Rajendra Prasad Yadav vs The State of Bihar

Dharnidhar Jha, J—The present appeal has been filed to challenge the correctness of finding of guilt of the solitary appellant recorded by the learned Presiding Officer, Fast Track Court No. II, Gaya in Sessions Trial No. 329 of 2010 by his judgment dated 17.06.2010 by which the appellant was held to have committed offences U/Ss. 302 and 307/149 IPC and Section 27 of the Arms Act. The appellant was heard on sentence on 23.06.2010 and he was directed to suffer rigorous imprisonment for life as also for a term of ten years U/Ss. 302 and 307/149 IPC with further direction to the appellant to suffer rigorous imprisonment for three years under Section 27 of the Arms Act.

The appellant had contested the Elections 2005 from Atri constituency in the State of Bihar for being elected as a Member of the Bihar Legislative Assembly. He was declared elected and he had taken out a victory procession which was comprised by about 14-15 vehicles and over 100 (as per evidence 300-400) strong supporters of the appellant. On 28.02.2005 at about 3.30 P.M.-the informant Dhirendra Kumar (PW2) stated in his fardbeyan-the procession was moving on the road of the village and it had come in front of the house of PW2. Men in the procession were splashing coloured powder all around and were also firing shots. The motor vehicles which were the part of the victory procession of the appellant, stopped about 200 meters away from the village and the appellant is said to have alighted from the vehicle which was leading the procession along with his sons absconding accused Pramod Yadav and Subodh Yadav. Seeing the crowd, the informant retreated towards his house and saw that this appellant Rajendra Yadav was remonstrating his followers by shouting that persons of Bhumihar caste had not voted for him and, as such, the residents of village Dariyapur were to be taught a lesson. No sooner the appellant had uttered these words, his followers scattered all around the village from three sides. The informant stated that he had, by that time, reached his house and was asking his family members to be closeted inside it, when his sister Mintu Kumari, younger to him, went up the stairs over the roof of the house to pick up clothes spread there for drying. The informant also rushed up following his sister and reached the roof top. By that time, this appellant Rajendra Yadav had come on to the road in front of the house of the informant and persons accompanying him were firing shots from their respective weapons targeting the windows and doors of the house. This appellant was also firing shots and was at the same time shouting that a massacre was to be committed as the villagers were to bear the consequences of not voting for him. Shouting the above words, this appellant is said to have fired a shot aiming at the house of the informant as a result of which the sister of the informant, namely, Mintu Kumari was hit in her head and her skull was blasted off. She died instantaneously.

The informant stated that he was seeing the incident by hiding behind the roof structure of the house and during that course the appellant along with his sons Pramod Yadav and Subodh Yadav and others had fired around 300-350 rounds of shots, targeting the doors and windows of different houses so as to committing murder. Not only that, the furious mob which was being led by the appellant had assaulted an eighty year old Ramavatar Singh (not examined) who was caught by them north of the village near a culvert by being given blows with butts of rifles and guns. The said Ramavatar Singh was also thrown repeatedly on to the ground as a result of which not only bleeding injuries were caused to him but his hand was also fractured. Likewise, Akshay Kumar (PW8) aged about 56 years, a teacher in Primary School, Riula, was also caught by the mob and he was also beaten up and his kurta was torn and accused Pramod Yadav snatched his wrist watch and cycle.

The informant stated that the mayhem continued for about 30-45 minutes in the village whereafter the marauders went away from there. The informant and other villagers thereafter came out of their houses and learnt that eight-year-old- Bhagina (sister''s son) of Kaushal Kumar had been hit by pellet on his right shoulder besides Abhishek Kumar aged about 1 1/2 years, son of Madhukant Kumar, was also hit on his right forehead by a pellet. On account of firing shots at different houses in order to committing murder, the houses of Upendra Singh (PW9), Sitaram Singh (not examined), Akshay Kumar (PW8), Bhuneshwar Singh (not examined), Sudhir Singh (not examined) were bearing the signs of gun shots. The informant stated that the incident had been seen by villagers.

The fardbeyan (Ext. 1) of PW2 was recorded by PW3, S.I. Rakesh Raman who was the Officer-in-Charge of Atri police station on 28.02.2005.

In fact PW3 would say that while he was at his police station, he received an information at about 5.00 P.M. on 28.02.2005 that an incident of shooting had occurred at village Dariyapur and a girl had been killed in it. In order to verifying the information he left his police station to reach village Dariyapur at 7.20 P.M. and he recorded Ext. 1, the fardbeyan of PW2 Dhirendra Kumar at 7.30 P.M. He could not draw the FIR because he did not think it proper to send the document to the police station because it was night and the prevailing circumstances were not conducive to do that (PW3, paragraph-3). However, he held inquest upon the dead body in presence of the witnesses and prepared the inquest report by carbon process, a copy of which was marked Ext. 3. He recorded the statements of different witnesses and inspected the place of occurrence which as per PW3 was the house of Dhirendra Kumar (PW2) son of Shashi Bhushan Kishor, the informant of the case. It was a pucca built house at the top of which was a railing of three-feet-height. The dead body was found lying there on the southern side of the roof by the side of the railing. Inquest was held upon it. There was copious blood lying at the place where the dead body was found at the roof top. There was a partially constructed room on the western side of the roof and to the further east of the roof over which the dead body was found was yet another construction which was in progress. The main residential house of the informant was situated in the west and it was facing north. There was a Dalan (male sitting section) and the roof of the main house and that of the Dalan was a single-cast-roof. To the west of the house of the informant was the other piece of land belonging to him over which some green fodder had been grown by the informant. To the south of the house was the Sheo Temple and about fifty yards east of the house was the road going from Jamuawa to Sebtar and it was running from north to south. The place where the vehicles were abandoned by the rioters was situated at a distance of seventy five yards from the house of the informant and at a distance of about sixty yards in the west to the said road, was situated the Dalan of one Nawal Singh which was bearing marks of gun shots at seven places. Likewise, the wall of the Dalan of Upendra Singh (PW9) was also bearing marks of gun shots at thirteen places. The Investigating Officer (PW3) found that the house of Akshay Kumar (PW8) was a double storey building and one of the rooms on the upper floor was found bearing a hole in the iron plank of its window fixed in the eastern wall and the bullet had, after passing through the iron plank, struck the opposite wall inside the room which was also bearing the mark of gun shot. The house of Dinesh Singh was situated fifty yards west of Upendra Singh''s (PW9) and the shots fired by the mob had broken the tiles of the roof of the house. The house of Sitaram Singh which was situated three hundred yards away in the west from the pucca road, was also found bearing marks created by gun shots on its eastern wall. The rampart of the house was also found broken due to firing of shots. The house of Suraj Ram was situated a little ahead (that''s, to further west) of the house of Sitaram Singh and the walls of the house of Suraj Ram was also bearing marks created by shots fired by the members of the mob. In addition to the above, the brick wall of the house of Uma Singh was also found bearing mark created by firing shots. Walls also of the Sheo temple and Laxmi temple were also found bearing marks created by firing of pellets.

PW3, the Investigating Officer had recorded the above marks in his case diary found by him during inspection of the place of occurrence. However, he did not find any pellets or cartridge cases lying at the scene of occurrence during his inspection of the place of occurrence which, as may appear from the last line of his evidence at page 23 of the paper book, was held in the light of dragon light, torch light and gas light. However, PW3 stated in paragraph-9 of his evidence that on his arrival at the place of occurrence on 03.03.2005 at 10.00 A.M. one of the relatives of the informant, namely, Dinesh Singh (not examined) had produced a bunch of cartridge cases and pellets/bullets picked up by him from the place of occurrence and he, accordingly, prepared the production-cum-seizure memo (Ext. 5) in presence of the witnesses.

He had sent the dead body on 01.03.2005 at 9.00 A.M. to Anugrah Narayan Medical College Hospital, Gaya for postmortem examination and had recorded the statements of witnesses. Besides, he had found that Akshay Kumar (PW8) and Kaushal Kumar (not examined) and Abhishek Kumar, a child, had also received injuries during the incident and they were sent to Wazirpur hospital for treatment. PW3 procured the injury certificates in respect of their injuries. After concluding the investigation the Investigating Officer submitted charge sheet for the trial of the accused persons.

It appears from the record that initially absconding accused Subodh Yadav was arrested and the investigation was partially concluded as against him keeping the same pending in respect of appellant Rajendra Yadav and co-accused Pramod Yadav, but subsequently a supplementary charge sheet was filed by the Investigating Officer on 08.06.2006 showing accused Pramod Yadav as an absconder. The case of Rajendra Yadav and Subodh Yadav was committed to the court of sessions and charges were framed against Rajendra Yadav and his son Subodh Yadav on 18.10.2006. After the examination of PWs. 1, 2 and 3 both the accused, i.e., the appellant Rajendra Yadav and his son Subodh Yadav disappeared from the trial and were declared absconders under Section 299 Cr.P.C. whereafter the evidence of PWs. 4, 5, 6, 8, 9 and 10 were recorded under Section 299 Cr.P.C. However, accused Rajendra Yadav was arrested and remanded to jail custody and that resulted into the recall for cross-examination of PWs. 4 to 10. Subsequently PWs. 11 and 12 Dr. Ajay Kumar and Dr. Dhanesh Kumar Singh were produced by the prosecution. Subodh Yadav and Pramod Yadav, the two sons of the present appellant, are still evading justice after having absconded from the trial. This Court does not know the reason as to why the warrant of arrest issued under Section 299 Cr.P.C. has still not been executed.

The defence of the appellant was of false implication on account of political ill-will entertained by the witnesses which more prominently appears from the evidence of PW2 Dhirendra Kumar, the informant of the case who turned hostile as also from the evidence of the defence witnesses, specially, Vaidehi Devi (DW1), the mother of PW2 and the deceased Mintu Kumari.

The prosecution examined twelve witnesses out of whom Naveen Singh (P.W. 1), Anil Singh (PW4), Vijay Singh (PW5), Babu Lal Singh (PW6) and Ashok Kumar (PW7) had deposed as eye witnesses to the entire occurrence. Akshay Kumar (PW8) who was a teacher in a primary school, was not the witness to the main part of the occurrence, i.e., the killing of Mintu Kumari. He, rather, stated that he was assaulted by the accused persons while he was coming back home from his school and his kurta was torn and he was relieved of his watch and bicycle. He could learn about the killing of Mintu Kumari after he had come back to his house. Upendra Singh (PW9) was also not an eye witness to the killing of Mintu Kumar. However, he had given evidence about the arrival of the Julus and the indulgence by them into firing shots indiscriminately under the leadership of the present appellant during which course shots were fired also at the windows of his cattle shade, the doors of his house and as per PW9 the shots were fired also by the present appellant and his two sons Subodh Yadav and Pramod Yadav. PW9 stated that besides his house, the houses of Akshay Kumar (PW8) and that of Sitaram Singh had also been damaged and that the grandson of Akshay Kumar had also received a pellet injury. Besides, an old man of about eighty-or-eighty two years was assaulted at the outskirts of the village. PW9 stated that other persons were also injured in the firing and the eighty or eighty two-year-old Ramavatar Singh was so badly beaten up that he was unable to move on that account. Dr. Arvind Prasad (P.W. 10) was one of the members of the Board with Dr. Dhanesh Kumar Singh (P.W. 12) which had performed the autopsy on the dead body and had issued the post-mortem report Ext. 14. Dr. Ajay Kumar (P.W. 11) had examined Ramavatar Singh, aged about 80 years and had issued the injury report Ext. 8 in that behalf. As per the prosecution case and evidence, it was this Ramavatar Singh who was also assaulted by the mob led by the present appellant by the butt of rifles and guns. It is pertinent to point out that the informant Dhirendra Kumar (PW2) had supported the whole prosecution story but stated that he had not filed the report nor had he made any statement to PW3 and further, that he had not seen this appellant Rajendra Yadav or his sons firing any shot and that his sister Mintu Kumari had received the injury from a shot fired by some unknown person from the mob.

The defence has examined four witnesses. Vaidehi Devi (DW1) was the mother of the deceased and the informant (PW2). She supported the prosecution case of a victory procession led by this appellant and his sons which had passed through the village which was comprised by persons and vehicles and during that course shots were fired all around the village as a result of which her daughter had been killed. She stated in paragraph-2 that appellant Rajendra Yadav or his sons had not killed her daughter intentionally and knowingly and that shots were fired by a mob of 400-500 persons and Mintu Kumari had been hit by a shot and she died of it. Surendra Yadav (DW2) also stated that the victory procession was comprised by many vehicles and the big vehicles were stoned by the villagers and the occupants of the vehicles were also assaulted by them. He stated that persons who were occupying the vehicles were raising filthy slogans leading to firing and counter firing between the villagers and the processionists. Surendra Singh (DW3) was a resident of the same village Dariyapur and who was also stating on the firing of shots and during that course the killing of a girl, but was not stating as to who had killed her. D.W. 3 stated that there was firing and counter firing between the villagers and the processionists of the victory procession. D.W. 4 was Vijay Nandan Singh who had produced an injury register of Primary Health Centre, Atri and had stated that entries in respect of injury found on one Rameshwar Prasad was made by the doctor who had examined him. We could not appreciate the reason as to why the register was produced.

Shri Surendra Singh, the learned senior counsel appearing on behalf of the appellant, firstly, submitted that the informant having gone hostile to the prosecution his evidence could not be acted upon and that the FIR was rendered inadmissible on account of the informant having denied giving any statement to PW3. In support of the contention Shri Singh had cited before us C. Magesh and Others etc. Vs. State of Karnataka, AIR 2010 SC 2768 : (2010) 4 JT 467 : (2010) 4 SCALE 520 : (2010) 5 SCC 645 : (2010) 4 UJ 2007 : (2010) AIRSCW 3194 : (2010) 4 Supreme 180 and had drawn our attention specifically to paragraph-26 of the report. It was next contended by Shri Singh that the shots as per the Investigating Officer were fired from a distance of about seventy five yards from the road and it appears improbable that that particular shot fired by the appellant could have hit the deceased Mintu Kumari. Submission was that the evidence of the Investigating Officer that he had found marks created by gun shots fired by the persons of the mob on the walls of houses of different persons, is also not reliable as there was no chemical test held to test the veracity of that evidence. Submission was that if a mob of 400-500 persons had so indiscriminately fired hundreds of shots, it is curious to note that no one was injured as not doctor had come forward to say that he had examined any injured to find him bearing an injury caused by gunshot and it is also curious that only the deceased could be killed. It was submitted that if everyone was seeking safety by going inside the house why should the deceased at that particular moment go up the stairs on the roof of her house to pick up clothes spread up there for drying. By taking us through the evidence of PWs., Shri Singh submitted that Vijay Singh (PW5) and Ashok Kumar (PW7) does not appear eye witnesses to the occurrence. By citing Tej Bahadur Singh Vs. State of U.P., AIR 1990 SC 431 : (1990) CriLJ 611 : (1990) SCC 125 Supp : (1990) 1 UJ 147 , specially paragraph-6 of the report, Shri Singh was submitting that consistency in the evidence of witnesses sometimes signifies the falsity of the prosecution story and, as such, the evidence of the witnesses should not be accepted. Likewise, if the FIR had been lodged promptly, it must not be taken as an unmistakable guarantee of the truthfulness or authenticity of the prosecution version. In support of this contention, Shri Singh had drawn our attention towards paragraph-8 of Dilawar Singh Vs. State of Delhi, AIR 2007 SC 3234 : (2007) CriLJ 4709 : (2007) 10 JT 585 : (2007) 10 SCALE 556 : (2007) 9 SCR 695 : (2007) 2 UJ 1108 : (2007) AIRSCW 5899 : (2007) 6 Supreme 153 .

Shri D.K. Sinha, the learned Additional Public Prosecutor appearing for the State of Bihar himself and under his instructions, Shri Akhileshwar Prasad Singh, the learned senior counsel appearing on behalf of the prosecution, have refuted the above submissions of the appellant. Shri Sinha submitted that the description given by the witnesses regarding the situation of different houses vis a vis the road which was going from north to south as also that which was branching off the said road towards west to run through the length of the village Dariyapur indicates that the accused persons who were being led by the present appellant had entered into every nook and corner of the village and had fired shots indiscriminately. The house of Shashi Bhushan Singh and Upendra Singh (PW9) were situated opposite each other just by the side of the road which was running from north and south and the two houses were intervened by the village road going from east to west after branching off the north-south-road. Other houses were situated on both the sides of the village road and the description of those houses given by witnesses clearly indicated that it was a concerted act of the accused persons to kill the villagers. Incidentally, while some of them were injured, the unfortunate girl Mintu Kumari was killed. The evidence of witnesses was consistent as regards the prosecution story and support to it. It was also submitted that it may be true that Dhirendra Kumar (PW2) the informant of the case had not directly implicated this appellant Rajendra Yadav, but that Rajendra Yadav had fired along with his sons was clearly indicated by D.W. 2, the mother of the informant. The informant Dhirendra Kumar had also lent support to the material parts of the prosecution story and his evidence also establishes that the persons of the victory procession led by this appellant had indulged into indiscriminate firing of shots, both by rifles and guns, for about 30-45 minutes in which Mintu Kumari was killed. The evidence of PWs. 1, 3, 5, 6 and 7 was quite acceptable and direct as regards the firing of the shot by the present appellant which had caused the death of Mintu Kumari. It was contended that the charges had rightly been held proved and, as such, the appellant was convicted and sentenced appropriately.

While addressing his arguments, Shri Singh, the learned senior counsel appearing on behalf of the appellant had submitted that on account the informant being declared hostile by the prosecution, Ext. 1 and Ext. 4, i.e., the fardbeyan and the First Information Report were rendered inadmissible. In the same vein Shri Singh had also suggested to us that the incident had taken place at 3.30 P.M. and the report was lodged at 7.30 P.M. after PW3, S.I. Rakesh Raman, the Officer-in-Charge of Atri police station had reached at the place of occurrence. If the Court assumes that the lodging of the report was prompt then as held by the Supreme Court in Dilawar Singh Vs. State of Delhi, AIR 2007 SC 3234 : (2007) CriLJ 4709 : (2007) 10 JT 585 : (2007) 10 SCALE 556 : (2007) 9 SCR 695 : (2007) 2 UJ 1108 : (2007) AIRSCW 5899 : (2007) 6 Supreme 153 , it could never be a guarantee of the truthfulness of the version. The two submissions in our opinion sets up of an attack on the very veracity of the First Information Report and its use as a document which could be further used in testing the evidentiary value of other witnesses. The evidence of PW3, S.I. Rakesh Raman indicates that on 28.02.2005 while he was posted as the Officer-in-Charge of Atri police station, he received an information at about 5.00 P.M. about an incident of shooting having taken place at village Dariyapur and in order to verifying the information, he left his police station to reach village Dariyapur at 7.20 P.M. The distance between the police station and the village appears 35 KMs. from Ext. 4. the First Information Report. It is not available on record as to what was the condition of the road or what was the connectivity between the police station and the village of occurrence but it is amply clear that the village was well connected by road with district headquarters Gaya as appears from the very evidence of Naveen Singh (P.W. 1) in paragraph-4 which indicates that the village was about 15-20 feet away from a road which was known as Dariyapur-Semtar road which was running between Gaya and Nawada, the two district headquarters of Bihar. It was about 5.00 P.M. that the Investigating Officer had left his police station and has reached at about 7.20 P.M. and just within ten minutes of his arrival, he had recorded the fardbeyan (Ext. 1) of PW2. Thus, it appears that the lodging of the report was prompt. There was no such submission as to why the informant or anyone had not moved out of the village for lodging the report, but we see the circumstance which appears from the very evidence of PW3, the Investigating Officer who stated in paragraph-3 of his deposition that because it had become night and also because the prevailing circumstances were not conducive for him to go to the police station for institution of the case by drawing the First Information Report, he did not send the copy of the report to the police station for the drawal of the First Information Report under Section 154 Cr.P.C. The conditions or the circumstances spoken of by PW3 in paragraph-3 of his evidence to us appear those which had arisen out of the incident of such magnitude as may appear from the discussion of the evidence to be made by us. In spite of that we have been very careful in scrutinizing the submission of Shri Singh that mere promptness in the lodging of the report may not be the hallmark of truthfulness of the story. We want to note that mere promptness of the lodging of the report may not always be the hallmark of the truthfulness of the information but the Court cannot view with doubt and suspicion the First Information Report and then start to judge the facts by marshaling evidence as if it were a false case and the Court was to find out the truth. If we were to proceed under that assumption then we would be falling in grave error as regards the appreciation of not only the promptness of the First Information Report but also the truthfulness of evidence which had been produced by the prosecution during the trial. The Court has to assume that there was some ting of truth and that the First Information Report was not tainted; rather it was a truthful document, if there was no serious challenge to its veracity. During the course of the hearing of the appeal, we could not be given any factual or legal reasons appearing from the record upon which one could doubt the veracity of the story which was contained in the First Information Report neither we could be pointed out any reason as to why the report could be falsely slapped upon the appellant or anyone. As such, the judgment of the Supreme Court in Dilawar Singh''s case (supra) does no appear applicable to the factual situations obtained herein.

As regards the other submission of Shri Singh in connection with the First Information Report, i.e., on account of the informant being declared hostile, the documents Exts. 1 and 4, i.e., the fardbeyan and the First Information Report were rendered admissible, we want to note that the submission could not be upheld for any reason. Even the judgment which was cited before us during the hearing of the present appeal, i.e., C. Magesh and Others etc. Vs. State of Karnataka, AIR 2010 SC 2768 : (2010) 4 JT 467 : (2010) 4 SCALE 520 : (2010) 5 SCC 645 : (2010) 4 UJ 2007 : (2010) AIRSCW 3194 : (2010) 4 Supreme 180 does not appear laying down that proposition in paragraph-26 of the report which runs as under:

"26. It is settled law on the point that FIR is not a substantive piece of evidence. However the FIR cannot be given a complete go-by since it can be used to corroborate the evidence of the person lodging the same. In the judgment of this Court titled Baldev Singh Vs. State of Punjab, AIR 1991 SC 31 : (1990) CriLJ 2604 : (1990) 3 Crimes 642 : (1991) 5 JT 29 : (1990) 2 SCALE 617 : (1990) 4 SCC 692 , it was held that as far as the evidentiary value of the FIR is concerned it can only be used to for corroboration of its maker, but the FIR can not be used as substantial evidence or corroborating a statement of third party."

As may appear from the very paragraph-26 of C. Magesh & Ors. (supra), it has nowhere been held by the Apex Court that the First Information Report in a case wherein the informant had been declared hostile was rendered inadmissible. What was observed by the Supreme Court in paragraph-26 was that the First Information Report was not a substantive piece of evidence and that it cannot be given a complete go-by and that it can be used to corroborate the evidence of the person who lodged it. In our opinion, the First Information Report may not be a substantive piece of evidence but it still has its own importance of being the most potent weapon in the hands of the defence, which could use it to demonstrate to the Court as to how the prosecution had deviated from its initial version with a particular purpose of improvising upon its case so as to falsely implicating the accused persons as well. The use of the document for the prosecution could be that it could demonstrate to the Court that the witnesses who were examined in support of the charges had satisfactorily and reasonably supported the initial version of the prosecution as regards the material parts of the story and thus, the charges had been established. The document may sometimes also be used to find out as to who were the accused persons named in the First Information Report and who were also the persons who were cited as witnesses and thus, while finally apprising the evidence, the Court may judge the question of false implication or otherwise of an accused who had not been named in it and at the same time may also judge the competence of a person who is examined as a witness during trial. Merely because the informant was declared hostile, the First Information Report, in our opinion, is never rendered an inadmissible document. It is a document which is created in the light of the provisions of Section 154 Cr.P.C. it is the report regarding the commission of a cognizable offence committed by some persons known or unknown given to the Officer-in-Charge of a police station either in writing or orally. In case of an oral report, the duties is cast upon the Officer-in-Charge of the police station to reduce it into writing. Thus, it is a document created by a public servant, i.e., the Officer-in-Charge of the police station in discharge of his public functions and the document is to be created and maintained in a book of such forms as may be prescribed by the State Government in that behalf as required by Section 154 Cr.P.C. The entries or the record of the document made by the Officer-in-Charge of the police station is also the record of the acts of a public servant regarding the discharge of his public functions enjoyed upon him to be discharged by the law of the land. Thus, what appears to us is that a document, like, the fardbeyan or the First Information Report is a relevant document under Section 35 of the Evidence Act. As such, even if its maker, like, the informant has not been examined or has chosen to resile from his version even at the earliest in the form of the report, does not render the document inadmissible. Not only is it admissible, but is also relevant under Section 35 of the Evidence Act as indicated above.

However, while perusing the evidence of PW3, the Officer-in-Charge of Atri police station, namely, S.I. Rakesh Raman, what could be found was that he stated that after he had reached at the place of occurrence at 7.30 P.M., he met the informant and straight way proceeded to record his statement (Ext. 1) at 7.30 P.M. in presence of witnesses, like, Naveen Singh (PW1), Ashok Kumar (PW7), Vijay Singh (PW5), Anil Singh (PW4) and Babu Lal Singh (PW6). All these witnesses have also stated in their evidence that the statement of Dhirendra Kumar (PW2) on being given to PW3 by him was reduced into writing in their presence and the same was again read over to PW2 who accepted the record correctly made and signed the document whereafter the above named witnesses had also signed it. The witnesses have identified the document as one which was written by PW3 in their presence. PW2, the informant Dhirendra Kumar has not stated that he had not signed the document. He had stated in paragraph-2 that the signature on the document was his and on this admission his signature was marked Ext. 2. He had also stated that the above named witnesses had also signed the document. What he stated was that he had not given the statement as appears from paragraph-7 of his deposition sheet. As regards Dhirendra Kumar (PW2) being declared hostile, after we had gone through the evidence of PW2, we did not find him resiling completely from the story which he had narrated to PW3, S.I. Rakesh Raman rather what we PW2 completely supporting the story which is contained in Ext. 1, i.e., his fardbeyan. The only fact where PW2 was not supporting his narration contained in Ext. 1, the fardbeyan, was that it was not this appellant Rajendra Yadav or his sons who had fired any shot or who had killed his sister. His evidence otherwise is a complete and full narration of the story as was contained in the fardbeyan. So the cross-examination of PW2 by the learned Public Prosecutor after seeking the permission of the Court to cross-examine his own witness, was not in fact giving the witness up; rather it was only to challenge the correctness of the statement of PW2 when he was exonerating the present appellant and his two sons while still choosing to adhere to his original story as regards the processionists entering into his village and firing shots from their guns and rifles all around. Thus, what we find is that the submission of Shri Singh that the fardbeyan and First Information Report were inadmissible documents appears a very far fetched submission which does not have any relevance in the light of the provisions of law and the facts available to us on the record of the case. The fardbeyan and the First Information Report were valid documents which were not only admissible but were quite relevant as regards scanning the evidence of the witnesses in order to judging the question as to whether they had corroborated the initial prosecution version given by PW2.

What appears from the submissions made by Shri Singh, the learned senior counsel appearing on behalf of the appellant, is that he was asking this Court to hold that the victory procession had not entered the village and had rather fired the shots from a distance of about 75 yards of the village or the house of Shashi Bhushan Kishor, the father of PW2 Dhirendra Kumar, the informant. Shri Singh was referring to us in the above context the evidence of PW3, the Investigating Officer. PW3 S.I. Rakesh Raman who had given the description of the place of occurrence in paragraph-4 of his evidence. While describing the place of occurrence, PW3 had stated that the distance between the macadamized road and the house of the informant where the deceased had been shot dead was 75 yards and the place from where the firing was made was situated in south west of the house of Shashi Bhushan Kishor or Dhirendra Kumar (PW2) who was the son of Shashi Bhushan Kishor. While describing the place of occurrence and other houses situated in the village, PW3 had stated in paragraph-4 that the place of occurrence was the house of Dhirendra Kumar (PW2), son of Shashi Bhushan Kishor (or Singh as per same witness) which was facing north and it was a pucca built house. There was a rampart of about three feet height on the northern side of the building and the dead body was found just by the side of the southern rampart of the building where copious blood was also found. There was a staircase in the building and it was stated by PW3 that the vehicles had been left by the processionists at the very road which was running between Jamuawa and Sebtar and as we have pointed out with reference to the evidence of P.W. 1, it was the part of Nawada-Gaya road which was passing to the east of village Dariyapur where the incident had occurred. While roaming around the village, PW3 had found that the houses of Shashi Bhushan Kishor, i.e., the place of occurrence house, Upendra Singh (PW9), Nawal Singh (not examined), Sitaram Singh, Akshay Singh, Upendra Singh, Dinesh Singh, Suraj Ram, Uma Singh and also the walls of the Shiv temple and Laxmi temple were found bearing marks created by gun shots fired by the processionists. As to what was the distance between the houses of the above named persons, on perusal of that part of evidence of PW3 in paragraph-4 which appears at page 22 of the paper book, it appears that the houses were at quite some distance from each other and the walls of those houses were bearing marks created by gun shot so much so that the upper floor part of the house of Akshay Singh (PW8) was found bearing a hole in its eastern window caused on account of the bullet fired targeting it and the bullet had hit the wall opposite the window as a result of which the wall was also bearing the mark of gun shot. The window had iron doors. Not only that the evidence of P.W. 1 and other witnesses, like, Anil Singh (PW4) point out that the road which has been described by the witnesses as Jamuawa-Sebtar road was running from north to south and was situated in the east of the village and a village road had branched off it to go towards west into the village which was eight feet in width as per Babu Lal Singh (PW6) in paragraph-9 at page 54 of the paper book. It further appears from the evidence of PWs. 1, 4, 5, 6 and others that the houses in the village were situated on the either sides of the village road and the village was from east to west. The house of Shashi Bhushan Kishor was the first house on the eastern side of the village which was just by the side of the road which had been described by Jamuawa-Sebtar and as may appear from the evidence of Babu Lal Singh (PW6) in paragraph-9 and also from Anil Singh (PW4), the distance between the house of Shashi Bhushan Singh and the pucca road was somewhere between 15-20 feet. The house of Upendra Singh was situated opposite to the north west of the house of Dhirendra Kumar (PW2) which appears from the evidence of Anil Singh (PW4) in paragraph-8 and it further appears that the houses which were situated in the village were scattered all over and they were intervened by vacant plots of land which appears from the same paragraph-4 of the evidence of Anil Singh (PW4). The Investigating Officer has also, as noted earlier, during the course of his inspection of the place of occurrence appears noting down in paragraph-4 of his evidence the distance between different houses which were found bearing marks of gun shot created by firing of shots and that appears indicating quite clearly that the accused persons had never fired at them while standing at the pucca road, i.e., Jamuawa-Sebtar road. Even PW2 who was declared hostile by the prosecution due to exonerating the present appellant, was stating in his evidence that the accused persons had entered into his village and had proceeded towards his house and he had also retreated towards his house to caution his family members to close themselves inside it when the firing was made aiming at the doors and windows of his house also. The evidence of Upendra Singh (PW9) indicates the same fact that the accused persons had entered the village through the village road which had branched off the pucca road and had started firing shots targeting the doors and windows of different houses. Upendra Singh (PW9) had pointed out that he was at his cattle shade and that particular structure was also not spared and it was fired at as a result of which the window and doors were also damaged. The rampart of the house of Upendra Singh (PW9) was found damaged by the Investigating Officer (PW3) during the course of his inspection of the place of occurrence and that has been very clearly mentioned in paragraph-4 of his evidence when he has stated about the above fact. The houses which were hit, we have already noted were situated away from each other and each of the houses were having numerous marks of gun shot on their respective walls. What appears from the evidence of the Investigating Officer as also from the evidence of Naveen Singh (P.W. 1), Anil Singh (PW4), Babu Lal Singh (PW6) and Upendra Singh (PW9) is that the mob had digressed from the pucca road and had entered the village by the village road and had started firing shots targeting the doors and windows of the houses as a result of which different house and their walls were damaged. This pucca road was, as per evidence of PW3 in paragraph-4 at page 22 of the paper book was at a distance of about 50 yards in east of the house where the main occurrence of killing of Mintu Kumari had taken place. It hardly requires to be noted that village Dariyapur is situated west to the Jamuawa-Sebtar road. PW3 has stated in paragraph-4 at page-23 that the Shiva and Lakshmi temple of the village were situated in the east of the village across the road to its east. He had found marks left by gun shots fired by the mob targeting the two temples. Thus, what we find is that the evidence is plenty and satisfactory pointing out that the shots had not been fired from the pucca road so as to causing damages to the buildings and in order to killing Mintu Kumari the deceased. It is crystal clear from the evidence on the point discussed by us presently that in fact the men in the procession led by this appellant and his two sons were pre-determind in their mind to indulge in acts reported which is more clearly demonstrated by that finding of PW3 the marks left on the walls of the two temples by the shots fired by the victory processionists. It may be that the initial few shots had been fired from that pucca road but the evidence very convincingly points out that the processionists after being told to create a massacre on account of the Bhumihars of the village having not voted for him, the mob had entered into the village to fire shots targeting the doors and houses of the buildings which is also very clearly pointed out by PW2, the informant of the case in paragraph-6 of his evidence when he was stating that the victory procession was coming towards his village and he ran towards his house to warn his family members to get closeted inside it.

Thus, on the conspectus of the evidence available to us what we find is that the submission of Shri Singh that the shots had been fired only from the pucca road which was situated in the east of village Dariyapur does not have any substance. The evidence is ample and satisfactory to indicate that the persons who were in the victory procession had indeed digressed from the pucca road with pre-determination and had entered into the village to fire at different houses and their windows to leave marks of violence on them.

It was contended in the above connection by Shri Singh that no chemical examination of the marks found by PW3 was made by him and he stated that in spite of having counted the numbers of marks on the walls of each of the houses, he had not mentioned it that they had been caused by gun shot. If his evidence was indicating that those were indicative of the shots which had been fired to create those marks then we do not see any reason as to why some more details were required of PW3 to satisfy the conscience of the Court that those marks were the result of firing of shots. The evidence of witnesses, specially, those whose houses had been affected, like, Babu Lal Singh (PW6), Akshay Kumar (PW8) and Upendra Singh (PW9) fully satisfies our enquiry that the shots had been fired by the marauders of the mob and that had been targeting at the doors and windows probably with a view to targeting the occupants of the house who had concealed themselves there in order to buying safety. Akshay Kumar (PW8) had also stated that a bullet which had been fired at his window had crated a hole in one of the iron panels and had further travelled to hit the wall opposite the window. Similar is the evidence of Upendra Singh (PW9) that the doors and windows of his cattle shade were targeted and those bore marks of violence created by gun shots. The very finding of the holes in the windows or the walls by PW3 clearly indicates that the shots had been fired from the close vicinity of the houses and thus, the accused persons had indeed entered into the village to fire the shots. As such, we find ourselves unable to uphold the contention of Shri Singh that the shots had been fired from the pucca road, i.e., from a distance of somewhere around 75 yards.

Naveen Singh (P.W. 1), Anil Singh (PW4), Vijay Singh (PW5), Babu Lal Singh (PW6) and Ashok Kumar (PW7) have given eye witness account to the occurrence. Akshay Kumar (PW8) was not an eye witness to the main part of the occurrence, i.e., firing of shots at different houses of the village and specially that particular shot fired by the appellant at Mintu Kumari to kill her. He had been very candid in admitting that he confronted the mob at about 4.30 P.M. while he was returning from his school where he was employed as a teacher. He was caught, beaten up by the butt of the guns, his kurta was torn, his money cycle and watches were taken away, he was made so hapless by being beaten up that he could reach his house only with the help of another man and then he could learn about the killing of Mintu Kumari and the high handed acts of the accused persons committed in the village by firing shots targeting different house.

Upendra Singh (PW9) also does not appear an eye witness to the killing of Mintu Kumari and he stated that in spite of his house being opposite the house of Shashi Bhushan Kishor, the father of Mintu Kumari, he had gone inside his cattle shade to gain safety and the accused persons fired shots at his Gaushala on its windows and doors as also at the doors and windows of his house but nothing was damaged. He stated that after the mob had gone out of the village, he came out of his cattle shade to learn about the killing of Mintu Kumari and the damage or violence which had been caused by the accused persons to the houses of other persons.

Besides the two witnesses PWs. 8 and 9, Naveen Singh (P.W. 1), Anil Singh (PW4) as also Vijay Singh (PW5) and Babu Lal Singh (PW6) with Ashok Kumar (PW7) had given eye witness account to the occurrence. Naveen Singh (P.W. 1) stated that he was going to the house of Upendra Singh (PW9) for returning back the pipe which he had borrowed from him for irrigation-purposes and when he had reached near the house of Upendra Singh (PW9), he saw the mob moving towards the village from south. It was a mob of many hundreds persons most of whom were armed with weapons, like, rifles, guns etc. and when it had reached near the house of Shashi Bhushan Kishor, i.e., the house of the deceased Mintu Kumari, what he found was that the mob was being led by this appellant Rajendra Yadav. This is also the evidence of Anil Singh (PW4), Vijay Singh (PW5), Babu Lal Singh (PW6) and Ashok Kumar (PW7). Even PW2, Dhirendra Kumar who was declared hostile had also stated the same facts with his mother Vaidehi Devi (DW1) who was examined by the appellant in his defence.

The prosecution witnesses named above are consistent that this appellant Rajendra Yadav was leading the mob alongwith his two sons Subodh Yadav and Pramod Yadav and this appellant was also egging the members of the mob on to indulge into the massacre of Bhumihar persons who had not voted for him. Shots were fired at different houses by the marauders and this appellant himself fired a shot aiming at Mintu Kumari who was at the roof top of the house picking up the clothes and she was killed. The other members of the mob had fired shots after getting scattered into the village and on account of the firing made by them, the houses of Upendra Singh (PW9), Sitaram Singh (not examined), Bhuneshwar Singh (not examined), Akshay Kumar (PW8) were also damaged. One Ramavtar Singh who was also beaten up by accused persons so much so that fracture injuries were also caused to him. Injuries were also caused to Kaushal Kishore and one Abhishek who was only aged about 1 1/2 years.

Shri Singh was criticizing the evidence of Naveen Singh (P.W. 1) on two grounds that he was a chance witness because he was going from his house to that of Upendra Singh (PW9) for returning the pipe he had borrowed from him for irrigating his field. The other ground upon which this Court was asked not to act upon P.W. 1 was that neither P.W. 1 nor PW9 did state as to what happened of the pipe P.W. 1 was carrying with him; whether the same was given back by P.W. 1 to PW9. I want to point out in the above context, that Naveen Singh (P.W. 1) was one of the residents of the same village and it has been admitted by him that the houses of Upendra Singh (PW9) and that of Shashi Bhushan Kishore, Akshay Kumar, Sitaram Singh, Bhuwaneshwar Singh, Maheshwar Singh, Ramdeo Singh and Ramavtar Singh (injured) etc. were at the eastern end of the village while his house was at the western end. He had left his house as per his evidence with the pipe to give it back to PW9 and that in itself could not be treated that the witness was a chance witness. It was not unusual in a village that people borrow agricultural equipment or other articles from their fellow villagers so as to carrying out the necessary agricultural operations in their fields. It is also not unusual that after they had completed the exercise, which generally begins in the early hours on a day and may end sometimes in the afternoon or even in the evening, they immediately give back the articles or equipments to the persons they had borrowed from. Moreover if P.W. 1 was moving in his own village for the purpose as indicated by P.W. 1, in our opinion, it could not be suggestive of the fact that he was a chance witness. It appears a reasonable claim of P.W. 1 and an instance in rural areas that he was going to one of his fellow villagers for the purpose he had stated to the court. A chance witness could be merely appearing at the scene of occurrence by chance, without any reason and if the Court finds that the purpose which was pointed out by the witness regarding his presence or appearance at the scene of occurrence was not acceptable, then he is a chance witness and his evidence could not be relied upon. While we were considering the evidence of Naveen Singh (P.W. 1), we found that he was a trustworthy witness and the reason which was assigned by him was not an unusual reason Moreover, he was a villager and the village was merely of hundred houses as appears from his own evidence and that of other witnesses and the propensity of the occurrence could have attracted anyone from any corner of the village. Not pointing out as to what happened of the pipe-whether it was handed over to PW9 to us does not appear as serious a defect in the evidence of P.W. 1 as to reject it completely.

As regards Anil Singh (PW4), the submission of Shri Singh was that his evidence should be discarded because he had pointed out in paragraph-8 of his deposition that as soon as he had seen the mob firing shots, he had hidden himself under the wheat plants of a field in the vicinity of which he was cutting grass. The very evidence of PW4 indicates that he was there near the place of occurrence, cutting grass in a field by the side of the house of Upendra Singh (PW9). This evidence did not come in the examination-in-chief of PW4 rather it was brought on record through cross-examination in paragraph-8 by the defence and what was curious about this evidence was that in spite of the fact having been brought through cross-examination, the defence was drawing the attention of the witness in paragraph-26 of his deposition. The witness appears stating that he had not stated to the police that he was cutting grass in a field by the side of the house of PW9 while the statement under Section 161 Cr.P.C. of the witness recorded in Para-14 of the case diary reveals that he had stated before PW3 that he was cutting grass in the field situated north of the Dalaan of Upendra Singh. In our opinion, it was a misleading cross-examination indulged into by the defence as was in paragraph-26 of PW4 as the fact had been introduced by it during cross-examination. Anil Singh (PW4) had stated in paragraph-13 that the wheat plants of the filed in which he was cutting grass had grown up to waist height. This fact has not been challenged nor has the fact been challenged by the defence that the witness was cutting grass in a field. As such, we do not find it a reason for discarding the evidence of PW4 who otherwise appears a competent reliable witness to us.

Babu Lal Singh (PW6) has supported the prosecution case as noted above alongwith PWs. 1 and 4 and there has not been any criticism as regards his evidence and liability thereof except that he was at the shop of one Ravindra and he saw the victory procession coming from the pucca road and when he heard the present appellant shouting, he ran towards north and then went into the house of Upendra Singh to conceal himself. I have already noted after considering the evidence on the point that the victory procession, after having abandoned their vehicles at the pucca road, had digressed into the village through the village road which ran into the west through the length of the village and it was eight feet in width. The house of Upendra Singh was just by the side of the pucca road and there is no wonder if PW6 had seen the mob coming and had heard the shouts of the appellant that on account of being alarmed, he ran into the village and had gained safety by going at the roof top of the house of Upendra Singh (PW9). PW6 has stated that he went at the roof top and hid himself behind the rampart to see the entire occurrence. His evidence in paragraph-9 describes the situation of houses and the roads in the village and it further describes as to how the incident had occurred during which course the houses of persons were targeted and they were bearing marks of violence left by gun shots. The witness was examined under Section 299 Cr.P.C. when the present appellant had absconded and his further cross-examination was made on 25.07.2007 after the appellant had been arrested and the witness was recalled for cross-examination. We do not see any reason from the cross-examination part of the witness which appears in paragraphs 10 to 13 as to why we should reject the evidence of PW6. Akshay Kumar (PW8) and Upendra Singh (PW9), we have already noted, have not claimed themselves to be the witnesses to the murder of Mintu Kumari. Akshay Kumar (PW8) was a teacher and he was assaulted when he was getting back from his school by the mob which had caught him at a different village after the mob had retreated from the village. It was at a distance of 2 1/2 Kms. as appears from PW8 from Dariyapur that he was caught by the mob and he was badly assaulted. PW9 on the other hand had hidden himself into his cattle shade and he did not see the real part of the occurrence but he had given evidence about the entry of the men of victory procession armed with guns and rifles including this appellant into the village firing shots. Their evidence also appears trustworthy. The Investigating Officer of the case, PW3, has also stated in his evidence in paragraph-4 that he had seen or was shown those places where PW8 Akshay Kumar and Ramavtar Singh were assaulted by the processionists.

As regards the evidence of Vijay Singh (PW5), he has also claimed himself to be an eye witness and has stated in his evidence that he had come out of his house and had gone on to the pucca road for bringing tobacco and he found a victory procession led by this appellant coming from west. We have, while discussing the evidence of Babu Lal Singh (PW6), referred to his statement that after the procession had neared the shop of Ravindra he had run away from there to secure himself by hiding in the house of PW9. If PW6 had run away from there, we do not see any reason as to why the 2-3 persons who were present in the shop as per the evidence of Vijay Singh (PW5) should remain there. It appears to us that the claim of the witness Vijay Singh (PW5) that he, in spite of the accused persons shouting slogans and firing shots, remained so undeterred and unfrightful as not to leave the place. This appears an absurd proposition and it does not appear safe to rely upon the evidence of Vijay Singh (PW5). Likewise, Ashok Kumar (PW7) had stated in the very first line of his evidence that he was present at his poultry farm when he saw the victory procession entering into the village which ultimately indulged into firing shots and killing Mintu Kumari at the orders of this appellant who himself killed Mintu Kumari. During cross-examination in paragraph-9, PW7 admitted that he did not have any poultry farm and during further cross-examination he stated that in fact he had gone to the poultry farm of another man to purchase chicken. The conflicting claim of PW7 as regards his presence near the place of occurrence makes it unsafe to place reliance upon him.

The evidence of Anil Singh (PW4) was also criticized by Shri Singh by pointing out to us that during his cross-examination, he had not stated many material facts before the police as appears from the evidence of the witnesses PW4 in paragraph-22 which was proved by the Investigating Officer (PW3), like, that this appellant had fired shot aiming at Mintu Kumari. It is true that the Investigating Officer (PW3) has stated that Anil Singh (PW4) had not stated to him that this appellant had fired a shot aiming at Mintu Kumari, but appears definitely stating that this appellant along with others were seen by him standing in front of the house of Shashi Bhushan Kishor and were firing shots. It may be that a specific statement of firing the shot at Mintu Kumari may be absent from the statement of PW4 recorded by PW3 but the appellant had fired the shot was stated by the witness in his police statement. Moreover, the evidence of other witnesses, like, P.W. 1 and other part of the evidence of PW4 and that of PWs. 6, 8 and 9 appear bearing no contradiction or aberration. Witnesses, like, Naveen Singh (P.W. 1), Anil Singh (PW4) and Babu Lal Singh (PW6) have supported the prosecution case in its totality. Their evidence has been supported by the so called hostile informant (PW2) whose evidence also gives the same sequence and manner of occurrence and the narration of the story by PW2 in his evidence fully supports that the men of the victory procession had come in front of his house and his sister has been killed. Vaidehi Devi (DW2) who also happened to be the mother of the deceased and the informant (PW2) stated that it was the members of the victory process who had entered into the village and had indulged into indiscriminate firing as a result of which her daughter had been murdered. The most important line of Vaidehi Devi (DW2) was that this appellant Rajendra Yadav or his sons had not knowingly killed her daughter. This also probabilizes the fact that this appellant had indulged into firing the shot which had killed the deceased. The other defence witness, like, Surendra Yadav (DW2) also supports the initial prosecution version that members of the victory procession had indulged into raising filthy slogans and they had also indulged into firing shots at the villagers. Same was the evidence of Surendra Singh (DW3) that the persons of victory procession had indulged into firing shots in village Dariyapur on the date of the occurrence. Thus, what we find is that not only the evidence of the prosecution witnesses but also that of the defence witnesses probabilized the manner of occurrence which was alleged by the prosecution and which appears fully established by the evidence of PWs. 1, 2, 4 and 6. The evidence of these witnesses is consistent that not only this appellant was leading the victory procession but he also had remonstrated his followers accompanying him to indulge into the massacre of Bhumihars of village Dariyapur who had not voted for him and had himself fired the shot killing Mintu Kumari.

The above evidence of witnesses gets support from that of Dr. Dhanesh Kumar Singh (P.W. 12) who had found a wound of entry measuring 1/2 cm x 1/2 cm semilunar in size, 2 cms. left of middle of the back of the head, at the root of neck. The margin of outer table was clean cut and the inner table was bevelled (slanted). All the cranial bones were fractured and displaced. Most of them were missing and the base of skull was exposed. A part of left temporal bone along with petrorus-bone-part was present. A few displaced bones were found hanging with the lacerated tag of scalp. The fracture had extended to the left zygomatic and upper part of maxillary bones. Very small amount of lacerated brain tissue was present inside the cranial cavity.

In the opinion of P.W. 12, the death had occurred on account of shock and haemorrhage caused by injury to head which was caused by fire arm. P.W. 12 further stated that in the ordinary course of nature, the same was sufficient to cause death. From the examination of evidence of P.W. 12, it appears that the defence had attempted to suggest to the doctor that the assailant could be standing at the same level with the deceased while firing the shot. This attempt of the defence stands negated by the very description of the wound given by P.W. 12. He had stated that the outer table of the wound was clean cut and the inner table was bevelled. Thus, what appears is that while entering the root of the neck the bullet, which had definitely caused the injury, had cleanly cut the muscles but had traversed upwards and that was the reason that the inner table of the wound was bevelled or slanted from downwards to upwards. The very trajectory and the description of the wound as noted above by us just now from the evidence of P.W. 12, suggest that the assailant was very much at a lower level from the deceased while firing the shot. This suggests a manner of occurrence which fully fits into the description of killing of Mintu Kumari as asserted by the prosecution. All the witnesses have stated that while standing near the house of PW2 the informant, the appellant had fired the shot aiming at the deceased while he was standing at the road and the deceased was standing at the roof top. The deceased was picking up clothes from the rampart and, as such, it was a slanted aim which was fixed at the deceased and that was the reason that the inner table of the wound was found bevelled.

Shri Singh did not make any attempt to convince us that the manner of assault could be otherwise. What he was arguing was that in spite of the witnesses stating that one Ramavtar Singh and a small child Abhishek were injured in the incident, no doctor had come forward to depose to their injuries. It is true that no doctor had come to depose that Akshay Kumar (PW8) or Abhishek, his grandson, were injured who were also hit by gun shots but what I find is that the Investigating Officer (PW3) had mentioned that he had found those injured persons and had issued the requisitions to the doctor while sending them to the hospital for their treatment which appears from paragraph-8 of his deposition sheet. He has also stated in the same paragraph that he has obtained the injury certificates in respect of their injuries from the doctor. The doctor has of course not been examined and the injury certificates were not brought on record, but while we were perusing the papers and in that course the case diary, what we found was that not only the injury certificates were attached to the case diary, but the x-ray reports in respect of those injured were also available with the case diary. Moreover, all the witnesses had consistently stated that Ramavtar Singh was caught at the very initial stage of the incident in the village the and 80-82-year-old man was as badly battered by being beaten up with butts of guns and rifles that his hand was also fractured. True, Ramavtar Singh had not been examined but the doctor who had medically examined him, i.e., Dr. Ajay Kumar (P.W. 11) was examined in the court below and he stated that after examining Ramavtar Singh aged 80 year, on 01.03.2005 at 9.00 A.M. while being posted as Medical Officer, Primary Health Centre, Wazirganj, he found the following injuries on his person:

"(i) One lacerated wound 1/2" x 1/4" x skin deep on the left forearm. There was a deep swelling and the bruise around the wound.

(ii) One lacerated wound 1" x 1/2" x skin deep on the right forearm with swelling and bruise.

(iii) One lacerated wound 1/2" x 1/2" x skin deep below his right knee joint."

Ramavtar Singh was referred to Sadar Hospital, Gaya for x-ray of both his hands and as may appear from the final opinion rendered in respect of the injuries of Ramavtar Singh his both hands were found fractured by the doctor and those injuries upon him grievous, caused by hard and blunt substance. Thus, in spite of the absence of the evidence of Ramavtar Singh and also in absence of the evidence of doctor who had examined Akshay Kumar or the little child Abhishek, we have ample evidence in support of the fact that the mob had assaulted Ramavtar Singh and had assaulted Akshay Kumar who was sent for treatment. We are not concerned with that aspect of the prosecution story as the prosecution does not appear prosecuting the present appellant for causing injuries to Ramavtar Singh, Akshay Kumar or the little child Abhishek.

During the course of argument, Shri Singh was submitting that no cartridge or pellet was found or recovered from the place of occurrence. The evidence of PW3 also indicates that no cartridge case or pellet was recovered from the place of occurrence. However, he had definite knowledge that empty cartridges had been picked up by some of the villagers or relatives of the villagers and as may appear from production-cum-seizure memo (Ext. 5), those were produced at village Dariyapur by the informant himself who had picked them up as appears from the evidence from near his Baithaka and those were seized by preparing the production-cum-seizure memo. While perusing the record of the case, we found those deuced cartridge cases and some part of the cartridges which were fired by the mob at the place of occurrence and there is no suggestion given either to PW3 or to any of the witnesses nor any denial was obtained from PW2 who appears to have gone into the side of the present appellant that he had not produced the seized cartridge cases or part of the bullet. The evidence of the Investigating Officer also informs us that the death had occurred at the roof top which does not also appear denied by the defence. The consistency of the witnesses as was suggested by Shri Singh may not be the hallmark of trustworthiness as held by the Supreme Court in Tej Bahadur Singh (supra) but here in the present case, we do not have any reason to discard the consistent evidence of witnesses who had very categorically pointed out that it was this appellant who was leading the victory procession, most of the members of which including the present appellant were carrying guns and rifles and that this appellant in addition to remonstrating the mob to indulge into the massacre of the Bhumihars of the village because they had not voted for him, had himself fired the shot from his rifle. The evidence of Dr. Dhanesh Kumar Singh (P.W. 12) also proves the manner of occurrence that it was the bulled fired from a rifle that had caused the fatal injury. This is amply suggested by the smaller entry wound measuring 1/2" x 1/2" and the complete blasting off of the skull of the deceased.

On reappraising the evidence in order to reaching the above conclusion, we find that the appeal lacks merit and it is fit to be dismissed. It is, accordingly, dismissed.