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CASE NO.: Appeal (crl.)  763 of 2004

PETITIONER: Ramashray Yadav & Ors.                   

RESPONDENT: State of Bihar                                           

DATE OF JUDGMENT: 08/11/2005

BENCH: H.K. Sema & G.P. Mathur

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

1.      This appeal, by special leave, has been filed against the judgment  and order dated 15.1.2004 of Patna High Court, by which the appeal  preferred by the appellants was dismissed and their conviction under  Section 302 read with Section 34 IPC and Section 27 Arms Act and the  sentence of imprisonment for life under the first count and three years R.I.  under the second count imposed by Second Additional Sessions Judge,  Hilsa, Nalanda, in Sessions Trial No.612 of 1998 were affirmed.

2.      The case of the prosecution may be stated in brief.   The deceased  Ram Parvesh Yadav was carrying on timber business and was running a  saw mill at Hilsa.   The appellants, Ramashray Yadav (A-1), Tanikan  Yadav (A-2) and Rajdeo Yadav (A-3), were bullies or goondas of the  locality and they used to demand "rangdari tax" (Goonda Tax) from the  deceased, but he refused to pay the same.  Due to this reason, the appellants  were hostile to the deceased and wanted to teach him a lesson. On  10.4.1998, the deceased Ram Parvesh Yadav along with his brother PW.12  Sidheshwar Prasad and some others went on a tractor trolley to bring  timber from village Dabaul.   After loading the timber, they returned from  there and reached west of village Shekhopur at about 3.30 p.m.  Suddenly,   the three appellants and two other unknown persons came out from the  bushes and started firing with country-made pistol and rifle.   The  labourers, the driver of the tractor and Ram Parvesh Yadav jumped from  the tractor and started running towards eastern side.   The accused chased  Ram Parvesh Yadav and after covering some distance reached near him  and fired number of shots, which hit him and he fell down dead.    Sidheshwar Prasad gave his fard bayan to S.I. Deo Nath Bhagat, of Police  Station, Hilsa at about 5.00 p.m.  The formal FIR of the incident was  registered at the Police Station at 7.30 p.m. on the basis of which Crime  Case No.139 of 1998 was registered.   S.I. Prabhu Nath Singh commenced  investigation of the case and after recording statement of witnesses under  Section 161 Cr.P.C. and completing other formalities submitted charge  sheet against the three appellants.   The post-mortem examination  conducted on the body of the deceased Ram Pravesh Yadav revealed that  he had sustained large number of gunshot injuries.  

3.      After commitment of the case to the Court of Sessions, the  appellants were charged under Section 302 read with Section 34 IPC and  Section 27 Arms Act.   The appellants pleaded not guilty and claimed to be  tried.   In order to establish its case, the prosecution examined in all 15  witnesses, out of whom 7 witnesses turned hostile.   PW.12 Sidheshwar  Prasad, brother of the deceased who had accompanied him on the tractor to  village Dabaul for bringing the timber, gave the complete version of the  incident in his deposition in Court.  PW.3 Karu Beldar was the driver of the  tractor.  He deposed that he had driven the tractor trolley on which Ram

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Parvesh Yadav and Sidheshwar Prasad had gone to village Dabaul for  bringing timber.   When they were returning to village Hilsa at about 3.00- 4.00 p.m.  and had reached near village Shekhopur, two-three people whom  he could not recognize, came there and started firing upon the tractor.  Ram  Parvesh Yadav ran towards eastern side, but after receiving gunshot  injuries he fell down and died on the spot.  When confronted with his  statement under Section 161 Cr.P.C., wherein he had mentioned that the  three appellants namely, Ramashray Yadav, Tanikan Yadav and Rajdeo  Yadav were present amongst the assailants and had fired from country- made pistol and rifle upon the deceased, he denied to have given any such  statement, though he admitted that the police had recorded his statement at  the police station.   He also denied to have stated in his statement under  Section 161 Cr.P.C. that the accused appellants used to demand "rangdari  tax" (Goonda Tax) from the deceased and on account of non-payment  thereof, they had committed his murder.   PW.5 Arjun Prasad stated that at  about 3.30 p.m. on 10.4.1998, he was returning from village Tamara and  when he reached near Lehra Dak river, he heard sound of several gunshots  being fired.   He along with others rushed towards Mahua Khandha and  saw one person lying on the ground who had received large number of  injuries. Sidheshwar Prasad was standing nearby and on enquiry he  informed him that on account of non-payment of "rangdari tax",  Ramashray Yadav, Tanikan Yadav and Rajdeo Yadav had killed his  brother Ram Parvesh Yadav by causing gunshot injuries.   PW.14 Dr. S.B.  Singh had conducted post-mortem examination on the body of the deceased  at 7.30 a.m. on 11.4.1998 and had prepared the post-mortem report.  In his  deposition, he proved the aforesaid report and stated that the deceased had  sustained gunshot injuries on his face, mouth, lumber region, arms and  hand.   Three bullets were found inside the body which were taken out.  In  his opinion, death had occurred 16 to 24 hours prior to the holding of post- mortem examination.

4.      The learned Sessions Judge believed the case of the prosecution and  convicted all the three appellants under Section 302 read with Section 34  IPC and Section 27 Arms Act, whereunder sentence of imprisonment for  life and a sentence of three years R.I. respectively were awarded.   The  appellants preferred an appeal before the High Court, which affirmed the  findings of the learned Sessions Judge and dismissed the appeal.   

5.      Learned counsel for the appellants has submitted that as many as 7  witnesses examined by the prosecution had turned hostile.  Only PW.12,   Sidheshwar Prasad, who is the brother of the deceased, had supported the  prosecution case and in these circumstances, it was highly unsafe to record  the conviction of the appellants on the solitary testimony of a witness who  is an interested witness, being brother of the deceased.   Shri B.B. Singh,  learned counsel for the State, has, on the other hand, submitted that the  testimony of PW.12 Sidheshwar Prasad finds ample corroboration from the  testimony of PW.3 Karu Beldar and PW.5 Arjun Prasad, who are  independent witnesses.  The eye-witness account of the incident is   corroborated by the medical evidence and in these circumstances, the trial  Court and also the High Court were perfectly justified in recording the  conviction of the appellants.   Learned counsel has also submitted that   conviction can be based on solitary testimony of an eye-witness, if the  same inspires confidence and in the present case the evidence of PW.12  Sidheshwar Prasad was of unimpeachable character and there is no reason  for discarding the same.   It has thus been submitted that there is no valid  ground which may warrant interference by this Court under Article 136 of  the Constitution with the findings of fact recorded by the two Courts.    

6.      PW.12, Sidheshwar Prasad is the brother of the deceased Ram  Parvesh Yadav.  He has deposed that the deceased was carrying on timber  business and had also a saw mill.  The appellants were bullies or goondas  of the locality and they used to demand "rangdari tax" (Goonda Tax) from  his brother, but he refused to pay the same and due to this reason, the  appellants wanted to teach him a lesson.  This shows the motive for  commission of crime and also explains the reason why as many as 7

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witnesses turned hostile and even PW.3, Karu Beldar who was driving the  tractor, did not mention the names of the appellants in his deposition in  Court, though they were named and were assigned the specific role of  causing gunshot injuries in his statement under Section 161 Cr.P.C.  PW.3  Karu Beldar has stated that the deceased Ram Parvesh Yadav and  Sidheshwar Prasad had gone to village Dabaul to bring timber and he was  driving the tractor.   He has further deposed that while returning at about  3.00-4.00 p.m., when they reached near village Shekhopur, two-three  people suddenly appeared and started firing from their weapons.   He  jumped from the tractor and ran away.   He also saw that Ram Parvesh  Yadav had run towards eastern side, where he received gunshot injuries  and fell down dead.   Except for mentioning the names of the three  appellants, he has completely corroborated the prosecution version of the  incident.   He corroborates the fact that PW.12 Sidheswar Prasad had also  gone with the deceased Ram Parvesh Yadav to village Dabaul for bringing  timber on a tractor of which he was the driver.   He corroborates the fact  that the incident took place at about 3.00-4.00 p.m. near village Shekhopur  when two-three persons suddenly appeared and started firing upon the  tractor.   He also corroborates the fact that he saw Ram Parvesh Yadav  being hit by gunshots and falling down dead towards eastern side of the  tractor.   He further corroborates the presence of Sidheshwar Prasad at the  time when the assailants resorted to firing upon Ram Parvesh Yadav.

7.      PW.5 Arjun Prasad has deposed that he was returning from village  Tamara at about 3.30 p.m. on 10.4.1998 and when he reached near river  Lehra Dak, he heard sound of several gunshots.   He along with others ran  towards that side and saw a person lying badly injured in Mahua Khandha  and PW.12 Sidheshwar Prasad was standing there.   On enquiry, he told  him that on account of non-payment of "rangdari tax", appellants  Ramashray Yadav, Tanikan Yadav and Rajdeo Yadav had killed his  brother Ram Parvesh Yadav by firing upon him.  PW.5 had not seen the  incident but he heard the sound of gunshots and rushed to the place of  occurrence where he saw the deceased lying in a badly injured condition  and Sidheshwar Prasad who was standing nearby narrated the incident to  him. It needs examination whether the testimony of PW.5 Arjun Prasad can  be used as a corroborative piece of evidence.

8.      Section 157 of the Evidence Act reads as under : "157.   In order to corroborate the testimony of a witness,  any former statement made by such witness relating to the  same fact, at or about the time when the fact took place, or  before any authority legally competent to investigate the  fact, may be proved."          The import of this Section was examined and explained in  considerable detail in State of Tamil Nadu v. Suresh & Anr. (1998) 2 SCC  372 and paragraphs 26 to 28 of the reports are being reproduced below : "26.    The section envisages two categories of statements of  witnesses which can be used for corroboration.   First is the  statement made by a witness to any person "at or about the  time when the fact took place".  The second is the statement  made by him to any authority legally bound to investigate  the fact.  We notice that if the statement is made to an  authority competent to investigate the fact such statement  gains admissibility, no matter that it was made long after the  incident.  But if the statement was made to a non-authority it  loses its probative value due to lapse of time.   Then the  question is, within how much time the statement should  have been made ?  If it was made contemporaneous with the  occurrence the statement has a greater value as res gestae  and then it is substantive evidence.  But if it was made only  after some interval of time the statement loses its probative  utility as res gestae, still it is usable, though only for a lesser  use.

27.     What is meant by the expression "at or about the time

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when the fact took place"?   There can be a narrow view that  unless such a statement was made soon after the occurrence  it cannot be used for corroboration.   A broader view is that  even if such statement was made within a reasonable  proximity of time still such statement can be used for  corroboration.  The legislature would not have intended to  limit the time factor to close proximity though a long  distance of time would deprive it of its utility even for  corroboration purposes.

28.     We think that the expression "at or about the time  when the fact took place" in Section 157 of the Evidence  Act should be understood in the context according to the  facts and circumstances of each case.  The mere fact that  there was an intervening period of a few days, in a given  case, may not be sufficient to exclude the statement from the  use envisaged in Section 157 of the Act.   The test to be  adopted, therefore, is that : Did the witness have the  opportunity to concoct or to have been tutored ?  In this  context the observation of Vivian Bose, J. in Rameshwar v.  State of Rajasthan AIR 1852 SC 54 is apposite :

"There can be no hard and fast rule about the ’at or  about’ condition in Section 157.  The main test is  whether the statement was made as early as can  reasonably be expected in the circumstances of the  case and before there was opportunity for tutoring or  concoction."                                         (emphasis supplied)"

9.      In Smt. Chander Kala v. Ram Kishan & Anr. AIR 1985 SC 1268, an  incident which took place on 10th March was narrated by the victim to  some of her colleagues on 11th March and it was held that the testimony of  her colleagues was admissible under Section 157 of the Evidence act and  could be used for the purpose of seeking corroboration to the testimony of  the victim.  Thus, the testimony of PW.5 Arjun Prasad who had reached    immediately after the incident had happened and to whom PW.12  Sidheshwar Prasad had narrated the incident and the role played by the  three appellants in causing the death of his brother by firing upon him lends  complete corroboration to the testimony of PW.12 Sidheshwar Prasad.   

10.     No infirmity of any kind has been pointed out in the testimony of  PW.12 Sidheshwar Prasad, who is the brother of the deceased.   His going  along with his brother for the purpose of bringing timber is most natural.    There is substantial corroboration to his testimony by the statements of  PW3 Karu Beldar and PW.5 Arjun Prasad.   His version of the incident is  consistent with medical evidence on record.   In these circumstances, we  have no hesitation in holding that the prosecution has established the  participation of the appellants in the crime in question beyond any  reasonable doubt.  We do not find any error or illegality in the findings  recorded by the trial Court and also by the High Court.   The appeal is  accordingly dismissed.   The appellants shall undergo the sentences as  awarded by the Second Additional Sessions Judge, Hilsa, Nalanda.