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2000 DIGILAW 616 (PAT)

Bhuvneshwar Bind v. Dana Yadav @ Dahu

2000-04-21

D.P.S.CHOUDHARY, R.N.SAHAY

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Judgment R.N.Sahay, J. 1. By the judgment and order dated 14th May, 1986 the 4th Addl. Sessions Judge, Gaya convicted nine persons out of 14 persons but on trial in S.T. No. 5/95-232/84 in respect of the offences punishable under Sections 436, 302/149, IPC. Three sets of appeal have been preferred before this Court. This judgment will govern and dispose of all the three appeals. 2. On 25.4.1983, Mohd. Azhar, the Officer-in-Charge of Konch Police Station was on petrolling duty in the night. He was accompanied by the Subordinate Police Officials. While he was proceeding towards Konch, he met one Harihar Bhagat on the way who informed him that riot has taken place in village Karma and house was set on fire. The Officer-in-Charge rushed towards Karma and found the house burning. He tried to extinguish the fire with the help of the villagers. He met one Shambhu Prasad Komal, PW 14, who was a Journalist, an Office Bearer of All India Revolutionary Forward Black Party. Shambhu Prasad gave his statement to the effect that on 25.4.1983, some persons belonging to his party were taking rest at the Darwaza of Ram Ratan Yadav, who was also his partyman. A group of persons belonging to his party were on padyatra campaign to create consciousness among the local people and to cowbat terrorism prevailing in the locality. The group was headed by their leader, Balmukund Rahi. The padyatra started on 22.4.1983 and was to end on 27.4.1983. On 25.3.1983, the party had a function at Garua which ended at 7 p.m. Thereafter the padyatra group proceeded to village Karma to take rest in the night at the Dalan of Ram Ratan Yadav. The partymen were taking rest. At about 9 p.m. slogans were heard from towards south and in no time a mob consisted of 100-200 persons came to the Dalan of Ram Ratan Yadav and surrounded the place. The mob was armed with various weapons including firearms. They challenged the persons taking rest. This caused them to run for their life. Some persons including Shambhu Prasad took shelter inside the Dalan and shut the door from inside. They saw that fire was set on the eastern side of the building. Shambhu Prasad and others afraid of being rested alive opened the door and came out. They challenged the persons taking rest. This caused them to run for their life. Some persons including Shambhu Prasad took shelter inside the Dalan and shut the door from inside. They saw that fire was set on the eastern side of the building. Shambhu Prasad and others afraid of being rested alive opened the door and came out. As soon as his companions came out they were surrounded by the mob and they were taken to the south-east of the village and at the place those persons, namely, Balmukund Rai, Chandradeo Yadav and Ganesh Yadav were picked up. The persons who picked up these victims were Dara Singh, Kamdeo Yadav, Bindeshwar Yadav, Padum Dasadh, Dudheshwar Dusadh, Gupta Yadav and Bhuneshwar Bind. They kept these victims further east to the place where Balmukund and Chandradeo were subjected to violent death. Their heads were severed by Pasuli. The third person, Ganesh Yadav (PW 1) managed to escape, though he was attacked with sharp cutting weapon. The group of criminals surrounded the informant and his companions. Shambhu Prasad identified 12 persons, namely, Ram Chandra Yad Firangi Yadav, Daman Yadav, Mundrika Yadav, Madan Dusadh, Bhawani Dusadh, Bulla Yadav, Dahu Yadav, Bilash Yadav, Kishun Yadav, Ramautar Dusadh and Raghubir Chamar. 3. These persons were armed with various weapons after murdering two persons, mentioned above, they fled away towards village Pandey Pokhar. 4. Officer-in-Charge, Ad. Azhar, after recording the fardbeyan of Shambhu Prasad inspected the site of occurrence and then proceeded towards the line of culprits and from a bush four persons, namely, Dana Yadav, Krishna Yadav, Bilash Yadav and Ramratan Dusadh who were identified by the informant as accused persons arrested. These persons were identified by the informant as accused persons. 5. After investigation charge-sheet was submitted against 12 persons. 13 accused persons were shown as absconder in the charge-sheet. Subsequently some persons who were declared absconder surrendered in the Court. They were put on trial. 6. The learned Addl. Sessions judge on assessment of direct evidence of the witnesses convicted nine persons, namely Dana Yadav, Doman Yadav, Deo-nandan Mahto, Ram Bilash Yadav, and Madan Dusadh (Appellants in Cr Appeal No. 254/1986), Bhuneshwar Bind, Bindeshwar Yadav, Ramchandra Yadav (Appellants in Cr Appeal No. 245/1986) and sole appellant Rajendra Yadav (in Cr. Appeal No. 268/1986) were convicted. 7. Tilakdhari Mirsikar, Manager Dusadh, Sahdeo Koeri, Bhogal Yadav and Krishna Yadav were acquitted from all the charges. 8. Appeal No. 268/1986) were convicted. 7. Tilakdhari Mirsikar, Manager Dusadh, Sahdeo Koeri, Bhogal Yadav and Krishna Yadav were acquitted from all the charges. 8. All the nine accused persons were convicted under Section 302/149 and have been sentenced to imprisonment for life. They were also held guilty under Section 307/149, IPC on attempt of murder on some of the prosecution witnesses. All the appellants have been further convicted under Section 436, IPC for committing mischief by fire with intent to cause destruction of the house of Ramratar Yadav which was used as a dwelling house. All the appellants have been sentenced for 10 years imprisonment under Section 307/149 and 7 years under Section 436, IPC. All the sentences have been ordered to run concurrently. 9. As stated earlier altogether 15 persons were named in the First Information Report, out of them 8 accused persons, namely, Bindeshwar Yadav, Bhuneshwar Bind, Ramchandra Yadav, Doman Yadav, Madan Yadav, Madan Dusadh, Dana Yadav, Bilash Yadav and Kishun Yadav were placed on trial. Rest of the accused persons were not named in the FIR. They are Manager Dusadh, Sahdeo Koeri, Deonandan Koeri, Tilakdhari Mirsikar, Bhogal Yadav and Rajendra Yadav. 10. The important fact to be noted was that the witnesses in this case did not belong to the village where the occurrence took place. They had collected from different place in a group and some of the witnesses had not concern with the village from before the alleged date of occurrence. The mob said to have attacked the Dalan of Ramratan consisted of 100-200 persons and hence learned trial Judge observed as follows: "......It was very difficult for anyone to recognise and name many of the accused persons. But it has so happened that police officer conducting investigation in this case has completely mismanaged the investigation and the......(sick) thing is that according to the I.O. himself as PW 15 the police officers had also arrived at the P.O in the night i.e. at the preliminary stage of investigation. It appears to be over enthusiasm on the part of the police officer to have......(sick) to include as many men as possible in the FIR as well as the statements of the witnesses. The result has been that......20 and more names have been mentioned in the statements of witnesses said to have been made before the I.O. under Section 161, Cr PC. The result has been that......20 and more names have been mentioned in the statements of witnesses said to have been made before the I.O. under Section 161, Cr PC. But when the witnesses turned up to depose in Court they either failed to identify the persons even said to have been named in the statements before police or have clearly stated that they did not name many of the accused persons in their statements before the I.O. Had there been arranged for identification of the suspects by the witness the result would have been different, but the police officer engaged in investigation as well as supervision of the......have thoroughly spoiled the prospect of the prosecution in this case. If such is the fate of a sensational case like this, God knows what will happen to the criminal trial in this State. It may be noted that some of the witnesses have tried to name many of the accused persons in their statement in Court as shown to have been stated before the I.O. but they have cut sorry figure when they have been challenged to identify the accused named by them in the dock. In this context the identification of the accused in this case has to be considered. The result is that PW 3 identified six accused namely, Doman, Madan Deonandan, Bhuneshwar, Ramchandra and Bindeshwar Yadav. PW 4, Chandrika Yadav has identified accused Rajendar Yadav, Ram Chandra Yadav and Bhuneshwar Singh only. However, he named Bindeshwar Yadav and Deonandan Koeri also but identified wrong persons in dock. Similarly PW 5 Raj Kumar Yadav named accused Ram Chandra Yadav, Bindeshwar Yadav, Bhuneshwar Bind and Doman Yadav but he wrongly identified Doman Yadav. PW 6, Suresh Rajwar named and identified five accused only namely, Bindeshwar Yadav, Dahu Yadav Bhuneshwar Bind, Madan Dusadh and Ramchander Yadav. PW 8, Balgovind Singh named and identified three accused only, namely Bhuneshar Bind, Bindeshwar Yadav and Madan Dusadh while he wrongly identified accused Ramchandra Yadav, Tilakdhari Mirsikar, Deonandan Koeri and Padum Dusadh. PW 9, Chanderdeo Bhuian named and identified 7 accused namely, Bhuneshwar Bind, Madan Dusadh, Dana Yadav, Bindeshwar Yadav, Rajender Yadav, Tilakdhari Milsikar and Doman Yadav. PW 10, Bindeshwar Pd. could identify only one accused in dock namely, Ramchandra Yadav. However, he named Rajender Yadav and claimed to identify him but he was represented and therefore, there was no chance of his personal identification. PW 10, Bindeshwar Pd. could identify only one accused in dock namely, Ramchandra Yadav. However, he named Rajender Yadav and claimed to identify him but he was represented and therefore, there was no chance of his personal identification. PW 12, Ramratan Yadav named and identified 9 accused namely Ram Vilas Yadav, Doman Yadav, Madan Dusadh, Bhuneshwar Bind, Krishna Yadav, Ramchandra Yadav, Rajendra Yadav and Dana Yadav. PW 14, the informant himself named 22 persons but only 12 of them are facing trial. They are Bindeshwar Yadav, Madan Dusadh, Ram Vilas Yadav, Doman Yadav, Bhuneshwar Bind, Dahu alias Dena, Ramchandra Yadav, Deonandan Koeri, Tilakdhari Milsikar, Rajender Yadav, Manger Yadav, Sahdeo Koeri and Madan Dusadh. Out of these accused he committed mistake in identifying the two accused namely, Ram Vilas Yadav and Doman Yadav with regard to source of identification the learned Addl. Sessions Judge in paragraph 7 of the judgment has held that identification was possible to mark. There was sufficient light when Baidhka was sot on fire. The witnesses were hold and taken away to a place of 300 years away from the Baithka. The learned Addl. Sessions Judge held that motion of occurrence is fully established. Accused persons were found guilty above. The learned Addl. Sessions Judge, however, observed: "..........However, the prosecution suffers from weakness on the point of identification of the accused persons in this case. In view of the discrepancies pointed out by the learned lawyers appearing for the accused persons in this case, the merit of identification of individual accused has to be considered separately. So far as accused Dornan Yadav is concerned, he was named in the FIR and he was also named by the informant in Court, but the informant (PW 14) committed mistake in identifying him in dock. However, he was also named in Court by PWs 3, 5, 8, 9 and 12. Out of them PWs 5 and 8 also failed to identify him in Court. The identification of this accused therefore is by PWs 3, 9 and 12 only and these witnesses PWs 3 and 9 had also not named him before the police. But so far as PW 12 is concerned he has named him before police and he also named him in Court. So far as accused Ram Vilas Yadav is concerned, he was also named in the FIR. But so far as PW 12 is concerned he has named him before police and he also named him in Court. So far as accused Ram Vilas Yadav is concerned, he was also named in the FIR. and he was also caught by the I.O. in the alleged night of occurrence sometimes after the occurrence took place from a bush near village Pandey Pokhar and he was also identified by the informant as one of the culprits participating in the commission of the offence. He was also named by PW 12 in Court so there is sufficient evidence of identification of this accused in this case.........." Appellant Doman Yadav was named in the FIR but the informant Shambhu Prasad could not identify him in the dock. This appellant was, however, named by Varu Prasad, Raj Kumar Yadav, Balgobind Singh, Sath Bhagat and Ramratan Yadav, Raj Kumar Yadav, Balgobind Singh failed to identify him in Court. Thus Doman Yadav is named and identified by three witnesses but two of them Baru and Chandrajit had not named him before the police. The learned Addl. Session Judge accepted the evidence of Ramratan Yadav who already had named him before the police also named in the Court. Doman was arrested by Investigating Officer soon after the occurrence along with three others. Cr. Appeal No. 245 of 1986 : Appellants, Bhuneshwar Bind, Bindeshwar Yadav and Ramchandra Yadav are concerned, according to the evidence, all the three appellants were seen in the mob. Bhuneshwar Bind has been implicated by 9 witness in his evidence but two of them, namely Chandradeo Bhagat and Bindeshwar Prasad had not named him before the police. He was wrongly identified by witness Balgobind Bhagat. He has been identified by three witnesses in Court, namely, Baru Prasad, Suresh and Ramratan Yadav. Bindeshwar Yadav was named by 7 witness in Court. He was not named before the police by three witnesses but named him before the Court. He was wrongly identified by witness Raj Kumar Yadav. He was accordingly identified by two witnesses, namely, Baru Prasad and Ram Ratan Yadav. Ram Chandra Yadav was named by several witnesses in Court and three witnesses named him before the Court. He was wrongly identified by Balgovind Singh. He was correctly identified by three witnesses, namely, Baru, Suresh and Ramratan. Cr. He was accordingly identified by two witnesses, namely, Baru Prasad and Ram Ratan Yadav. Ram Chandra Yadav was named by several witnesses in Court and three witnesses named him before the Court. He was wrongly identified by Balgovind Singh. He was correctly identified by three witnesses, namely, Baru, Suresh and Ramratan. Cr. Appeal No. 254 of 1986 : There are five appellants in this appeal, namely, Dana Yadav, Doman Yadav, Deonandan Mahto, Rambilash Yadav and Madan Dusadh. Doman Yadav was named by eight witnesses in Court. Four witnesses had not named him before the police. He was wrongly identified by two witnesses, namely, Raj Kumar Yadav and Samohu Pd. Komal. He was correctly identified by only one witness, namely, Ramratan Yadav. Appellant, Deonandan Mahto alias Deonandan Koeri is not named in the FIR. Three witnesses had identified him that he was a member of the mob. Four witnesses had not named him before the police. He was wrongly identified by Chandrika Yadav and Balgobind Singh. In Court he was identified by only one witness, namely, Balgobind. Appellant Ram Bilas Yadav is concerned, he was named only by Ram Bhagat Yadav. He was also identified by a single witness. Appellant, Madan Dusadh was named by four witnesses in Court. He was named by three witnesses. He was identified by only Balgobind. This is also a case of single identification. Cr. Appeal No. 268 of 1986. Sole appellant in this appeal, namely, Rajendra Yadav is not named in the FIR. He was named in Court by five witnesses. He was not named by four witnesses. He was wrongly identified by only one witness. He was correctly identified by one witness, namely, Ramratan Yadav. This is also a case of single identification. The learned trial Court convicted appellant No. 2, Doman Yadav (appellant in Cr. Appeal No. 254/86)on the evidence of Ramratan Yadav who had named him before the police also named in the Court. Rambilash Yadav (Appellant No. 4 in Cr. Appeal No. 254/86) has been convicted on the evidence of Shambhu Prasad Komal and the informant. He was named in the FIR. He was caught by the Investigating Officer, in the way after the occurrence. Appellant Dana Yadav (in Cr. Appeal No. 254/86) has been convicted since he was named in the FIR. He has been identified by three witnesses in Court. He was named in the FIR. He was caught by the Investigating Officer, in the way after the occurrence. Appellant Dana Yadav (in Cr. Appeal No. 254/86) has been convicted since he was named in the FIR. He has been identified by three witnesses in Court. This appellant was also caught in a bush along with Rambilash. He was identified on the spot. There was sufficient evidence regarding identification. Deonandan Mahto alias Deonandan Koeri (Appellant No. 3 in Cr. Appeal No. 254/86) has been convicted. He was not named in the FIR but he was named by four witnesses. Out of whom two have been wrongly identified him. He has been convicted on the evidence of two witnesses, namely, Balmukund and the informant. These two witnesses, could not be discarded. Appellant Rajendra Yadav (in Cr. Appeal No. 268/86) has been convicted. He was named in the FIR. He was also named in Court by five witnesses. One witness Balgobind had identified in other case has stated in his cross-examination that he had failed to identify him at the time of occurrence. He was not named by two witnesses before the police. Four witnesses named him and identified in Court. Witness Ramratan had named him before the police had also identified him in Court. He has been convicted on identification of Ramratan. The Court found the evidence of this witness is trustworthy. In Cr. Appeal No. 245/86 appellants, namely, Bhuneshwar Bind, Bindeshwar Yadav and Ramchandra Yadav have been convicted on identical evidence. The learned trial Judge has given his conclusion in respect of these three appellants at page 207 of the brief, as extracted hereunder : "........Accused Rajender Yadav was also not named in the FIR but he was named in Court by PWs. 3, 4, 9, 12 and 14. However, PW 3 failed to identify him in Court and he clearly stated in his cross-examination that he had failed to identify anyone at the time of occurrence. PW 4 had failed to name him before police. Similarly, PW 9, also did not named him before police and PW 10 also did not name before police. But they have named and identified him in Court. However, PW 12, Ramratan Yadav had named him before police, he also named and identify him in Court. PW 4 had failed to name him before police. Similarly, PW 9, also did not named him before police and PW 10 also did not name before police. But they have named and identified him in Court. However, PW 12, Ramratan Yadav had named him before police, he also named and identify him in Court. So far as PW 14 is concerned, he has not named him in the FIR and therefore, his identification in Court is meaningless. Thus there is positive and consistent evidence of identification of this accused by PW 12. It can be treated as sufficient evidence on the point of identification against this accused...." Madan Prasad, appellant No. 5 in Cr. Appeal No 254/86 was convicted since he was named in the FIR and he was also named and identified by six witnesses. Out of them one had named him before the police. He was convicted on the evidence of five witnesses. The learned Addl. Judge has given his final conclusion with regard to these nine appellants as follows : ".......So far as accused Madan Dusadh is concerned, he was named in the FIR in this case and he has been named and identified by PWs. 3, 6, 8, 9, 12 and 14. Out of them PW 8 had not named him before police but still there is identification against him by PWs. 3, 6, 9, 12 and 14. Thus, it is clear that there is no evidence against accused Tilakdhari Milsikar, Manger Dusadh, Sahdeo Koeri, Bhogal Yadav and Krishna Yadav on the basis of which they can be held guilty of offences in this case in which they have been charged. Accordingly they are held not guilty and are acquitted of the charge....." Sri Shakil Ahmad Khan, learned Senior Counsel for the appellants forcefully argued that investigation in this case was utterly hopeless. So the trial Judge has passed adverse comment against the Investigating Officer. Learned counsel for the appellants has argued that identification of the culprits by the witnesses did not name the accused persons and they belonged to different village is absolutely impossible. The suspects should have been placed for T.I. Parade. Learned counsel for the appellants contended that the conviction of the three appellants (in Cr. Appeal No. 245 of 1986) is not sustainable. The suspects should have been placed for T.I. Parade. Learned counsel for the appellants contended that the conviction of the three appellants (in Cr. Appeal No. 245 of 1986) is not sustainable. He has submitted that the Court has not analysed individually each of the evidence regarding identification of the appellants. Counsel further submitted that the oral evidence is not reliable or for conviction. He has submitted that the approach of the trial Court is not in accordance with law. It was submitted that the Court should analyse and scrutinise the evidence individually. Learned counsel for the appellants argued that appellant Bhuneshwar Bind was 60 years at the time of judgment. He was a blind man. None of the witnesses has given his description. He has next contended that three appellants are entitled acquittal since they were not put on T.I. Parade. He has further argued that testimony of the three appellants is erroneous. The trial Court did not examine the evidence cautiously. The conviction of Rajendra Yadav, the sole appellant in Cr. Appeal No. 268/86 has been assailed on the ground that he has been identified by singly witness, namely, Ramratan. The evidence was not sufficient for his conviction. The conviction of five appellants in Cr. Appeal No. 254/86 has assailed on the ground that none of the witnesses have identified them in Court convincingly. These of the appellants were identified by single witness. He has further submitted that the conviction of Madan Prasad is also illegal. 11. We have examined the evidence carefully and in our considered view so far Cr. Appl. No. 254/86 is concerned, the conviction of all the appellants except appellant Madan Dusadh deserves to be affirmed. Appellant Dana Yadav, named in the FIR has been identified by a number of witnesses. The most clinching evidence against him is that he was arrested soon after the occurrence. Similarly, Doman Yadav, named in the FIR, was arrested by the police soon after the occurrence. He has been identified by two witnesses. Deonandan Mahto @ Deonandan Koeri was not named in the FIR but has been identified by two witnesses. Rambilash Yadav has been identified by one witness. He was arrested soon after the occurrence. So the conviction of these appellants is also confirmed. So far Madan. Dusadh is concerned, he has been identified by a single witness and therefore he is given benefit of doubt. 12. Rambilash Yadav has been identified by one witness. He was arrested soon after the occurrence. So the conviction of these appellants is also confirmed. So far Madan. Dusadh is concerned, he has been identified by a single witness and therefore he is given benefit of doubt. 12. In Cr. Appl. No. 268/1986 the sole appellant Rajendra Yadav who is not named in the FIR has been identified by single witness. He is also given benefit of doubt and acquitted. 13. So far Cr. Appl. No. 245/86 is concerned, there are three appellants. Appellant Bhuneshwar Bind has been identified by three witnesses, apart from other witnesses who had not named before the police. Appellant-Bindeshwar Yadav has been identified by two witnesses. His conviction is justified. Appellant Ramchandra Yadav has been identified by three witnesses. His conviction is confirmed. 14. In the result, Cr. Appl. No. 254/86 is allowed so far appellant Madan Dusadh is concerned. The appeal of remaining four appellants, namely, Dana Yadav, Daman Yadav, Deonandan Mahto and Rambilash Yadav is dismissed. Cr. Appeal No. 268/86 is allowed and the conviction of appellant Rajendra Yadav is set aside. Cr. Appeal No. 245/86 is dismissed. Appellant Madan Dusadh and Rajendra Yadav are discharged from the liability of bail bonds and the rest appellants, whose appeal has been dismissed, shall surrender before the trial Court to serve out the remaining sentences. D.P.S.Choudhary, J. 15 I agree.