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2023 DIGILAW 1257 (PAT)

Vinod Yadav @ Binod Yadav v. State of Bihar

2023-11-22

ASHUTOSH KUMAR, NANI TAGIA

body2023
Ashutosh Kumar, J. – We have heard Mr. Rajesh Kumar Mishra, the learned Advocate for the appellants in both the appeals and Mr. Ajay Mishra, the learned Additional Public Prosecutor for the State. 2. Both the appellants in the two appeals have been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and have been sentenced to undergo R.I. for life along with a fine of Rs. 50,000/- for the offence under Section 302 of the Indian Penal Code and R.I. for three years for the offence under Section 27 of the Arms Act by judgment and order dated 20.07.2018/27.07.2018 passed by the learned Exclusive Special Judge, SC/ST, Gaya in SC/ST Trial No. 201/2016 arising out of Dumariya P.S. Case No. 36/16. 3. The FIR has been lodged by the wife of one of the deceased, namely, Kumari Maya Rani (P.W.-4) who has alleged that while she along with her husband and brother-in-law (another deceased) had been campaigning for Panchayat elections, the party was attacked by many persons where both the appellants shot at both the deceased. The allegation against both of them are very specific in the FIR that the firing resorted to by the appellant/Shobhan Yadav hit the brother-in-law of the P.W.-4 whereas the shot fired by appellant/ Binod hit the husband of P.W.-4. Both the them died at the spot. P.W.- 4 has spun a long yarn in narrating the reason for electoral dispute with another candidate who had been contesting the election for the post of Mukhiya. She has also asserted in the FIR that the accused persons including the appellants were extrimists/naxalites who were not happy with the campaign and the decision of the P.W.-4 to contest the elections. 4. On the basis of the fardbeyan statement of P.W.-4, a case vide Dumariya P.S. Case No. 36 of 2016 dated 25.05.2016 was registered for investigation under Sections 302, 120(B), 379 and 435 of the I.P.C, Section 27 of the Arms Act and Section 17 of the Criminal Law Amendment Act, 1932 read with Sections 3(i) (x) (xi), 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. 5. The Police after investigation submitted charge-sheet against the appellants and others whereupon the case was committed to the Court of sessions for Trial. 5. The Police after investigation submitted charge-sheet against the appellants and others whereupon the case was committed to the Court of sessions for Trial. The Trial Court, after having examined seven witnesses on behalf of the prosecution and three on behalf of defence, convicted and sentenced the appellants as aforesaid but acquitted the other six accused persons who were put on trial along with the appellants. 6. Mr. Mishra, the learned Advocate has pointed out that though the appellants have been named in the FIR with specific accusation of killing the two deceased but during trial, P.W.-4 has clearly stated before the Trial Court that she was not even present in the campaign when the occurrence had taken place. With respect to her signing the fardbeyan statement, she has turned a complete volte- face and has stated that she had signed on the dotted lines and did not read the contents of the fardbeyan nor were the contents read out and explained to her. He has further submitted that the conviction of the appellants is based only on the deposition of P.W.-1, namely, Ramesh Kumar Paswan, who has supported the prosecution case in its entirety, narrating exactly what was apparently told by P.W.-4 in her fardbeyan. However, as was argued before the Trial Court and which argument was found to be tenuous, it was again reiterated that P.W.-1 who was also a witness in Sessions SC/ST Trial Case No. 57 of 2017 in which one Ram Sarekha Yadav was put up on trial in the same case, who later died, had expressed his complete ignorance about the occurrence especially with respect to the assailants of the deceased. 7. It has thus been urged before us also that the conviction has wrongly been based on the deposition of P.W.-1, who has tergiversated at different times before Courts of law. It has also been pointed out to us that the Trial Court, while dispelling the arguments of the defence that P.W.-1 ought not to be relied upon, has given a specious plea for accepting the deposition of P.W.-1 to be correct and has based the conviction of the appellants on such statement. The Trial Court did not find any material contradiction in the statement of P.W.-1 before the Police and in the Court. The Trial Court did not find any material contradiction in the statement of P.W.-1 before the Police and in the Court. Since, the deposition of P.W.-1 in a separate trial (Exhibit-A) was brought on record later, the Trial Court did not consider that such deposition of P.W.-1 in a different trial would cast any impact on the veracity of the deposition of P.W.-1 in the present case. The Trial Court also perhaps found that there could be reasons for other prosecution witnesses not supporting the case but it was a homicidal death which stood confirmed from the deposition of P.W.-6 and 7, the Doctors who had conducted the post-mortem examination on the deceased. 8. Mr. Mishra, has further contended that the Trial Court did not at all take into account the deposition of defence witness in correct perspective. It has been argued in a subjunctive manner that if the FIR would have been perused, that would have made it very clear that the naxalites in large numbers had attacked the campaign party and on the pointing of some unknown person towards the husband of P.W.-4, he was shot dead and thereafter the brother-in-law of P.W.-4 was also shot dead. The name of the appellants were taken along with others, perhaps for feeding fat the old electoral grudge. 9. On the afore-noted grounds, it has been submitted that the conviction of the appellants is not justifiable. 10. As opposed to the afore-noted contentions, Mr. Ajay Mishra, the learned Additional Public Prosecutor has submitted that it is strange that even the wife of one of the deceased had not supported the prosecution case nor has the brother of one of the deceased has made correct statement before the Trial Court, but P.W.1 is a witness who ought not to be disbelieved. The surest check regarding the veracity of the deposition of P.W.-1 in his statement before the Police immediately after the occurrence and reiteration of such allegation at the Trial. The learned Additional Public Prosecutor has further submitted that number of prosecution witnesses do not matter in a criminal case and conviction can safely be based on the testimony of a solitary witness. There is nothing apparent on record which would justify discarding the deposition of P.W.-1, who was part of the campaign team and had witnessed the occurrence and had seen both the appellants killing the two deceased. 11. There is nothing apparent on record which would justify discarding the deposition of P.W.-1, who was part of the campaign team and had witnessed the occurrence and had seen both the appellants killing the two deceased. 11. We have examined the entire case record and have found that neither the informant nor any other witness has supported the prosecution case. Even at the cost of repetition, it is necessary to be stated here that P.W.-4 had been contesting election but she claims to have signed on the dotted lines without knowing the contents of the fardbeyan. 12. The brother of another deceased (P.W.-3) has been declared hostile. The brother of Sudesh Paswan, one of the deceased (P.W.-2) has also been declared hostile. Both the deceased have died because of gunshot injuries received by them. There is no doubt about the two deceased having died on account of firing resorted by miscreants. The question, however, remains whether the appellants had fired the fatal shot or even that the appellants were part of the mob which had attacked the campaign party. 13. From the deposition of all the witnesses except P.W.-1 about which reference has been made earlier, it clearly appears that nobody had seen as to who had fired at both the deceased. On the contrary, the defence witnesses have, in unison, stated that out of a crowd of naxalites which had surrounded the campaign party, somebody had pointed at one of the deceased, whereafter he was shot dead and later other deceased was also shot at leaving him dead too. The miscreants thereafter ran away shouting slogans in favor of the M.C.C., a banned organization. 14. With none supporting the prosecution case, the only material which remains against the appellants is, therefore, the deposition of P.W.1 who claims himself to be the eye-witness of this case. P.W.-1 was also cited as a witness in another Trial with respect to other accused of this case only, which case had to be dropped because of the death of such accused and in that case P.W.-1 did not claim that he had seen the assailants. 15. With this background fact having been brought on record as Exhibit-A, we find that the Trial Court was not justified in accepting the deposition of P.W.-1 as correct without any demur. 16. For the afore-noted reasons, we find that the conviction of the appellants is not justified. 15. With this background fact having been brought on record as Exhibit-A, we find that the Trial Court was not justified in accepting the deposition of P.W.-1 as correct without any demur. 16. For the afore-noted reasons, we find that the conviction of the appellants is not justified. 17. We, therefore, set aside the judgment and order of conviction and acquit the appellants of all the charges giving them the benefit of doubt. 18. The appellant/ Vinod Yadav @ Binod Yadav in Cr. Appeal (DB) No. 1069 of 2018 is in jail. He is directed to be released forthwith from jail, if not wanted in any other case. 19. The appellant /Shobhan Yadav in Cr. Appeal (DB) No. 1475/2018 is on bail. His liabilities under the bail bonds are cancelled. 20. Both the appeals are allowed. 21. Let a copy of this judgment be communicated to the Superintendent of concerned jail for record and compliance. 22. Let the records of this case be returned to the concerned Trial Court forthwith.