http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: JAGDISH YADAV

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       27/01/1999

BENCH: G.T.Nanavati, N.Santosh Hegde

JUDGMENT:

Nanavati.J.

       The  appellant  has been convicted under Section 396 of the Indian Penal Code and sentenced to  death.    He  has filed this appeal against the order of sentence only in view of the limited leave granted by this Court.

       What  the prosecution has been able to prove is that during the night between first and second of June, 1989, the appellant along  with  30  to  40  other  docoits  committed docoity  in  the  house  of  deceased  Dhaneshwar,  that the dacoits killed Dhaneshwar, Surendra,  Awadhesh,  Kharha  and Kanhai  and  also set on fire some of the articles belonging to the family of the deceased.  In all 24 accused  were  put up  for  trial  out  of  whom 13 were acquitted by the Trial Court.  The other accused were convicted under  Section  396 and  out  of  them  only  appellant Jagdish was sentenced to death.   All  others   were   awarded   sentence   of   life imprisonment.   The  High  Corut  agreed  with  the findings recorded  by  the  Trial  Court  after  re-appreciating  the evidence  and  dismissed  the appeals and accepted the death reference.  While confirming the  death  sentence  the  High Court observed as under :         "In the case before me,  it  has  already            been  noticed  that there are so many as six eye            witnesses,  including  the  informat  who   have            categorically stated that this appellant shot at            two  innocent  and  unarmed persons from a close            rante by rifle  with  a  full  determination  to            commit  their  murder  ......................For            the reasons stated above, I have no  option  but            to  confirm  the death penalty against appellant            Jagdish Yadav."

       It was cintended by  the  learned  counsel  for  the appellant that the High Court wrongly proceeded on the basis that  as  found  by  the  Trial  Court appellant Jagdish had invividually killed two innocent persons. That was  not  the finding  recorded  by  the  Trial  Court  and, therefore, he submitted that confirmation of death sentence  by  the  High Court  stands  vitiated. Learned counsel also submitted that there   was   really   no   special    circumstance    which differentiated  the  case  of the appellant from that of the other accused who have been awarede only life  imprisonment. He  lastly  submitted  that  this  case cannot regarded as a rarest of rare case and, therefore, the extreme  penalty  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

death deserves to be set aside.

       It  is  true that the Trial Court after appreciating the evidence held  that  it  was  not  proper  to  hold  any individual  accused  guilty  for  the  murders  of Surendra, Awadhesh, Kharha and Kanhai. What the witnesses had  deposed regarding  which accused had killed whom was based upon what Mithilesh  had  told  them.  Mithilesh,  however,  was   not examined  as  a  witness  in the Court as he died during the pendency of the trial. The trial Court, therefore,  did  not hold  appellant  Jagdish  individually  responsible  for the death of Awadhesh. Therefore, the High Court was  not  right in proceeding on the basis that appellant Jagdish had killed two   innocent   persons.  This  is  not  a  case  where  on re-appreciation of the evidence the High Court has  recorded a  different  finding  holding  that  appellant  Jagdish had killed two innocent persons. Therefore, it has  to  be  held that  the  judgment  of the High Court to that extent stands vitiated.

       Another reason given by the Trial Court for awarding higher punishment to the appellant is that the appellant was the leader of  the  dacoits.    We  have  gone  through  the evidence  and  we do not find anything on record which would indicate that the appellant was the leader.  Shri BB  Singh, learned  counsel  for the State also fairly conceded that no such evidence was led by  the  prosecution.    He,  however, submitted that there was a long standing enemity between the family  of  the  deceased  and  the accused and that various cases were filed against each other and they were pending in various Courts.  But that cannot lead to an  inference  that the appellant  was  the  leader  of  the docits.  The courts below were, therefore, not justified in differentiating  the case of the appellant from that of other accuse.

       Only other  circumstance  that  now  remains  to  be considered is that he had killed Dhaneshwar by firing a shot at him.   We have gone through the evidence of P.W.2,3,4 and 5 who have deposed about the same.  They  have  stated  that Jagdish had  fired  the  shot  which killed Dhaneshwar.  The evidence as to why Jagdigh fired that shot and  under  which circumstances that  shot was fired is not consistent.  Their versions differ.    Through  it  stands  proved   that   the appellant killed Dhaneshwar it cannot be said that this case is a  rarest  of  rare case.  the facts and circumstances of the case do not justify such an inference.   We,  therefore, allow  this  appeal, set aside the sentence of death imposed upon  the  appellant  and  reduce  the  death  sentence   to imprisonment for life.  The appeal is allowed to that extent only.