Patna High Court
Sita Ram Yadav vs The State Of Bihar on 20 August, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.147 of 2019
Arising Out of PS. Case No.-36 Year-2014 Thana- MADHEPUR District- Madhubani
======================================================
1. Mukesh Yadav, Son of Sita Ram Yadav, Resident of Village - Birpur, P.S.-
Madhepur, District- Madhubani
2. Tantu Yadav, Son of Raghunandan Yadav, Resident of Village - Birpur, P.S.-
Madhepur, District-Madhubani.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 70 of 2019
Arising Out of PS. Case No.-36 Year-2014 Thana- MADHEPUR District- Madhubani
======================================================
1. Ram Khelawan Yadav, Son of Kusheshwar Yadav, Resident of Village-
Birpur, P.S- Madhepur, District-Madhubani.
2. Mahesh Yadav, Son of Ram Charitar Yadav, Resident of Village- Birpur, P.S-
Madhepur, District-Madhubani.
3. Saini Ram, Son of Phulchan Ram, Resident of Village- Birpur, P.S-
Madhepur, District-Madhubani.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 150 of 2019
Arising Out of PS. Case No.-36 Year-2014 Thana- MADHEPUR District- Madhubani
======================================================
Sanjay Yadav, Son of Ram Prasad Yadav, Resident of Village - Birpur, P.S.-
Madhepur, District- Madhubani.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 169 of 2019
Arising Out of PS. Case No.-36 Year-2014 Thana- MADHEPUR District- Madhubani
======================================================
Sita Ram Yadav, Son of Jugli Yadav, Resident of Village - Birpur, P.S.-
Madhepur, District- Madhubani.
... ... Appellant
Patna High Court CR. APP (DB) No.147 of 2019 dt.20-08-2025
2/69
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 147 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Hriday Narayan Harshit, Advocate
Mr. Ritwik Thakur, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, Addl.PP
(In CRIMINAL APPEAL (DB) No. 70 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Hriday Narayan Harshit, Advocate
Mr. Pravin Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, Addl.PP
(In CRIMINAL APPEAL (DB) No. 150 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Md. Imteyaz Ahmad, Advocate
Ms. Vaishnavi Singh, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
(In CRIMINAL APPEAL (DB) No. 169 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Hriday Narayan Harshit, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Modit Meet, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 20-08-2025
These appeals have been preferred for setting aside the
judgment of conviction dated 27.11.2018 (hereinafter referred to
as 'the impugned judgment') and the order of sentence dated
05.12.2018
(hereinafter referred to as ‘the impugned order’)
passed by learned Additional District & Sessions Judge-VI,
Madhubani (hereinafter called ‘the learned trial court’) in Sessions
Trial No. 210 of 2015 arising out of Madhepur P.S. Case No. 36 of
2014.
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2. By the impugned judgment, the learned trial court has
convicted all the appellants for the charges under Section 302/149
of the Indian Penal Code (in short ‘IPC‘). By the impugned order,
the appellants have been ordered to undergo life imprisonment
with a fine of Rs.10,000/- under Section 302/149 IPC and in
default of payment of fine they have to further undergo simple
imprisonment for three months.
Prosecution Case
3. On 05.03.2014, the informant’s father-in-law, namely,
Ramchandra Yadav and cousin father-in-law, namely, Ram Bihari
Yadav had proceeded to Madhubani on their motorcycle at about
08:30 AM to attend a date. When they reached Ram Bagh Chowk,
(1) Sitaram Yadav, (2) Kailash Yadav, (3) Ghanshyam Yadav, (4)
Rinku Yadav, (5) Mukesh Yadav, (6) Ram Prasad Yadav, (7)
Sanjay Yadav, (8) Laddu Yadav, (9) Tantu Yadav, (10) Mahesh
Yadav, (11) Saini Ram, (12) Ranjay Yadav, (13) Suresh Yadav, (14)
Ramakant Yadav, (15) Ram Khelawan Yadav, (16) Hiran Yadav
(who is the son of Beeshan Yadav) all belonging to village- Birpur,
Madhubani along with 4-5 unknown persons all armed with pistol,
three nut, farsa, lathi, tangi, dabia were already sitting there. They
surrounded the informant’s father-in-law and cousin father-in-law
and fired on them and also assaulted them due to which they got
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injured badly. On hearing hulla, Manohar Yadav, Sanjay Yadav, Tej
Narayan Yadav rushed towards them and saved them. They were
taken to Primary Health Centre, Madhepur for treatment from
where they were referred to D.M.C.H., Darbhanga for better
treatment. On way to D.M.C.H., both of them died.
4. On the basis of the written application, Madhepur P.S.
Case No. 36 of 2014 dated 05.03.2014 was registered under
Sections 147, 148, 149, 341, 323, 324, 307 and 302 IPC and
Section 27 of the Arms Act against 16 accused persons. After
investigation, Police submitted a chargesheet bearing No. 70 of
2014 dated 20.06.2014 against eight accused persons, namely, (1)
Mukesh Yadav, (2) Ram Prasad Yadav, (3) Tantu Yadav, (4)
Ramakant Yadav, (5) Mahesh Yadav, (6) Suresh Yadav, (7) Saini
Ram and (8) Ram Khelawan Yadav under Sections 147, 148, 149,
341, 323, 324, 307 and 302 IPC and Section 27 of the Arms Act
keeping investigation pending against rest of the accused. Later
on, police submitted supplementary chargesheet bearing no. 162 of
2014 dated 07.11.2014 against three accused, namely, (1) Sita Ram
Yadav, (2) Kailash Yadav and (3) Sanjay Yadav under same
Sections. Police also submitted final form against four accused
persons. On the basis of the chargesheets, learned Magistrate took
cognizance of the offences under Sections 147, 148, 149, 341, 323,
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324, 307 and 302 IPC and Section 27 of the Arms Act. Learned
Magistrate vide order dated 22.05.2015 committed the records to
the court of Sessions. After receiving the records, Sessions Trial
No. 210 of 2015 was registered. Charges were read over and
explained to the accused persons in Hindi to which they pleaded
not guilty and claimed to be tried. Accordingly, vide order dated
01.08.2017, charges were framed under Sections 323, 341,
307/149, 324, 302/149 IPC and Section 27 of the Arms Act against
ten accused persons, namely, (1) Mukesh Yadav, (2) Ram Prasad
Yadav, (3) Tantu Yadav, (4) Ramakant Yadav, (5) Mahesh Yadav,
(6) Suresh Yadav, (7) Saini Ram and (8) Ram Khelawan Yadav (9)
Sita Ram Yadav and (10) Sanjay Yadav.
5. In course of trial, the prosecution examined as many
as twelve witnesses and exhibited several documents to prove it’s
case. The defence also examined one witness, namely, Md.
Rahamtullah (DW-1) and exhibited several documents. The list of
the prosecution witnesses and the exhibits on behalf of prosecution
as well as defence are being shown hereunder in tabular form:-
List of Prosecution witnesses
PW-1 Sanjay Yadav
PW-2 Dr. Vimlesh Yadav
PW-3 Reshma Devi
PW-4 Manohar Yadav
PW-5 Anita Devi
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PW-7 Manju Devi
PW-8 Anil Kumar
PW-9 Ram Dai Devi
PW-10 Aarti Kumari
PW-11 Ram Chandra Yadav
PW-12 Dr. Ajit KumarList of Exhibits on behalf of Prosecution
Exhibit ‘1’ Signature of Dr. Vimlesh Kumar on
postmortem report
Exhibit ‘1/1’ Signature of Vinod Kumar on P.M. report
as observer
Exhibit ‘2’ Signature of informant Manju Devi on
written statement
Exhibit ‘3’ Seizure list of cartridge and farsa
Exhibit ‘4’ Seizure list of hathori
Exhibit ‘5’ Report of Major
Exhibit ‘6’ Requisition for injury by police
Exhibit ‘7’ Chargesheet No. 70/14
Exhibit ‘8’ Chargesheet No. 162/14
Exhibit ‘9’ Forwarding on written statement
Exhibit ’10’ Formal FIR
Exhibit ‘6/1′ Injury report of Ramchandra Yadav
Exhibit ’11’ F.S.L. report Sl. No. 956/14List of Exhibits on behalf of Defence
Exhibit ‘A’ Attested copy Attendance Register sheet
Exhibit ‘B’ Certified copy of judgment of ST.-882/06
Exhibit ‘C’ C.C. FIR of ST.-164/07
Exhibit ‘D’ C.C. of FIR of G.R.-1265/09
Exhibit ‘E’ C.C. of Chargesheet of GR. 1265/09
Exhibit ‘F’ C.C. of cognizance order dt. 02.08.2010 of
GR. 1265/09
Exhibit ‘G’ C.C. of FIR of GR-274/10
Exhibit ‘H’ C.C. of Chargesheet G.R.-274/10
Exhibit ‘I’ C.C. of FIR GR-639/10
Exhibit ‘J’ C.C. of Chargesheet GR.-639/10
Exhibit ‘K’ C.C. of FIR of GR-289/11
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Exhibit ‘M’ C.C. of FIR of ST-277/13
Exhibit ‘N’ C.C. of Chargesheet of ST-277/13
Exhibit ‘O’ C.C. of FIR of ST-92/17
Exhibit ‘P’ C.C. of Chargesheet of ST-92/17
Exhibit ‘Q’ C.C. of FIR of ST-406/16
Exhibit ‘R’ C.C. of Chargesheet of ST-406/16
Exhibit ‘S’ C.C. of Chargesheet of ST-335/14
Exhibit ‘T’ C.C. of Judgment of ST-335/14
Exhibit ‘U’ C.C. of FIR of GR-63/14
Exhibit ‘V’ C.C. of Seizure List of GR-63/14
Exhibit ‘W’ Original sale deed no. 1030 dated 01.03.2014.
Exhibit 'X' Letter No. 04 dated 05.07.2017
Exhibit 'Y' Photocopy of Page No. 5 of death registration
register
Exhibit 'Z' Letter No. 05 dated 22.08.2017
Findings of the Learned Trial Court
6. Before the learned trial court, a number of
submissions were made on behalf of both the parties. While the
prosecution pleaded that it has been able to prove it’s case beyond
all reasonable doubts against the accused, the accused persons in
their defence submitted that there are material contradictions in the
evidence of the prosecution witnesses. The informant Manju Devi
(PW-7) is the wife of Arjun Yadav, son of Ram Chandra Yadav
(PW-11). Both Arjun Yadav and Ram Chandra Yadav had been
held guilty and sentenced in Sessions Trial No. 335 of 2014 for the
murder of the deceased Rinku @ Neeraj Yadav. It was also
submitted that the two alleged eyewitnesses, PW-1 and PW-4, are
the relatives of all the above witnesses, so they are interested and
would fall in the category of an inimical witness. The trial court
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on the strength of some minor contradictions, it cannot be doubted
that they were not present on the spot at Rambag Chowk at the
time of occurrence.
7. The learned trial court held that in a situation where a
murder had taken place of a kin person, a difference in fardbeyan
and the statement under Section 161 of the CrPC does not come
into thinking of a person who is not law known and this difference
is not a material contradiction of the facts when a person did not
appear to prove the writing of FIR also, this does not affect the
prosecution case. The learned trial court took into consideration
the issue raised by the defence that the informant had not
mentioned the occurrence of alleged Madhepur Hospital but
observed that FIR is not chronicle of the total concerned case,
therefore, this fact alone could not affect the prosecution case.
8. As regards the second place of occurrence i.e. the
Primary Health Centre, Madhepur, the defence contended that the
prosecution had not adduced the admission receipt of the patient,
any doctor, nurse or medical staff to say that Ram Bihari was
treated there, only the statement of the witnesses PW-3, PW-5,
PW-6, PW-7, PW-9 and PW-10 which are highly contradictory
would not prove the prosecution case. Even Arti Kumari (PW-10)
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there at PHC, Madhepur regarding the delivery of a lady patient
had not adduced any chit of paper regarding the treatment of that
lady patient nor contact with any doctor or staff. The trial court
held that the fact that Ram Bihari was given medical treatment at
Madhepur Hospital is corroborated with the fact appearing from
the inquest report of the deceased where it is clearly mentioned by
ASI Rajkeshwar Singh (not examined) that he found bandage at
right thigh and injury with bandage at the forehead of the
deceased. The Investigating Officer (PW-18) had also stated at
paragraph ‘4’ of his examination-in-chief that for better treatment,
Ram Bihari was referred to DMCH where on the way he died. The
trial court, therefore, took this fact duly proved that he was treated
at Madhepur.
9. The learned trial court has held that no doubt there are
some grave irregularities of the Investigating Officer, the most
important fact is that Investigating Officer did not record the
statement when he arrested Ram Chandra Yadav at Madhepur
Primary Health Centre and not till his statement before the court,
non-seizure of bullet from the pocket of deceased during the
inquest report and not mentioning the hole in the cloth wore by the
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affect the case of the prosecution.
10. The learned trial court has taken PW-1 and PW-4 as
independent witnesses and it has been held that they have named
the appellants and other eyewitnesses who are the family
members. The three accused namely Suresh Yadav, Ram Prasad
Yadav and Ramakant Yadav have been acquitted from all the
charges whereas the seven accused who are appellants before this
Court have been convicted for the offences punishable under
Section 302/149 IPC.
Submissions on behalf of the appellants
11. Learned counsel for the appellants has submitted that
in the present case, the Investigating Officer (PW-8) had received
information by way of a rumour at 9:30 AM that there is an
exchange of firing at Rambag Chowk, whereafter he had reached
there. He had also gone to the Primary Health Center, Madhepur. It
is his own statement that he had recorded a ‘sanha’ of the
information and had proceeded to the place of occurrence for
verification. PW-8 not only verified the occurrence, he proceeded
to investigate the same. The two seizure lists were prepared on the
same day which are Exhibit ‘3’ and ‘4’ respectively by taking two
witnesses whose statements were also taken by the I.O. (PW-8) but
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till the time of preparation of the seizure lists and the recording of
the statement of these seizure list witnesses, no formal FIR was
lodged. In his submission the ‘sanha’ in this case is liable to be
treated as First Information Report. The belated application of PW-
7 after about twelve hours of the occurrence would be hit by
Section 162 CrPC. The I.O. (PW-8) has stated that there was no
fardbeyan of the informant (PW-7). The written information was
not in his handwriting. He had searched the wife of Ram Bihari on
the day of occurrence but prior to lodging of the case, her
statement was not taken. He first met wife of Ram Bihari after
FIR. At the time of submission of the application, wife of Ram
Bihari was present.
12. Learned counsel further submits that in this case it is
evident that the informant (PW-7) has not claimed herself an
eyewitness in the written information submitted before police.
Later on, she has come to depose as an eyewitness of the
occurrence. In her written information, she had not stated about the
second occurrence which allegedly took place in the Primary
Health Center at Madhepur but in course of trial she has developed
her case with regard to the second occurrence.
13. It is submitted that PW-7 is the wife of Arjun Yadav
who was earlier convicted in the attempt to murder case of Rinku
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Yadav and has also been convicted in the counter case which has
been lodged for the murder of Rinku Yadav. The other family
members of the deceased who have deposed are PW-3, PW-5, PW-
6, PW-9 and PW-10 who are closely related, interested and
inimical witnesses. From the evidences available on the record it
may be found that all of them were in village Birpur at the time of
occurrence. In course of trial they have developed a story that they
were present at Rambag Chowk but their self-contradictory
statements would prove that they were not present at Rambag
Chowk and had gone to Madhepur Primary Health Center only at a
much belated stage where they did not find anyone.
14. It is further submitted that there is no evidence on
the record that the deceased or the injured witness (PW-11) were
treated in the Primary Health Center, Madhepur. Neither any of the
prosecution witnesses nor the I.O. (PW-8) has disclosed the name
of the doctor, the compounder or any other staff of the Primary
Health Centre, Madhepur. No documentary evidence showing
admission of the deceased or the injured in Primary Health Center
at any stage has been brought on record. There is no eyewitness of
the alleged second occurrence and this story has been developed
only in course of trial.
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15. Learned counsel submits that the prosecution has
suppressed the earlier version of the case, in course of postmortem,
live cartridge of gun was recovered from the possession of the
deceased which falsifies the prosecution case that he was going to
attend a date in Madhubani court.
16. Learned counsel further submits that the learned trial
court has grossly erred in treating PW-1 and PW-4 as independent
witnesses. In fact, they are related to PW-7 and are residents of
another village. Their presence at Rambag Chowk at around 8
o’clock in the morning is highly doubtful. From their deposition, it
would appear that they have not even claimed to have seen the
entire occurrence.
17. Learned counsel further submits that police had
prepared seizure lists on 05.03.2014 but the seized articles were
not produced in court. After more than two months, an application
was filed in the trial court for obtaining permission to send those
articles to the Sergeant and the Forensic Science Laboratory. PW-8
has stated that he had kept them in Malkhana but the Malkhana
Register/entries showing deposit of seized articles have not been
brought in evidence. Moreover, the FSL report (Exhibit ’11’)
would show that no blood was found on the farsa and the blood
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stain on the handle of the hammer was too small to get a
serological report.
18. It is pointed out that the defence had got exhibited
several documentary evidences which are from Exhibit ‘B’ to
Exhibit ‘V’. They are either FIR or the charge-sheets against the
deceased or the injured witnesses. Exhibit ‘T’ is the certified copy
of the judgment of Sessions Trial No. 335 of 2014 arising out of
Madhepur P.S. Case No. 34 of 2014 for the offences under
Sections 147, 148, 341, 323/34, 324/34, 307/149 and 302/149 IPC,
this is the counter case against the accused persons namely Arjun
Yadav, Ramashish Yadav, Ram Chandra Yadav (PW-11), Doma
Yadav, Pappu Yadav and Shri Lal Yadav. Exhibit ‘T’ is the
judgment in the counter case lodged on 05.03.2014 at Madhepur
P.S. in connection with the murder of Rinku Yadav. In the said
case, beside others, Ram Bihari Yadav (the deceased) was also an
accused and the injured (PW-11) and other accused have been
convicted and have been sentenced to undergo life imprisonment.
19. It is submitted that there are evidences on the record
to show that the parties were having land dispute on account of
plot measuring three and half kattha in Tauji No. 13822, Plot No.
2329 and 3230 under Khata No. 562 and 894 respectively. One of
the purchasers of this land is Neeraj Kumar @ Rinku Yadav who is
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the deceased of the counter case. It is pointed out that some of the
witnesses of the said counter case have been also murdered for
which FIRs have been lodged and those FIRs are also exhibits.
20. It is submitted that the learned trial court has failed
to appreciate that while recording the statements of the accused
persons under Section 313 CrPC, the evidences adduced by the
prosecution which have been used against accused persons to
convict them have not been pointed out to them, therefore, such
evidences cannot be looked into and considered for the purpose of
conviction of the appellants.
Submissions on behalf of the State
21. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State, has though contested the appeals but he
has categorically submitted that in this case, though the first place
of occurrence has been established by the prosecution, there is no
clinching evidence with regard to the second occurrence which
took place in Madhepur Primary Health Centre. In the written
information submitted by PW-7, there is neither any mention of
the second occurrence nor of any of the family members of the
deceased. The FIR has been registered after twelve hours of the
occurrence is not disputed.
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22. The learned Public Prosecutor submits that the
prosecution witnesses in this case do not seem to be eyewitnesses
of the occurrence. Ram Chandra Yadav, who is an injured witness
(PW-11) is not an eyewitness of the second occurrence, though he
is an eyewitness of the occurrence which took place at Rambag
Chowk.
23. Learned Additional Public Prosecutor does not
dispute the facts which are evident from the certified copy of the
judgment of the learned trial court rendered in Sessions Trial No.
335 of 2014 arising out of the counter case of the same date with
regard to the killing of Rinku Yadav in which PW-11 of the present
case and some other accused have been convicted and sentenced
for the offences under Sections 302/149 IPC.
24. Learned Additional Public Prosecutor accepts that
the learned trial court has not found sufficient materials to convict
the accused persons under Section 307 IPC as the prosecution
failed to prove the so-called injury to Ram Chandra Yadav so as to
attract offence under Section 307 IPC, the prosecution also failed
to prove the offences under Sections 323 and 341 IPC.
Consideration
25. We have heard learned counsel for the appellants and
learned Additional Public Prosecutor for the State as also perused
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the trial court’s records. The prosecution case starts with the
formal FIR (Exhibit ’10’) based on written information submitted
by Manju Devi (PW-7) to the Officer-in-Charge of Madhepur
Police Station on 05.03.2014, the FIR was registered at 8:30 PM.
From the first information report, it appears that the occurrence
took place on 05.03.2014 at 8:30 AM when the deceased along
with his brother Ram Chandra Yadav (PW-11) had left their house
in village-Birpur on a motorcycle to attend a date at Madhubani,
they reached Rambag Chowk where the seventeen named accused
persons and 4-5 unknown persons armed with gun, three-nut,
farsa, lathi, tangi and dabiya were sitting. According to the
informant (PW-7), the accused persons surrounded the deceased
and PW-11, the deceased Ram Bihari Yadav was badly injured by
firing and by tengari and farsa. According to the informant, on
hulla, Manohar Yadav (PW-4), Sanjay Yadav (PW-1) and Tej
Narayan Yadav (not examined) came running and saved them, they
took them in injured condition to Primary Health Centre,
Madhepur from where the injured were referred to Darbhanga
Medical College and Hospital (DMCH) for better treatment but on
way to the hospital, Ram Bihari Yadav died. From the formal FIR,
it appears that the place of occurrence is at a distance of seven
kilometer from the police station.
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26. The I.O. (PW-8) has stated that at 9:30 AM he heard
a rumour that a firing is taking place between two groups at
Rambag Chowk, in which some persons have been injured. He
registered a ‘sanha’ and for verification of the same, he while
informing it to the senior police officer, reached the place of
occurrence with Sub-Inspector Rajkeshwar Singh, Sub-Inspector
Vijay Kumar Singh, DAP Guard and armed forces. He has stated
that when he reached the place of occurrence, he found that shells
of fired cartridges (khokha) and cartridges were lying scattered
which he left under watch of chowkidar and armed forces, he
reached Madhepur Primary Health Centre where huge crowd had
assembled. The injured Rinku Yadav had been referred to DMCH
for better treatment but he died on way whereafter his dead body
was brought to the Primary Health Centre, Madhepur where
doctors declared him dead. In his deposition, the I.O. has further
stated that the injured Ram Bihari Yadav had also been referred to
DMCH for better treatment by the doctors but there was no family
member or relative present there. In absence of any of the family
members or relative, the fardbeyan could not be recorded. He got
information from Chowkidar Md. Hira Khan (not examined) that
injured Ram Bihari had died on way to DMCH. He recorded a
sanha in this regard and telephonically informed Rajkeshwar
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Singh to reach Sadar Hospital, Madhubani and prepare the inquest
report of Ram Bihari Yadav. Rajkeshwar Singh got the postmortem
of Ram Bihari Yadav done and brought back the dead body to the
police station. He told that no relative of the deceased had come to
Sadar Hospital, Madhubani to take the dead body.
Non-production of ‘sanha’ – Delay in registration of
FIR – Evidence of the informant Manju Devi (PW-7) and
Ramdei Devi (PW-9) discussed.
27. First of all, we will discuss the evidence of Manju
Devi (PW-7) who is the informant of this case. She is wife of
Arjun Yadav who was earlier convicted in connection with attempt
to murder case of Rinku Yadav in Sessions Trial No. 882 of 2006
arising out of Madhepur P.S. Case No. 78 of 2004. Arjun Yadav is
the son of Ram Chandra Yadav (PW-11). Arjun Yadav and Ram
Chandra Yadav both have been convicted in Sessions Trial No. 335
of 2014 arising out of Madhepur P.S. Case No. 34 of 2014 for the
murder of Rinku Yadav in the occurrence which took place on
05.03.2014 at about 9:00 AM at Rambag Chowk. In this case, Ram
Bihari Yadav was made one of the accused as an order giver. Ram
Bihari is the deceased of the present case which has been lodged
after Madhepur P.S. Case No. 34 of 2014.
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28. According to the informant (PW-7) she had gone to
the police station in between 9:00-10:00 AM with Anita (PW-5)
and Reshma (PW-3) and had submitted an application but they had
not signed on that. She has submitted that she stayed at the police
station for about half an hour. In paragraph ’27’ of her deposition
she has stated that her fardbeyan was recorded at the police station
at 11:00 PM on which she had put her signature. This has been
denied by PW-8. She has also stated that she had submitted one
more application in addition after 1-1½ hour. Thus, according to
her own statements, she had submitted two applications within 1-
1½ hour. She has submitted that on the second application,
Reshma (PW-3) and Ramdei (PW-9) had put their thumb
impression. This Court finds that the second application is the
basis of the present FIR registered on 05.03.2014 at 20:30 Hrs.
Exhibit ‘2’ is the signature of PW-7 on the written information.
Thus, according to her own statement at the time of submission of
the first application in the police station, Anita Devi (PW-5) and
Reshma Devi (PW-3) both were present with her but no one had
put their signature on that. She had stayed in the police station
only for about half an hour but then she has claimed that she
submitted another application after 1-1½ hour on which Reshma
and Ramdei both had put their thumb impression. This is not
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believable. Reshma Devi (PW-3) and Ramdei Devi (PW-9) have
not corroborated PW-7 on this point.
29. In order to appreciate as to whether the second
application was submitted within 1-1½ hour, when the evidence
of PW-7 is read together with the evidence of Ramdei Devi, wife
of the deceased/(PW-9), it would appear that in paragraph ’77’ of
her deposition, PW-7 has stated that Ramdei Devi (PW-9) had
gone with Ram Bihari for his treatment to Darbhanga. In
paragraph ’78’ she says that Ramdei Devi (PW-9) had returned
with the dead body and told her that she had gone in the vehicle
but on way at which place Ram Bihari died was not told. She has
then stated in paragraph ’79’ that Ramdei Devi had gone for the
treatment of her husband to Madhepur, she had not gone to
Darbhanga. PW-7 has stated that Ramdei Devi had reached police
station with the dead body earlier but this witness had not asked
her that how much earlier she had reached there. In paragraph ’27’
of her deposition this witness has stated that she had seen the dead
body of Ram Bihari on the date of occurrence for the first time at
11 o’clock in night. In paragraph ’29’ she has stated that her first
application was of 3-4 pages but she had not counted the same, she
had put her signature on all the 3-4 pages, the second application
was of one or two pages in which her signature was present on the
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last page. From the evidences of PW-7, it is evident that she is not
consistent about her making fardbeyan, submission of
application(s) and the time of submission of the applications to the
police. The I.O. (PW-8) has contradicted the statement of PW-7.
30. It appears from the formal FIR (Exhibit ’10’) that
police had got information of the occurrence at 9:30 AM. It is
evident from the statement of the I.O. (PW-8) that he had reached
the place of occurrence after hearing a rumour and he had
registered a sanha, therefore, this Court finds that there was an
information to PW-8 with regard to the occurrence in the nature of
a cognizable offence. But this ‘sanha’ has not been brought on
record. In paragraph ’69’ of her deposition, PW-7 falsifies her own
claim to have visited Madhepur Police Station between 9-10 AM.
She has stated that till now she had visited the Madhepur police
station only once to bring the dead body. It is her own statement
that she had seen the dead body of Ram Bihari at the police station
for the first time at 11:00 PM. This Court finds that the first
application which according to PW-7 was of 3-4 pages has not
come on the record. The FIR has been registered on the basis of an
one page written application on which she had identified her
signature (Exhibit ‘2’). It is important to note that the the thumb
impression of Ramdei (PW-9) on the written information has not
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been exhibited but I.O. (PW-8) has stated that he met PW-9 after
registration of FIR.
31. Regarding Ramdei Devi (PW-9), PW-7 has stated
that she had gone with Ram Bihari for his treatment to Darbhanga
in the ambulance but from the evidence of Ramdei (PW-9) it
appears that in her examination-in-chief she has stated that she
heard about the occurrence from her daughter Meera Devi (PW-6)
who was told about the occurrence by Anita Devi (PW-5). Thus,
PW-9 is not an eyewitness of the first occurrence is evident. In
paragraph ‘2’ she has stated that she had gone to the hospital
where her husband was getting treated, she was sitting there at the
side of his legs and his daughter was sitting at the side of the head.
At that time, Ghanshyam Yadav, Sitaram Yadav, Sanjay Yadav,
Mukesh Yadav and Tantu Yadav reached there. Sanjay Yadav
assaulted her husband by a hammer whereafter they were made to
get out, police vehicle came and took away her husband. Then her
husband died. PW-9 has not stated that she had gone with her
husband for DMCH in the ambulance. She was not present at
Sadar Hospital, Madhubani where inquest report was prepared by
Rajkeshwar Singh, S.I. is also evident from the fact that she is not
a witness to the inquest report (not exhibited but recorded in para
’11’ of the case diary as per evidence of the I.O.).
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32. PW-9 has stated that she was present in the PHC,
Madhepur but this is not getting corroborated by PW-7. In her
examination-in-chief, PW-7 has stated that she had gone to the
hospital with her mother-in-law Reshma Devi (PW-3) and cousin
mother-in-law Anita Devi (PW-5). In her cross-examination, PW-7
has initially stated that Ramdei Devi met her in the police station
with dead body. She has not stated that when the second
occurrence took place Ramdei Devi (PW-9) was present with her
in PHC, Madhepur. Similarly, PW-9 has not stated in her
examination-in-chief about presence of PW-3, PW-5 and PW-7 in
PHC, Madhepur. In fact, PW-7 is herself not an eyewitness of
either the first or second occurrence is evident from the fact that in
the written information, she has not claimed her presence at
Rambagh Chowk at the time of occurrence, she has not claimed
herself an eyewitness, in course of investigation she did not say to
the I.O. (PW-8) that she was present at Rambag or that she was
sitting at her house. Her attention was drawn towards her previous
statements before police and the I.O. (PW-8) has contradicted her.
As regards the second occurrence, in her statement in paragraph
’47’ of the deposition she has stated that she was not in the room.
She had fled away to verandah and remained unconscious for 2-
2½ hours. She had not seen the occurrence.
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33. In paragraph ’79’, PW-7 has stated that Ramdei
(PW-9) told her that police informed Ramdei that Ram Bihari had
died. On the other hand, Ramdei Devi has stated in paragraph ’10’
of her cross-examination that she had met Anita Devi (PW-5) in
the evening on the date of occurrence. At that time she had met
Anita (PW-5), Reshma (PW-3) and Manju Devi (PW-7). She has
also stated that at that time sunset had already taken place. When
the evidence of PW-7 and PW-9, are read together, the prosecution
case that PW-7 had gone to the police station between 9:00-10:00
AM, submitted her first application and then after one and a half
hour she had submitted her second application stands falsified,
thus ‘not proved’.
34. The fact that the first application has not come on
record and the second application of one page bears the thumb
impression of PW-7 (Exhibit ‘2’) would prove that the second
application was submitted late in the evening on 05.03.2014 after
sunset when Ramdei after getting information from police about
death of her husband had gone to the police station and she was
there with the dead body of her husband, at this time, Manju (PW-
7) was also present, Ramdei (PW-9) has stated to have met Anita,
Reshma and Manju (PW-7) in the evening after sunset, then the
written application which is the basis of the FIR was submitted.
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This is the only possible finding which may be recorded for the
lodging of the FIR at 20.30 Hrs. Thus, there is an unexplained
delay of 12 hours in registration of FIR.
35. What will be the effect of not bringing on record the
‘sanha’ which was registered by PW-8 and non-recording of case
diary until 08:30 PM may be discussed with reference to the
judgments of the Hon’ble Supreme Court in case of Allarakha
Habib Memon Etc. vs. State of Gujarat reported in AIR 2024
SC 4201 and Animireddy Venkata Ramana and Ors. vs. Public
Prosecutor, High Court of Andhra Pradesh reported in AIR
2008 SC 1603 as also from the judgment of State of A.P. vs.
Punati Ramulu reported in 1994 Supp (1) SCC 590.
In the case of Allarakha Habib Memon Etc. (supra), the
Hon’ble Supreme Court has taken note of the judgment in the case
of Punati Ramulu in paragraph ’29’ which is reproduced
hereunder for a ready reference:-
29. This Court in State of A.P. v. Punati Ramulu and Others 4
held that when the police officer does not deliberately record
the FIR on receipt of information about cognizable offence
and the FIR is prepared after reaching the spot after due
deliberations, consultations and discussion, such a complaint
cannot be treated as FIR and it would be a statement made
during the investigation of a case and is hit by Section 162
CrPC. The relevant paragraphs of the judgment in this regard
are reproduced hereinbelow :
“5. According to the evidence of PW 22, Circle
Inspector, he had received information of the
incident from Police Constable No. 1278, who was on
4. 1994 Supp (1) SCC 590 : AIR 1993 SC 2644
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occurrence, PW 22 left for the village of occurrence and
started the investigation in the case. Before proceeding
to the village to take up the investigation, it is conceded
by PW 2 in his evidence, that he made no entry in the
daily diary or record in the general diary about the
information that had been given to him by Constable No.
1278, who was the first person to give information to
him on the basis of which he had proceeded to the spot
and taken up the investigation in hand. It was only when
PW 1 returned from the police station along with the
written complaint to the village that the same was
registered by the Circle Inspector, PW 22, during the
investigation of the case at about 12.30 noon, as the FIR,
Ext. P-1. In our opinion, the complaint, Ext. P-1, could
not be treated as the FIR in the case as it certainly would
be a statement made during the investigation of a case
and hit by Section 162 CrPC. As a matter of fact the
High Court recorded a categorical finding to the effect
that Ext. P-1 had not been prepared at Narasaraopet and
that it had “been brought into existence at Pamaidipadu
itself, after due deliberation”. Once we find that the
investigating officer has deliberately failed to record the
first information report on receipt of the information of a
cognizable offence of the nature, as in this case, and had
prepared the first information report after reaching the
spot after due deliberations, consultations and
discussion, the conclusion becomes inescapable that the
investigation is tainted and it would, therefore, be unsafe
to rely upon such a tainted investigation, as one would
not know where the police officer would have stopped to
fabricate evidence and create false clues. Though we
agree that mere relationship of the witnesses PW 3 and
PW 4, the children of the deceased or of PW 1 and PW 2
who are also related to the deceased, by itself is not
enough to discard their testimony and that the
relationship or the partisan nature of the evidence only
puts the Court on its guard to scrutinise the evidence
more carefully, we find that in this case when the bona
fides of the investigation has been successfully assailed,
it would not be safe to rely upon the testimony of these
witnesses either in the absence of strong corroborative
evidence of a clinching nature, which is found wanting
in this case.”
(emphasis supplied
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36. In the case of Animireddy Venkata Ramana
(supra), the Hon’ble Supreme Court has taken the following view
in paragraphs ’10’, ’11’ and ’13’:-
“10. …. The investigating officer was also informed. A
report to that effect might have been noted in the
general diary but the same could not have been treated
to be an FIR. When an information is received by an
officer in charge of a police station, he in terms of the
provisions of the Code was expected to reach the place
of occurrence as early as possible. It was not necessary
for him to take that step only on the basis of a first
information report. An information received in regard
to commission of a cognizable offence is not required
to be preceded by a first information report. Duty of
the State to protect the life of an injured as also an
endeavour on the part of the responsible police officer
to reach the place of occurrence in a situation of this
nature is his implicit duty and responsibility. If some
incident had taken place in a bus, the officers of Road
Transport Corporation also could not ignore the same.
They reached the place of occurrence in another bus at
about 1 a.m. The deceased and the injured were only
then shifted to Tuni Hospital..”
11. A first information report was recorded at about 3
o’clock in the night. In the aforementioned situation, it
cannot be said that the information received by the
investigating officer on the telephone was of such a
nature and contained such details which would amount
to a first information report so as to attract the
provisions of Section 162 of the Code.
13. … If furthermore the purported entry in the general
diary, which had not been produced, is not treated to be
a first information report, only because some enquiries
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have been made, the same by itself would not vitiate
the entire trial. Enquiries are required to be made for
several reasons; one of them is to ascertain the truth or
otherwise of the incident and the second to apprehend
the accused persons…”
37. In the case of Superintendent of Police, CBI and
Others vs. Tapan Kumar Singh reported in (2003) 6 SCC 175,
the Hon’ble Supreme Court has held that general diary entry may
be treated as FIR in an appropriate case, where it discloses the
commission of a cognizable offence. Paragraphs ’16’, ’19’ and
’20’ of the said judgment are quoted hereunder:-
“16. The parties before us did not dispute the legal position
that a GD entry may be treated as a first information report
in an appropriate case, where it discloses the commission of
a cognizable offence. If the contention of the appellants is
upheld, the order of the High Court must be set aside
because if there was in law a first information report
disclosing the commission of a cognizable offence, the
police had the power and jurisdiction to investigate, and in
the process of investigation to conduct search and seizure. It
is, therefore, not necessary for us to consider the authorities
cited at the Bar on the question of validity of the
preliminary enquiry and the validity of the search and
seizure.
19. The High Court fell into an error in thinking that the
information received by the police could not be treated as a
first information report since the allegation was vague
inasmuch as it was not stated from whom the sum of rupees
one lakh was demanded and accepted. Nor was it stated that
such demand or acceptance was made as motive or reward
for doing or forbearing to do any official act, or for showing
or forbearing to show in exercise of his official function,
favour or disfavour to any person or for rendering,
attempting to render any service or disservice to any person.
Thus there was no basis for a police officer to suspect the
commission of an offence which he was empowered under
Section 156 of the Code to investigate.
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20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details
relating to the offence reported. An informant may lodge a
report about the commission of an offence though he may
not know the name of the victim or his assailant. He may
not even know how the occurrence took place. A first
informant need not necessarily be an eyewitness so as to be
able to disclose in great detail all aspects of the offence
committed. What is of significance is that the information
given must disclose the commission of a cognizable offence
and the information so lodged must provide a basis for the
police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on the
basis of the information given suspects the commission of a
cognizable offence, and not that he must be convinced or
satisfied that a cognizable offence has been committed. If
he has reasons to suspect, on the basis of information
received, that a cognizable offence may have been
committed, he is bound to record the information and
conduct an investigation. At this stage it is also not
necessary for him to satisfy himself about the truthfulness
of the information. It is only after a complete investigation
that he may be able to report on the truthfulness or
otherwise of the information. Similarly, even if the
information does not furnish all the details he must find out
those details in the course of investigation and collect all
the necessary evidence. The information given disclosing
the commission of a cognizable offence only sets in motion
the investigative machinery, with a view to collect all
necessary evidence, and thereafter to take action in
accordance with law. The true test is whether the
information furnished provides a reason to suspect the
commission of an offence, which the police officer
concerned is empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record the
information and proceed to investigate the case either
himself or depute any other competent officer to conduct
the investigation. The question as to whether the report is
true, whether it discloses full details regarding the manner
of occurrence, whether the accused is named, and whether
there is sufficient evidence to support the allegations are all
matters which are alien to the consideration of the question
whether the report discloses the commission of a cognizable
offence. Even if the information does not give full details
regarding these matters, the investigating officer is not
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true facts, if he can.”
38. In the present case, I.O. (PW-8) had received the
information by way of a rumour at 9:30 AM regarding exchange of
firing being taking place at Rambagh Chowk whereafter he
recorded a ‘sanha’ in the police station and after informing his
seniors he reached Rambag Chowk. He also went to the PHC,
Madhepur where he met several people. He prepared two seizure
lists (Exhibit ‘3’ and ‘4’) on the same day at 15:45 Hrs. and 18:15
Hrs. respectively. Rajkeshwar Singh, Sub-Inspector had prepared
the inquest report (not exhibited) at Sadar Hospital, Madhubani,
Emergency Ward, postmortem was performed at 4:00 PM
whereafter the dead body was brought to Madhepur P.S. It means
on the basis of ‘sanha’, the investigation had already begun. In
course of the investigation, seizure lists were prepared taking two
witnesses, namely, Avinash Kumar Aman and Rajkumar Yadav. In
para ’11’, PW-8 has stated to have taken statement of both the
witnesses. To this Court, therefore, in the facts of this case it
appears that ‘sanha’ was the first information to the police
regarding a cognizable offence having taken place at Rambagh
Chowk. It followed with the visit of I.O. at the place of occurrence
where he prepared seizure lists, seized the firearm khokha/
cartridges farsa & hammer. Also took statement of seizure list
witnesses. Further in paragraph ’29’, the I.O. has stated that he got
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information from the people assembled at hospital regarding some
sort of occurrence had taken place in the hospital, this he has not
recorded in paragraph ‘2’ of the case diary.
39. This Court has found that PW-8 started writing the
case diary only at 08:30 PM after registration of formal F.I.R. It is
evident that people present at hospital had informed PW-8
something, this information was not recorded and as such the
earliest version of the prosecution case which emerged from
‘Sanha’, statement of seizure list witnesses and from the statement
of people present at PHC, Madhepur have been withheld by the
prosecution. The FIR registered at 8:30 PM has been lodged on
the basis of written information submitted by PW-7 at a much
belated stage, during the investigation under Section 161 CrPC. It
will, therefore, be hit by Section 162 CrPC [now Section 181 of
the Bharatiya Nagarik Suraksha Sanhita (in short ‘BNSS’)]. There
is no explanation for delay of twelve hours in submission of
written information.
40. In view of the aforementioned discussions, we arrive
on the following conclusions:
(i) The ‘sanha’ entered in the police station by the
I.O. (PW-8) is the first information of the occurrence.
Investigation started on this basis.
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(ii) The written information bearing signature
(Exhibit ‘2’) which is the basis of formal F.I.R. (Exhibit
’10’) was submitted by PW-7 in course of investigation
only, therefore it would be hit by section 162 CrPC (Section
181 BNSS).
(iii) PW-7 is a wholly unreliable witness. There
are huge material contradictions in her own statements. She
is not an eyewitness of either the first or second occurrence.
She has shown a tendency to suppress material facts
regarding conviction of her husband in the earlier case.
(iv) PW-9 admits that regarding first occurrence,
she is a hearsay witness. Her evidence with regard to the
second occurrence is totally inconsistent rather
contradictory compared to the evidence of PW-7. They do
not corroborate each other. I.O. (PW-8) has contradicted
both these witnesses with reference to their statements
made in course of investigation.
(v) PW-7 and PW-9 are closely related, interested
and inimical witnesses, hence, their evidences are required
to be considered with all circumspection and care. There
must be some clinching corroboration of their evidences.
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Inquest – Postmortem and evidence of the Doctors
(PW-2 and PW-12) discussed
41. Dr. Bimlesh Yadav (PW-2) who was posted as
Medical Officer in Sadar Hospital, Madhubani and conducted
autopsy on the dead body has not mentioned about any bandage
present on the head or any other part of the body of the deceased.
He found following injuries:-
“(i) Lacerated injuries in the left parietal region of head size
1/2″ x 1/4” x deep to bone.
(ii) Lacerated injuries in the left side of the face size 1/2″ x
1/4″ deep to bone.
(iii) Lacerated injury left lateral side of the chest in mid
axillary line, and lateral to nipple size 1/2″ x 1/2″ x deep bone.
(iv) Lacerated injury in the right thigh above knee size 1/2″ x
1/2″ x deep to bone.
(v) Entry wound lacerated injury in the right lateral of the
middle of thigh size 1/2″ x 1/2″ x deep to bone.
(vi) Lacerated injury over mid part of head size 2″ x 1/2″ x
deep to bone.”
42. PW-2 has further recorded in the postmortem report
as under:-
“Dissection:- Fracture of right femur bone. Bullet detected
in upper portion of the right side of the thigh. Heart – both
chambers empty. All the internal visceras pale namely
lungs, liver, spleen and both kidneys. Brain and meninges
lacerated. Skull fractured. Blood and blood clot in cranial
cavity. Stomach containing digested food materials.
Intestine containing fecal mattes and gases. Urinary
bladder empty. Detected bullet preserved and handed over
to chaukidar with one unfired gun bullet, motorcycle key
ring, three piece keys two plastic chunauti, two packets
khaini, one election eye card, some papers.
Time since death within 24 hours. Death in our opinion
was due to hemorrhage and shock caused by above
mentioned injuries.”
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43. Apparently, the prosecution has not brought on
record any evidence of reference made to DMCH or the entries
made in the Emergency Ward of the Sadar Hospital, Madhubani.
Who declared Ram Bihari Yadav dead at the Emergency Ward is
not known. If deceased was going to attend a date to Madhubani
court then why will he carry .12 bore live gun cartridge in his
pocket? If Ram Bihari was shot at while driving the motorcycle
how motorcycle key ring will be found in his possession. This
creates a doubt over the prosecution story that Ram Bihari and
Ram Chandra had left their house to attend a date in Madhubani
court and firing took place on Ram Bihari when he was driving the
motorcycle. Ram Bihari was named as order giver in the counter
case of murder case of Rinku Yadav. Defence has suggested that
after murder of Rinku Yadav, Ram Bihari and Ram Chandra were
fleeing away by motorcycle which met an accident in which they
suffered injuries.
44. Dr. Ajit Kumar (PW-12) had examined Ram
Chandra (PW-11). He has stated that he was posted at Sub-
Divisional Hospital, Jhanjharpur as Medical Officer. He had
examined Ram Chandra on 05.03.2014 at 12:30 AM (night). He
noted the following injuries:-
“(i) Pain in the chest wall. X-ray normal
(ii) Pain in the left knee. X-ray normal
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(iii) Multiple abrasion at right ankle. X-ray normal
wound margin red. Cause of injury hard and blunt
substance. Nature of injury simple. Time of injury
within 6 hours.”
45. He proved the injury report as Exhibit ‘6/1’. In his
cross-examination, he has stated that the patient had himself come
in the hospital. He had not informed it to local police. Patient had
come with requisition (Exhibit ‘6’). He had received the
requisition from the police accompanying him but he cannot say as
to which police station had issued it. PW-12 has admitted that
there is an overwriting on the time in different ink and there is no
initial on that. Informant (PW-7) has stated in paragraph ’84’ of
her deposition that Ram Chandra (PW-11) had no firearm injury,
no injury of dabiya. He had only lathi blow. At this stage, when
evidence of the I.O. (PW-8) in paragraph ‘8’ is taken into
consideration, it would be found that the place of occurrence is
Rambag Chowk where both the sides had indulged in exchange of
firing and marpeet. PW-8 has prepared the seizure list (Exhibit ‘3’)
showing seizure of eleven 7.65 mm and one front part of pellet,
one black colour pellet of which the front part was spread and one
farsa, both the parties had exchanged fire from their respective
sides. Given the kind of manner of occurrence, it seems highly
improbable that despite presence of Ram Bihari and Ram Chandra
together on the motorcycle in which Ram Bihari got several
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firearm injuries, Ram Chandra (PW-11) would not receive a single
pellet of the bullets fired from the rival side. In this connection,
evidence of PW-11 is required to be considered. According to him,
when he and Ram Bihari reached Rambag Chowk on a
motorcycle, then the named accused persons were present there
armed with gun, pistol, threenut, rifle, farsa, dabiya and lathi. He
has stated that Sitaram Yadav and Ghansyam Yadav ordered to kill
whereafter Laddu @ Ashok Yadav fired upon Ram Bihari who
received injuries on his right thigh whereafter he and Bihari fell
down then all the accused started assaulting by lathi, farsa and
dabiya which he also suffered. When accused were assaulting him
and Bihari, Rinku came and suffered the dabiya and farsa blow of
his own party. Thereafter, hulla of police was heard, the accused
persons fled away. People took him and Ram Bihari to Madhepur
Hospital by a vehicle. PW-11 has not named the person who
brought them to Madhepur Primary Health Centre. He claims to
have been arrested there, police brought him to police station but
the accused persons chased him at police station then to save him,
police brought him to Jhanjharpur Hospital. The I.O. (PW-8) has,
however, stated that PW-11 was arrested from Madhepur Market.
46. In paragraph ‘8’ of his cross-examination, he says
that the motorcycle was of black colour which was in his name but
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he does not remember the vehicle number. He further says that his
son had sold the vehicle. He says that on the date of his arrest
vehicle was not with him. He had not shown the vehicle to police
and police had themselves taken away the vehicle, this was told to
him by his son, in the morning vehicle was returned to his son. He
had not signed any document of sale of vehicle. He did not
remember the name of agency from where vehicle was purchased.
47. It is evident from paragraph ‘8’ of PW-11 that he has
not been able to prove that he owned a motorcycle. The
motorcycle was neither found at Rambagh Chowk nor at PHC,
Madhepur. It is, therefore, highly doubtful that on the date and
time of occurrence, Ram Bihari and PW-11 both had together
reached Rambag Chowk on a motorcycle on way to Madhubani.
PW-11 has stated that police arrested him from hospital at 8:00
AM whereas in his examination-in-chief, he has stated that
occurrence took place at 9:00 AM, when he was arrested no one
from his family was present there. He first met doctor then police.
Doctor was treating Ram Bihari, he was at verandah when he was
arrested. He did not know the name of the doctor. About 20-25
minutes after his arrival to the hospital, police came. He did not
request the doctor to treat him, he had not received any bullet.
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Later on, he says that he had received some pellet injuries and he
was bleeding.
48. It is important to note that in his examination-in-
chief, this witness has clearly stated that no one from his family
was present in the hospital and he did not request the doctor to
treat him. Then, the claim of PW-7, PW-9 and other witnesses that
they reached PHC, Madhepur after Ram Bihari was taken to
hospital stands falsified. The claim of PW-11 that he had received
pellet injuries and was bleeding is not believable for the reason
that in such condition he would have definitely requested the
doctor to treat him. Moreover, Exhibit ‘6/1’ proved by the doctor
(PW-12) does not reveal any pellet injury to PW-11. This witness
has not stated about the second occurrence. After 20-25 minutes of
his reaching to the PHC, in his presence police had arrived. It is
not the prosecution case that in presence of police the second
occurrence took place at PHC, Madhepur. PW-11 has been
convicted in the murder case of Rinku Yadav. His son Arjun Yadav
was convicted in the earlier case of attempt to murder of Rinku
and again in the murder case of Rinku.
49. In paragraph ’17’ of his deposition PW-11 has stated
that at the point where his motorcycle took a turn at a distance of
2-3 hand vehicle had fallen down and both of them got injured in
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that. He had seen the accused persons from ten lagga, he got
frightened, in the north side of that place there is a hatia and he
could have taken a turn to that side but he did not take a turn. In
paragraph ’31’ he has stated that on fall from the vehicle he had
got injuries in his knee (thahuna). It is important to note that
according to PW-11 two persons only had proceeded with Ram
Bihari in a vehicle. The accused persons had not chased them, they
were fleeing towards Bhagwanpur.
50. PW-11 has nowhere said that PW-1 and PW-4 were
present at the Rambag Chowk. This witness has then stated that
one person put Ram Bihari on the vehicle. Thus, it is found that
PW-1 and PW-4 were introduced as a chance witness in this case
being related to PW-7, in her FIR. Even PW-7 changed her version
in course of trial.
51. It is evident from the deposition of PW-11 that he is
withholding many material facts, his presence at the place of
occurrence at the time of occurrence and the manner of occurrence
become doubtful. He is a highly inimical witness. His conduct in
not seeking any treatment at PHC, Madhepur is quite unnatural.
He has suffered injuries due to fall from motorcycle. The defence
has suggested to this witness that when he was fleeing away with
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Ram Bihari on a motorcycle, he met with an accident in which he
had suffered injuries.
Evidence of PW-3, PW-5, PW-6 and PW-10 discussed
(close family members of the deceased) – Veracity of their
Testimonies – Not Reliable
52. Reshma Devi is mother-in-law of PW-7. According
to PW-3, she was present with her gotni Sunita Devi and daughter-
in-law Manju at Rambag Chowk. She claims herself an
eyewitness. She has narrated the occurrence and claimed that Ram
Chandra (PW-11) took Ram Bihari to hospital, from behind she
along with her gotni and daughter-in-law reached Madhepur. She
claims to have also seen the second occurrence. In paragraph ’12’
this witness has stated that on that day her husband had left with
Ram Bihari after taking breakfast. That day he had eaten rice but
she cannot say whether he had eaten within five minutes or half an
hour before leaving the house.
53. In her cross-examination in paragraph ’18’ she has
stated that when she reached Rambag Chowk there was a crowd of
about fifty persons, among them there was no one with arm. In
paragraph ’23’ and ’24’ she has stated that when she reached
hospital there was not a single person in the hospital. Ram
Chandra was not there. She had not seen that day any treatment.
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She had informed police the next day. On the other hand, PW-11
has stated that no one from his family was there in the hospital. He
has not stated that this witness was present at Rambag Chowk at
the time of occurrence. In the postmortem report the doctor has
recorded that stomach was containing digested food material
which could not have been possible if the deceased had left his
house that day with Ram Chandra after taking breakfast. The
occurrence took place immediately after leaving their house.
54. Anita Devi (PW-5) is the wife of the brother of Ram
Chandra Yadav. In her examination-in-chief, she has stated that on
the date of occurrence at 8:30 AM, she had gone to Rambag
Chowk for purchase of medicine for her natni. The medicine shop
was closed, then she was sitting at her verandah. In front of house
of Mukesh, about thirty persons were standing, she identified
sixteen persons. She has named some of the persons. She has
stated that Ram Chandra Yadav and Bihari Yadav were coming
from Birpur, they took a turn in the Madhepur Road. Sitaram and
Ghanshyam ordered to kill Bihari on which Sanjay Yadav
intercepted them from the front and fired which hit on the left
thigh of Bihari. Mukesh Yadav fired from pistol which hit on the
right temporal region. Ladoo @ Ashok fired from rifle which hit
on his neck. In paragraph ‘4’, she has stated that Ram Chandra
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Yadav was also assaulted by lathi and farsa. Ram Chandra Yadav
put Bihari on a vehicle and brought him to Madhepur Hospital
where saline water was being administered. Accused persons had
fled away. It is important to note that according to I.O. the place of
occurrence is at the Fatki Road whereas this witness has stated that
Ram Bihari and Ram Chandra had taken a turn in the Madhepur
Road. Both are in two different direction from Rambag Chowk.
55. In her examination-in-chief, this witness has not
stated that she had gone to PHC, Madhepur but in paragraph ‘6’ of
her statement, she has stated that Sanjay Yadav assaulted on head
by a hammer and fled away. In the cross-examination, this witness
has stated that her husband is brother of Ram Chandra Yadav and
Ram Bihari. She was suggested by the defence that her husband
was in jail after his conviction in a case. She was also suggested by
defence in paragraph ’21’ that at the time of taking the death
certificate, Ramdei Devi (PW-9) had given an application in which
she had written that Ram Bihari died in his house. This witness
denied this suggestion.
56. In paragraph ’23’ of her deposition, this witness has
stated that when she reached there, Bihari Yadav was in injured
condition. She again said that when she reached there, she did not
find anyone in injured condition. She has stated that when she
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reached there, she found rifle in the hand of four persons and gun
in the hand of one person, she had seen pistol in the hand of four
persons and threenut with one person, 3-4 persons were having
lathi, one was having farsa, one was having tengari and one was
having dabiya. In course of further cross-examination, this witness
has stated that when she reached hospital, no one from her family
was present there. No one from the family of Ram Chandra was
present. She has stated that prior to her reaching there, Ramdei
(PW-9) and Meera Devi (PW-6) were present and when she
reached, saline water was being administered. She has further
stated that she stayed for one hour in the hospital but she cannot
say that how many bottles were administered to Ram Bihari.
Within that one hour, no doctor had come to change the saline
water. Compounder was coming regularly. She did not disclose the
distance between Rambag Chowk and Madhepur hospital but she
has stated that she had come to Madhepur Hospital by a tempo.
57. Contrary to her statement, PW-9 has stated in
paragraph ’11’ of her deposition that Anita (PW-5) had a talk
regarding the occurrence with her daughter Meera (PW-6) in her
presence and at that time, sixteen persons were present there. PW-
9 has specifically stated that Anita Devi and some other persons of
the family were there. They had not gone to Rambag Chowk, she
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had gone to Madhepur Hospital with Meera, Reshma Devi, Anita
Devi and Manju Devi by a tempo. It is, thus, evident that when the
occurrence took place, these witnesses were in village Birpur
where they came to know about the occurrence and from there
they had proceeded to Madhepur Hospital by tempo. They are not
eyewitnesses of the occurrence which took place at Rambag
Chowk.
(underline is mine)
58. Regarding the second occurrence in PHC,
Madhepur, witness (PW-5) has not stated in her examination-in-
chief that she had gone to PHC, Madhepur and in her presence, the
second occurrence took place. In cross-examination though she
has tried to develop that story but it would not instill confidence.
These witnesses cannot be taken as a credible witnesses.
59. Mira Devi (PW-6) is the niece of Ram Chandra
Yadav (PW-11). She has stated that she heard about the first
occurrence from Anita Devi over phone but PW-9 has stated that
Anita came and informed. PW-6 was in her home in courtyard.
She claims to have gone to PHC, Madhepur with Ramdei Devi
where saline water was being administered to Ram Bihari Yadav.
She has stated that Manju Devi (PW-7), Anita Devi (PW-5), this
witness and Ramdei (PW-9) reached there. So, this witness has not
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taken name of Reshma (PW-3) and her presence at PHC,
Madhepur. PW-3 has stated that she reached PHC with her
dayadin and daughter-in-law (PW-7), not a single person was
there. According to PW-9, she had reached PHC on getting
information. She has not taken name of Mira Devi, Reshma Devi,
Anita Devi and Manju Devi and about their presence at Rambagh
Chowk at the time of occurrence.
60. In cross-examination, PW-6 has stated that at the
time of occurrence, she was in Birpur. She is daughter of PW-9.
Her father had solemnised second marriage about 3-4 years back.
In paragraph ’26’ of her evidence, she has stated that when she got
information about the occurrence it was 09:00 AM. She was in her
courtyard, at that time, Ramdei, Indrakala, this witness and her
step-mother were in the house. They left for Rambag Chowk by
foot. She claims that at Rambag Chowk, she had seen Ram
Chandra. This Court finds that Ram Chandra (PW-11) has stated
that after five minutes of the occurrence, he had gone to hospital,
therefore, the statement of this witness and that of PW-11 are at
variance and do not corroborate each other. She has stated that
Motorcycle by which Ram Bihari and Ram Chandra were going
belonged to her father Ram Bihari and the same was still there in
her house whereas PW-11 says that he was the owner of the
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motorcycle which his son had already sold out. She met police
next day at her house.
61. According to this witness, Sanjay Yadav had fled
away with the hammer with which he had assaulted. Contrary to
the statement of PW-6, her mother (PW-9) has stated that at the
time when Anita had a talk with Mira, she was present there. There
were sixteen persons present. After hearing this, she did not go to
Rambag. She went to hospital, she had gone with Mira. With her
Reshma, Anita and Manju Devi had gone by a Tempo. Thus, PW-9
does not support PW-6 that they had gone to Rambag Chowk.
Manju Devi (PW-7), Reshma (PW-5) and Ramdei Devi (PW-9)
together with this witness went to hospital by Tempo whereas this
witness (PW-6) said that they proceeded by foot to Rambag
Chowk. Thus, the mother (PW-9) and daughter (PW-6) are making
two different statements. Their presence at PHC Madhepur is not
stated by PW-11.
62. Aarti Kumari (PW-10) is an Aasha worker. She
claims her presence in PHC Madhepur from 07:00 AM. At 10:00
AM, she heard and found that Ram Bihari had come. He had
suffered firearm injury in the thigh. Saline water was being
administered. After half an hour accused persons came. On the
order of Ghanshyam and Sitaram, Sanjay assaulted Ram Bihari on
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his head by a hammer whereafter they started firing, then she left
that place. In her examination-in-chief, she has not stated about
presence of Ram Chandra Yadav in PHC, Madhepur. She has also
not stated about the presence of PW-3, PW-5, PW-6, PW-7, PW-8
and PW-9 till that time. The I.O. (PW-8) had reached Rambag
Chowk at 09:30 AM and had gone to PHC, Madhepur. He has
stated that when he reached there he did not find any family
member or relative of Ram Bihari Yadav at that place. I.O. has not
stated about any firing having taken place at PHC, Madhepur.
63. This witness (PW-10) is the daughter of Bhim Yadav.
Bhim Yadav was convicted in the attempt to murder case of Rinku
Yadav. The defence suggested her that her husband was accused in
the case of assault on Officer-in-Charge of Madhepur P.S. Case
No. 78 of 2004, she was also an accused in that case. Her husband
was also accused in Madhepur P.S. Case No. 146 of 2009, 74 of
2010, 37 of 2011 and 41 of 2012. Defence has exhibited the
certified copies of FIRs of several cases as Exhibits ‘C’, ‘D’, ‘G’,
‘I’, ‘K’ and ‘M’.
64. This witness (PW-10) could not prove any
registration number of the patient with whom she claimed to have
visited PHC for delivery. The name was not registered in the
Register and no paper was given by the doctor or nurse. The
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defence has been able to prove that this witness was not present in
PHC, Madhepur on 05.03.2014. She is an inimical witness.
65. The learned trial court has observed in its judgment
inter alia that there are some contradictions among the statements
of the witnesses but when the occurrence is of day light at a chowk
where the house of the prosecution is existing and also of the
accused, the witnesses PW-3, PW-5, PW-6, PW-7, PW-9 and PW-
10 being from the same family and their evidences being
corroborated by two independent witnesses PW-1 and PW-4 of
another adjacent village, the total prosecution case would not be
affected only on account of some minor contradictions. The trial
court has, therefore, rejected the plea of the defence that statement
of the witnesses are having vital contradictions on material facts.
We have, however, found that PW-3, 5, 6, 7, 9 and 10 who are all
female family members of Ram Bihari Yadav and Ram Chandra
Yadav were in village-Birpur at the time of occurrence. They were
not present at Rambagh Chowk. In fact they are not shown as
eyewitnesses in the written information given by PW-7. The
evidence of PW-9 proves that all of them had not gone to
Rambagh Chowk after hearing about the occurrence. We have
found that there are material contradictions in the evidence of
these witnesses.
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66. A question would arise in this case as to whether the
trial court is correct in taking PW-1 and PW-4 as independent
witnesses. Who will be independent witness has been considered
by the Hon’ble Supreme Court in the case of Dalip Singh vs.
State of Punjab reported in (1953) 2 SCC 36. Paragraph ’24’ of
the same is being reproduced hereunder for a ready reference:-
“24. A witness is normally to be considered independent
unless he or she springs from sources which are likely to be
tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there
is personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has a
grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalisation. Each case must be judged on its own facts.
Our observations are only made to combat what is so often
put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts.”
67. Evidences are available on the record that PW-1 and
PW-4 are cousin brothers and they are related to PW-7. They have
come as a chance witnesses, still they had not seen the entire
occurrence and the assertion of PW-7 in the FIR that after the
occurrence they had brought Ram Bihari to PHC, Madhepur has
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not been confirmed by PW-1 and PW-4 in their evidence. In fact,
in trial, PW-7 changed her statement and claimed that it was PW-
11 who had brought Ram Bihari to PHC, Madhepur. This is a
material deviation, and shows that PW-1 and PW-4 are not
eyewitness.
68. PW-7 is the wife of Arjun Yadav, who was earlier
convicted in the attempt to murder case of Rinku Yadav (deceased
of this case). Arjun is son of Ramchandra Yadav (PW-11). After
this case, at least two witnesses of the counter case have been
killed in which Arjun is charge-sheeted. Thus, the kind of enmity
between the parties is such that PW-1 and PW-4 cannot be said to
be independent witnesses in this case.
P.W.1 & P.W.4 as Chance Witnesses – their presence
is highly doubtful.
69. On a close reading of the First Information Report it
would appear that the informant has stated about three persons,
namely, Manohar Yadav (PW-4), Sanjay Yadav (PW-1) and Tej
Narayan Yadav (not examined) who came running to the place of
occurrence and saved the father-in-laws of the informant and took
them to the Primary Health Centre, Madhepur for treatment from
where they were referred for better treatment to DMCH.
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70. Sanjay Yadav (PW-1) has deposed in this case as an
eyewitness and the learned trial court has placed much reliance on
his deposition. In the FIR though the informant (PW-7) has stated
that this witness came running on hearing hulla, in course of trial
this witness Sanjay Yadav (PW-1) has claimed to have seen the
occurrence when he was present at Rambag Chowk. In his cross-
examination, this witness has stated that when he reached the
chauraha, two-four persons were present there but he did not
know the name of any one of them. He has stated that two-three
shops were open but he did not know the name of the paan,
medicine and ration shops. He has stated that he was going to
market by his motorcycle and Manohar Yadav (PW-4), who is his
co-sharer, was with him. He was taking paan at the paan shop. It
has come in evidence of PW-4 that Sanjay Yadav (PW-1) is his
cousin brother. PW-4 has stated that his co-brother (sadhu) is in
village Birpur. From the deposition of PW-1 it appears that nobody
had called him that day at Rambag Chowk, he claims to have
come on his own and in paragraph ’41’ of his deposition, he has
stated that he was returning from Madhepur. PW-4 who is said to
be accompanying PW-1 has stated that he had to go to Madhepur
to do purchasings for the marriage of his brother. It is evident that
while PW-1 claims that he was coming from Madhepur, his
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companion PW-4 has stated that he was going to Madhepur for
purchases. They are not consistent rather they have made
contradictory statements with regard to their reaching to the
Rambag Chowk on that day at the time of occurrence.
71. This Court further finds that while the informant
claims that PW-1 and PW-4 had taken her in-laws to the Primary
Health Center after saving them, neither PW-1 nor PW-4 says so.
In paragraph ’44’, PW-1 has stated that he was present at Chowk
for 15-10 minutes, he had left 10-15 minutes after 8:00 o’clock.
He has stated that after seeing the armed people, he got frightened
and had fled towards Madhepur. He had not shown the place of
occurrence to police. He has also stated that from there he had not
gone to the hospital, he did marketing and then went to his house
whereafter on 6th at 3:00 PM, he met police at Rambag Chowk. On
this point, PW-4 has stated that he was taking paan at about 8:30
AM at Rambag Chowk. He had to go to Madhepur to do
purchasings for his brother’s marriage. He has stated that from
Birpur side, Ram Bihari Yadav and Ram Chandra Yadav came, in
the meantime, Kailash Yadav and his people started abusing Ram
Chandra Yadav and 3-4 persons namely Tantu Yadav, Kailash
Yadav and Ghanshyam Yadav fired upon Bihari Yadav. In
paragraph ‘4’, he has stated that he heard that Bihari Yadav had
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been injured, he was taken to Madhepur Hospital, he heard that
there the accused persons assaulted him by hammers. Sanjay
Yadav and other 3-4 persons had assaulted him but he cannot say
so.
72. PW-4 has stated in course of his cross-examination
that the house of Ram Bihari Yadav is situated at the said
chauraha but he cannot say whether it is ten or twenty rooms. The
house of Ram Bihari and Ram Chandra Yadav is the same and one.
This Court finds that there is no evidence on record that Ram
Bihari and Ram Chandra were living in that house with their
family. Rather the evidence is that they were coming from Birpur
side. This witness has admitted that Tej Narayan Yadav of village
Birpur is his sadhu, his father’s name is Harishchandra Yadav. In
paragraph ’32’, he has stated that he had gone to Madhepur where
he had heard the talks on the road. He had heard the talks between
9-10 AM, he had done the marketing that day but in whose shops
he had done marketing and for how much money he had done the
marketing cannot be said. There was no kacha or pakka bill of the
purchases. He has stated in paragraph ’38’ that in Madhepur P.S.
Case No. 37 of 2011, the informant Bihari Mukhiya had lodged the
case against Ram Chandra Yadav, Ram Bihari Yadav, Ramashish
Yadav and against all the three brothers of his sadhu. He could not
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say that Sanjay Yadav and Kailash Yadav who are the witnesses of
the counter case were accused in the present case. This witness
was suggested by the defence that he is related to the accused
persons of this case, therefore at their instance he had deposed
falsely.
73. On a conjoint reading of the evidence of PW-1 and
PW-4, we are of the considered opinion that they are not
eyewitnesses to the occurrence. Their presence at the place of
occurrence is highly doubtful, they are related, chance and
inimical witnesses. It is highly improbable that for marketing
purposes they would leave their village in morning at 08:00 AM as
normally market is not opened at morning time. The informant has
claimed that PW-1 and PW-4 had taken the deceased and the
injured to the Primary Health Centre, Madhepur but these
witnesses have clearly stated that they had left Rambag Chowk
after taking paan, they had never stated about their visiting the
Primary Health Centre, Madhepur. PW-1 and PW-4 both did not
go to the police station or waited till arrival of the police at the
place of occurrence, their statement that they went to the market,
did the shopping and returned home cannot be said to be a natural
conduct of these witnesses. PW-4 has come out with statement that
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he heard about the second occurrence in Primary Health Centre,
Madhepur.
74. From the examination-in-chief of the I.O. (PW-8) it
is evident that the information with regard to the occurrence was
received in the police station after about an hour from 8:30 AM by
way of a rumour that two groups are engaged in exchange of firing
at Rambag. PW-8 heard rumours whereafter he reached the place
of occurrence but from his own statements it is evident that during
this period the injured Rinku Yadav and Ram Bihari Yadav both
had already been referred by the doctors to DMCH for better
treatment.
75. The prosecution has not proved that Ram Bihari
Yadav (the deceased of this case) was treated at PHC, Madhepur,
but the learned trial court has assumed that he was treated at PHC,
Madhepur. In this regard, the findings of the learned trial court is
based on the inquest report (not exhibited) prepared by
Rajkeshwar Singh, Sub-Inspector at Sadar Hospital, Madhubani.
The time at which the inquest report has been prepared is not
mentioned. Here it is important to note that if PHC, Madhepur
referred Ram Bihari to DMCH and he died on the way, then how
did the ambulance having Ram Bihari reached Sadar Hospital,
Madhubani, Emergency Ward. PW-8 was informed about death of
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Ram Bihari by Chowkidar Md. Hira Khan who has not been
examined. Rajkeshwar S.I. who prepared the inquest was sent by
I.O. after receipt of information only.
76. At this stage, it is important to note that in the
postmortem report (Exhibit ’11’), the doctor has mentioned that
the dead body was brought from the Emergency Ward, Sadar
Hospital, Madhubani and the name of Chowkidar as mentioned is
one Satyanarayan who has not been examined. The postmortem
was done at 4:00 PM. According to the I.O. (PW-8), Ram Bihari
was already referred to DMCH when he reached PHC, Madhepur.
It is evident that Ram Bihari was brought to Sadar Hospital,
Madhubani where he was taken to Emergency Ward. It is quite
possible that initially he was treated in Emergency Ward, but he
died and then his postmortem was performed at 4:00 PM. Neither
Rajkeshwar Singh, S.I. nor the Chowkidar Md. Hira Khan or
Chowkidar Satyanarayan have been examined in this case. The
Ambulance and driver of the Ambulance are also unidentified. To
this Court, it appears that examination of Rajkeshwar Singh, Sub-
Inspector would have unraveled many important facts and
circumstances but prosecution has not brought him in dock and
even Inquest report has not been exhibited. The I.O. has stated that
in paragraph ’11’ of the case diary.
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77. As per the trial court, the inquest report mentions
that there were bandage on the head and other parts of the body of
Ram Bihari but in absence of any evidence and because of non-
examination of Rajkeshwar S.I. and the Chowkidars, this Court
has no evidence to form an opinion that bandage on the body of
the deceased would prove that he was earlier treated in PHC,
Madhepur. Some vital aspects of the prosecution case remained
unraveled. In paragraph ’26’ of his deposition, the I.O. has stated
that he had not recorded statement of any of the staffs of PHC,
Madhepur. In paragraph ’27’, the I.O. has stated that he had not
tried to know that who was the doctor who treated Ram Bihari and
who referred him.
78. PW-8 has further stated in paragraph ’28’ that when
he reached PHC, Madhepur huge crowd was there, he inquired
about presence of any relative of Ram Bihari Yadav there but no
one was there. He recorded this in the case diary. He had not
recorded in the case diary about any information received from the
persons present there about any occurrence having taken place
with Ram Bihari in the hospital. He had not mentioned about
presence of blood at the second place of occurrence.
79. On a complete reading of the entire evidences on the
record, it appears that the prosecution is not able to prove that Ram
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Bihari Yadav had been treated at PHC, Madhepur and was referred
to DMCH. There is no evidence regarding the second occurrence.
PW-8 has contradicted the informant (PW-7) and other witnesses.
It is evident from the statements made from paragraph ’51’ to ’55’
of the deposition of the I.O. (PW-8), that the witnesses had not
stated about the manner of first occurrence in the same way as
stated in course of trial. They did not claim themselves eyewitness.
These witnesses had not stated about the second occurrence. This
Court finds no reliable piece of evidence as regards second
occurrence in the PHC, Madhepur. In fact, PW-7 had not stated
before the I.O. that Ram Chandra had taken Ram Bihari to
hospital. She had also not stated that she along with her mother-in-
law Reshma Devi (PW-3) and cousin mother-in-law Anita Devi
(PW-5) had gone to Madhepur Hospital. This Court, therefore,
finds that neither the informant nor other prosecution witnesses are
eyewitnesses of the occurrence.
80. PW-8 has stated that the dead body of Rinku Yadav
had been again brought to the PHC, Madhepur where he was
declared dead whereas the information with regard to the death of
injured Ram Bihari Yadav on way to DMCH was also received but
his inquest report was prepared by Rajkeshwar Singh (not
examined) at Sadar Hospital, Madhubani.
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81. PW-8 has given the description of the place of
occurrence in paragraph ‘8’ of his deposition. He has stated that
the place of occurrence is situated at Rambag Chowk. The two
groups had a quarrel and firing at this place. At the north-east
corner of the place of occurrence is the house of Ram Bihari Yadav
(the deceased), in this house there are shops facing western side
which were all closed. At the south-west corner of the place of
occurrence are the shops of Kailash Yadav and others. In front of
this house, there is a pakki road which is going towards village
Fatki. At this place in front of the shops at different places empty
cartridges were found. PW-8 has stated that from the chowk one
road goes towards Fatki and the second road goes from Banki
towards Bhagwanpur, therefore there is a chauraha at this place. It
has come in evidence that from chauraha one road goes to
Madhubani via Madhepur. PW-11 has stated that he had seen the
accused persons from ten laggas distance and he could have taken
a turn towards hatia. Therefore, this Court finds that the conduct of
PW-11 and the deceased in not taking a turn and save themselves
rather moving towards Fatki Road shows that they had gone to the
place of occurrence armed with weapon – killed Rinku Yadav (the
deceased of counter case). In the said occurrence while Ram
Bihari sustained serious injuries and succumbed later on to the
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injuries, PW-11 had fled away, met with an accident in which he
suffered simple injury on his ankle and knee only. He was arrested
from Madhepur Market.
82. PW-8 has stated that both the parties had fired from
their respective places as a result of which some empty cartridges
were lying towards western side from the chowk whereas some
empty cartridges and live cartridges were lying in the east side of
the chowk. We find that while the informant claims that her father-
in-laws had left their house at 8:30 AM by motorcycle and they
were assaulted and fired upon when they reached at Rambag
Chowk, the I.O. (PW-8) has given a completely different story as
according to him, both the sides have their houses in two different
sides of the roads and from the circumstances present at the place
of occurrence, the I.O. found that both the parties had fired from
their respective places thus the prosecution case with regard to the
place of occurrence and manner of occurrence are not getting
corroborated from the I.O. of the case.
83. We have found that the I.O. has stated in his
examination-in-chief that the Medical Officer in the Sadar
Hospital, Madhubani had in course of the postmortem of the dead
body of Ram Bihari Yadav found one cartridge from his
possession, he had handed it over to the Chowkidar and one live
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cartridge on the base of which ‘KF-12’ was written was safely kept
in the Malkhana. Recovery of cartridge from the deceased Ram
Bihari Yadav clearly shows his participation in the firing from his
side. It appears that the I.O. (PW-8) prepared a seizure list on
05.03.2014 at 15:45 Hrs. showing seizure of eleven 7.65 mm and
one frontal part of the pellet, one black colour pellet of which the
frontal part was scattered and one farsa without any handle. The
seizure list (Exhibit ‘3’) has been witnessed by Avinash Kumar
Aman and Ram Kumar Yadav but in course of trial they have not
been examined by the prosecution. The second seizure list has
been prepared by the I.O. on 05.03.2014 at 18:15 Hrs. in Primary
Health Centre, Madhepur from where recovery of one hammer
with handle and one Zen mobile of Model No. 4721 in damaged
condition have been shown. This seizure list (Exhibit ‘4’)
witnesses are the same as that of Exhibit ‘3’, however, they have
not been examined.
84. We have found that the seizure lists Exhibit ‘3’ and
Exhibit ‘4’ were prepared by PW-8 on 05.03.2014 itself. The
seized shells of fired cartridges and live cartridges, the farsa and
the hammer were, however, not produced in the trial court. The
seizure list witnesses have not been examined by the prosecution.
One live cartridge of 12 bore on the base of which KF-12 was
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inscribed was sent to the Sergeant for testing by order of the court
on the petition filed by the I.O. on 12.05.2014. The forwarding
letter of the Sergeant Major (Exhibit ‘5’) is on the record. On
12.05.2014 i.e. after more than two months of the seizure, the
cartridges, farsa and hammer were also ordered to be sent to the
FSL. The shells of fired cartridges and cartridges (khokha) and
pellets were marked Exhibit ‘B1’ to ‘B13’, one hammer fitted with
wooden handle on which blood mark were said to be present was
marked Exhibit ‘C’ and one farsa without handle said to have
blood mark was marked Exhibit ‘D’. The learned court permitted
the I.O. to send those articles to the FSL. The three sheets of FSL
reports have been marked Exhibit ’11’ vide order dated 07.05.2018
passed by the learned trial court under Sections 292, 293 and 294
CrPC. At this stage, the plea of the defence that these were not
public documents was rejected by the learned trial court. A perusal
of the same would show that blood has been detected in the exhibit
marked ‘C’ but it was too small for serological test. Blood could
not be detected in the exhibit marked ‘D’. The exhibit marked ‘A’
being a fired bullet of 7.65 mm caliber pistol cartridge was
examined, no lands and grooves were present on the surface of the
fired bullet marked ‘A’ but some scratch marks were present on the
surface of the fired bullet indicating that it had been fired from the
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country made firearm designed to fire 7.65 mm caliber pistol
cartridge. It is a part of ammunition. The Exhibit ‘B1’ to ‘B11’
were fired shells of 7.65 mm caliber pistol cartridge of I.O.F.
make. The fired shells marked ‘B1’ to ‘B11’ were also examined
and compared among each other. As a result of microscopic
examination and comparison, the shape of firing pin marks and
breech face marks present on the percussion caps of fired shells
marked ‘B1’ to ‘B11’ were irregular in shape and similar to each
other indicating that they have been fired from same countrymade
firearm designed to fire 7.65 mm caliber pistol cartridge. These are
part of ammunition. The exhibit marked ‘B12’ was a fired jacket
of .315/8 mm caliber rifle cartridge. The fired jacket was
examined, no lands and grooves were present on the surface of the
jacket but some scratches were present indicating that it had been
fired from countrymade firearm designed to fire .315/8 mm caliber
rifle cartridge. The exhibit marked ‘B13’ is a lead core of fired
bullet. The lead core was chemically examined, as a result of
chemical analysis nitrite could be detected indicating that it had
been fired. The weight and diameter of lead core corresponds to
weight and diameter of .315/8 mm caliber rifle cartridge. It is
evident from the FSL report that the firing was done at the place of
occurrence from 7.65 mm caliber pistol and .315/8 mm caliber
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rifle indicating that both the sides had indulged in exchange of
firing and they exchanged firing from their respective sides. PW-8
could not recover/seize any firearm weapon.
85. This Court finds that there is not a single
independent witness in this case. It is stated that there were several
shops at the Rambag Chowk and some of them were opened but
no one has deposed in this case. Rampuran Thakur who is said to
be an independent witness has not been examined. All the
prosecution witnesses are not only related, interested and inimical
witnesses, their testimonies are self-contradictory clearly
indicating that they are not eyewitnesses of the occurrence but at a
belated stage, they have come to depose in course of trial claiming
that they had seen the occurrence at both the places. On a careful
scrutiny and analysis of the evidences of these prosecution
witnesses, this Court is of the opinion that they do not inspire
confidence and it would not be safe to convict the appellants on
the basis of their testimonies.
86. Regarding the charge under Section 307 I.P.C., the
learned trial court has, upon analysis of the evidences on record,
held as under:-
“The charge was also framed under Sections 307/149, 341,
323 of I.P.C. in context to the victim Ram Chandra Yadav
but from the perusal of evidence, since there is no
sufficient injury on the person of Ram Chandra Yadav to
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whose injury and by whom offence of 323 and 341 of
I.P.C. was committed, the fire arm injury to Ram Bihari is
also uncertain by whom cause so the case under above said
Sections and under 27 of Arms Act also not proved.”
87. In this case, the defence has proved the certified
copy of the judgment rendered by the learned trial court in
Sessions Trial No. 335 of 2014 which is the counter case. The
learned trial court has held in paragraph ’20’ of the judgment as
under:-
“From the perusal of entire evidence of prosecution and
hearing the arguments advanced on behalf of both parties I
came to this conclusion that on 5-3-14 at about 9 A.M.
accused persons with intention to commit murder of Neeraj
Yadav alias Rinku formed unlawful assembly and at the
time of occurrence Arjun Yadav, Pappu Yadav were armed
with fire-arm, Ram Chandra Chandra Yadav, Bhim Yadav
were armed with farsa, Ram Ashish was armed with dabia
and Doma Yadav Shree Yadav were armed with axe
(Tengari) and Ram Bihari Yadav (who was murdered later
on) was also member of that assembly. Thus, the
prosecution keeping the accused persons namely, Arjun
Yadav, Ramashish Yadav, Ram chandra Yadav, Doma
Yadav, Pappu Yadav and Shree Lal Yadav beyond all
reasonable doubts had proved that all the accused persons
being members of an unlawful assembly having armed
with deadly weapon like Gun, Farsa, Dabiya and knife and
Axe in prosecution of common object to cause death
caused such type of injuries to the deceased which were
sufficient to cause death. So they have committed murder
of Niraj Kumar alias Rinku Yadav. So above named
accused persons have been found guilty for committing
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also found guilty for the offence u/s 27 Arms Act. All these
convicts are in judicial custody, so they are being sent back
to the jail. Put up the record on 7-8-2017 for hearing on the
point of sentence.”
88. On a complete analysis of the evidences available on
the record, we find that in this case, the learned trial court has
failed to appreciate the evidences available on the record. The
place of occurrence and the manner of occurrence as alleged by
the prosecution have not been duly proved by producing reliable
evidences. PW-1 and PW-4 who are related, inimical and chance
witnesses have been wrongly labelled as independent witnesses by
the learned trial court. Their presence at the place of occurrence
has not been duly proved. The informant (PW-7) is not an
eyewitness of the occurrence. She developed her case to become
an eye-witness only in course of trial. There is no proof of second
occurrence in PHC, Madhepur. The prosecution witnesses, namely,
PWs 3, 5, 6, 9 and 10 are highly inconsistent to the extent of
contradicting their own statements with regard to the place and
manner of occurrence as also their own presence at the place of
occurrence. Their depositions are not corroborated from the
evidence of the I.O. (PW-8) and the witnesses are not only related
and interested witnesses rather they are highly inimical. In the kind
of evidences brought on record, huge delay of 12 hours in
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submission of written information under signature of PW-7 would
only lead to take a view that the prosecution story was still in
embryo from morning 8:30 AM-9:30 AM till late in evening at
8:00 PM when the FIR was registered.
89. We are, therefore, of the opinion that the judgment
and order of the learned trial court are liable to be set aside.
90. We accordingly set aside the impugned judgment
and order giving benefit of doubt to the appellants.
91. It is made clear that the observations made by this
Court in this judgment shall not cause any prejudice to the pending
appeals, if any, of the convicts of the Sessions Trial No. 335 of
2014 arising out of Madhepur P.S. Case No. 34 of 2014.
92. The appellant Tantu Yadav in Cr. Appeal (DB) No.
147 of 2019 is in incarceration, he shall be released forthwith, if
not wanted in any other case.
93. The appellant Mukesh Yadav in Cr. Appeal (DB) No.
147 of 2019 is on bail. The appellants in Cr. Appeal (DB) No. 70
of 2019, Cr. Appeal (DB) No. 150 of 2019 and Cr. Appeal (DB)
No. 169 of 2019 are also on bail. They and their sureties are
discharged from the liability of the bail bonds.
94. All these appeals are allowed.
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95. Let a copy of the judgment along with the trial court
records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
SUSHMA2/-
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