BASUDEO YADAV Vs. SURENDRA YADAV

JUDGEMENT

(1.) -Challenge in this appeal is to the judgment of acquittal passed by a Division Bench of the Patna High Court. 14 persons faced trial for alleged commission of offences punishable under Section 364 read with Section 302 and Section 302 read with Section 149 of the Indian Penal Code, 1860 (for short 'IPC') and Section 201 and Section 148 IPC. During trial two accused persons died and two absconded. In other words, ten persons faced trial and each one of them was convicted and sentenced to various imprisonments. During pendency of the appeal before the High Court A1, A9 and A10 died and, therefore, the appeal filed by them was held to be abated.

(2.) Background facts in a nutshell are as follows : On 19.3.1986 at about 8.00 p.m., Vyasdeo Yadav (hereinafter referred to as the 'deceased') of village Sheo Nagar, P.S. Kotwali (Kasim Bazar) District Munger, went towards Sheo Nagar School to attend the call of nature with a water jug and when he reached near Sheo Nagar School, all of a sudden, all the accused persons together with Kashi Mahton, Ram Gulam Mehton (both died during the pendency of trial of the case), Nageshwar Mahton and Ram Balak Mahton (absconders) came there in a group from the northern direction and another group from the southern direction, being armed with deadly weapons like gun, rifle etc. and they forcibly took away and dragged Vyasdeo Yadav towards river bank. Such dragging was seen by Muneshwar Yadav (PW1) and Shyam Yadav (PW4) who were then returning home from their Parwal field and seeing such occurrence lest they be attacked, concealed themselves behind a ditch and therefrom they could identify all the accused persons including absconders and the deceased. Such dragging and taking away was also seen by another Mantu Yadav (PW3) who had also gone nearby for call of nature at a distance of about one rassi (equal to 110 cubes). He also became frightened and also concealed himself and after the deceased Vyasdeo Yadav was dragged towards river bank for considerable distance, then this Mantu Yadav (PW3) came out and on the Patna-Munger road, he found the informant Basudeo Yadav, the brother of the deceased Vyasdeo Yadav and gave information in detail. Then Basudeo Yadav in companion with Mantu Yadav (PW3) and Baleshwar Yadav (PW2) went towards the place where the deceased was dragged by the accused-appellants but they could not find any trace of the whereabouts of the deceased as to where he had been taken. Then Basudeo Yadav (PW6) accompanied by Mantu Yadav (PW3) and Baleshwar Pd. Yadav (PW-2) went to the residence of Superintendent of Police (Munger) on a rickshaw and there, on being directed by the Superintendent of Police concerned, (PW6) with his companions went to Muffasil P.S. and lodged information by giving fardbeyan which was recorded on that very night i.e. on 19.6.1993 at about 23 hours at the Muffasil P.S. It may be mentioned here that other two eye witnesses Muneshwar Yadav (PW1) and Shyam Yadav (PW4) after seeing the occurrence respectively went to their homes. Shyam Yadav (PW4) went to the house of Basudeo Yadav first and there he learnt that after knowing about this incident Basudeo Yadav had already left for police station. In the fardbeyan, a vivid description was given about the taking away of the deceased by the accused appellants including their other companions as mentioned above. On the basis of such fardbeyan (Ext. No.1) formal FIR was registered and then the same was sent to Kotwali P.S. for investigation as the place of occurrence wherefrom the deceased was dragged falling within the jurisdiction of Kotwali P.S. (Kasim Bazar). On the next day of the occurrence Dhirendera Yadav (P.W.5) found the dead body near Sita Charan and from there he brought the dead body by boat to Steamerghat and then information was given to the informant and police. From the Steamerghat the deadbody was brought home at Sheonagar and inquest was held over the dead body and then the same was sent for post mortem examination. Dr. Shashi Bhushan (PW7) held autopsy over the dead body of Vyasdeo Yadav and found the following injuries on his person :

(3.) The accused persons pleaded that they have been falsely implicated because of land dispute, though they did not deny the homicidal death of the deceased. It was defence version that he was murdered near Saheb Diara at Jafar Nagar while he was returning from the house of the relations between 4/5 p.m. on the day of occurrence. After concocting a story at the P.S. the FIR was lodged with the motivated purpose. One witness was examined who happened to be a Priest and according to him he had seen from a distance that the deceased and his relatives were surrounded by unknown persons with armed weapons and deceased was killed. P.Ws. 1, 3 and 4 were stated to be eye witnesses along with PW 6 who was the informant. The Trial Court accepted the prosecution version and convicted the persons.