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PETITIONER: BALO YADAV AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       29/04/1997

BENCH: G.N. RAY, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Thomas, J.      The six  appellants before us were among the 14 accused arrayed in the Sessions court indicted for the murder of one Ram deo  Yadav during  the wee  hours on 30th October, 1975. Although the  Sessions  Court  convicted  all  the  thirteen accused of  the offences of rioting and murder (with the aid of section 149 IPC)  the High Court confirmed the conviction only in respect of the seven appellants before us. They have been sentenced  to imprisonment  for life for the offence of murder and  to rigorous  imprisonment for  two years for the offence under section 148, Indian Penal Code.      Facts are  Simple :  Deceased Ram deo Yadav and his son Gajendra Yadav  (PW 8)  after their dinner at home went to a nearby field  presumably  for  watching  the  crop  thereon. Deceased went  to sleep on a wooden plank in one field while his son (PW 8) slept in the adjoining field. Some time after midnight these  appellants and few others came to this place armed with  lethal weapons  such as spears (bhala) and gupti and surrounded  Ram deo  Yadav, dragged him out and showered bloody assault  on him  with the weapons. Gajendra Yadav (PW 8) on hearing the sound of a commotion woke up and rushed to the  scene  with  his  torchlight  and  saw  the  assailants attacking his  father. He  made a  hue and cry, but somebody among the assailants snatched away his torchlight. By then a few of the neighbouring cultivators rushed to the scene. The assailants who  succeeded  in  inflicting  large  number  of injuries on  the deceased  fled  from  the  place  with  the weapons. Ramdeo Yadav who sustained extensive wounds died on the spot.      Gajendra Yadav  went to  the local  Police Station  and lodged  the   complaint  on  the  basis  of  which  FIR  was registered. After  completing  investigation  the  case  was charge-sheeted against the fourteen accused.      There is  no dispute that Ram deo Yadav was murdered at the time  and place  mentioned by the prosecution. The large number of  anti-mortem injuries  observed by  the doctor who conducted the  autopsy have been detailed in the post-mortem certificate. Some  of the injuries have perforated his vital organs and without difficulty we could observe that deceased

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would have died instantaneously.      Among the eye-witnesses examined by the prosecution the evidence of  PW5 - Sipehi Yadav, PW6 - Harilal Yadav and PW8 - Gajendra  Yadav was  found reliable by the Sessions Court. But High  Court did not act on the evidence of Harilal Yadav (PW 6).  However, the  evidence of  PW  8  was  found  quite reliable, yet the High Court chose to confirm the conviction only as against the appellants since the version of PW 8 was corroborated by PW 5  only in respect of them.      Learned  senior   counsel  confined  his  arguments  to assailing the  evidence of  PW 5 and PW 8 and contended that the said  evidence should  not have  been relied  on due  to certain drawbacks  high-lighted before  us. According to the learned counsel,  as the  High Court  did not  rely  on  the evidence of  PW 8  in regard  to the  acquitted  accused  it should have  been a  logical step to spurn down his evidence even in regard to the appellants as well.      This is not a case where the High Court declined to act on the  testimony of  PW 8. In fact, High Court has observed in clear  terms that  there  is  no  reason  to  reject  the evidence of PW 8, though High Court was not inclined to base a conviction  on his  evidence  without  corroboration  from other materials.  If the  High Court  thought it  unsafe  to convict any of the accused on the uncorroborated evidence of a single  eye-witness it  does not mean that the evidence of the witness  stands castigated. It is no stigm a against the evidence of  any eye-witness  if the  Court only  wanted re- assurance from yet other sources. The corroboration was what the court  required as a matter of prudence and as a step of caution. The  premise  of  the  contention  of  the  learned counsel that  evidence of  PW 8  has  been  stigmatised  is, therefore, erroneous.      Another point upon which learned counsel harped heavily was the  failure of  the investigating  officer to seize the torchlight which  the eye-witnesses  claimed to have flashed for witnessing  the occurrence.  We are unable to appreciate this argument.  If the  accused had  used a torchlight or if the victim  had a  torchlight with him during the occurrence there  would   be  much   force  in   insisting   that   the investigating   officer should  have seized  it as  the same could be  used as  a material  object  during  trial  but  a torchlight used  by the witness to see the occurrence cannot be equated  with the  torchlight used  buy the victim or the assailants in  the encounter  for evidentiary  purposes. Non seizure  of   such  a   torchlight  cannot,   therefore,  be considered as  a lapse  on the  part  of  any  investigating officer, much  less a ground for impairment of the testimony of the eye-witness concerned.      It was lastly contended that the weapons which the eye- witnesses identified  in the  hands of  the  appellants  are totally incompatible  with the   injuries  found on the dead body of  the deceased.  Apparently, those were sharp cutting weapons. One  of them  could have  been a  pointed and sharp weapon. All the injuries of the deceased were incised wounds and two  of them had penetrated into the body and perforated some of  the vital  organs. The  doctor  who  conducted  the autopsy has  said in  evidence that  the injuries  which  he noticed could have been caused with those weapons.      None of  the points  raised before  us by  t he learned counsel for  the  appellants  is  capable  of  changing  the conclusion reached by the High Court against the appellants. Accordingly, we dismiss the appeal.