Yogendra Yadav Vs The State of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.1226 of 2019

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Arising Out of PS. Case No.-96 Year-2011 Thana- MUNGER MUFFASIL District- Munger

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Yogendra Yadav, Son of Late Lakhan Yadav, Resident of Village - Taufir, P.S.Muffasil, District- Munger.

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... ... Appellant

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Versus The State of Bihar ... ... Respondent ====================================================== Appearance : For the Appellant : Mr. Pankaj Kumar Sinha, Advocate Mr. Raunak Kumar Singh, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Siddharth Prasad, Advocate Mr. Om Prakash Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

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Date : 21-01-2025

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Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State as also learned counsel for the informant.

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2. This appeal has been preferred for setting aside the judgment of conviction dated 14.08.2019 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 20.08.2019 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge IV, Munger (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 216 of 2014, CIS No. 163/14 arising out of Muffasil P.S. Case No. 96 of 2011.

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3. By the impugned judgment, the appellant has been convicted for the offence punishable under Section 302/149 of the Indian Penal Code (in short ‘IPC’) and under Section 27 of the Arms Act. By the impugned order, the appellant has been ordered to undergo rigorous imprisonment for life under Section 302/149 IPC with a fine of Rs. 2000/- and in default of payment of fine, he has to further undergo simple imprisonment for three months. He has also been ordered to undergo rigorous imprisonment for three years under Section 27 of the Arms Act with a fine of Rs.2000/- and in default of payment of fine, he has to further undergo simple imprisonment for three months. Both the sentences are to run concurrently.

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Prosecution Case

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4. The prosecution story is based on the written application of Rakesh Kumar (PW-5). In his written application, he has stated that on 18.05.2011 at 05:00 PM, the informant along with his younger brother Pintu Yadav, Vipin Yadav and Randhir Yadav were present in the khalihan . In the meantime, (1) Maheshwar Singh, (2) Ramgulam Yadav, (3) Nirodh Yadav, (4) Mannu Yadav, (5) Manish Yadav, (6) Guddu Yadav, (7) Kaillu Yadav, (8) Yogendra Yadav (appellant), (9) Santosh Yadav, (10) Mastan Singh, (11) Pampam Singh, (12) Naim Khan and (13) Jaldhar Singh along with 15-20 unknown persons variously armed surrounded them and while abusing entered into his khalihan . Thereafter, Maheshwar Singh

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asked the informant to give Rs. 5 lakhs as rangdari and give his licensed weapon, else get ready to die and then Maheshwar Singh shot at Vipin Yadav which hit his leg and ordered other accused persons to kill all of them. On this, Mannu Yadav shot at the eye of Vipin Yadav, thereafter Manish Yadav shot at another eye of Vipin Yadav. Then Kaillu Yadav shot at the right hand of Vipin Yadav. Thereafter, Mastan Singh and Pampam Singh also shot at Vipin Yadav. In the meantime, Pintu Yadav @ Navin Kumar was also shot at but he took out his Licensed Rifle in self defence and jumped in the water and all the accused persons chased Pintu Yadav. Then, Yogendra Yadav (this appellant) shot at him which hit his neck and Santosh Yadav also shot at Pintu Yadav which also hit his neck. After this, Pintu Yadav got drowned in the water and licensed rifle of Pintu Yadav was kept by Guddu Yadav. Thereafter, Ramgulam Yadav, Jaldhar Singh, Nirodh Yadav, Naim Khan, Mastan Singh and Pampam Singh all, with an intention to kill Randhir Yadav, kidnapped him. The informant alleged that he has suspicion that they would also kill Randhir Yadav. The informant stated that the above occurrence was witnessed by Gyani Kumar, Hindu Yadav and Sangin Yadav.

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5. On the basis of this written application, Muffasil (Munger) P.S. Case No. 96 of 2011 dated 20.05.2011 was registered under Sections 147, 148, 149, 342, 323, 302, 387, 386 IPC and

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Section 27 of the Arms Act against 13 named including this appellant and 15-20 unknown persons. After investigation, Police submitted Chargesheet and supplementary chargesheet. The supplementary chargesheet bearing No. 309 of 2013 dated 20.12.2013 was filed against this appellant under Sections 147, 148, 149, 342, 323, 302, 387, 386 IPC and Section 27 of the Arms Act keeping the investigation pending against (1) Ramgulam Yadav, (2) Pampam Singh, (3) Mannu Yadav, (4) Manish Yadav, (5) Kaillu Yadav, (6) Santosh Yadav, (7) Mastan Singh, and (8) Jalandhar Singh. On the basis of this chargesheet, learned Chief Judicial Magistrate, vide his order dated 04.01.2014 found a prima-facie case against this appellant and further found that cognizance has already been taken in original record on 02.08.2013. After supply of police papers, the case was committed to court of sessions on 30.01.2014. After receiving the records, Sessions Trial No. 216 of 2014 was registered on 19.02.2014. Charges were read over and explained to the appellant in Hindi which he denied and claimed to be tried. Accordingly, vide order dated 07.08.2014, charges were framed under Sections 302/149, 342, 386, 387 IPC and Section 27 of the Arms Act.

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6. In course of trial, the prosecution examined as many as eight witnesses and exhibited several documents to prove the prosecution case. The names of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:-

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List of Prosecution Witnesses

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PW-1	Gyani Kumar Yadav
PW-2	Lukho Yadav
PW-3	Sangin Yadav
PW-4	Chano Yadav
PW-5	Rakesh Kumar
PW-6	Satyendra Kumar
PW-7	Dr. Raja Ram Chaudhary
PW-8	Dr. Prem Kumar

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List of Exhibits

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Exhibit ‘1’	Signature on the Written Report
Exhibit ‘2’	Inquest report of Pintu Yadav
Exhibit ‘2/1’	Inquest report of Vipin Yadav
Exhibit ‘3’	Post-mortem report of Pintu Yadav
Exhibit ‘3/1’	Post-mortem report of Vipin Yadav
Exhibit ‘3/2’	Post-mortem report of Randhir Yadav

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Findings of the Learned Trial Court

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7. After analysing the evidences on the record, learned trial court found that the above named accused persons along with their associates formed an unlawful assembly to commit an offence of murder, in prosecution of the common object, they have opened fire on victims Pintu, Vipin and Randhir. Learned trial court found that the prosecution case is supported by the witnesses and the doctor. The injuries on the dead body were found in the manner and on the parts of the body as stated in the written report

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and the depositions of witnesses. Learned trial court further found that there is some sort of gang rivalry between two groups, therefore, the charges of demand of rangdari appears doubtful. No licence for the use of firearms has been produced. Learned trial court observed that the injuries caused to all the three persons by the gunshots were sufficient to cause their death in ordinary course of nature. Thus, it clearly establishes the intention and deliberate action to kill the deceased persons.

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8. Learned trial court accordingly after careful consideration came to a conclusion that the evidences are good enough to warrant a clear finding as to guilt of the accused. In result, learned trial court convicted the accused, namely, Yogendra Yadav for the offences punishable under Section 302/149 and Section 27 of the Arms Act.

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Submissions on behalf of the appellant

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9. Learned counsel for the appellant has assailed the impugned judgment on the ground that the learned trial court has failed to appreciate the materials brought on record by the prosecution and has passed the impugned judgment and order based on surmises and conjectures.

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10. It is submitted that in this case, the prosecution witnesses are closely related to the deceased and they have made contradictory

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statements to each other in material particulars. It is submitted that Rakesh Kumar (PW-5), who is the informant of the case, has stated in his evidence that the occurrence took place in his presence on 18.05.2011 but it would appear from the records that the case was lodged on 20.05.2011 and that he did not disclose anything with regard to the occurrence to anyone. He has stated that police had lodged an encounter case being Maheshkhunt P.S. Case No. 42 of 2011. It is pointed out that Satyendra Kumar, who is the I.O. and has been examined as PW-6, has stated in his evidence that neither blood nor cartridge was found at the place of occurrence and he had not taken statement of the persons present at the place of occurrence. The Doctor (PW-7) has said in his evidence that he held postmortem examination on the dead body of Pintu Yadav and found time elapsed since death within 24 to 48 hours. In the postmortem of Randhir Yadav, the Medical Officer (PW-8) had found several injuries caused by firearm and also found time elapsed since death within 48 hours of the postmortem examination. One of the prosecution witnesses namely Gyani Kumar Yadav (PW-1) has stated that none except him was present in the ‘ khalihan ’ at the time of alleged occurrence.

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11. Learned counsel, therefore, submits that the prosecution has miserably failed to prove its case beyond all reasonable doubt, hence

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the judgment of conviction and order of sentence are liable to be set aside.

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Submissions on behalf of the State and the informant

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12. On the other hand, learned Additional Public Prosecutor for the State has opposed the appeal. It is submitted that PW-1, PW-2, PW-3, PW-4 and PW-5 have fully supported the prosecution case. These witnesses have stated that this appellant along with other accused persons assembled and surrounded Pintu, Bipin and Randhir and one Maheshwar Singh demanded rangdari of Rs. 5 lakhs and when they protested, all the accused persons started indiscriminate firing upon them.

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Learned counsel for the informant has endorsed the submissions advanced on behalf of the State. It is submitted that informant is an eyewitness in this case. Other prosecution witnesses have also supported the prosecution case.

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13. It is submitted that the learned trial court has, after examining all the witnesses and considering the documents adduced by the parties, come to a conclusion that the prosecution has proved its’ case beyond all reasonable doubts against the accused persons, they have committed serious offence in which three persons have lost their life and the crime is heinous in nature.

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Consideration

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14. We have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. It is evident on perusal of the records that a written application giving rise to the present case was submitted on 19.05.2011 in Khagaria Chitragupta Nagar Police

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Station which was forwarded to the S.H.O. Mufassil (Munger) Police on 20.05.2011 where this case was registered as Mufassil P.S. Case Number 96 of 2011 dated 20.05.2011 under Sections 147/148/149/342/323/302/387/386 IPC and Section 27 of the Arms Act. Signature of the informant has been marked Exhibit ‘1’ and the written application giving rise to the present case has not been exhibited. The endorsement made in the left hand side margin portion of the written application is also not exhibited, however, in Sessions Trial No. 787 of 2012, the written application giving rise to present case was marked Exhibit ‘4’ on 24.07.2015 but the ordersheet of 24.07.2015 is not available in the records and endorsement thereon in the left hand side margin portion has been marked Exhibit ‘4/1’ on 31.08.2015.

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15. It is the prosecution case that the occurrence took place on 18.05.2011 in the evening at 5:00 PM. Place of occurrence is said to be the ‘ khalihan ’ of the informant where he claims his presence with his younger brother Pintu Yadav @ Naveen Kumar, Bipin Yadav, son of late Chaukaran Yadav and Randhir Yadav, son of Shailendra Yadav. He has narrated the occurrence which took place in the ‘ khalihan ’ in which the thirteen named accused and 15-20 unknown criminals, whom he may identify, came armed with weapon and surrounded the deceased/ prosecution side and thereafter Maheshwar Singh demanded rangdari of Rs. 5 lakhs and asked the deceased side to hand over the licensee

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weapon and get ready to die. From the written application of the informant (PW-5), it would appear that he is the only eyewitness of this case. According to him, in this occurrence his younger brother Pintu Yadav, another person Bipin Yadav and Randhir Yadav were killed. About Randhir Yadav, it is stated by the informant that the accused persons had taken him away with them with an intention to kill him.

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16. On record, we find the inquest report of Pintu Yadav and Bipin Yadav marked Exhibit ‘2’ and Exhibit ‘2/1’ respectively. The inquest reports were prepared on 19.05.2011 at 15:15 hours and 15:30 hours respectively in Sadar Hospital, Khagaria. The inquest reports, however, nowhere bear any sanha entry number or police case number. The informant (PW5) and one Gaurav Kumar (not examined) are the inquest report witnesses.

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17. The postmortem report of Pintu Yadav (Exhibit ‘3’) has been proved by the Doctor (PW-7) who found the following external and internal injuries on the body:-

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“ External Examination:-

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(1) Lacerated wound on 2” behind middle point of Rt pinna directing horizontally towards Lt ear size – ¼” x ¼” muscle deep, margin inverted, blackening and charring which is wound of entry.

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(2) Lacerated wound on 1” behind injury no. 1 size ¼” x ¼” present behind Rt pinna about 3” margin inverted, blackening and charring which is wound entry.

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(3) A wound of exist oval in shape ½” in diameter margin inverted present about 3” behind lower part of Rt Pinna. Injury nos. 1 and 2 was communicating with injury no. 3. Internal Examination :- fracture of Lt temporal bone. Fracture of occipital bone. Fracture of Rt temporal bone.

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Lower part of brain was lacerated. Skull cavity was full of blood. Both lungs were pale. Heart was empty. Urinary bladder empty, Liver spleen pale kidney pale. Semi digestive food is about 2 ounce.

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cause of death- C/R failure due to shock and hemorrhage due to fire arm injury.

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Time since death- within 24 hours 48 hours (Twenty four hrs to forty eight hours) of P.M. examination.”

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18. The Doctor has opined that time since death was within 24

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hours to 48 hours. The postmortem report of deceased Bipin Yadav has

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been marked Exhibit ‘3/1’. The Doctor found the following injuries:-

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“ On External Examination :- (i) Face disfigure, right eye ball present in the eye ball.

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(1) A wound of entry in the right eye about 1” in diameter in shape, directing midially and towards rt ear with blackening and charring.

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(ii) A wound of exit present in front of right ear 3” x 2” in shape (lacerated wound) margin inverted full of blood, blood clots in gray matter of brain.

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(iii) Lacerated wound on upper third Rt back of Rt thigh directing forward oval cavity margin inverted, blackening and charring which is wound of exit.

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(iv) A wound of exit present of front of right thigh in the middle part ½” in diameter oval in shape margin inverted.

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(v) A wound of entry on the right thumb round in shape 1” in diameter margin inverted blackening and charring.

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(vi) A wound of exit on right hand and palm near 3” in diameter margin inverted bone and ligaments protruding out of wound.

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Internal Examination :- There was fracture of frontal bone and parietal bone skull. Brain was lacerated. There was fracture of nasal bone and Rt maxilla. Fracture of Rt thumb bone. Fracture of Rt femer bone. Lungs liver- pale, spleen kidney was pale. Heart empty, urinary bladder empty, semidigestive food about 2 ounce.

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Cause of death- C/R failure due above mentioned injury, due to shock and hemorrhage due to fire arm injury. Time elapse since death – Within 24 hours to 48 hours. ”

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19. The time elapsed since death has been found within 24

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hours to 48 hours. It is evident from Exhibit ‘3’ and ‘3/1’ respectively

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that both the dead bodies were brought to Sadar Hospital from Taufir Diyara by Chaukidar Kailash Paswan (not examined).

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20. The dead body of Randhir Yadav was brought to Sadar Hospital, Khagaria on 19.05.2011 and the postmortem was conducted by the order of District Magistrate, Khagaria vide Letter No. 856(4) dated 19.05.2011. From the endorsement made on the postmortem report, it appears that by order of C.S., Khagaria, a Medical Board was constituted. The autopsy on the dead body of Randhir Yadav revealed the following external and internal injuries:-

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“ External Examination:- (1) Hair black, Mouth open, tooth was intact. Tongue was not protruded.

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(2) Lt Eye protruded & RT Eye ball was absent from Eye socket.

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(3) Lt side of temporal Region shows entry wound approx 2 cm x 2 cm with inversion of Muscle skin & Hair & fractured temporal bone part on the wound, charring noted over over the injury site.

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(4) Rt side of temporal region of scalp shows fractured bone approx 4 cm x 3 cm with exposed fractured bone along with protrusion of brain matter and blood.

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(5) A lacerated wound of size 1 ½ cm x 1 ½ cm in the Lt chest wall near 3^rd intercostal space with charring noted over wound side

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(6) Left hand on palmar surface muscle was exposed approx. 4 cm x 3 cm in size.

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(7) Right hand of the palmar surface muscle was exposed approx. 3 cm x 3 cm in size.

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(8) 5 cm x 4 cm in size lacerated wound was found on the back near left paraspinal region at T6 vertebra with everted margin. Internal examination:-

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Mouth tongue oesophagus small intestine large intestine, Rectum in anal canal were intact, pharnyx, larynx trachea were found intact. Liver was pale in colour, kidney, spleen bladder were normal. Left chamber of heart was empty, right chamber of heart contained approx. 250 C.C. blood. Both lungs were

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collapsed and left lung shown lacerated injury approx 3 cm x 2 cm in size near the middle lobe. Large vessels were collapsed. Skull– a wound of entry noted on left temporal region with charring with fracture temporal bone approx 2 cm x 2 cm in size along with inversion of skin muscle and hair

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A wound of exit noted on right temporal region with protrusion of brain matter and blood with size of 4 cm x 3 cm with exposed temporal bone.

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cause of death :- Hemorrhagic shock leads to cardiopulmonary arrest caused by fire arm injury as mentioned above, Time elapsed since death :- within 48 hours of P.M. examination. ”

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21. Time elapsed since death has been noted as within 48 hours of postmortem examination. It further appears that the dead body of Randhir Yadav was brought to Sadar Hospital Khagaria by Chaukidar Ramkali Paswan (not examined).

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22. In this case, Gyani Kumar Yadav (PW-1) has claimed in course of trial that on 18.05.2011 at about 5:00 PM, he was present in his khalihan . His khalihan is situated besides the khalihan of Rakesh Yadav (PW-5). He saw that from eastern side, 30-40 criminals came and they asked Rakesh to fulfill the demand of rangdari of Rs. 5 lakhs, they asked Rakesh as to why he had not given the rangdari amount on which Rakesh told them that he would not give that. On this, the accused persons started firing. He has stated that Joginder fired upon Pintu. This witness has stated that he had concealed himself behind the bushes and in the evening, he went to his house. Pintu Yadav had fallen in the river after getting injuries. In the morning, the dead body of Pintu, Randhir and Bipin were found there. In his cross-examination, this witness has

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stated that he cannot give the boundary of the khalihan of Rakesh. He cannot say the boundary of his own khalihan . Rakesh Yadav (PW-5) is his cousin brother and he had seen the firing taking place from a distance of ten lagga . All were firing indiscriminately but he cannot say that how many rounds of firing took place. He cannot say the distance at which Rakesh was standing from the accused persons. He has stated that at the time of firing, the deceased were running towards north and western corner. This witness could not say whether blood had fallen at the place of occurrence. He had not gone near the deceased and he did not go to police station because it was night hour. This witness was suggested by defence that he had not seen the occurrence and he was deposing only with an intention to falsely implicate the accused persons as he happens to be the cousin brother of the deceased. It is evident from the evidence of PW-1 that he does not claim presence of any other member of the family of the deceased or any independent witness from the village.

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23. Lukho Yadav (PW-2) has also claimed that at the time of occurrence he was in his khalihan . He claims to have seen the occurrence but according to him, it was raining and darkness had prevailed, he had also fled away to his house. He told the people in the night but nobody came. In the morning, people came then dead body of Bipin Yadav was found in khalihan , dead body of Pintu Yadav was

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found in the pond. At that time, the dead body of Randhir Yadav was not found. This witness has stated that dead body of Randhir Yadav was found at a distance of one kosh (i.e. 1.8 Km). In his cross-examination, he has stated that he cannot say the length and breadth, khasra and boundary of the khalihan of the deceased. His village is Taufir Diyara. In paragraph ‘9’ of his deposition, he denied the suggestion of the defence that there was a cross firing between Pintu Yadav gang and police party. In paragraph ‘10’ of his deposition, this witness was further suggested that he was speaking a lie as there was an encounter between Maheshkhunt Police and Pintu gang in which, on the basis of the statement of the Officer-in-Charge of Maheshkhunt Police Station, Maheshkhunt P.S. Case No. 42 of 2011 was registered on 18.05.2011. He was also suggested by defence that Pintu, Randhir and Bipin were dreaded criminals. He has stated that the accused persons had resorted to 100-200 rounds of firing. This witness was also suggested that he had not seen the occurrence and had made wrong statement.

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24. Sangin Yadav (PW-3) is the brother of Bipin Yadav and Pintu Yadav. This witness claims that he was present in the khalihan on the date and time of occurrence. He has stated that Ram Ghulam, Maheshwar, Kailu, Joginder, Manish, Mannu and others came and surrounded the khalihan of Pintu and they started indiscriminate firing. He has stated that in the said firing Pintu, Randhir and Bipin Yadav

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suffered the shots. All accused were armed with rifle and gun. It is evident from the statement of PW-3 that he does not corroborate presence of Gyani (PW-1), Lukho (PW-2) and other persons in their own khalihan . While PW-1 has stated that Joginder fired upon Pintu and Pintu had fallen in the pond in injured condition and next day morning the dead body of Pintu, Randhir and Bipin were found there, PW-2 has stated that Maheshwar Yadav fired at Bipin Yadav, Pintu Yadav fled, then Joginder Yadav fired at him and Santosh Yadav also fired at Pintu Yadav whereafter Pintu Yadav jumped in the river and his rifle fell down at the bank of the river. According to him, the accused persons had taken away Randhir Yadav with them with an intention to kill him. PW-2 has not stated that Randhir was shot at in the khalihan but PW-3 has stated that in the occurrence Pintu, Randhir and Bipin had received the shots, it is, therefore, evident that these three witnesses namely PW-1, PW-2 and PW-3 are materially inconsistent in their statements. In his crossexamination, PW-3 has stated that he cannot say the boundary of his khalihan or the area of the same. He has stated in paragraph ‘7’ of his deposition that the accused persons were coming firing. In paragraph ‘8’, he has stated that he had not seen whether from the side of Pintu any firing was done or not. In paragraph ‘9’, he has stated that when he saw the accused persons coming firing, he got frightened and concealed himself behind the bundles lying in the khalihan and thereafter he had

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gone to his house and stayed in the night. From the deposition of PW-3, it is evident that he claims his presence in his own khalihan from a distance of about 10-20 lagga and he had concealed himself after seeing the accused persons coming firing, therefore, in his own deposition, he is not an eyewitness to the occurrence. His conduct would also show that he is not a trustworthy witness. He went to his house where he remained for the whole night but he did not inform the occurrence to the police and he had gone for a sleep in the night after taking dinner. His statement was recorded by police after two days of the occurrence.

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25. Chano Yadav (PW-4) is a co-villager of the informant who has stated that he was in his house at the time of occurrence, he heard the sound of firing from the jalkar side, he went towards the jalkar where he found that 30-35 persons were armed with weapon. He got afraid of them and thereafter fled towards his house. In the morning, when he went to the place of occurrence, he found the dead body of Pintu Yadav, Bipin Yadav and Randhir Yadav. From this part of the statement of PW-4, it is evident that he is not an eyewitness to the occurrence, but regarding the dead body, while PW-1 has stated about the recovery of dead body of Bipin, Randhir and Pintu at the same place, PW-2 has stated that the dead body of Randhir was found at a distance of one kosh and the dead body of Pintu Yadav was found in the water body. Dead body of Bipin was found in the khalihan . PW-3 has not

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stated that Pintu had jumped into the river, but PW-4 has stated that all the three dead bodies were found in the khalihan , therefore, even on this point of recovery of dead bodies, the prosecution witnesses are not consistent and their statements are at much variance. PW-4 has stated that when he returned home, he had not informed the occurrence to the Mukhiya , either orally or in writing. He has stated that he had given written information to Mufassil Police Station on 20^th . The defence has suggested this witness that on 19^th , the prosecution remained considering as to whose name should be given in the case. This witness has further stated that his statement was recorded by the Daroga after two days of the occurrence.

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26. On a close reading of the evidences of the prosecution witnesses, it would appear that Pintu was himself carrying a gun and according to PW-2, the said gun had fallen down at the bank of the river. In fact, PW-2 was suggested that there was a cross firing between Pintu Yadav gang and the police party.

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27. Rakesh Kumar (PW-5) is the informant of this case. He has claimed his presence in the khalihan on 18.05.2011 at 5:00 PM. He says that his younger brother Pintu Yadav @ Naveen, Bipin, Randhir and other labourers were there. PW-5, therefore, does not talk of the presence of PW-1, PW-2, PW-3 and PW-4, either in the khalihan of the informant or besides the khalihan of the informant. No labourer has

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been examined in this case on behalf of the prosecution, therefore, the statement of PW-5 that there were labourers present in the khalihan has not been proved. PW-5 has stated that apart from Rs. 5 lakhs as rangdari , Maheshwar Singh asked his younger brother Pintu to hand over his licensee rifle otherwise he should be prepared to die. It is evident from the statement of PW-5 that Pintu was armed with rifle though it is said to be a licensee rifle but the prosecution has failed to prove the said license in course of trial. According to PW-5, when Pintu ran towards the water body with his licensee rifle then he was chased by Santosh Yadav who fired upon Pintu from the back which hit on the backside of the neck and then the shot fired by Joginder hit Pintu from behind just below his head and Pintu fell down. According to PW-5, the rifle fell down in the water. It is evident from the deposition of PW-5 that Pintu had not fallen into the water body, thus on this point also, the prosecution witnesses are not consistent.

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28. As regards Randhir Yadav, PW-5 has stated that he was standing near a tractor but the accused persons while returning pulled him away outside khalihan to the jungle and killed him. Thus according to PW-5, Randhir Yadav was taken to a jungle where he was killed, so the statement of the other prosecution witnesses that Randhir was also shot at in the khalihan is not getting corroborated and in other words, the statement of PW-5 that Randhir was taken away and was killed in jungle

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is not getting corroborated from the evidence of other prosecution witnesses. In his cross-examination, this witness has stated that he was in khalihan since morning from 10-11 AM and was involved in cleaning of wheat but he cannot say as to how many bundles were there. He could not say the number of labourers working in the khalihan . He has stated that no written information was given about demand of rangdari , to anyone. He had concealed himself in between the bundles kept towards the southern side in the khalihan . He has stated that he had gone to khalihan next day in the morning of 19^th at about 9-10 AM with other persons, in the meantime, he had not given any written information either to police station or to Sarpanch. This witness was suggested by defence that on 18^th an occurrence had taken place which he was suppressing. He was suppressing that all the deceased persons had an encounter with police and in this regard Maheshkhunt P.S. Case No. 42 of 2011 has been lodged. He was suggested that he had lodged this case out of enmity and had never seen the said occurrence. He has stated that jungle is situated at a distance of one km towards the west and they had pulled away Randhir Yadav by dragging him to 2-4 lagga and had caught hold of his hand but he could not say as to whether any mark was caused.

¶111

29. Satyender Kumar (PW-6) has stated that he had received the fardbeyan of PW-5 on 20.05.2011 from Chitragupta Nagar Police

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Station, Khagaria whereafter this case was registered and he had taken over the investigation. In his cross-examination, PW-6 has stated that he had not found any sign at the place of occurrence. He has stated that he had received the supervision note of the Superintendent of Police and recorded the same in his case diary. He has recorded in paragraph ‘1’ that on the date of occurrence, near the place of occurrence of the present case, at 11:00 AM, the deceased and Bipin Yadav had done firing on the land of Maheshwar Singh. This information came to Maheshkhunt Police at 13:30 hours and one FIR was registered. After receiving information, the Sub-Inspector of Police, Pramod Kumar, Station House Officer, Maheshkhunt and Ajay Kumar, Officer-in-Charge Mansi reached Sirajmua Diyara at 4:10 AM with their force. On reaching the police force, the villagers, criminals and the deceased of this case along with other persons were involved in firing which were taking place. The miscreants also fired on the police party. In this connection, a First Information Report has been lodged by the Officer-in Charge of the Police Station on the basis of his own statement. He has stated that in supervision note it is written that Arvind Singh had produced the illegal arms and ammunition with Krishna Yadav in presence of police, on which Pramod Kumar, Officer-in-Charge, Maheshkunt P.S. lodged Maheshkunt P.S. Case No. 41 of 2011 and Maheshkunt P.S. Case No. 42 of 2011 against the two deceased namely

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Pintu and Bipin. In paragraph ‘8’ of his deposition, this witness has stated that he had not found any blood or cartridge at the place of occurrence. From the evidence of the I.O., it appears that Khalihan of PW-5 is not the place of occurrence. The prosecution witnesses are unable to give boundary of the Khalihan of PW-5.

¶116

30. Dr. Rajaram Chaudhary (PW-7) has proved the postmortem reports as discussed above. In his deposition, PW-7 has stated that the dead bodies were brought by the Chaukidar . He has narrated the kind of injuries suffered by the deceased and has denied the suggestion that he had not performed the postmortem scientifically. Similarly, Dr. Prem Kumar (PW-8) has proved the postmortem report of the deceased Randhir Yadav which has been marked Exhibit ‘3/2’ (with objection). The Doctor had found charring in the left temporal region and opined that it may be caused by very close range, may be few inches.

¶117

31. The statement of accused Joginder Yadav has been recorded under Section 313 CrPC. In his statement, the accused has stated that he was innocent and all the three were killed in police encounter.

¶118

32. From the evidences of the prosecution witnesses, this Court finds that in this case, even though three persons have been killed and PW-1 to PW-5 all claimed that they had either seen the occurrence

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or were aware of the occurrence but all of them conspicuously remained silent and did not disclose this occurrence to anyone. The conduct of the witnesses is highly doubtful. The date and time of occurrence as also the manner of occurrence as disclosed by these prosecution witnesses materially differ in the deposition of the witnesses. The occurrence took place within the jurisdiction of Mufassil Police Station on 18.05.2011. Inquest reports of two deceased were prepared on 19.05.2011 at 3:15 PM and 3:30 PM respectively but by that time no FIR was lodged. The dead bodies were brought to the hospital by the Chowkidars who have not been examined and the evidence of the I.O. would show that in the case lodged by the SHO being Maheshkhunt P.S. Case No. 41 of 2011 and 42 of 2011, Pintu and Bipin are accused, in such circumstance, the delay in lodging of the FIR that too in a case of triple murder, is liable to create huge doubt over the genuineness and authenticity of the prosecution story. Out of eighteen charge-sheet witnesses, only eight witnesses have been examined in course of trial without there being any explanation as to why the prosecution witnesses have been withheld.

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33. It appears from the impugned judgment that the attention of the learned trial court was drawn towards the material inconsistency in the evidence of the prosecution witnesses, the fact that the prosecution witnesses are relatives of the deceased and it has come in the statement of the accused under Section 313 CrPC that all these

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deceased Bipin, Pintu and Randhir were shot dead by Maheshkunt Police, the learned trial court has discarded those submissions saying that no document has been brought on record by the defence to prove his case. The learned trial court has found that during evidence it has come that there is some sort of gang rivalry between two groups, therefore, the charge of demand of Rangdari appears doubtful, thus, it appears to this Court that very genesis of the occurrence i.e. demand of rangdari could not be proved by the prosecution, still the trial court proceeded to reject the defence submissions by observing that minor discrepancies are bound to occur in the testimony and any mathematical precision cannot be criteria.

¶124

34. We are of the considered opinion that the learned trial court has erred in appreciation of the evidences available on the record. As regards the delay in lodging of the FIR, no plausible reason has transpired in the evidence of the prosecution witnesses. PW-1, who is the cousin brother of the deceased, PW-2, PW-3, PW-4 and PW-5 are other related witnesses, they reached village after occurrence, remained in their house for the whole night but they did not report the occurrence to the police station either on 18.05.2011 or on 19.05.2011 before preparation of Inquest report. PW-5 chose to submit a written application (Exhibit ‘4’) in Khagaria Chitragupta Nagar Police Station. PW-5, who is the informant of the case, has stated that after the accused

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persons went away, he returned to his home which is at a distance of three kilometre and then again he went to khalihan in the morning on 19^th between 9-10 AM with other persons but during this period, he had not given any written information to the police station or the Sarpanch.

¶127

35. It is evident to this Court that none of these prosecution witnesses are eyewitnesses to the occurrence of 18.05.2011 and they in fact came to know about the death of the three persons only on 19.05.2011. The dead body of the deceased persons were brought to hospital by police for postmortem and the inquest report was prepared on 19.05.2011 at 3:15 PM and 3:30 PM but no case was lodged by the prosecution with Mufassil Police Station. The informant submitted a written application in the Chitragupta Nagar Police Station at Khagaria even though he was aware that the jurisdictional police station is the Mufassil Police Station. In case of Meharaj Singh (L/Nk.) vs. State of U.P. with Kalu vs. State of U.P. and Others reported in (1994) 5 SCC 188 , the Hon’ble Supreme Court has considered the effect of delay in lodging of the first information report. We reproduce paragraph 12 hereunder for a ready reference:-

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“12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the

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weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.”

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36. In the present case, since this Court is of the opinion that the prosecution witnesses are not eyewitnesses to the occurrence and only at a belated stage, they had come out with the prosecution case which they have failed to support by consistent and cogent evidences, the delay in lodging of the FIR would definitely be a factor to be considered together with the entire materials on the record.

¶133

37. In the opinion of this Court, in the kind of materials available on the record, it would not be safe to convict the appellant. We, therefore, set aside the impugned judgment and order of conviction and acquit the appellant of the charges under Sections 302/149 and Section 27 of the Arms Act giving him benefit of doubt.

¶134

38. In result, this appeal is allowed. The impugned judgment and order of conviction are hereby set aside. The appellant shall be released forthwith, if not wanted in any other case.

¶135

39. The trial court records together with a copy of the judgment shall be sent down to the learned trial court.

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(Rajeev Ranjan Prasad, J)

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(Ramesh Chand Malviya, J)

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Rishi/-

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AFR/NAFR
CAV DATE
Uploading Date	21.02.2025
Transmission Date	21.02.2025

Yogendra Yadav v. The State of Bihar

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Yogendra Yadav v. The State of Bihar

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