Shankar Yadav @ Shanker Yadav and Vishwanath Yadav vs The State of Bihar

V.N. Sinha, J.—These two appeals arise out of judgment of conviction, dated 24.03.2007, and order of sentence, dated 31.03.2007, passed by Presiding Officer, Additional Court (F.T.C.) No. 1, Rohtas, at Sasaram, in Sessions Trial No. 379/2005, Trial No. 85/2005, arising out of Sasaram (Tilauthu) P.S. Case No. 674/04, convicting the five appellants under Sections 302 and 364 I.P.C. with direction to undergo imprisonment for life on both the counts. The two sentences have, however, been directed to run concurrently.

Prosecution''s case, as set out in the fardbeyan of Chhathan Yadav (P.W. 8), recorded by S.I. Hare Krishna Mandal (P.W. 9), Officer-in-Charge, Tilauthu P.S., on 15.12.2004, at 6:45 A.M., at the police station campus, is that on 14.12.2004, at about 10:00 A.M., when the informant was sitting in his khalihan, situate on the eastern end of Reriya village, and his brother, Guru Charan Yadav, was getting ready, with his tractor, to go to the market, the informant saw 40-50 extremists, wearing black uniform, variously armed, coming from the side of village Nayagaon. Extremists were being led by appellants, Chotan Yadav, Baban Yadav and Jagdish Yadav. The extremists, having arrived at the khalihan, asked Guru Charan Yadav as to why had he threatened appellant, Shankar Yadav. Guru Charan Yadav explained his conduct, whereafter the extremists proceeded towards the village and Guru Charan Yadav went to Tilauthu market. The extremists, having entered the village, moved from one house to another and took food. Most of the extremists were entertained by the appellants, Shankar Yadav and Vishwanath Yadav. At about 12 noon, appellants, Shankar Yadav, Vishwanath Yadav and one Vijay Yadav, entered into the house of Saheb Yadav and brought him to the khalihan of Ishwar Singh, situate by the side of the house of Gaya Singh. Meanwhile, informant returned to his house and soon thereafter appellants, Shankar Yadav, Vishwanath Yadav and Vijay Yadav, along with the said extremists, came to the house of the informant and assaulted Upendra Yadav. Tengar Yadav, father of the informant, Chhathan Yadav (P.W. 8) not only protested, but warned the extremists that if they took away Upendra Yadav, he (Tengar Yadav) would report the matter to the police. This prompted the appellants, Shankar Yadav and Vishwanath Yadav, to push down Tengar Yadav to the ground, they climbed over his chest and also trampled over his belly causing his instantaneous death. It is further alleged by the informant, in the fardbeyan, that after about an hour of the death of his father, Tengar Yadav, wives of the appellants, Shankar Yadav and Vishwanath Yadav came to his house along with few of the extremists and forcibly caught hold of his mother, Sapti Devi (P.W. 6), and Chandrawati Devi (P.W. 7), wife of his brother, Dev Yadav, and took them to the khalihan of Ishwar Singh. Informant and his co-villager, Indradeo Yadav (P.W. 1), Jhanak Yadav (P.W. 2) and Rajdeo Yadav (not examined) also followed Sapti Devi and Chandrawati Devi to the khalihan and saw the extremists interrogating Saheb Yadav and Upendra Yadav about the murder of Surendra Yadav @ Overseer, son of the appellant, Shankar Yadav. During interrogation, the extremists also assaulted the two with butt of rifle. After sometime, appellants, Shankar Yadav and Vishwanath Yadav, brought Pintu Singh and Hira Yadav to the khalihan and they were also interrogated. At about 3:00 P.M., the extremists took those, who had been apprehended and were being interrogated, near the fig (Peepal) tree standing on the western side of the village. Informant also followed the extremists to the fig (Peepal) tree, wept and pleaded for the release of both, Saheb Yadav and Upendra Yadav. This persuaded the extremists to release the two. The extremists, however, took with them Pintu Singh and Hira Yadav. It is further stated, in the fardbeyan, that after departure of the extremists, appellants, Shankar Yadav, Vishwanath Yadav, Vijay Yadav (absconder), wife of Shankar Yadav (absconder), wife of Vishwanath Yadav (absconder), appellants, Chhathan Yadav, Baban Yadav and Jagdish Yadav, with common intention, assaulted Upendra Yadav and Saheb Yadav and killed them. Tengar Yadav was earlier killed by the accused persons at his house and thereby the accused persons killed altogether three persons. It is further stated, in the fardbeyan, that on the previous evening, some of the villagers had gone to the house of appellant, Jagdish Yadav, at village Naykagaon looking for Pappu Singh and Hira Yadav and they were released on the following morning. The motive behind the occurrence has also been indicated in the fardbeyan saying that 11/2 month earlier, Surendra Yadav @ Oversheer, son of appellant Shankar Yadav, was killed as he was having illicit relation with the wife of Saheb Yadav and the present occurrence is in retaliation of the said murder. Perusal of the fardbeyan indicates that the same has been recorded in presence of Guru Charan Yadav, brother of the informant, who, however, has not been examined as a witness in the present case.

In-Charge, Tilauthu Police Out Post, having recorded the fardbeyan, took up the investigation of the case and forwarded the fardbeyan to Sasaram (T) Police Station for registration of the First Information Report. Officer-in-Charge, Sasaram (T) Police Station, accordingly registered Sasaram (Tilauthu) P.S. Case No. 674/04, dated 15.12.2004, for offences u/s 302/34 I.P.C. and endorsed investigation of the case to S.I. Hare Krishna Mandal, In-charge, Tilauthu, Police Out Post. First Information Report was, however, received by the Chief Judicial Magistrate, Saharsa, on 16.12.2004. Investigating Officer (P.W. 9), having recorded statements of the witnesses and having collected the post mortem reports of the three deceased, submitted charge-sheet. In the light of the charge-sheet, cognizance was taken and the case was committed to the Court of Sessions for trial.

A charge was framed against the five appellants for offence u/s 302 I.P.C. Appellants, Shankar Yadav and Vishwanath Yadav, were further charged for the offence u/s 364 I.P.C.

In support of the charge, prosecution examined nine witnesses, namely, P.W. 1 (Indradeo Yadav), P.W. 2 (Jhanak Yadav @ Ram Chandra Yadav), P.W. 4 (Ram Naresh Singh) and P.W. 5 (Mala Yadav), who have claimed themselves to be the eye-witnesses of the occurrence, these witnesses being co-villagers of the informant. P.W. 3 (Dr. Ashwani Kumar Sinha) conducted post mortem on the dead body of the three deceased. P.W. 6 (Sapti Devi) is the widow of one of the deceased, namely, Tengar Yadav, and mother of the informant. P.W. 7 (Chandrawati Devi) is the wife of Dev Yadav, brother of the informant. P.W. 8 (Chhathan Yadav) is the informant of the case and son of the deceased, Tengar Yadav, and father of deceased, Upendra Yadav. P.W. 9 (Hare Krishna Mandal) is the scribe of the fardbeyan as also the Investigating Officer of the case.

The appellants have not only claimed themselves to be innocent, but have also examined two defence witnesses i.e. D.W. 1 (Chandan Kumar Yadav) and D.W. 2 (Ashok Kumar Singh).

Learned counsel for the appellants, in both the appeals has submitted that the learned trial Court, without properly appreciating the evidence of the prosecution witnesses, has proceeded to convict the appellants. In this connection, it is submitted that occurrence was committed by unknown extremists coming from the side of village Nayagaon, whose names were not known to the informant and the witnesses, but the appellants and others have been named in the fardbeyan, as also in Court, on the basis of the surmises of the informant and the witnesses.

In order to buttress the aforesaid submission, learned counsel for the appellants, with reference to the evidence of P.W. 1, paragraph 13, submitted that Guru Charan Yadav, brother of the informant and son, uncle of deceased Tengar Yadav, Upendra Yadav respectively, who had not only seen the extremists at the time of their arrival at 10:00 A.M. being led by appellants Jagdish Yadav, Baban Yadav and Chotan Yadav, but also explained his conduct to them, had gone to Tilauthu Police Out Post after the occurrence in the evening, but did not mention the names of the extremists or the names of those who had led them to the village, to the police in the evening.

Learned counsel for the appellants further submitted, with reference to the evidence of P.W. 4, paragraph 25 and 26, that Officer-in-Charge, Tilauthu Police Out Post, came to the village, in the night, to carry the three dead bodies, but the informant and others, who were available in the village, did not, choose to name the assailants to the Investigating Officer. It is submitted by the learned counsel for the appellants, on the basis of the aforesaid evidence of P.Ws. 1 and 4, that had the assailants been known to all the prosecution witnesses, their names would have naturally been disclosed to the Investigating Officer either at the police station by Guru Charan Yadav, brother of the informant, who visited the police station in the evening of the occurrence, or, in the village itself by the witnesses, including informant, during the night, when the Investigating Officer came to the village to collect the dead bodies, but no name was disclosed and it was only on the following day that the names were disclosed and, in this regard, no explanation was offered by the informant or elicited by the prosecution nor is there any explanation discernible from the evidence on record. This shows, according to the learned counsel, that the appellants were falsely implicated in this case.

Learned counsel for the appellants further submitted that the evidence of P.W. 1, supporting the occurrence, cannot be relied upon to affirm the conviction of appellants, Jagdish Yadav, Baban Yadav and Chotan Yadav, as his attention was drawn to paragraph 19 of his evidence given to the effect that he had not named the aforementioned appellants as the assailants before the Investigating Officer (P.W. 9), which fact has been confirmed by the Investigating Officer (P.W. 9) in paragraphs 20 and 21 of his deposition.

Learned counsel for the appellants also submitted that the evidence of P.W. 6 (Sapti Devi), wife of deceased Tengar Yadav and mother of the informant, is also not reliable for maintaining the conviction of appellants, Jagdish Yadav, Baban Yadav and Chotan Yadav, as her attention was also drawn to paragraphs 25, 26, 27 of her evidence given to the effect that she had not named the aforementioned appellants as the assailants before the Investigating Officer (P.W. 9), which fact has also been confirmed by the Investigating Officer in paragraphs 38 and 39 of his evidence.

Learned counsel further submitted that the evidence of P.W. 2, Jhanak Yadav @ Ram Chandra Yadav, implicating the appellants cannot be relied upon to maintain their conviction as attention of P.W. 2 was drawn to paragraphs 25, 26, 27, 28, 46, 47, 48, 49, 50, 51 of his evidence given to the effect that he had not named the appellants before the Investigating Officer and this fact has also been confirmed by the Investigating Officer (P.W. 9) in paragraphs 22, 26, 27, 28 and 30 of his deposition.

Learned counsel for the appellants pointed out that the evidence of P.W. 4, Ram Naresh Singh, an eye-witness of the occurrence, implicating the appellants, cannot be relied upon to maintain their conviction as attention of P.W. 4 has been drawn to paragraphs 20, 21 and 23 of his evidence given to the effect that he did not implicate the appellants before the Investigating Officer (P.W. 9), which fact has also been confirmed by the Investigating Officer in paragraphs 33, 34 and 35 of his evidence.

Learned counsel for the appellants has also pointed out that the evidence of P.W. 7 (Chandrawati Devi), wife of brother of the informant, is not worth placing reliance upon for upholding the conviction of the appellants as she had not named any of the appellants as assailants of the three deceased, while recording her statement before the Investigating Officer (P.W. 9), and her attention was drawn to the said fact, in paragraphs 7, 8, 9, 11 of her evidence in Court, which has also been confirmed by the Investigating Officer in paragraphs 40, 41, 43 and 49 of his evidence.

Learned counsel for the appellants further pointed out that the evidence of the informant, Chhathan Yadav (P.W. 8), recorded in Court, implicating the appellants, as the assailants of the three deceased, is not fit to be relied upon for maintaining the conviction of the appellants as the informant did not name any of the five appellants as the assailants of the three deceased before the Investigating Officer (P.W. 9). Attention of the informant about the aforesaid fact was drawn to paragraphs 35, 62, 63, 64 of his evidence and Investigating Officer has confirmed the said omission of P.W. 8 in paragraph 53 of his evidence.

Learned counsel for the appellants has submitted that the evidence of P.W. 5, Mala Yadav, implicating the appellants, in the present case, as the assailants of the three deceased, is fit to be rejected as she only stated, before the Investigating Officer (P.W. 9), that assault took place, but did not name the appellants. It was also pointed out, with reference to the evidence of the Investigating Officer, in paragraphs 36 and 37, that P.W. 5 merely stated before the Investigating Officer that the assault had taken place, but did not state before the Investigating Officer that Tengar Yadav was killed in front of the entry point of his house. With reference to the aforesaid police statement of P.W. 5, it is submitted that had P.W. 5 seen the occurrence, it was required of him to have named the assailants before the Investigating Officer (P.W. 9) if he knew their name, but as P.W. 5 had not named the assailants before the Investigating Officer, his evidence, given in the Court, is fit to be rejected.

In the light of the appraisal of the prosecution evidence, as depicted above, it is submitted by the learned counsel for the appellants that identity of any of the three appellants, i.e. Jagdish Yadav, Baban Yadav and Chotan Yadav, was not disclosed by any of the prosecution witnesses before the Investigating Officer (P.W. 9) and this Court would be wholly justified in not maintaining their conviction placing reliance on the evidence deposed to in Court.

Learned counsel for the appellants further pointed out that identity of appellants, Shankar Yadav and Vishwanath Yadav, was also not disclosed before the Investigating Officer (P.W. 9) by as many as four prosecution witnesses, namely, P.Ws. 2, 4, 7 and 8. In such circumstances, according to the learned counsel for the appellants, their alleged involvement, in the present case, is also not free from doubt.

Learned counsel for the appellants further submitted that prosecution evidence is quite categoric that father of the informant, Tengar Yadav, asked the appellants, Shankar Yadav and Vishwanath Yadav and absconder, Vijay Yadav, not to take his grandson, Upendra Yadav, or else, he would report the matter to the police and this prompted the appellants, Shankar Yadav, Vishwanath Yadav and absconder Vijay Yadav, to throw Tengar Yadav on the ground, climb over his chest and trample on his belly causing his instant death. According to learned counsel, both the appellants, Shankar Yadav and Vishwanath Yadav, having not used any weapon to assault Tengar Yadav, cannot be attributed with intention or knowledge that by pushing him down on the ground, climbing over his chest and trampling his belly, they would cause his instant death. In the light of the aforesaid submission, learned counsel, for the appellants, submitted that the conviction of appellants, Shankar Yadav and Vishwanath Yadav, even if maintained, should be converted into Section 304 (Part II) of the Indian Penal Code.

Learned counsel for the appellants next submitted that the occurrence is required to be examined in different parts, namely, first part, when the extremists arrived at the khalihan of the informant, at 10.00 A.M., led by appellants, Jagdish Yadav, Baban Yadav and Chotan Yadav, and asked Guru Charan Yadav to explain his conduct and allowed him to go to the market, went inside the village, took meals; whereas Part II of the occurrence begins at about 12:00 noon, when appellants, Shankar Yadav, Vishwanath Yadav and absconder, Vijay Yadav, entered the house of Saheb Yadav and brought him to the khalihan of Ishwar Singh. Part III of the occurrence is that appellants, Shankar Yadav, Vishwanath Yadav and absconder Vijay Yadav, along with other miscreants, came to the house of the informant, assaulted Upendra Yadav and wanted to take him to khalihan, which was objected to by his grandfather, Tengar Yadav, and that the protest, raised by Tengar Yadav, prompted the appellants, Shankar Yadav, Vishwanath Yadav and absconder Vijay Yadav, to throw him down to the ground, climb over his chest and trample on his belly causing his instant death. Part IV of the occurrence is that Upendra Yadav was also brought to the khalihan of Ishwar Singh and interrogated by the extremists along with Saheb Yadav as regards the murder of Surendra Yadav @ Overseer, son of appellant Shankar Yadav. During interrogation, the extremists also assaulted the two i.e. Saheb Yadav and Upendra Yadav, with butt of rifle. After sometime, appellants, Shankar Yadav and Vishwanath Yadav, also brought Pintu Singh and Hira Yadav to the khalihan and they were also interrogated. Part V of the occurrence is that at about 3:00 P.M., the extremists took those, who had been apprehended and were being interrogated, near the fig (peepal) tree, planted on the western side of the village, where informant wept and pleaded for the release of both, Saheb Yadav and Upendra Yadav, and secured their release. The last part of the occurrence is that after departure of the extremists, 8 persons, named in the fardbeyan, namely, appellants Shankar Yadav, Vishwanath Yadav, Jagdish Yadav, Baban Yadav, Chotan Yadav and absconders Vijay Yadav, wife of Shankar Yadav, wife of Vishwanath Yadav, assaulted Upendra Yadav and Saheb Yadav.

What may, now, be noted is that as per P.W. 1, Saheb Yadav and Upendra Yadav were killed by giving them ''patkan''(i.e., repeatedly lifting them and throwing them on the ground). As per P.W. 2, the assault, on the persons of Saheb Yadav and Upendra Yadav, was by means of lathi. As per P.W. 7, Saheb Yadav and Upendra Yadav were assaulted by means of lathi, kicks and fists as also by butt of rifle. In this connection, it may be pointed out that last part of the assault is said to have been made by the appellants after departure of the extremists, who were armed with gun and rifle; hence, claim of P.W. 7, that Saheb Yadav and Upendra Yadav were also assaulted with butt of rifle, does not appear to be true; moreso, when it is not the case of the parties that extremists, while leaving the place of occurrence, gave their rifle to the appellants or the absconders. The other eye-witnesses, namely, P.Ws. 4, 5, 6 and 8 have stated that the assault, on the person of Saheb Yadav and Upendra Yadav, was by these appellants, but they have not indicated the weapon used by the appellants to assault Saheb Yadav and Upendra Yadav inasmuch as they have only said that Saheb and Upendra were killed by beating them.

In the light of the aforesaid evidence of the eye-witnesses, learned counsel for the appellants submitted that the appellants having not used fire-arm or any traditional weapon or any other weapon, except lathi to assault Saheb Yadav and Upendra Yadav, they cannot be attributed with intention or knowledge that the assault made by them, on the person of Saheb Yadav and Upendra Yadav, could result in their death and, hence, according to learned counsel, conviction of appellants, even if maintained for causing death of Saheb Yadav and Upendra Yadav, needs to be converted to one u/s 304 (Part II) of the Indian Penal Code.

Learned counsel for the State has opposed the submission and contended that the evidence of the eye-witnesses is supporting the prosecution case in Court and this Court should maintain the conviction of the appellants as learned trial Court has found them to be the representatives of the extremists and with the help and support of the extremists, the present occurrence has been committed by these appellants to avenge the killing of Surendra Yadav @ Overseer, son of appellant Shankar Yadav.

In view of the rival submissions, we have considered the prosecution case as unfolded during trial by the informant (P.W. 8) and the eye-witnesses P.Ws. 1, 2, 6 and 7. It appears 11/2 month prior to the occurrence, Surendra Yadav @ Overseer, son of appellant, Shankar Yadav of Cr. Appeal (D.B.) No. 520 of 2007, was killed. To find out the assailants of Surendra Yadav @ Overseer, the extremists from village Nayagaon, an adjoining village, came to the P.O. village Reria on the date of occurrence at about 10:00 A.M. at the instance of appellant, Shankar Yadav. The extremists were being led by appellants Jagdish Yadav, Baban Yadav and Chotan Yadav of Cr. Appeal (D.B.) No. 624 of 2007. In the village, the extremists were entertained by appellants, Shankar Yadav and Vishwanath Yadav, of Cr. Appeal (D.B.) No. 520 of 2007. At about 12:00 noon, appellants, Shankar Yadav and Vishwanath Yadav and one Vijay Yadav, came to the house of the informant, assaulted his son, Upendra Yadav, and forced him to come for being questioned by the extremists in ''Jan Adalat'' about the murder of Surendra Yadav @ Overseer. Father of informant, Tengar Yadav, not only protested, but also asked the appellants, Shankar Yadav, Vishwanath Yadav and other extremists that he shall report the matter to the police, which prompted appellants, Shankar Yadav and Vishwanath Yadav, to throw him to the ground and to climb over his chest as also to trample on his belly causing his instant death.

To appreciate the submission made on behalf of the two appellants, Shankar Yadav and Vishwanath Yadav, that they had neither the intention to kill Tengar Yadav nor knowledge of the fact that if they jump and trample over chest and belly of Tengar Yadav, Tengar Yadav would suffer instant death and their conviction be converted into Section 304 (Part II) of the Penal Code and the period during which they remained in jail custody as pre-trial and convict with effect from 03.01.2005 would suffice the ends of justice, it is necessary to examine the post mortem report of Tengar Yadav, wherefrom it appears that the cause of death of Tengar Yadav is shock due to haemorrhage in liver caused by hard and blunt object. Aforesaid death, in our considered view, has been caused as two of the appellants, namely, Shankar Yadav, Vishwanath Yadav, and one Vijay Yadav, jumped, trampled over chest and belly of Tengar Yadav. It further appears from the post mortem report of Tengar Yadav that he had not been assaulted by means of any weapon much less a deadly weapon. In the circumstances, the submission, made on behalf of the two appellants, Shankar Yadav and Vishwanath Yadav, that their conviction may be converted to Section 304 (Part II) of the Penal Code from the one u/s 302 I.P.C. appears to be justified and the period already undergone by them as under-trial and convict with effect from 03.01.2005 would suffice the ends of justice. Accordingly, appellants, Shankar Yadav and Vishwanath Yadav, are directed to be released from jail custody forthwith if not wanted in any other case.

The remaining three appellants, namely, Jagdish Yadav, Baban Yadav and Chotan Yadav of Cr. Appeal (D.B.) No. 624 of 2007, though led the extremists from village Nayagaon to P.O. village and were identified as the one, who had assaulted the other two deceased, namely, Saheb Yadav and Upendra Yadav, near fig (peepal) tree in last part of the occurrence along with unknown miscreants, as per P.W. 1 by giving them Patkan, as per P.Ws. 2 and 7 by means of lathi, kicks, fists and butt of rifle, but consistent case of the prosecution is that after Part III, IV and V of the occurrence extremists went back taking along with them Pintu Singh and Hira Yadav, as such, after departure of the extremists the three appellants of Cr. Appeal (D.B.) No. 624 of 2007 could not have assaulted the two deceased with butt of rifle in the last part of the occurrence. In the circumstances, they also deserve to be convicted for the offence u/s 304 Part II of the Penal Code. Three appellants, namely, Jagdish Yadav, Baban Yadav and Chotan Yadav having remained in jail custody with effect from 12.01.2005, 03.01.2005 and 05.01.2005 respectively, whereafter the three were released on bail by this Court under orders dated 24.07.2008, 02.12.2009 and 18.02.2009 respectively, as such, the period already undergone by them as undertrial, convict would suffice the ends of justice and they are directed to be discharged from the liabilities of their respective bail bonds.

With the modification in conviction and sentence aforesaid, the two appeals are partly allowed.

Let the Lower Court Records be sent back to the Court below along with a copy of this judgment.