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CASE NO.: Appeal (crl.)  1969-1971 of 1996 Appeal (crl.)  256-258 of 1997

PETITIONER: Bachhu Narain Singh                                      

RESPONDENT: Naresh Yadav and others                                  

DATE OF JUDGMENT: 19/12/2003

BENCH: N. SANTOSH HEGDE &  B.P. SINGH  

JUDGMENT: JUDGMENT

State of Bihar Vs. Naresh Yadav and others  

B.P. SINGH

       In these appeals the appellants impugn the common judgment  and order of the High Court of Judicature for Patna in Criminal  Appeal Nos. 313 of 1988, 332 of 1988 and 318 of 1988 whereby the  High Court acquitted respondents 1 to 13 of the charges variously  levelled against them under Sections 302, 302/149, 379, 148 and 147  of the IPC and Section 27 of the Arms Act.   

       Criminal Appeal Nos. 1969, 1970 and 1971 of 1996 have been  preferred by Bachhu Narain Singh, informant who was examined as  PW-9 before the trial court.  He happens to be the younger brother of  one of the deceased Keshri Nandan Singh.  Criminal Appeal Nos. 256,  257 and 258 of 1997 have been preferred by the State of Bihar against  the acquittal of the aforesaid respondents by the impugned judgment  and order.   

       Respondents 1 to 13 were put up for trial before the Second  Additional Sessions Judge, Gaya in Sessions Case No. 57/86 / 8/86.   The trial court by its judgment and order dated June 6, 1988 found  respondent Naresh Yadav guilty of the offence punishable under  Section 302 IPC and sentenced him to imprisonment for life.   Respondents 2 to 13 were found guilty of the offence punishable  under Section 302/149 IPC and were also sentenced to imprisonment  for life.  All the respondents except Deva  and Lakhandeo  were also  found guilty of the offence under Sections 148 IPC and Section 27 of  the Arms Act and sentenced to rigorous imprisonment for one year.   Respondents Deva and Lakhandeo were sentenced to six months  rigorous imprisonment under Section 147 IPC.   Three appeals were  preferred against the judgment and order of the trial court, namely,  Criminal Appeal No. 313 of 1988 preferred by Lakhandeo Yadav ;  Criminal Appeal No. 332 of 1988 preferred by Shiba Yadav and  Criminal Appeal No. 318 of 1988 preferred by the remaining eleven  accused.  These appeals were initially heard by a Division Bench of  the High Court but the learned Judges differed in their opinion \026 while  N.S. Rao, J. was of the view that the appeals ought to be allowed and  the respondents acquitted, S.K. Chattopadhyaya, J. was of the view  that the appeals had no merit and ought to be dismissed.  In view of  the difference of opinion the matter was placed before D.P Sinha, J. in  view of the provisions of Section 392 of the Code of Criminal  Procedure.  The third Judge, after hearing the matter at length by his

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judgment and order of December 22, 1995 agreed with the view of  N.S. Rao, J. and allowing the appeals acquitted respondents 1 to 13 of  all the charges levelled against them.  The appellants have impugned  the aforesaid judgment and order of the High Court by special leave.

       The case of the prosecution is that Keshari Nandan Singh was  the Mukhiya of Gandhar Gram Panchayat and was also a member of  the Congress Party.  He was also practicing as an Advocate at  Jehanabad.  On April 19, 1985 while he was proceeding to the  Jehanabad Court in a jeep driven by him accompanied by seven other  persons including his personal security officer, his jeep was attacked  by a group of persons who were variously armed with guns, rifles,  Pasuli etc. when his jeep reached a point known as Dhamapur More  on the Jehanabad \026Ekangar Sarai road about 5 kms. from the police  station.  The case of the prosecution is that a shot fired by respondent  Naresh Yadav hit him as a result of which the vehicle went out of  control and landed in an agricultural field which was at a slightly  lower level than the road.  The occupants of the vehicle tried to escape  but they were fired upon by the members of the mob as a result of  which six of them died at the spot while two of them were seriously  injured.  The case of the prosecution is that the two injured victims  were removed to the Jehanabad hospital where they succumbed to  their injuries.  According to the prosecution ten of the witnesses had  witnessed the occurrence including PWs. 1, 2, 3, 5, 6, 8 and 9.  PWs.  4, 7 and 11 were tendered for cross-examination at the trial.  The post  mortem examination on the dead bodies of the deceased conducted by  PW-13 Dr. Mithlesh Kumar Singh revealed that they had died  homicidal death.  The post mortem reports were exhibited at the trial  as exhibit 6 series.  PW-12 Tufail Ahmad (officer incharge Ghosi  police station) who had reached  the place of occurrence at about 7.20  a.m. investigated the case and ultimately submitted the charge sheet  against 13 respondents herein.  

       We shall first of all notice the evidence of PW-12 Tufail  Ahmad, the investigating officer, who had received an oral  information at about 7.00 a.m. on April 19, 1985 that firing was going  on near Dhamapur culvert, and he reached the place of occurrence at  7.20 a.m. with police force.  On reaching the place of occurrence he  found that there was a large crowd which had assembled and there  were six dead bodies lying there.  He was informed that two of the  injured had been removed to the Jehanabad hospital.  He also saw the  jeep standing in the field towards north of the place of occurrence.  He  also saw the headless body of Keshari Nandan in the jeep.  After  reaching the place of occurrence he started preparing the inquest  reports relating to the dead bodies.  He had prepared five inquest  reports between 7.30 a.m. and 8.45 a.m.  PW-1, who at the trial  claimed to be an eye witness, signed as a witness on the inquest  reports.  According to him by about 8.50 a.m. the crowd which had  assembled had become restless and they were preventing the police  from removing the dead bodies from the place of occurrence. At about  that time two political leaders \026 one a Member of the Rajya Sabha and  the other a Member of the Legislative Assembly belonging to the  same caste as the deceased Keshari Nandan Singh came and pacified  the mob.  There was a commotion while he was preparing the inquest  reports and he learnt that the hut of respondent Naresh Yadav had  been set on fire in Gulgulia Tola.  He alongwith Deputy  Superintendent of Police and the Inspector of Police, who had reached  the place of occurrence by then rushed to the ’dalan’ of respondent  Naresh Yadav and found that the roof of the ’dalan’ had been set on  fire.  After deputing Sub-Inspector N.K. Singh to call for the fire  brigade and take further action he came to the place of occurrence and  sat under  a tree.  At about 9.00 a.m. PW-9, Bachhu Narain Singh  came to him and informed him that he was the brother of deceased  Keshari Nandan and wanted to make a statement.  He, therefore,  recorded the statement of PW-9 at 9.00 a.m. which was marked as

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Ext. 4 on the basis of which formal first information report Ext. 5 was  drawn up at the police station.  He searched for the respondents but  they were not found.  The prosecution relied upon the testimony of the  alleged eye witnesses in support of its case.  

Some other facts may be noticed at this stage.

According to the first information report lodged by PW-9,  while he was proceeding towards his pump house and was near the  place of occurrence he had noticed the presence of 40 or 50 people  including respondents 1 to 13 herein variously armed near the house  of respondent Naresh Yadav.  They were armed with rifles, guns and  other weapons.  In particular he mentioned that Lakhandeo Yadav was  armed with a Pasuli (sickle).  He noticed his brother’s jeep coming  from the eastern direction and proceeding towards the west on way to  Jehanabad.   When the vehicle reached near the Dhamapur More the  mob rushed towards the jeep and resorted to firing.  A shot fired by  respondent Naresh Yadav struck the head of Mukhiya Keshari Nadan  who was driving the jeep and as a result he lost control over the  vehicle which came and fell in a field towards the north of the road.   The members of the mob continued firing at the occupants of the jeep  who were trying to escape.  Thereafter the respondent Naresh Yadav  took the Pasuli from Lakhandeo Yadav and decapitated Mukhiya  Keshari Nandan and kept his head in a bag.  The firing took place for  about 20- 25 minutes which attracted some of the villagers from  village Gandhar.  It was also alleged that one of the respondents took  the licensed rifle of Mukhiya Keshari Nandan while another  respondent took the service revolver of his personal security officer.   The culprits ran towards north except Lakhandeo Yadav, who after  running towards north turned towards east and was apprehended by  the villagers coming from village Gandhar.  Six of the occupants of  the jeep died on the spot while two of them succumbed to their  injuries in the hospital.

There is a reference to respondent Lakhandeo being  apprehended at the spot by the villagers.  But it appears that  Lakhandeo had come to the place of occurrence later and was  surrounded by the villagers and assaulted by them at about 10.00 a.m.   The defence of Lakhandeo was that one of the victims Rama Nand  Yadav was his cousin as well as co-brother.  Coming to know about  the occurrence he had rushed to the place of occurrence to know about  his cousin and co-brother and there he was apprehended by the  villagers who had assembled there and who assaulted him.  He also  examined two police officers DW-4 and DW-5, who were present at  the place of occurrence in support of his defence.

The case of the defence is that the prosecution witnesses were  got up witnesses who had not witnessed the actual occurrence.  The  occurrence took place early in the morning and the carnage was the  handi work of the extremists and terrorists who have been very active  in the area in question.  The respondents had no motive to commit  such a gruesome crime taking the lives of as many as eight persons.   The mere fact that there was some political rivalry between followers  of the Congress Party and the Communist Party, was not a good  enough reason for them to commit such a gruesome crime.  Relying  upon the evidence adduced at the trial by the prosecution itself it was  contended that none of the persons present at the place of occurrence  claimed to be an eye witness when the officer incharge of the Ghosi  police station came there at 7.20 a.m.  He prepared inquest reports  between 7.30 a.m. and 8.45 a.m. but no one approached him claiming  to be an eye witness.  Two political figures belonging to the Congress  Party came to the place of occurrence and it appears that only  thereafter a false case was concocted against the respondents since the  culprits were unknown and since the respondents were not the

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supporters of the Congress Party but had supported the Communist  candidate in the elections to the Legislative Assembly held in the  month of March.  It was further submitted on behalf of the defence  that all the alleged eye witnesses belonged to the same caste, namely  the caste of Mukhiya Keshari Nandan.  Moreover none of them was  examined by the investigating officer on the date of occurrence.   Some of them were examined one or two days later and one of them  was not examined at all in the course of investigation.  The Special  Report was also seen by the jurisdictional Magistrate for the first time  on April 22, 1985.  This only indicated that the first information report  was concocted later after deliberations.  They also pointed out the  discrepancies in the statements of the witnesses recorded in the course  of investigation and their depositions in courts.

On the other hand prosecution contended that in view of the  evidence of a large number of witnesses and in view of the fact that  the first information report was lodged within 2 = hours of the  incident, there was no reason to doubt the case of the prosecution.   The respondents had a strong motive to commit the crime and,  therefore, the prosecution had proved its case beyond reasonable  doubt.

D.P. Sinha, J. in a very well considered judgment has critically  scrutinized the testimony of the alleged eye witnesses.  After noticing  the evidence of the alleged eye witnesses and the investigating officer,  PW-12, he came to the conclusion that Fardbeyan appears to have  been lodged within 2 = hours of the occurrence, but there is no  plausible explanation as to why the report was not lodged by any of  the eye witnesses after the investigating officer had reached the place  of occurrence at 7.20 a.m.  He was there at the spot preparing inquest  reports between 7.30 a.m. and 8.45 a.m. and yet no one claimed  before him to be an eye witness.  It was only at 9.00 a.m. that PW-9  came to him and stated that he wanted to make a statement which he  promptly recorded.  He also found that the defence of Lakhandeo that  he was not caught while running away from the place of occurrence  but when he came to the place of occurrence much later on coming to  know that his cousin was also one of the victims was true.  He was  apprehended by the mob but was got released from their clutches by  the police officers there.  It was also found that though the first  information report was registered on April 19, 1985 but first order  recorded in the concerned G.R. case record is dated April 22, 1985.   However, he did not attach much importance to this delay since he  was satisfied that the information was given by PW-9 to the  investigating officer at 9.00 a.m.  As regards motive he found that  though no such motive was mentioned in the Fardbeyan, Ext.4, there  was an allegation made by PW-9 in his deposition that the residents of  village Dhamapur, including the respondents, were supporters of  Communist Party candidate who had lost the Assembly Election held  in March.  Since a victory procession had been taken out headed by  Mukhiya Keshari Nandan 10 \026 15 days prior to the date of incident to  which they were strongly opposed, they had taken revenge by killing  Mukhiya Kehsari Nandan.  The learned Judge was of the view that  assuming all these facts to be correct the facts did not disclose that the  respondents had such a strong motive to commit an offence of this  nature.  However, he observed that the failure to prove sufficient  motive by itself was not decisive and that the evidence of the  witnesses had to be considered on its own merit.  He noticed that all  the witnesses belonged to the same caste and to the same village.  No  eye witness was examined who belonged to the village where the  occurrence took place.  According to the case of the prosecution the  eye witnesses were present when the occurrence took place yet none  of them claimed to be an eye witness when the investigating officer  came to the place of occurrence.  That apart, none of them was  examined by the investigating officer on the date of occurrence.   Some were examined on the following day and some still later and

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one of them, PW-8, was not at all examined in the course of  investigation.  The learned Judge then examined the evidence of each  witness and noticed the discrepancies/ inconsistencies in their  evidence.  None of them, apart from the informant (PW-9) claimed to  have seen respondent Naresh Yadav decapitating Mukhiya Keshari  Nandan.  The evidence also disclosed that though an allegation had  been made that one of the accused had taken away the licensed  revolver of Mukhiya Keshari Nandan after the occurrence, PW-9 in  the course of his deposition had to admit that the licensed revolver of  Mukhiya Keshari Nandan was found under his pillow during  investigation.  The learned Judge also found  that the prosecution   case that respondent Lakhandeo was arrested while running away  from the place of occurrence could not be accepted to be true since the  evidence on record disclosed that he had come to the place of  occurrence later.  Having considered the deposition of each of the eye  witnesses, the learned Judge did not find their evidence reliable.  He,  therefore, concluded that none of the eye witnesses could be  considered trust worthy and reliable and it appeared that the killing of  so many persons was the handi work of the extremist elements who  have been active in that area for sometime.  In fact from the evidence  of the investigating officer it appeared that during the course of  investigation some of the witnesses had stated that the culprits  included some persons dressed in khaki which is usually worn by the  extremists to create an impression that they belong to the police force.   Having found their testimony to be not credible and trust worthy and  having regard to other findings, he came to the conclusion that the  prosecution had not proved its case beyond reasonable doubt.    

We find no reason to take a different view because the findings  recorded by the learned Judge are fully supported by the evidence on  record and the circumstances of the case. In the first instance there  appears to be no reason why no one stated before the investigating  officer who came to the place of occurrence at 7.20 a.m. that he had  witnessed the occurrence as an eye witness.  Since they claimed to be  eye witnesses and large number of persons had gathered at the place  of occurrence when the investigating officer reached that place with  police force, the normal course of human conduct would have been,  for any of the eye witnesses to immediately inform the investigating  officer that he had witnessed the occurrence.  We fail to understand  why from 7.30 a.m. till 8.45 a.m., while the investigating officer was  preparing inquest reports no one came before him claiming to be an  eye witness.  The most interesting part of the story is the role of PW- 1, Ramji Singh.  He is a witness to the inquest report and obviously he  was present when the investigating officer was preparing the inquest  reports.  He also claims to be an eye witness and has deposed as such.   One fails to understand why he could not tell the investigating officer  that he himself was an eye witness.   This was sought to be got over  by an argument that the villagers must have been shocked by the  ghastly incident and therefore they did not make such a statement  before the investigating officer.  The argument is to be stated to be  rejected.  If PW-1 could be a witness to the inquest reports which  were being prepared on the spot, there is no reason why he could not  be the first informant in the case.  

It has not been disputed and could not be disputed that the  investigating officer came to the place of occurrence at 7.20 a.m.  If  the alleged eye witnesses were present, and there are as many as 10 of  them, there is no reason why none of them came forward to lodge the  report about the occurrence.  PW-9, the informant was a brother of the  deceased Mukhiya Keshari Nandan.  If he had seen the occurrence,  nothing prevented him from lodging the report immediately.  He  appears to have come on the scene more than an hour and a half after  the investigating officer had come to the place of occurrence.  His  presence, therefore, at a time of occurrence appears to be highly  doubtful.  The fact that the report was lodged within 2 = hours of the

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occurrence and was, therefore, not unduly delayed does not explain  why it was not lodged earlier in the peculiar facts and circumstances  of the case.   The High Court has observed that if this was an ordinary  case of murder, the time taken to lodge the report could be explained  by reason of the fact that it may take some time for the members of  the family to recover from the shock, to console each other, to make  other arrangements before proceeding to have the matter reported.   This is not one such case because the occurrence had taken place at  about 6.30 a.m.  and the investigating officer having reached the place  of occurrence at 7.20 a.m. there was no explanation for the delay in  lodging the report thereafter, which was lodged at 9.00 a.m.  If the  investigating officer was present at the place of occurrence and the  eye witnesses were also present they would not have kept quite till  about 9.00 a.m. when, for the first time, PW-9, appeared before him  and lodged the report.  There is, therefore, serious doubt about the  presence of the eye witnesses when the investigating officer came to  the place of occurrence, and this also casts a serious doubt as to their  presence at the time when the occurrence took place.  It is not a case  of the prosecution that after the occurrence  the eye witnesses had  gone else where.  In fact the evidence of the investigating officer is to  the effect that a large crowd had gathered at the place of occurrence.

It is not necessary for us to consider the various discrepancies  and inconsistencies found in the evidence of the eye witnesses by the  High Court.  Suffice it to say that their evidence does not inspire  confidence and we entertain serious doubt about their being eye  witnesses.   

The case of the prosecution is that Lakhandeo respondent was  one of the culprits and he also ran towards north alongwith all his  companions.  He, however, changed course and started running in a  different direction only to be apprehended by the villagers coming  from the side of village Gandhar.  This story of the prosecution has  been found to be untrue and for good reasons.  As the High Court has  observed, if really Lakhandeo had been apprehended by the villagers  before the arrival of the police force he would have been immediately  handed over to the police force if he had not been lynched earlier by  the mob.  This apart, there is direct evidence of two police officers  who were present at the place of occurrence alongwith the  investigating officer.  They are DW-4 and DW-5, who were Inspector  and Sub-Inspector of police respectively.  They have deposed that at  about 10.00 a.m. i.e. after one hour of the lodging of the report, there  was a commotion and they found that one person was being assaulted  by the villagers.  They went to the rescue of that villager and found  that the victim was Lakhandeo.  Lakhandeo has pleaded that having  come to know that his cousin, who also happens to be his co-brother  may be one of the victims, he had rushed to the place of occurrence to  find out about his welfare.  However, when he came to the place of  occurrence he was surrounded by the villagers and assaulted till he  was rescued by the police party.  The High Court has found that this  part of the prosecution case is untrue and the defence of Lakhandeo  appears to be truthful.  To us also it appears that the prosecution is  guilty of introducing false facts which have considerably shaken the  credibility of the prosecution case.

Similarly, PW-9 in the report had stated that the revolver of  Mukhiya Keshari Nandan had been taken away by one of the accused.   However, in the course of his deposition he had to admit that the  revolver of Mukhiya Keshari Nandan was found under his pillow in  the course of investigation.  The High Court has adversely commented  on the credibility of PW-9.  We may notice that according to this  witness respondent Naresh Yadav decapitated Mukhiya Keshari

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Nandan with Pasuli held by Lakhandeo.  Apart from the fact that the  presence of Lakhandeo has been found to be doubtful, none of the  other witnesses has mentioned about Naresh Yadav beheading  Mukhiya Keshari Nandan.  This also shows the extent to which the  informant could go in making out a false case because if what is stated  was the fact, nine other eye witnesses noticing the same occurrence  from different places could not have missed noticing this fact.

Having considered all aspects of the matter we find ourselves in  agreement with the view taken by the High Court, and this being an  appeal against acquittal, no interference is called for even if it was  possible to take another view on the basis of the same evidence on  record.  However, we may hasten to add, having regard to the  evidence on record, it is not possible to take any other view in the  matter.   

We, therefore, find no merit in these appeals and the same are  accordingly dismissed.