, he had

stated that there was no commotion on account of firing. Villagers

have not come at that very moment. After fleeing of accused, they

remained there. Subsequently thereof, so many villagers assembled,

but he is unable to disclose their names. In Para-12, he had stated that

there was sign of firing marks on full pant of Sunil Yadav. In Para-13,

he had stated that police had seized blood stained earth from the road.

In Para-14, he had stated that Ram Sharan Yadav died at the spot.

Sunil Yadav did not become unconscious. The occurrence took place

on the Eastern flank of pakka road. Blood had spread below the road.

In Para-17, he had stated that he had accompanied the dead body.

Sunil Yadav remained at hospital whole night. In Para-18, he had

stated that he sustained single firearm injury below his knee. In Para-

19, he had stated that Ram Sharan Yadav had received one injury on

his head, which was struck from behind and the cartridge came out

through his forehead. In Para-20, he had stated that after sustaining

gun-shot injury, Sunil Yadav fell on the pitch road. Ram Sharan

Yadav fell down two hands West from Sunil Yadav. Blood was

present at both the places.

PW-3 had stated that on the alleged date and time of

occurrence, he was at his house. After hearing sound of uproar as well

as abuse, he rushed towards grocery shop of Suresh Mahto where he

saw Adalat Yadav, Anirudh Yadav, Bihari Yadav, Shivji Yadav,

Vijay Yadav, Ram Balak Yadav, Neti Yadav, Subodh Yadav and one

unknown person armed with pistol having surrounded Ram Sharan

Yadav, Baijnath Yadav, Ganesh Yadav and Sunil Yadav. Adalat

Yadav had repeatedly forbidden Girdhari Yadav from doing pairvi in

the case and further, if he would not accede, then he will be

eliminated, fired from his pistol on his head from behind as a result of

which Ram Sharan Yadav fell down. Anirudh Yadav also fired. Ram

Sharan Yadav died instantaneously. Shivji Yadav, Bihari Yadav,

Vijay Yadav fired at Sunil Yadav, Baijnath Yadav and Ganesh Yadav

and during course thereof, Sunil Yadav sustained firearm injury over

his right leg from the firing made by Shivji Yadav. He had further

stated that the occurrence has been committed at the instance of

Girdhari Yadav. Thereafter, accused persons ran from there. Police

came, prepared inquest report, recorded statement of Sunil Yadav.

Then he disclosed the motive by stating that in the Year 2003,

Girdhari Yadav and others committed murder of Mahesh Paswan and

during course thereof, Ram Sharan Yadav had also sustained injury

over his hand. Ram Sharan Yadav was a witness of that case and was

also doing pairvi. Subsequently thereof, the accused persons also

raided house of Ram Sharan Yadav and made indiscriminate firing as

well as exploded bomb and during course thereof, his daughter was

killed. He also identified the accused in dock. During cross-

examination, he had admitted his status to be full brother of Sunil

Yadav. He had also admitted that he also happens to be witness

relating to murder of Gango Yadav. In Para-9, he had admitted that

since 5-7 years, there happens to be series of litigation amongst his

family as well as family of Adalat Yadav. He had denied the

suggestion that there happens to be land dispute amongst the parties.

In Para-10, he stated that at the time he left his house on hearing

alarm, he could not say as to who were present at his house. He had

simply heard sound of uproar and not the sound of marpit. His

attention has been drawn towards his previous statement that has not

been substantiated from the evidence of PW-9, the I.O. In Para-12, he

had stated that Adalat Yadav abused as well as also threatened. In

Para-13, he had stated that his house lies 5-6 lagga away from the

place of occurrence. He had further stated that the shop of Suresh

Mahto lies 5-6 lagga away from his house. He had further stated that

he is not remembering how many persons have their residential house

near about his house. In Para-14, he had stated that when he

proceeded from his house towards place of occurrence, he did not

meet with anybody. In Para-15, he had stated that it was 5 O'' clock.

When he reached at the place of occurrence, he saw 15-20 persons,

who were members of both the parties. He is not remembering the

names of others. In likewise manner, he is not remembering the exact

number relating to them. Accused persons have surrounded from all

side. Subodh Yadav and Neti Yadav covered from Eastern side.

Anirudh Yadav, Bihari Yadav, Shivji Yadav and Vijay Yadav were

from Western side. He is not remembering the persons, who had

surrounded from Northern side. They had not fired in one sequence.

He is not remembering how many rounds of firing was resorted to by

each of the accused. His family members did not try to move helter

and skelter. He along with Dhodho Yadav, Janardan Yadav, Ganesh

Yadav, Baijnath Yadav had seen the occurrence hiding themselves.

He is not remembering whether others were also witnessing the

occurrence in same manner. Dhodho Yadav had concealed himself in

Banana cluster. Janardan Yadav was two lagga away North to the

place of occurrence. He had taken shelter of a wall of Suresh Mahto.

The exact location of others, he is not remembering. Firing was also

made at Ganesh Yadav and Baijnath Yadav. He is not remembering

whether at the time of occurrence, people had assembled or not. In

Para-19, he had stated that P.O. is at the Eastern flank of pitch road

lying two lagga West to the grocery shop of Suresh Mahto having

boundary:- East-Jago Choudhary, West-Grocery shop of Suresh

Mahto, North and South-pitch road. No house save and except

grocery shop of Suresh Mahto is lying at the Western side of the place

of occurrence. In Para-20, he had stated that he had seen firing having

effected from northern as well as western side. Four rounds of firing

were made from western side while one round of firing from northern

side. Much more rounds of firing was also made, but he is unable to

count, again said it went on for 5-7 minutes. In Para-21, he had stated

that there were two injuries on head of Ram Sharan Yadav. He had

seen one injury over body of Sunil Yadav, which was over right leg.

He had not seen injuries of others. In Para-22, he had stated that Ram

Sharan Yadav fell down at eastern flank of the pitch road. Sunil

Yadav sat north-west from Ram Sharan Yadav at a distance of one

hand. Darogaji came at the place of occurrence about an hour. So

many persons assembled there, but he is unable to disclose their

names. Police seized blood stained earth, but he is unable to say

whether pant of Sunil Yadav was seized or not. In Para-28, 29,

attention has been drawn up towards his previous statement, but again

same has not been confronted to PW-9, the I.O. and so, happens to be

worthless.

PW-4 had stated that Ram Sharan Yadav, deceased

was his nephew, who was Munshi at Begusarai. He used to visit from

his house. On 04.12.2008, Ram Sharan Yadav and Sunil Yadav were

returning from Begusarai. At Balia bazaar, he met with them and then

thereafter, he along with Ram Sharan Yadav, Sunil Yadav, Ganesh

Yadav proceeded towards their house. When they reached near the

grocery shop of Suresh Mahto, Adalat Yadav, Anirudh Yadav, Bihari

Yadav, Shivji Yadav, Vijay Yadav, Ram Balak Yadav, Neti Yadav

and Subodh Yadav were present since before. Just after seeing them,

they surrounded. At that very time, all the accused persons were

armed with pistol. Adalat Yadav had directed Ram Sharan Yadav that

he has been forbidden to do pairvi relating to murder case of Mahesh

Paswan as well as Gango Yadav, which he failed to accede.

Subsequently thereof, Adalat Yadav shot at Ram Sharan Yadav over

his head on account of which he died instantaneously. Anirudh Yadav

had also fired at Ram Sharan Yadav. Shivji Yadav, Bihari Yadav,

Vijay Yadav fired at Sunil Yadav with an intention to kill and during

course thereof, Sunil Yadav sustained injury over his right leg and

from the firing having made by Shivji Yadav, Neti Yadav, Ram Balak

Yadav, Subodh Yadav and others also fired in air and escaped

thereafter. About an hour, the police came. Police recorded statement

of Sunil Yadav which happens to be in pen (exhibited). Inquest was

prepared. Dead body was sent for post mortem. He also accompanied

Sunil Yadav for treatment. It has further been stated that Girdhari

Yadav, who happens to be notorious criminal and has been in jail, was

regularly threatening Ram Sharan Yadav stating that either you leave

to do pairvi otherwise he will be murdered and so, the occurrence has

been committed as a result of conspiracy hatched by Girdhari Yadav.

It has further been disclosed that at an earlier occasion, they have also

raided the house of Ram Sharan whereunder daughter of Ram Sharan

Yadav was killed at their hands. He identified the accused in dock.

During cross-examination, he had stated at Para-10 that he reached at

Balia bazaar at 3.00 p.m. He had gone to Balia bazaar to stroll. In

Para-13, he had admitted that all the witnesses are from his family.

Accused persons are not their gotia. In Para-14, he had denied

presence of dispute on account of land and in likewise manner,

litigation having cropped up thereupon. He had also shown ignorance

with regard to creation of a deed of an agreement. In Para-17, he had

admitted that there was compromise petition filed on their behalf in

Sessions Trial No.17 of 1997. In Para-18, he had stated that first of

all, his brother Shivji Yadav was murdered by the accused persons for

which they have registered a case against the accused persons. He had

denied the suggestion that aforesaid occurrence took place on account

of land dispute. In Paras-21, 22 and 23, he had denied there being

cases in the background of land dispute amongst them. In Para-24, he

had stated that the deceased Ram Sharan Yadav was Munshi at

Begusarai Civil Court for the last 10-12 years. He used to daily make

to and fro to the Court from his house. They have not informed the

police nor registered Sanha with regard to threatening having been

given at the end of the accused persons. He is unaware with regard to

time relating to the last threatening having been given to the deceased.

Deceased used to come by train, bus or jeep. On the alleged date and

time of occurrence, deceased had travel led through jeep to Begusarai.

Deceased returned back through train. He got down at Lakhminia

station and then, came to Balia bazaar. Sunil Yadav was along with

him. He met with deceased at Lakhminia station. He had gone to

Lakhminia station to stroll. He had not met with any of co-villager at

Lakhminia station. After staying for ten minutes, they returned to

Balia bazaar where they stayed for one and half hour and then,

proceeded from Balia Bazar. He had not met with co-villager at Balia

Bazar. Ganesh Yadav was along with him since before. In Para-25, he

again stated that he met with deceased Ram Sharan Yadav at Balia

Bazar at about 4.45 p.m. and then, proceeded towards their house. All

the four proceeded from Balia Bazar. In midst of way, they have not

met with any co-villager. They proceeded through pitch road which

happens to be lonely. At that very time, they were not apprehensive.

In Para-28, he had stated that P.O. is not Balia Bazar rather one

kilometer south to Balia Bazar, where only pitch road is available.

Fields of his co-villagers are lying near about place of occurrence,

north-south of the P.O. happens to be pitch road. In East portion, land

of Jangal Choudhary, west grocery shop of Suresh Mahto and then,

his land. At that very time, there was potato in the field of Suresh

Mahto. No crop was standing in the land of others. In Para-29, he had

stated that they have not met with anybody in between Balia to P.O.

While they were one lagga away from the shop of Suresh Mahto, they

had seen the accused persons. When they had seen the accused

persons, at that very moment, all of them have surrounded them.

Accused persons were present there since before. Just after

surrounding, they kept confined 2-3 minutes. They have surrounded

them from a distance of 1-2 hands. He detailed the location of the

accused persons also. In Para-30, he stated that he tried to escape, but

could not succeed. Just two minutes thereafter, there was firing which

struck at his head as well as leg. There was commotion. They

remained static in same manner. Thereafter, accused persons escaped.

He had also stated that there was 15-20 rounds of firing having aimed

at them, but he had not sustained any injury. Only two persons

sustained injury. They were shot at from a distance of 1-2 hands. In

Para-31, he had stated that at that very time, on account of fear, none

of the villagers came. About half an hour, so many villagers have

assembled there. For the present, he is not remembering their names.

In Para-34, he had stated that he had seen from his naked eye, the

event whereunder Ram Sharan Yadav sustained firearm injury over

his head from behind. In Para-35, he had stated that written report was

scribed by him at the dictation of Sunil Yadav. Same was prepared

after an hour before the police. In Para-37, he had stated that fard-

bayan was not recorded by the police. In Para-38, he had stated that

his statement was recorded on 30.01.2009. In Paras-39, 40, 41, 42, 43

have been drawn up in order to expose contradiction, but the same has

not been found substantiated from the evidence of PW-9, the I.O.

PW-5 is the informant. He had stated that the

occurrence took place on 04.12.2008 at about 5.00 p.m. On that day,

he was returning along with his brother Ram Sharan Yadav from

Begusarai Court to their house. When they reached at Balia, they met

with Baijnath Yadav and Ganesh Yadav, then all of them proceeded

towards their house. When they reached near the grocery shop of

Suresh Mahto, Adalat Yadav, Anirudh Yadav, Bihari Yadav, Vijay

Yadav, Shivji Yadav and 3-4 unknown persons regarding whose

identity, he later on came to know as Ram Balak Yadav, Neti Yadav,

Subodh Yadav and one unknown person, all of them surrounded

them. They were armed with pistol. Adalat Yadav abused Ram Sharan

Yadav and further, said that in spite of repeated direction given by

Girdhari Yadav to leave pairvi relating to Mahesh Paswan''s murder

case and further, not to depose, he declined to accede and then, Adalat

Yadav provoked the others and during course thereof, he fired from

his pistol over head of Ram Sharan Yadav on account of which he

sustained injury, fell down and died instantaneously. During course

thereof, Anirudh Yadav had also fired on Ram Sharan Yadav. Then

thereafter, Bihari Yadav, Vijay Yadav, Shivji Yadav fired at him

including Ganesh Yadav, Baijnath and during course thereof, he

sustained injury over his right leg by the firing having been made by

Shivji Yadav. Then thereafter, all the accused persons left the scene

making firing in the air. Motive for occurrence has been shown as the

accused persons caused murder of Mahesh Paswan and Ram Chandra

Sah in the Year 2003, wherein his brother Ram Sharan Singh also

sustained injury. He was one of the witness in that case and was also

doing pairvi. Again, they have indulged in criminal activity by raiding

house of Baijnath Yadav on 24.11.2003. On 28.11.2003, they had also

raided their house wherein daughter of Ram Sharan Yadav was killed.

He had further disclosed that Adalat Yadav happens to be life convict

in Sessions Trial No.47 of 1983. He had further stated that Girdhari

Yadav conspired, hatched plan which the accused persons executed. It

has further been disclosed that after an hour, police had come at the

place of occurrence, where he had tendered his written report

(exhibited) recorded in pen of Baijnath Yadav, his uncle. Police

prepared inquest report. Also seized blood stained earth. Dead body

was sent for post mortem while he was sent to the clinic of Dr. Ashok

Sharma. He had identified the accused. During cross-examination in

Para-8, he had stated that all the witnesses happen to be his family

members. In Para-9, he had stated that no paper, pen was available

since before for preparation of written report. He is unable to say how

the paper-pen was made available. He had further stated that he is

unable to say whether written report was prepared on chair, table,

khatia or chauki or on ground, but the same was prepared in his

presence. In Para-10, he had stated that at the time of preparation of

written report, Officer-in-charge and 20-25 persons including his co-

villagers were present, but he is unable to say the names of his co-

villagers. In Para-11, he had stated that just after tendering of written

report, police had not recorded his further statement. He had further

stated that he had not mentioned the names of witness in the written

report. He had further stated that at that very time, the Officer-in-

charge had not enquired from his co-villagers. He had further stated

that it was day light. He had further stated in Para-12 that Officer-in-

charge had seized the blood stained earth, took the dead body. He is

not remembering whether empty cartridges were seized from there or

not. In Para-15, he had stated that he along with Ram Sharan Yadav,

Baijnath Yadav and Ganesh Yadav reached place of occurrence

conjointly. About 1-2 minutes thereafter, Anil Yadav came running.

Dhodho Yadav was 1-2 lagga ahead of him. Janardan Yadav was 1-2

lagga behind them. Firing took place 2-3 minutes after their arrival at

the place of occurrence. Firing was made one after another. It was

continuous. At that very time, only four persons were present, who

were surrounded by the accused. They were cordoned for 2-3 minutes.

They tried to escape there from, but could not succeed. During midst

thereof, whole occurrence took place. There was no commotion at the

place of occurrence. None of his villagers came after occurrence. He

is not remembering whether 15-20 co-villagers have arrived. None of

them tried to apprehend the accused. They have not seen the

occurrence in static mode. In Para-18, he had admitted that both the

family happens to be on inimical term, but there was no land dispute.

He had further admitted that accused persons were being prosecuted at

their end. In Para-19, he had admitted that accused Adalat Yadav had

launched Sessions Trial No.17 of 1997 against him, Ram Sharan

Yadav, Janardan Yadav, Baijnath Yadav, Dhodho Yadav and others.

In Para-20, he had stated that the assailant was 2-3 hands away

(western side) from him. At that very time, he was standing having

southern front. The assailant was standing having eastern front. First

of all, Ram Sharan Yadav was assaulted and then, he was.

PW-6 is Chandeshwar Prasad the part I.O., who had

simply submitted chargesheet against the accused persons Adalat

Yadav, Girdhari Yadav keeping the investigation pending against

others and subsequently, submitted supplementary chargesheet against

Ram Balak Yadav keeping the investigation pending against Anirudh

Yadav, Bihari Yadav, Vijay Yadav, Shivji Yadav, Neti Yadav and

Subodh Yadav. He had further stated that Anirudh Yadav and Bihari

Yadav were arrested from West Bengal and then, supplementary

chargesheet was submitted against them while against remaining,

investigation was kept pending. During cross-examination, it is

evident that he had not done any substantial investigation after taking

charge.

PW-9 is Ganesh Singh, the real Investigating Officer.

He had stated that on 04.12.2008, he was posted as A.S.I. at Balia

Police Station. He proceeded at 3.15 p.m. from police station in

evening with patrolling team and came at Bari Balia Bazar. At about

5.45 p.m., he received information from police station that one person

has been murdered by way of shooting near about Bhagatpur ''more'',

on which he proceeded there from and reached at Bhagatpur ''more'' at

about 6.00 p.m., where he saw one person dead. On query, he came to

learn that deceased was Ram Sharan Singh, son of Basudev Yadav. In

the meantime, Officer-in-charge Santosh Kumar Singh, A.S.I. Rama

Shankar Singh along with armed police personnel had also reached at

the place of occurrence. The S.D.P.O. also arrived. Injured Sunil

Yadav handed over written report to Officer-in-charge. Inquest was

prepared at the spot and then, dead body was sent for post mortem

(exhibited). Thereafter, Officer-in-charge along with A.S.I. returned to

police station having written report as well as after having seizure of

blood stained earth. On the basis of the written report, Balia P. S. Case

No.222 of 2008 was registered and investigation was entrusted to him.

He exhibited formal F.I.R., endorsement over written report. On the

same day at about 11.00 p.m., he proceeded from P.S. to P.O. along

with Officer-in-charge as well as police personnel and then, inspected

the place of occurrence as pointed out by the informant. He detailed

the place of occurrence which happens to be Bhagatpur pitch road.

Blood stained was found east to the pitch road. He had given

boundary as follows:-South-road, North-Balia Bazar, East-land of

Jago Choudhary, West-land of Suresh Mahto wherein potato has been

planted. One banana tree has also been seen. He recorded statement of

informant and those of Janardan Yadav, Anil Yadav and Dhodho

Yadav. He received post mortem on 06.01.2009. On 30.01.2009, he

recorded statement of Ganesh Yadav and Baijnath Yadav. He took

statement of Kare Lal Yadav. He received injury report of Sunil

Yadav (exhibited). He submitted chargesheet against Adalat Yadav

and Girdhari Yadav keeping investigation pending against others.

During cross-examination at Para-14, he had stated that he received

information from P.S. at 5.45 p.m. (17.45) that one person has been

shot at near about Bhagatpur ''more''. The occurrence is dated

04.12.2008. He proceeded from Balia Bazar at 5.48 p.m., when he

reached at the place of occurrence, he saw one person having been

shot at. On query, he came to know that name of the deceased,

happens to be Ram Sharan Yadav. At that very time, he was not

conscious. He had not written the name of the family members of the

deceased. At the place of occurrence itself written report was filed.

Blood stained earth was seized at that very time. Injured Sunil Yadav

was sent to hospital. He is unaware whether at that very time, Ganesh

Yadav, Baijnath Yadav, Dhodho Yadav, Anil Yadav, Sunil Yadav

were present or not because of the fact that he was unknown to them

since before. In Para-19, he had stated that then thereafter, he again

went on patrolling from the P.O. itself. After return to P.S., he again

came at P.O. at about 11.10 p.m. At that very time, informant was not

there. In Para-20, he had stated that he had not recorded statement of

Jago Choudhary as well as Suresh Mahto. He had further stated that

he had not found grocery shop in vicinity of the P.O. At Para-21, he

had stated that none came forward to give statement at the place of

occurrence. Injured was not in position to make statement on account

thereof, his further statement was not taken. In Para-22, he had stated

that none of the villagers save and except, own family members of the

deceased as well as injured became ready to make statement. In Para-

25, he had stated that he took statement of family members of

informant on 07.12.2008. He took further statement of informant on

06.12.2008. He took statement of Ganesh Yadav on 30.01.2009.

PW-10 is a formal witness in nature, who had proved

the inquest report having been prepared in carbon process.

Before analyzing the evidence available on the record

as detailed herein above, first of all the status of accused is to be

considered. Save and except Girdhari Yadav, others have been

identified having played active role during course of occurrence. So

far Girdhari Yadav is concerned, he has been shown as a conspirator.

Admittedly, there happens to be no evidence on the record to suggest

that there was an agreement amongst each other to facilitate murder of

deceased Ram Sharan Yadav as well as to commit murderous attack

upon Sunil Yadav. However, the witnesses more or less stated that as

the deceased and Sunil Yadav were doing pairvi against Girdhari

Yadav and others, who were facing trial for commission of murder of

Mahesh Paswan and during course thereof, Ram Sharan Yadav had

also sustained injury and on account thereof, had also witnessed and

for that, he was regularly threatened by Girdhari Yadav, but neither

any specific date has been shown by any of the witnesses including

Sunil Yadav, informant nor any of them had stated that Girdhari

Yadav had threatened in their presence. Apart from this, the witnesses

are also silent over having the remaining accused/ appellants in

company of Girdhari Yadav since before the occurrence nor they

deposed that all of them ever made threatening in their presence. The

learned lower Court in Para-34 of the judgment had considered the

aforesaid aspect and further, relying upon 2003 Criminal Law

Journal 4801 as well as 5021 inferred that theme of conspiracy is

found duly substantiated without noticing whether any sort of

evidence have been adduced satisfying the legal mandate attracting

application of Section 120B I.P.C.

Section 120A of the I.P.C. defines criminal

conspiracy which is as follows:-

"[120A. Definition of criminal conspiracy.--When

two or more persons agree to do, or cause to be

done,--

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal

conspiracy unless some act besides the agreement is

done by one or more parties to such agreement in

pursuance thereof. Explanation.--It is immaterial

whether the illegal act is the ultimate object of such

agreement, or is merely incidental to that object.]"

In Gulam Sarbar v. State of Bihar (Now Jharkand)

as reported in 2014 Cr.L.J. 34, it has been held as follows:-

"5. The essential ingredients of Criminal

Conspiracy are (i) an agreement between two or

more persons; (ii) agreement must relate to

doing or causing to be done either (a) an illegal

act; or (b) an act which is not illegal in itself but

is done by illegal means. What is, therefore,

necessary is to show meeting of minds of two or

more persons for doing or causing to be done an

illegal act or an act by illegal means. Mere

knowledge or discussion or generation of a crime

in the mind of the accused, is not sufficient to

constitute an offence.

The offence takes place with the meeting of minds

even if nothing further is done. It is an offence

independent of other offences and punishable

separately. Thus, the prosecution is required to

establish the offence by applying the same legal

principles which are otherwise applicable for the

purpose of proving criminal misconduct on the

part of an accused. Criminal conspiracy is

generally hatched in secrecy thus direct evidence

is difficult to obtain or access. The offence can be

proved by adducing circumstantial evidence or

by necessary implication. Meeting of minds to

form a criminal conspiracy has to be proved by

adducing substantive evidence in cases where

circumstantial evidence is incomplete or vague.

The gist of the offence of conspiracy then lies, not

in doing the act, or effecting the purpose for

which the conspiracy is formed, nor in attempting38

to do them between the parties. Agreement is

essential. (Vide: Kehar Singh & Ors. v. State

(Delhi Admn .), AIR 1988 SC 1883; State (NCT of

Delhi) v. Navjot Sandhu @ Afsan Guru, AIR

2005 SC 3820; Mir Nagvi Askari v. CBI, AIR

2010 SC 528; Baldev Singh v. State of Punjab,

(2009) 6 SCC 564; State of M.P. v. Sheetla

Sahai & Ors ., (2009) 8 SCC 617; R.

Venkatkrishnan v. CBI, AIR 2010 SC 1812; and

S.Arul Raja v. State of T.N ., (2010) 8 SCC 233).

In Mohmed Amin @ Amin Choteli Rahim

Miyan Shaikh & Anr. v. CBI, (2008) 15 SCC 49,

it was held that in order to come under this

provision it is not necessary for the accused to

know the detailed stages of conspiracy; mere

knowledge of main object/ purpose of the

conspiracy would suffice for this Section.

Similarly, in Vikram Singh & Ors. v. State of

Punjab, AIR 2010 SC 1007, this Court dealt with

a case where the accused had purchased fortwin

injection and chloroform. Thus, it was held that

since the purchase of these materials was an

initial step towards commission of offence, the

presence of co-accused Sonia, though not

referred to by the witnesses at the time of actual

kidnapping would not imply that she was not

privy to conspiracy and conviction of the accused

under Section 120-B IPC was upheld."

In State (Government of NCT of Delhi) v. Nitin

Gunwant Singh with State(Government of NCT of Delhi) v. Om

Prakash Srivastava @ Babloo as reported in 2015 Cr.L.J 4759, it

has been held as follows:-

"16. The prosecution relies upon the existence of

criminal conspiracy, which resulted into the

death of Lalit Suneja. This Court has time and

again laid down the ingredients to be made out

by the prosecution to prove criminal conspiracy.

It is now, however, well settled that a conspiracy

ordinarily is hatched in secrecy. The Court for

the purpose of arriving at a finding as to whether

the said offence has been committed or not may

take into consideration the circumstantial

evidence. However, while doing so, it must be

borne in mind that meeting of mind is essential;

mere knowledge or discussion would not be

sufficient. Yet, the prosecution has failed to prove

the evidence which establishes any prior meeting

of mind of the accused. The prosecution merely

proved that all the accused were present in Delhi

on the date of occurrence, and that the alleged

motor-bike and the car used in incident belonged

to respondent No.2, Om Prakash Srivastava @

Babloo. The High Court rightly dismissed this

argument, as the involvement of the said vehicles

in commission of the crime were never proved.

Neither any prior meeting of mind of the accused

was proved, nor any action, individually or in

concert, was proved against any of the accused.

Needless to say that the entire foundation of the

prosecution story was never established."

In Subhash v. State of Haryana as reported in

(2015) 12 SCC 444, it has been held as follows:-

"6. To make out the offence under Section 120-B

of IPC, the prosecution must lead evidence to

prove the existence of some agreement between

the accused persons. There is no specific

evidence as to where and when the conspiracy

was hatched and what was the specific purpose

of such conspiracy. No such evidence has been

adduced in the present case. Therefore, in our

opinion, the conviction and sentence of the

appellants have to be set aside."

In Devender Pal Singh v. State N.C.T of Delhi as

reported in 2002 Cr.L.J 2035, it has been held as follows:-

"12. The element of a criminal conspiracy have

been stated to be: (a) an object to be

accomplished, (b) a plan or scheme embodying

means to accomplish that object, (c) an

agreement or understanding between two or

more of the accused persons whereby they

become definitely committed to co-operate for the

accomplishment of the object by the means

embodied in the agreement, or by any effectual

means, (d) in the jurisdiction where the statute

required an overt act. The essence of a criminal

conspiracy is the unlawful combination and

ordinarily the offence is complete when the

combination is framed. From this, it necessarily

follows that unless the statute so requires, no

overt act need be done in furtherance of the

conspiracy, and that the object of the

combination need not be accomplished, in order

to constitute an indictable offence. Law making

conspiracy a crime is designed to curb

immoderate power to do mischief which is gained

by a combination of the means. The

encouragement and support which co-

conspirators give to one another rendering

enterprises possible which, if left to individual

effort, would have been impossible, furnish the

ground for visiting conspirators and abettors

with condign punishment. The conspiracy is held

to be continued and renewed as to all its

members wherever and whenever any member of

the conspiracy acts in furtherance of the common

design. (See American Jurisprudence Vol. II

Section 23, p. 559). For an offence punishable

under Section 120B,prosecution need not

necessarily prove that the perpetrators expressly

agree to do or cause to be done illegal act; the

agreement may be proved by necessary

implication. Offence of criminal conspiracy has

its foundation in an agreement to commit an

offence. A conspiracy consists not merely in the

intention of two or more, but in the agreement of

two or more to do an unlawful act by unlawful

means. So long as such a design rests in intention

only, it is not indictable. When two agree to carry

it into effect, the very plot is an act in itself, and

an act of each of the parties, promise against

promise, actus contra actum, capable of being

enforced, if lawful, punishable if for a criminal

object or for use of criminal means.

No doubt in the case of conspiracy there

cannot be any direct evidence. The ingredients of

offence are that there should be an agreement

between persons who are alleged to conspire and

the said agreement should be for doing an illegal

act or for doing illegal means an act which itself

may not be illegal. Therefore, the essence of

criminal conspiracy is an agreement to do an

illegal act and such an agreement can be proved

either by direct evidence or by circumstantial

evidence or by both, and it is a matter of common

experience that direct evidence to prove

conspiracy is rarely available. Therefore, the

circumstances proved before, during and after

the occurrence have to be considered to decide

about the complicity of the accused."

In Chandra Prakash v. State of Rajasthan as

reported in 2014 Cr.L.J. 2884, it has been held as such:-

"70. While dealing with the facet of criminal

conspiracy, it has to be kept in mind that in case

of a conspiracy, there cannot be any direct

evidence. Express agreement between the parties

cannot be proved. Circumstances proved before,

during and after the occurrence have to be

considered to decide about the complicity of the

accused. Such a conspiracy is never hatched in

open and, therefore, evaluation of proved

circumstances play a vital role in establishing the

criminal conspiracy. In this context, we may refer

with profit to a passage from Yogesh alias

Sachin Jagdish Joshi v. State of

Maharashtra [(2008)10 SCC 394]: -

"20. The basic ingredients of the offence of

criminal conspiracy are: (i) an agreement

between two or more persons; (ii) the agreement

must relate to doing or causing to be done either

(a) an illegal act; or (b) an act which is not

illegal in itself but is done by illegal means. It is,

therefore, plain that meeting of minds of two or

more persons for doing or causing to be done an

illegal act or an act by illegal means is sine qua

non of criminal conspiracy. Yet, as observed by

this Court in Shivnarayan Laxminarayan Joshi v.

State of Maharashtra [(1980)2 SCC 465] a

conspiracy is always hatched in secrecy and it is

impossible to adduce direct evidence of the

common intention of the conspirators. Therefore,

the meeting of minds of the conspirators can be

inferred from the circumstances proved by the

prosecution, if such inference is possible."

The same principles have been stated in

Pratapbhai Hamirbhai Solanki v. State of

Gujarat and another [(2013)1 SCC 613].

In Yakub Abdul Razak Menon v. The State of

Maharashtra, through CBI, Bombay[(2013) (3)

SCALE 565], analyzing various pronouncements,

this Court opined thus: -

"68. For an offence Under Section 120B Indian

Penal Code, the prosecution need not necessarily

prove that the conspirators expressly agreed to

do or cause to be done the illegal act, the

agreement may be proved by necessary

implication. It is not necessary that each member

of the conspiracy must know all the details of the

conspiracy. The offence can be proved largely

from the inferences drawn from the acts or illegal

omission committed by the conspirators in

pursuance of a common design. Being a

continuing offence, if any acts or omissions

which constitute an offence are done in India or

outside its territory, the conspirators continuing

to be the parties to the conspiracy and since part

of the acts were done in India, they would obviate

the need to obtain the sanction of the Central

Government. All of them need not be present in

India nor continue to remain in India. The entire

agreement must be viewed as a whole and it has

to be ascertained as to what in fact the

conspirators intended to do or the object they

wanted to achieve. (Vide: R.K. Dalmia v. Delhi

Administration [AIR 1962 SC 1821], Lennart

Schussler and Anr. v. Director of Enforcement

and Anr .[(1970) 1 SCC 152], Shivanarayan

Laxminarayan Joshi v. State of Maharashtra and

Mohammad Usman Mohammad Hussain

Maniyar and Anr. v. State of Maharashtra [AIR

1981 SC 1062])."

After going through the aforesaid judicial

pronouncements as well as principle so laid down therein, it is

apparent that some sort of material should be brought up on record at

the end of the prosecution, which could sustain its case. As stated

above, save and except, stating that Girdhari Yadav was insisting

upon the deceased as well as Sunil Yadav to withdraw from main

stream would not satisfy as the prosecution is lacking in evidence in

exposing any past activities of the appellants to the extent of entering

into an agreement during course of such nefarious design to commit

an illegal act to wit committing murder of Ram Sharan as well as

murderous attack upon Sunil. True it is, that in majority of cases

direct evidence would not visualize and could be substantiated with

circumstantial evidence, but again some sort of evidence must surface

which could indicate that ultimate result smacks fragrance of

conspiracy. May be, other accused belonging to group of Girdhar

Yadav might be interested in his acquittal and for that they gone to

that extent, but that does not mean that act was executed after having

an agreement, so, prosecution suffers from inherent deformity on this

score and is fit to disapprobation. Consequent thereupon, the

conviction and sentence so recorded by the learned Trial Court

relating to appellant Girdhari Yadav is set aside. He is under

custody whereupon, is directed to be released forthwith if not wanted

in any other case.

Now, coming to the status of remaining appellants, in

the background of finding so recorded hereinabove nullifying

applicability of Section 120B of the I.P.C., their conviction with the

aid of Section 120B of the I.P.C. would not survive. That being so, the

overall consideration of the prosecution case is to be taken note of

while adjudging the issue relating to them.

From the evidence having been adduced on behalf of

prosecution as well as appellants, it is crystal clear that prosecution as

well as appellants identified themselves in two separate groups,

hostile to each other and on account thereof, series of litigation is

going on amongst the parties. When two notorious groups are at

loggerheads, the villagers would not like to indulge themselves, more

particularly in the present social framework, whereunder no positive,

concrete, foresee approach is found available to properly safeguard

the interest of the witnesses. Therefore, all the witnesses commanded

by one group would not frustrate their status, if otherwise is found

acceptable, reliable, credible as well as worth consideration.

From the written report, it is evident that presence of

PW-1 has not been shown although as per evidence of all the PWs, it

is abundantly clear that after arrival of the police personnel, PW-5 had

dictated written report to his uncle Baijnath Yadav, PW-4. Had there

been presence of PW-1, certainly his presence would have found

mentioned. If Paras-12 and 14 of the evidence of PW-1 is gone

through, it is evident that his status as an eye witness became

doubtful. In Para-12, he had stated that when he reached, he found

shop of Suresh Mahto closed. He had not seen anybody. He had not

stayed at the shop, but again corrected that he remained there and

stayed for one and half hour. During midst thereof, Janardan Yadav,

Anil Yadav, Baijnath Yadav, Sunil Yadav, Ganesh Yadav came, who

happen to be his family members. He had not named Ram Sharan

Yadav, the deceased. In Para-14, he had stated that he heard 15-20

rounds of firing sound as well as also seen firing made one by one. He

became scared and hid behind banana trees, which was shown to the

police.

PW-2 is the son of PW-4 Baijnath Yadav. Baijnath

Yadav had stated that he along with Ganesh Yadav had gone to Balia

Bazar, stayed there and then, returned along with Sunil Yadav and

Ram Sharan Yadav. This witness PW-2 had simply stated that on the

alleged date and time of occurrence, he was returning along with his

cousin brother Ram Sharan Yadav, Sunil Yadav and father Baijnath

Yadav. In Para-11, he had stated that he had gone to Balia along with

his father. He had not met with anybody at Balia or during midst of

way. He had gone to Balia only to stroll. He remained there for one

and half hour to 1.45 minutes. In Para-12, he had stated that when he

proceeded from Balia, he met Ram Sharan Yadav, Baijnath Yadav

and Sunil Yadav. Therefore, from his evidence, it is apparent that

Baijnath Yadav was not along with him. His evidence is further to be

tested with the evidence of his father PW-4. In Para-2, he had stated

that he met with Sunil Yadav and Ram Sharan Yadav in Balia Bazar

and then, he along with Ram Sharan Yadav, Sunil Yadav, Ganesh

Yadav proceeded towards their house. In Para-10, he had stated that

he reached at Balia Bazar at 3.00 p.m. First of all, he reached at Patel

chowk and then, had gone to Balia Bazar where he had not met with

anybody. In Para-24, he had stated that Ram Sharan Yadav and Sunil

Yadav got down from train at Lakhminia station at about 4.45p.m. He

had further stated that he met with them at Lakhminia station where

he had gone. After staying at the station, he returned to Balia Bazar

where he remained one to one an half hour and then, at 4.45p.m., he

proceeded there from. Ganesh Yadav was along with him since

before. In Para-25, he had stated that he met Ram Sharan Yadav at

Balia Bazar at 4.45 p.m. and then, all of them proceeded there from.

PW-3 is Anil Yadav @ Anil Kumar Yadav, who is

also not named in the written report. He had stated that after hearing

sound of uproar, he rushed from his house to the place of occurrence.

During cross-examination at Para-10, he had stated that he is unable

to say who were present at his house at the time of his departure. In

Para-15, he had stated that when he reached at the place of

occurrence, he found 15-20 persons and it was 5 O'' clock in the

evening. The aforesaid 15-20 persons belonged to both the groups.

It is true that the evidence of the witnesses is to be

considered in its totality. Furthermore, the classification of the

witnesses have been found duly identified as wholly reliable, wholly

unreliable, partly reliable as well as partly unreliable. Generally, the

maxim falsus in uno and falsus in omnibus is not found applicable in

Indian continent. However, when the evidence of the witnesses

suggests at first hand that they could not be an eye witness to

occurrence, then in that event, their status being inimical as well as

interested, will play an additional role in order to discredit their

evidences. Moreover, when their evidences are uncorroborated by an

independent witness, then in that event, the same would require

scrutiny. That being so, status of PW-1, PW-2, PW-3 and PW-4 could

not be considered as an eye witness to occurrence, more particularly

PW-2 and PW-4, who claimed to have joined company of deceased as

well as injured at Balia Bazar, where they had gone together from

their house before 3.00 p.m., on account of inconsistencies as well as

contradictions at the first instance itself. In likewise manner, the status

of PW-1 also becomes doubtful in the background of the fact that he

was to purchase household articles and for that, he had gone to the

shop of Suresh Mahto, which was closed and then, staying for one and

half hour without any activity could not inspire confidence regarding

his conduct. So far PW-3 is concerned, admittedly, he happens to be

full brother of PW-5, informant and was also one of the participants of

the fray being fought amongst the parties as well as depicting

presence of 15-20 persons at the P.O. representing both groups is a

circumstance, which could not be washed away during course of

consideration of individual status of the witnesses vis-a-vis their

credibility as an eye witness to the occurrence. Their presence might

have after the occurrence, as, the P.O. lies in vicinity of the village.

Now, coming to the evidence of PW-5, informant.

From the evidence, more particularly PW-8, Dr. Ashok Kumar

Sharma and PW-9, the Investigating Officer, it is apparent that he had

sustained firearm injuries. It is also apparent from the evidence of

PW-9 that when he reached at the place of occurrence at about 6.00

p.m., he found Ram Sharan Yadav dead while Sunil Yadav in injured

condition.

In Jodhan v. State of Madhya Pradesh reported in

2015 Criminal Law Journal 3291, it has been held:-

"21. ..............................................Additionally,

we may note with profit that these witnesses had

sustained injuries and their evidence as we find is

cogent and reliable. A testimony of an injured

witness stands on a higher pedestal than other

witnesses. In Abdul Sayeed v. State of M.P .(2010)

10 SCC 259, it has been observed that the question

of weight to be attached to the evidence of a witness

that was himself injured in the course of the

occurrence has been extensively discussed by this

Court. Where a witness to the occurrence has

himself been injured in the incident, the testimony of

such a witness is generally considered to be very

reliable, as he is a witness that comes with a built-

in guarantee of his presence at the scene of the

crime and is unlikely to spare his actual assailant(s)

in order to falsely implicate someone. It has been

also reiterated that convincing evidence is required

to discredit an injured witness. Be it stated, the

opinion was expressed by placing reliance upon

Ramlagan Singh v. State of Bihar (1973) 3 SCC

881, Malkhan Singh v. State of U.P . (1975) 3 SCC

311, Vishnu v. State of Rajasthan (2009) 10 SCC

477 and Balraje v. State of Maharashtra (2010) 6

SCC 673 and Jarnail Singh v. State of Punjab

(2009) 9 SCC 719.

From the aforesaid summarization of the legal

principles, it is beyond doubt that the testimony of

the injured witness has its own significance and it

has to be placed reliance upon unless there are

strong grounds for rejection of his evidence on the

basis of major contradictions and inconsistencies.

As has been stated, the injured witness has been

conferred special status in law and the injury

sustained by him is an inbuilt- guarantee of his

presence at the place of occurrence. Thus

perceived, we really do not find any substance in

the submission of the learned counsel for the

appellant that the evidence of the injured witnesses

have been appositely discarded being treated as

untrustworthy by the learned trial Judge."

Keeping the settle principle as referred above over

reliability, acceptability of evidence, relating to an injured witness, the

evidence of PW-5 is to be scrutinized. From close scrutiny thereof, it

is evident that not only he had consistently deposed over motive

having been carried by the appellants, rather he also properly

identified parts played by each of the accused. Even during course of

lengthy cross-examination, he stood fairly, and no part thereof, is

found adverse to his status being not only an eye witness rather once

of the victim of present episode. Furthermore, during close scrutiny of

his evidence in consonance with the evidence of PW-8, the doctor

who had examined PW-5 for the gun-shot injury having sustained by

him along with evidence of PW-9, the I.O., no room of doubt is found

existing at the other end, it is found crystal clear the presence of PW-

5, in an injured condition at the P.O. where dead body of deceased

Ram Sharan Yadav was also lying. Furthermore, having positive

evidence regarding presence of copious blood at the P.O., preparation

of seizure list additionally supports the prosecution version.

The only abnormal conduct which is visualized from

the evidence of PW-5 is that instead of fard-bayan, he furnished

written report which, in the facts and circumstances of the case, could

not be considered a vital lacuna, moreover, in the background of

evidence of the I.O. who had deposed on that very score. Furthermore,

neither PW-5 the informant was cross-examined on that score why,

instead of fard-bayan, written report was filed. In likewise manner,

PW-4 Baidya Nath Yadav, the scribe was also not cross-examined at

Court by way of suggestion that he had not scribed written report on

the dictation of PW-5.

Section 134 of the Evidence Act prescribes

justification of conviction and sentence if evidence of single witness

is found worth accepting.

In Sudip Kr. Sen alias Biltu v. State of West Bengal

and others with Goutam Ghosh v. State of West Bengal with Apu

Chatterjee alias Soumitra v. State of West Bengal with Sankar Das

alias Bhai v. State of West Bengal with Tapas Das alias Bhambal v.

State of West Bengal reported in 2016 CRI. L.J. 1121, it has been

held:-

"12. Observing that there is no impediment for

recording conviction based on the testimony of

a single witness provided it is reliable in

Prithipal Singh & Ors. vs. State of Punjab &

Anr ., (2012) 1 SCC 10, it was observed as

under:-

"49. This Court has consistently held that as a

general rule the court can and may act on the

testimony of a single witness provided he is

wholly reliable. There is no legal impediment

in convicting a person on the sole testimony of

a single witness. That is the logic of Section

134 of the Evidence Act. But if there are doubts

about the testimony, the court will insist on

corroboration. In fact, it is not the number or

the quantity, but the quality that is material.

The time-honoured principle is that evidence

has to be weighed and not counted. The test is

whether the evidence has a ring of truth, is

cogent, credible and trustworthy or otherwise.

The legal system has laid emphasis on value,

weight and quality of evidence, rather than on

quantity, multiplicity or plurality of witnesses.

It is, therefore, open to a competent court to

fully and completely rely on a solitary witness

and record conviction. Conversely, it may

acquit the accused in spite of testimony of

several witnesses if it is not satisfied about the

quality of evidence." [ See Vadivelu Thevar v.

State of Madras, AIR 1957 SC 614, Sunil

Kumar v. State (Govt. of NCT of Delhi, (2003)

11 SCC 367, Namdeo v. State of Maharashtra,

(2007) 14 SCC 150 and Bipin Kumar Mondal

v. State of W.B ., (2010) 12 SCC 91]: (AIR 2010

SC 3638)."

That being so, the appeals having been preferred on

behalf of appellants, Adalat Yadav, Bihari Yadav and Anirudh

Yadav are found meritless, whereupon are dismissed, subject to

modification as held herein before to the extent of erasing of Section

120B of the I.P.C. Appellants are under custody on account thereof,

they will remain till saturation of the respective sentences having

inflicted against them by the learned lower Court.