GAYA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) A-1 Gaya Yadav s/o Raj Dev Yadav, A-2 Madheshwar Yadav s/o Rohan Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav s/o Ram Laxman Yadav, A-5 Bhagwat Yadav s/o Ram Kishan Yadav, A-6 Mukhiya Yadav s/o Shiv Nandan Yadav, A-7 Ramashish Kr. alias Karu Yadav s/o Shiv Pd. Yadav, A-8 Deo Prasad Yadav s/o Chandrika Yadav (since dead) were convicted for the offence under Ss. 302/34, 120-B, 147 and 148 of the Indian Penal Code and were sentenced to rigorous imprisonment for life under the first two counts. No separate sentences were awarded for the offences under Ss. 147 and 148, I.P.C. Being aggrieved, two appeals were preferred before the High Court. Criminal Appeal No. 213 of 1989 was preferred by five accused and Criminal Appeal No. 216 of 1989 was preferred by three accused. By a common judgment the High Court has dismissed their appeals and confirmed the conviction as recorded by the trial Court. Before this Court, Criminal Appeal No. 483 of 1996 is preferred by A-1 Gaya Yadav, A-5 Bhagwat Yadav and A-6 Mukhiya Yadav. Criminal Appeal No. 484 of 1996 is preferred by A-2 Madheshwar Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav, A-7 Ramashish Kr. alias Karu Yadav and A-8 Deo Prasad Yadav. During the pendency of the appeal before this Court, A-8 Deo Prasad Yadav, expired and his appeal stands abated.

(2.) Shorn of unnecessary details, the prosecution story, briefly stated is that ferd-beyan (Ext. 2) was lodged by Lallan Bharti (P.W. 3) that on 15-3-1987 at about 7.30 p.m. the deceased-Jagannath Singh, who was the Mukhiya of Mau Gram Panchayat, was meeting people in Mau Bazar, where the informant was also present and talking to him. The accused-Gaya Yadav who belongs to the neighbouring village Kurkut Bigha came there and requested the deceased for supper for the night in his village on the occasion of "Holika Dehan." The deceased was reluctant to accept the invitation on the ground that he has to meet several people and it would become late. At this time, the accused-Karu Yadav, who is also of the village Kurkut Bigha arrived there and both the accused namely Gaya Yadav and Karu Yadav, insisted upon Mukhiya for the supper and assured him that he would be allowed to return soon and there would be no delay. The deceased succumbed to the request of the accused and decided to go and P.W. 3 the informant also accompanied him. It is stated that it was a moonlit night. The deceased-Mukhiya, P.W. 3 Lallan Bharti and accused-Gaya Yadav and Karu Yadav started for village Kurkut Bigha. As they came out of Mau village, P.W. 3 saw 9-10 persons coming from the opposite direction. P.W. 3 thought that these persons might be going somewhere on the occasion of "Holika Dahan." Soon those persons came closer to them and the accused-Gaya Yadav and Karu Yadav gave a push to the deceased-Mukhiya and thereafter all other accused persons surrounded him. Out of them he could recognise Bhagat Yadav, Mukhiya Yadav, Madeshwar Yadav, Rahish Yadav, Deo Prasad Yadav and Khalitra Yadav. Having seen the accused surrounding the deceased the informant retreated about 10-15 steps backward and thought that the accused persons would leave the deceased-Mukhiya but instead accused-Khalitra Yadav and Rahish Yadav caught hold of Mukhiya and accused-Gaya Yadav and Bhagat Yadav fired at him from country made pistol. Thereupon, Mukhiya fell down. Thereafter, the accused-Mukhiya Yadav who was armed with pausli bent over Mukhiya as if he was cutting the neck of Mukhiya. Simultaneously, all of them were uttering that Mukhiya should not survive. Being frightened the informant fled away from the scene. While fleeing he also saw 2-3 persons in the neighbouring fields. He came back to Mau village and narrated the story about the occurrence. He further mentioned in ferd-beyan that while the accused-Gaya Yadav and Karu Yadav were inviting Mukhiya for supper in the village Kurkut Bigha some persons of villages Sukata and Mau were also present. The ferd-beyan was recorded at 11.30 p.m. on the same night.

(3.) P.W. 3 Lallan Bharti is the sole eye-witness. Nothing has been brought to our notice that the witness is related to the deceased. There is also no material, which would disclose the animosity between the witness and the accused. A suggestion was put to this witness that he is distantly related to the deceased to which he flatly denied. On the other hand, evidence disclosed that this witness was close to the deceased-Mukhiya, would suggest that at the time of incident this witness was with the deceased-Mukhiya would be quite natural and plausible, which would fortify his statement that he was with Mukhiya at the time of incident. Undisputedly, this witness is an independent witness. Similarly, being close to the deceased, the witness in the ordinary circumstances would not depose falsely against the accused and allow the real assailants being escaped unpunished. He has consistently deposed during the trial what has been stated by him in the ferd-beyan. At the risk of repetition we may recapitulate the sum and substance of what this witness has stated during the trial. In the evening of 15-3-1987 when the deceased-Mukhiya was meeting people in Mau bazar on the eve of "Holika Dahan" the witness was also with him. First the accused-Gaya Yadav requested the deceased to have supper in Kurkut Bigha on the occasion of "Holika Dahan" followed by the accused-Karu Yadav which was reluctantly accepted by the deceased. The deceased along with the informant accompanied by two accused then started for village Kurkut Bigha to take supper. It was bright full moonlit night. When they came out of Mau village the witness saw 9-10 persons coming towards them at about 7.45 p.m. and when they were near the Kahua tree accused-Gaya Yadav and Karu Yadav pushed the deceased down and then all the accused surrounded the deceased. The informant went back 4 or 6 steps from where he saw that Rahish Yadav and Khalitra Yadav were catching hold the two arms of the deceased and the accused-Gaya Yadav and Bhagwat Yadav each fired a shot from the pistol at the deceased who fell down. Thereafter, the accused-Makhiya Yadav began to cut the neck of Mukhiya by pausli. Being frightened, the informant fled away from the spot and came to the darwaja of the deceased and narrated about the occurrence, when among others Jaiprakash Narayan Lal Singh (P.W. 9) also reached there. He further stated that he wanted to go to the police station but people told him that the officer-in-charge had gone to Agar village for Holi duty. This witness, further, stated that Mukhiyajee was a nice man of the area and the witness supported him in every election. He further stated that the firing was done from a distance of about 1 1/2 yards. Accused-Gaya Yadav fired from the West and Bhagwat fired from South-West and the deceased was facing towards the West.