The State of Bihar vs Jagdish Yadav <BR> Girish Yadav Vs The State of Bihar

N. Pandey, J.—All the Appellants have been held guilty for the offence u/s 396 of the Indian Penal Code by a common judgment, dated 28th July, 1994 in Sessions Trial No. 50 of 1993. Appellant Jagdish Yadav has been awarded death sentence whereas remaining Appellants were directed to serve imprisonment for life. Although altogether 24 accused were put on trial, but 13 of them have been acquitted and discharged from the liabilities of bail bonds.

The case of the prosecution, in brief, is that in the night of 1st January, 1989 while the informant Vijay Kumar (P.W. 5) along with family members including Mithilesh Yadav (since dead) were sleeping on the roof of their house, Village Malibigha, District-Jehanabad, a little before the mid-night, all of them woke up on hearing firing of gun. In the meantime, about 30/40 dacoits, including these Appellants armed with guns, rifles scaled over the tiled roof of Jagdeo Yadav and arrived on the roof of the house of the informant. The decoits thereafter caught hold of them and brought in the courtyard. Then the dacoits entered the house and started looting grains, ornaments, clothes etc. The dacoits also asked Dhaneshwar Yadav to hand over his rifle, but he expressed ignorance, on which Appellant Jagdish Yadav fired at Dhaneshwar Yadav with rifle, causing his death.

The further case of the prosecution is that immediately after the death of Dhaneshwar Yadav, the accused persons caught hold of Mithilesh Yadav, Surendra Yadav, Awadhesh Yadav, Awadhesh @ Kharha Yadav and Kanhai Yadav and tied up their hands with rope and took them to a nearby field of Baleshwar Yadav, situated hardly at 200 yards from the house of the informant. Mithilesh Yadav somehow the other escaped from the clutches of the accused persons, but remaining four were shot dead. Mithilesh Yadav immediately thereafter arrived at the house and informed the family members about the death of other four deceased persons.

As per the case of the prosecution, at the time of occurrence the dacoits had ''Lukari'' (burning sticks) in their hands and while returning back after dacoity, they set on fire heaps of straw belonging to the informant, kept in front of the house. The informant and the members of the family identified the accused persons in the light of ''Lukari''. It would further appear from the Fard-beyan and evidence of Dr. Kamleshwar Sharma (P.W. 11) that the informant and order witnesses were also assaulted by the accused persons.

On the next morning the officer-in-charge, Makhdumpur Police Station, having received information regarding the occurrence, entered a Sanha entry (Ext. 7), rushed to the place of occurrence and recorded the Fard-beyan (Ext. 5) in presence of Mithilesh Yadav and Ramdahin Yadav and other family members. He thereafter examined prosecution witnesses and prepared inquest reports (Ext. 4 to 4/4) of all the five dead bodies and sent them to Sadar Hospital for post mortem through a constable Durga Prasad Verma and Chowkidar Rameshwar Paswan.

The Investigating Officer also seized used cartridges of 12 bores rifle, certain explosive of petrol bomb, part burnt ''Lukari'', wats etc. P.W. 8 (Dr. Srinath Prasad) conducted post-mortem examinations of the dead bodies and submitted reports marked as Exts. 2/2 to 2/4. The Investigating Officer ultimately having found prima facie case against the accused persons, submitted chargesheet, whereupon the Chief Judicial Magistrate on due observance of the necessary formalities regarding taking of cognizance, committed the case to the court of Sessions and called upon the accused persons to face trial.

The defence of the Appellants as would appear from their statements, made u/s 313 of the Code of Criminal Procedure, including the trend of the cross-examination to the prosecution witnesses appears total denial of the allegations. Attempt was also made to establish that all the deceased, in fact, received injuries on account of bomb blast and the allegation that they died on account of fire arm injuries, was concocted. It was also suggested that the defence by producing some of the documents, marked as Exts. A, A/1, B and B/1, tried to establish that both the parties were on litigating terms, therefore, on account of enmity the accused persons were falsely implicated.

The prosecution has examined altogether 14 witnesses. Out of them P.Ws. 1(Ram Dahin Yadav), 2(Balmati Devi), 3(Savitri Devi), 4(Bindeshwari Devi), 5(Bijay Yadav, the informant) and 7(Mohan Yadav) are the witnesses, who had seen the entire occurrence.P.Ws. 9(Baldeo Prasad), 10(Syed Ikbal Ahmad, A.S.I.) and 14(Satya Narain Prasad) are formal witnesses and P.W. 6(Ravindra Kumar) has been tendered by the prosecution. P.W. 8 is Dr. Shri. Nath Prasad, who has conducted the post mortem of deceased Awadhesh Yadav and Dhaneshwar Yadav whereas P.W. 11 is another doctor, namely. Dr. Kameshwar Sharma, who had held post-mortem examination of remaining three deceased and claimed to have examined some injured persons. P.W. 12(Bharat Pd. Gupta) and P.W. 13(Md. Murtaza) are the police officials, who have conducted investigation and submitted chargesheet.

From the materials placed on record as well as the judgment of the trial court, there appears no doubt that in the night of 1st January, 1989 at the time of dacoity in the house of the informant, five of his family members, namely, Dhaneshwar Yadav, Surendra Yadav, Awadhesh Yadav, Awadhesh alias Kharha Yadav and, Kanhai Yadav, were murdered by the dacoits. It has also come in evidence that in course of dacoity several properties like clothes, ornaments worth Rs. 20 to 25,000/- were taken away by the dacoits. From the positive findings of the Investigating Officer and materials seized by him at the place of occurrence, coupled with the reports of post mortem examinations (Ext. 2 to 2/4) and evidence of Dr. Shri. Nath Prasad (P.W. 8) and Dr. Kameshwar Sharma (P.W. 11), it has also been established that death of all the five persons was homicidal.

The only question thus, arises whether the prosecution has been able to establish the charges of dacoity and murder against the accused/Appellants beyond all reasonable doubts. The trial court having examined the evidence of all the eye witnesses, including that of the Investigating, Officer and doctor, held that in the facts And circumstances of the case, the prosecution has proved its case beyond all the reasonable doubts, that Appellants in course of dacoity have committed murders of all the five persons. As noticed above, P.Ws. 1 to 5 and 7 are the witnesses, Who have given the details of entire occurrence P.W. 1 though a relation of the family from Village-Khaira, but on the fateful day he was also sleeping along with other victims and deceased persons. He has fully corroborated the statement of the informant as he was also present at the roof of the house. P.W. 2 Balmati Devi is the widow of deceased Dhaneshwar Yadav. She has narrated the entire occurrence and the manner in which her husband was killed by Appellant Jagdish Yadav. P.W. 3(Savitri Devi) and P.W. 4(Bindeshwari Devi) are senior lady members of the house. They have also identified the accused persons in the light of ''Lukari'' and gave vivid descriptions of the alleged murder of Dhaneshwar Yadav and remaining deceased. Though the defence has cross-examined them at length, but they fully corroborated the prosecution version. P.W. 5(Bijay Yadav) is the informant and he has also supported his version, which he had narrated before the police at the time of Fard-beyan. P.W. 7(Mohan Yadav) is of course a neighbour and independent witness. He has also supported the prosecution version and also supported that the police had seized different materials from the house of the informant, which was used by the dacoits while committing dacoity.

Mr. Pandey learned Counsel appearing for the Appellants contended that story of dacoity, as made out by the prosecution in this case, appears false and concocted and the accused persons have been implicated on account of enmity. He contended that persence of certain expolsive substance at the place of occurrence falsifies the prosecution story that all the five persons were killed on account of firing by rifles. According to him, it was quite possible that all the deceased sustained inuries in a different manner and at a different place or they got injuries while preparing bombs, but because of enmity a false story was cooked up against the Appellants. The defence has also brought on records certain documents like Ext. A, A/1, B and B/1 to show that both the families were on litigating terms. He contended that it would appear from the evidence of the Investigating Officer itself that he had seized explosive substance at the place of occurrence on the basis of which one can safely infer that death of Dhaneshwar Yadav had taken place on account of bomb blast. That apart, the prosecution in this case has also failed to obtain the report of Director, Forensic Science, to establish whether the death was on account of fire arm injury or due to bomb blast. Therefore, the court below should have drawn adverse inference against the prosecution. Reference in this regard was made to a decision of the Apex Court in the case of Baldeo Yadav v. State of Punjab 1992(1) PLJR 114(S.C).

In my view, having regard to the consistent evidence of the informant and other eye witnesses, including that of the Investigation Officer, such a submission of Mr. Pandey has to be rejected outright. Because from a bare reference to the prosecution story as narrated by P.Ws. 1 (Ram Dahin Yadav), 2(Balmati Devi), 3(Savitri Devi), 4(Bindobhwari Devi), 5(Bijay Yadav) and 7(Mohan Yadav), including that of the Investigating Officer (P.W. 12) it would appear that sufficient materials were brought on record to substantiate that a dacoity took place inside the house of the informant and five innocent persons of one family were murdered. It has also been noticed that the Investigating Officer has admitted in evidence that he found several empty cartridges, used in rifles, marks of pillets and bullets en the wall and staircase of the house of the informant. He had also found broken boxes and other house-hold properties scattered. The prosecution case that dacoits had climbed the roof of the informant through the tiled house of Jagdeo Yadav, has also been proved on the basis of objective findings of the Investigating Officer. The Investigating Officer has also found sufficient proof and materials in the field where Surendra Yadav, Awadhesh Yadav Awadhesh @ Kharha Yadav and Kanhai Yadav were murdered. The doctors (P.W. 8) and (P.W. 11) have also opined that all the five deceased died on account of fire arm injuries from a close range.

Mr. Pandey next contended that identifications of the accused persons by the informant and his witnesses are also doubtful. Because as per the case of the prosecution itself part of the occurrence took place inside the Angan of the informant. Therefore, identification of the accused persons at such a place particularly, in a dark night of winter appears quite doubtful. He contended though some of the witnesses have claimed to have identified the accused persons in the light of ''Lukari'', but this part of the prosecution story has to be disbelieved by a mere reference to the evidence of P.W. 3, who said that accused persons by lighting match boxes were committing the decoity. According to the counsel in case of such a doubtful identification of the accused persons, it was incumbent upon the prosecution to get a test identification parade conducted. In support of his contention, Mr. Pendey placed raliance to a decision of the Apex Court in the case of State of U.P. Vs. Hardeo and others, . In that case witnesses had claimed to have identified the culprits while standing at a distance of 150 feet with the help of the light emanating from the straw-fire. Reliance was also placed to a decision in the case of Munni Singh and Ors. v. State of Bihar 1995(1) PLJR 70(SC). In the said case all the accused persons had committed dacoity with muffled faces in the night. There was no recovery from the possession of the named accused persons. The Court, therefore, held that identification of the accused persons in the light of torch, flashed by dacoits was doubtful. In my view, facts of the above-mentioned cases being quite different, no aid can be given to the defence on such recitals. Because in the case before me, undisputedly all the accused persons were quite known to the informant and his family members by names and faces. That apart the positive case of the prosecution is that accused persons had ''Lukari'' (burning sticks) in their hands at the time of dacoity. Therefore, having regard to the facts, noticed above, there can not be any chance of mistaken identification in such cases. Besides the aforesaid, it would further appear from the findings recorded by the trial court as well as the evidence of the prosecution that all the eleven Appellants were identified by several witnesses, like P.Ws. 1 to 5 and 7.

Learned Counsel next submitted that from a bare reference to the statement of the informant in the Fard-beyan and that of his evidence in court, it would appear that there are sufficient variations and attempt has been made to improve the case of prosecution. Learned Counsel contended though in the First Information Report the informant had alleged that he and some of his family members had also received pellet injuries, but in court this fact has been completely suppressed by them. Therefore, one can infer that the prosecution has suppressed the real genesis and origin of the occurrence. Similarly there are other variations like actual number of the accused persons present at the time of occurrence inside the house. Variations can also be noticed with regard to the time of occurrence including actual time consumed by the dacoits inside the house at the time of decoity. It was, therefore, contended that because of such variations certainly a doubt arises, whether the prosecution has come forward with correct version of the case. In support of his contention Mr. Pandey placed reliance to a decision of this Court in the case of Satya Narain Bhagat and Anr. v. State of Bihar 1992(2) PLJR 663 as also a decision of the Orissa High Court in the case of State of Orissa v. Simanchal (pouda and Ors. 1997 Cr.L.J. 1816.

In my view, having regard to the well settled norms, the First Information Report is not expected to be an encyclopaedia of the factual background. In support of such view, reference can be made to a decision of the Apex Court in the case of State of U.P. Vs. Krishna Gopal and Another, . But certainly in such cases eye witnesses account would require a careful and independent assessment and evaluation of their credibility. This can not be ignored that all the eye witnesses in this case are illiterate and rustic persons. Therefore, it is not expected from such witnesses to keep minute to minute account of the prosecution story. Slight variations in the statements of such witnesses are quite natural.

Learned Counsel further contended, that from the evidence of the prosecution witnesses, it would appear that on hearing ''Hulla'' certain villagers had arrived at the place of occurrence, but neither the informant nor his witnesses disclosed the details of occurrence, which had taken place in the night. Similar is the lacuna and improbability in not examining independent witness by the prosecution. Therefore, in view of such glaring lapses one can comfortably assume that prosecution story is false and concocted. In support of the above submission reliance was placed to the decisions of Apex Court in the case of Balaka Singh and Others Vs. The State of Punjab, and Bir Singh and Others Vs. State of Uttar Pradesh, . In my view, the defence can not get any benefit from the ratio laid down in the above mentioned cases, because from a reference to these decisions, it would appear that in a case where all the eye witnesses examined by the prosecution had animous against the accused and were interested in implicating them, non-examination of the independent witnesses can adversely affect the defence. But in the case before me, the manner in which five persons of one family have been brutally assaulted and killed, the evidence of the family members, who are eye witnesses, should not be discarded simply because they are interested. True it is that great care is required to be taken while scrutinising their evidence. Thus, in my view, argument of Mr. Pandey has no base. That apart undisputedly P.W. 7 is not a family member of the informant and, therefore, he can not be said to be an interested witness.

Mr. Pandey also made an unsuccessful attempt to show that there was unusual and extraordinary delay in sending the First Information Report before the Chief Judicial Magistrate. According to him, though the Fard-beyan of Bijay Yadav (P.W. 5) was recorded on 2.1.1989 at 9.00 hours in the morning, but it was produced before the Chief Judicial Magistrate on 4.1.1989. Therefore, there is a legitimate basis for suspecting that the prosecution story is based upon improvement and embelishments by setting up distorted version of the occurrence. In support of this view, reliance was made to a decision of this Court in the case of Sarju Singh @ Sarju Mahto and Others Vs. State of Bihar .

Mr. Jaiswal learned Counsel appearing for the State on the other hand, contended that a bare reference to the facts of this case would indicate that the Investigating Officer after recording the Fard-beyan of P.W. 5 at 9 O''clock held inquest on the dead bodies of the five deceased. He thereafter, sent all of them to Jehanabad for post-mortem examination. Therefore, he proceeded to examine witnesses, inspect the place of occurrence and seized various materials, details of which have already been noticed. Therefore, in a case of such nature particularly when five persons were brutally murdered, delay of one or two days in sending the F.I.R. before the Magistrate can not discredit the prosecution story. He contended that in view of authoritative pronouncements of the Apex Court in different cases like Pala Singh and Another Vs. State of Punjab, and State of U.P. Vs. Gokaran and Others, delay in sending of the report to the Magistrate in such cases can not be fatal.

Mr. Jaiswal further contended that in any view of the matter, the First Information Report can only discredit the testimony of its maker. It can by no means be utilised for contradicting or discrediting other witnesses. Therefore, the prosecution story can not be thrown out on a mere ground that there are certain variations or improvements. Reliance in this regard was made to a decision of the Apex Court in the case of Dharma Rama Bhagare Vs. The State of Maharashtra, .

In my view, Mr. Jaiswal is quite justified in his submission. Because from a bare reference to the facts of the aforementioned cases, it would appear that in a case where steps of investigation by drawing inquest report and other Panchnama started, including due observance of other necessary formalities, the delayed receipt of such a report may not discredit the credibility of the prosecution version. It has to be remembered that occurrence in this case took place in the mid-night, but the First Information Report was promptly recorded by the police at 9 O''Clock in the morning and thereafter number of eye witnesses made their statements before the police supporting the prosecution version.

It was lastly contended on behalf of the Appellants that in view of the facts of the present case where the prosecution is based on testimony of the interested witnesses, extreme penalty of death against the Appellant Jagdish Yadav is excessive. In support of his contention learned Counsel also placed reliance on a decision of the Apex Court in the case of Raja Ram Yadav and others Vs. State of Bihar, . In my view, the facts of the said case may not be applicable to the present one. In that case, death penalty was awarded on the consideration of testimony of sole eye witness. In the case before me, it has already been noticed that there are as many as six eye witnesses, including the informant, who have categorically stated that this Appellant shot at two innocent and unarmed persons from a close range by rifle with a full determination to commit their murder.

Therefore, in my view, the court below having regard to the nature of crime, coupled with the allegations and evidence against Appellant Jagdish Yadav was quite justified in awarding the death sentence. For the reasons; stated above, I have no option but to confirm the death penalty against Appellant Jagdish Yadav. I also confirm the conviction and sentences of other Appellants, as awarded by the trial court. In the result, the death reference is confirmed and both the appeals i.e. Cr. Appeal No. 439/94 and Cr. Appeal No. 472/94 are hereby dismissed.

N.N. Singh, J.

I agree.