DEATH REFERANC No.16 OF 2007
---
Against the judgment and order dated 5.12.2007 and 6.12.2007
passed in Sessions Trial No9.593 of 2006/ Trial No.238
of 2007 by Addl. Sessions Judge (Fast Track Court No.V), Banka.
State of Bihar ——————(Appellant)
Versus
1. Dhaneshwar Yadav
2. Naresh Yadav
3. Suresh Yadav all sons of Moti Yadav, resident of Village Goura
P.S.Chandan (Anandpur) District Banka ————–(Respondents)
CR. APP (DB) No.1502 oF 2007
UMESH YADAV @ UMESH RAI son of Late Garvu Yadav, resident
of Village Goura Maghidih P.S.Anandpur (Chandan) District Banka-
(Appellant)
Versus
THE STATE OF BIHAR———————————————-
(Respondents)
CR. APP (DB) No.7 oF 2008
ASHOK YADAV son of Dipan Yadav,resident of illage Sahiya, P.S.
Jhajha, District Jamui——————————————-(Appellant)
Versus
THE STATE OF BIHAR—————————-
(Respondents)
CR. APP (DB) No.10 oF 2008
DHANESHWAR YADAV & ORS——————————-
(Appellant)
Versus
STATE OF BIHAR——————————— -(Respondents)
————-
For the Appellants:- Mrs. Anjana Prakash, Sr.Advocate
Mr. Sanjay Kumar Jha,Advocate.
Mr. Satyaveer,Advocate
Mr. Bharat Lal, Advocate
Mr. Anil Kumar No.VI,Advocate.
For the State:- Mr. Lala Kailash Bihari Prasad,Sr.Advocate
PRESENT
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM
-2-
Mridula Mishra,J The Death Reference Case no.16 of 2007 has been referred for
confirmation of death sentence imposed by the trial court in S.T.No.593 of
2006/ T.R.No.238 of 2007. Cr.Appeal No.1502 of 2007, Cr.Appeal No.7 of
2008 and Cr.Appeal No.10 of 2008 have been filed against the judgment and
order passed by Additional Sessions Judge, Fast Track Court No.V, Banka in
Sessions Trial No. 593 of 2006/ Trial No.238 of 2007. By the judgment and
order dated 5.12.2007 and 6.12.2007 the appellants Dhaneshwar Yadav,
Naresh Yadav, Suresh Yadav, Umesh Yadav alias Umesh Rai and Ashok
Yadav have been convicted under Sections 302/149, 353 and 120B of the
Indian Penal Code. They all have been awarded death sentence, for their
conviction under Section 302/149 of the Indian Penale, for conviction under
Section 353 and 120B of the Indian Penal Code no separate sentence have
been awarded.
2.The prosecution case as disclosed from the fard beyan of
Homeguard No.10707 Uday Kant Jha, driver of police jeep No. BR 10A-
9453 of Anandpur Police station, and informant of Chandan (Anandpur)
P.S.Case no.82 of 2005 is that he along with Bhagwan Singh, the Officer-in-
charge of Anandpur O.P., constable Braj Bhushan Prasad, constable
Nityanand Kumar and other police constables and Chaukidar had gone to the
place of occurrence in Village Gaura where a fair was held on the occasion of
Kali Puza. The Officer-incharge of Anandpur O.P. had received information
that 2-4 days earlier an incident had taken place in between Umesh Rai and
his rival at village Gaura in which a bomb was exploded. At about 3 P.M.
the informant and other persons came at Village Gaura, took tea and
-3-
refreshment in the Mill of Umesh Rai. On account of Mela there was huge
crowd. During patrolling in Mela on 3.11.2005 at about 5 P.M. a group of 30-
40 terrorist started making scuffle with the constables and also opened fire
from their rifles. The Officer-in-charge also opened fire but prior to that one
of the terrorist fired upon the Officer-incharge and receiving injury he fell
down. Thereafter continuous firing was made from the terrorist side. The
informant and Chaukidars who were unarmed started fleeing away from the
place of occurrence. Terrorists took away the rifle and pistol of Officer-in-
charge. During firing constable Braj Bhushan Prasad and constable Nityanand
Kumar also received injury. The Officer-in-charge as well as the constable
succumb to their injuries. The informant came at Chandan Anandpur O.P. and
there his fard beyan was recorded under Sections 147, 148, 149, 323, 307,
379 and 302 of the Indian Penal Code, under Section ¾ of Explosive
Substance Act and 17 of Criminal Law Amendment Act (hereinafter referred
to as the C.L.A. Act) against unknown.
3. Name of appellants were impleaded as accused on suspicion
and after investigation charge sheet was submitted against them. They were
put on trial, charges were framed against them under Sections 302 /149.
307/149, 147, 148, 323, 120B, 353/149, 379/149 of the Indian Penal Code as
well as Section 27 of the Arms Act and 17 of C.L.A.Act.
4. The defence of the accused persons was of innocence and false
implication.
5. The prosecution in order to prove the charges examined
altogether 17 witnesses. P.W.1 Kamdeo Das was examined as seizure list
witness and declared hostile as he did not admit that seizure was made in his
-4-
presence and he put his signature on that.. P.W.2 Khublal Thakur is the
owner of betal shop who used to run a betal shop in the Mela. His statement
was also recorded under Section 164 Cr.P.C. but in court he did not support
the prosecution case and was declared hostile. The deposition of P.W.2 is that
at the time of occurrence the appellant Umesh Yadav was sitting at his betal
shop. So far Dhanesh yadav and Ashok Yadav are concerned their names
have not been disclosed by this witness in his deposition. P.W.2 has not
stated anything beyond presence of the appellant Umesh at his betal shop
prior to the occurrence. The evidence of P.W.2 is that he had not seen who
fired. P.W.3 Rajesh Kumar has been declared hostile as he has not supported
the case of prosecution. In his deposition he has stated that his statement was
not recorded by the Investigating Officer. P.W.4 Madan Gopal Singh has
proved his signature on the inquest report of two deceased persons marked as
Ext.2/A and 2/B. He is a formal witness. P.W.5 Birendra Kumar is A.S.I. of
police. He prepared the seizure list which has been marked as Ext.3 and 6. He
seized blood stained trouser of appellant Dhaneshwar Rai and Braj Bhushan
which has been marked as Exdt.3 and 6. He is also a inquest report witness.
P.W.6 Surendra Yadav is Chaukidar.His statement was recorded under
Section 164 Cr.P.C. but in court he has supported only one part of his
statement under Section 164 Cr.P.C. He has not supported the case of
prosecution as such partly he has been declared hostile. P.W.7 Janki Yadav is
also a Chaukidar. He has been named as eye witness in the F.I.R. His
statement was also recorded under Section 164 Cr.P.C. but he did not support
the case of prosecution as such he was declared hostile. P.W.8 Suresh
Paswan is another Chaukidar. He is a seizure list witness but he has not
-5-
proved his signature on the seizure list Ext.7 and 8 as such declared hostile.
P.W.9 Upendra Singh is the inquest report witness and has proved the inquest
report of all three deceased. P.W.10 Uday Kant Jha is the informant who is
driver of Commander Jeep no.B20Am9453. P.W.10 in his evidence he has
not claimed to have identified any of the accused. His evidence is that when
he saw that the Officer-in-charge has received fire arm injury and fell down
on the ground. P.W.6 Surendra Yadav asked him to flee away from the place
of occurrence as such he left the place of occurrence and came at O.P. and
thereafter remained there. In paragraph 7 of his statement he has stated that he
did not identify any of the accused. In court this P.W.10 did not identify the
accused persons in dock. He said that non of them are assailant, rather they
are villagers. P.W.10 has also stated that no T.I.Parade was held though the
F.I.R. was against unknown. In sum and substance evidence of p.W.10 is that
he did not identify any of the accused at the time of occurrence as well as in
the dock. P.W.11 Shiv Narayan Paswan is the villager who was also present
in the Mela at the time of occurrence. Since he did not support the case of
prosecution he was declared hostile. P.W.12 Sharda Nand Suman is the
Investigating Officer who had recorded the fard beyan of P.W.10. He after
recording the fard beyan of the informant made some seizure and prepared
seizure list on the next day. He came at the place of occurrence after receiving
wireless message that three police personnels have been killed when he
reached village Gaura, i.e. place of occurrence, he did not find any injured or
deceased at Place of occurrence. From the evidence of this witness P.W.12 it
transpires that the investigation of the case was done in a most casual and
half hearted manner. P.W.13 Dr. Binay Kumar was posted as Medical Officer
-6-
in Sadar Hospital, Godda at the time of occurrence. He conducted post-
mortem on the dead body of all three deceased persons and submitted post-
mortem report. P.W.14 Bipin Bihari Rai is the second Investigating Officer of
the case. He had seized blood stained trouser of Dharmesh Rai and prepared
seizure list. Evidence of P.W.14 is that the persons who were apprehended
they have accepted that at the time of occurrence they had gone to see the
Mela. Regarding blood staines found on the trouser explanation of Dhanesh
Rai was that when police personnels received injury he was present and it
stuck on the trouser. This witness who is second I.O. has not deposed that
any one during investigation disclosed before him name of persons who
fired on the deceased. In paragraph 23 of his evidence he has specifically
stated that no one disclosed the name of appellants as assailants. Against
appellant Umesh Yadav no direct evidence was to connect him as assailant.
P.W.15 Brajesh Narain Mishra is the Judicial Magistrate, who had recorded
statement of Khublal Thakur P.W.2 under Section 164 Cr.P.C. Ext.21. This
witness was not asked by the prosecutor regarding the statement made by
P.W.2 under Section 164 Cr.P.C. Simply he was asked whether the statement
of P.W.2 was voluntary or involuntary. P.W.16 Kanchan Sharma is an
advocate clerk who had proved the statement of P.W.6 and 7 recorded under
Section 164 Cr.,P.C. (Ext.22 and 23). He has admitted that he has no personal
knowledge regarding the statement of P.W.5 and 7 recorded under Section
164 Cr.P.C. P.W.17 Gopal Pandit is the constable who also had received
injury on the date of occurrence. Even this injured witness, who is a police
personnel did not support the case of the prosecution and was declared
hostile. One defence witness was also examined as D.W.1 namely Shiv
-7-
Narayan Yadav who proved the F.I.R. of Chandan P.S.Case no.37 of 1999.
6. Counsel appearing for the appellant has submitted that this is a
strange case in which three police personnel were killed and most of the
witnesses are police personnel. They are named as eye witness in the F.I.R.
itself but non of them have supported the case of prosecution. So far the
appellants are concerned, they are not named in the F.I.R. as accused. On
suspicion they were arrested during investigation but were not put on T.I.P..
For the first time in the court they were produced before the witnesses, but
the prosecution witnesses did not identify them as assailant. Prosecution
witnesses have identified them as villagers who were present in the Mela on
the date of occurrence. There is nothing in their evidence to prove
participation of these appellants in the occurrence. There is nothing to show
that they were present in the Mela on the date of occurrence with an intention
to commit the offence. No evidence has been brought by the prosecution in
support of this fact that the appellants who were present at the betal shop or in
the Mela had any knowledge that any such occurrence is going to take place
on that date. Submission of the appellants’ counsel is that this is a case of no
evidence but strangely the judge of the trial court has convicted the appellants
under Sections 302/149, 353 and 120B of the Indian Penal Code and awarded
severest punishment of death.
7. Mrs. Anjana Prakas counsel for the appellants has drawn my
attention towards the reason assigned by the Judge of the trial court for
awarding severest punishment to the appellants. In paragraph 19 of the
judgment the finding which has been recorded by the Additional Sessions
Judge (Fast Track Court No.V) Banka are as follows:-
-8-
” For a moment time was stopped and breathing of people was
also stopped for a few minutes after hearing the news regarding death of
police personnel who were on duty for maintaining law and order to that
Mela. In any attack of Naxal, there was chilling familiarity in the modus
operandi of the operation. It is clear from perusal of case record that there is
no direct evidence against accused persons but the prosecution case speak
everything through the circumstances. Life of anyone is not safe now-a days
by criminals, extremists, terrorists, religious places. Indian Parliament and
court premises are also on their aim, the recent serial blast in Varanasi,
Lucknow and Faizabad indicate that that court and officers who are working
in court are not safe. Train serial blast is still in memory in which so many
people lost their life and the impact of explosion in Varanasi and Faizabad
that in roofs and asbestos sheets of the six lawyers make shift chambers were
blown off. Window panes of the court building were shattered. Chaos and
confusion prevailed as litigants and lawyers run helter skelter seeking cover.
Seven Motorcycle park round the blast side in Varanasi were also destroyed.
Meaning thereby in such a situation where Sub-inspector and his arms
constable were killed by terrorists then the common people cannot dare to
speak anything against terrorist and this is the reason behind any cr9minal
case in which witnesses turn into hostile and accused persons acquitted in the
absence of evidence. Terrorist action has created a panic in the society, in the
present decade and it has not only disturbed the public peace and tranquility
but also normal avocation of life. Though winds of compassion for the
criminal blowing the world-over, are affecting the law, logc, the court and the
legislature alike. Having regard to the circumstances of the case nature of
-9-
offence and potential danger for the activities of the terrorist, in this nefarious
trade affecting the moral of society. For terrorist act punishment has to be
deterrent, so that similar minded may warn themselves of the hazard of
journey on this path.”
8. Counsel for the appellants has submitted that the conviction of
any accused can be on consideration of legal evidence on record as provided
under Section 3 of Evidence Act. Here in the present case there is no legal
evidence which has duly been admitted even by the trial judge, inspite of that
considering the news paper report and some happening in other part of the
country as well as in order to give general message to the people of the
country these appellants have been convicted and awarded death sentence.
9. Mr. Lala Kailash Bihari Prasad counsel appearing for the State
has admitted that there is no direct evidence against the accused appellants
but he has made submission that there is supportive evidence of P.W.15
Judicial Magistrate who had recorded statement of some of the witnesses. In
support of his submission he has referred the evidence of P.W.7 and P.W.15.
On careful consideration of the evidence of P.W.15 I find that he has not
proved the 164 Cr.P.C. statement of P.W.7, rather he has proved the statement
of P.W.2. P.W.15 has simply stated that he recorded the evidence of P.W.2
but what was the statement recorded or whether P.W.2 has contradicted his
statement recorded under Section 164 Cr.P.C. there is no cross examination
on this point.In the evidence of P.W.15 I do not find that there is any cross
examination on this point. P.W.2 in his evidence has stated in specific terms
that he had simply disclosed the names of the appellants other than Ashok
yadav who was sitting at betal shop.. His statement was that appellants who
– 10 –
were sitting at his betal shop, left the place after some time and went into the
Mela. Two hours thereafter. occurrence took place. Though the statement
recorded under Section 164 Cr.P.C. legally should not have been perused
even then statement of P.W.2 recorded under Section 164 Cr.P.C. was
perused and it was found that P.W.2 had only made this much of statement
before the Magistrate. He had not disclosed names of any assailant, neither
he stated that the appellants are the assailant. There is no evidence on record
to show that appellants were member of unlawful assembly and as such they
could have been convicted under Section 302/149 as there is no direct
evidence to show that appellants are the assailant. No evidence has been
brought by the prosecution to show that these appellants had any knowledge
regarding the offence going to be committed by unknown accused.
Prosecution has not brought any evidence to indicate that presence of
appellants in Mela was to commit the offence. In this circumstance, there
cannot be presumption to hold that the appellants were members of unlawful
assembly and could be convicted under Section 302/149 of the Indian Penal
Code.
10. On consideration of the entire evidence on record I really feel
sorry in the way the trial has been conducted. The deceased were police
personnel even in such case non of the witness who are police personnels
have supported the case of prosecution. All of them have been declared
hostile. The trial court over looking all these aspects have convicted the
appellants on presumption and conjectures. Reason which has been assigned
for imposing death sentence to appellants is strange. This by any stretch of
imagination cannot be considered in accordance with law. The principle
– 11 –
which has been laid down by the Apex Court in a case of Bachcha Singh Vrs
The State of Punjab, non of those principles I find applicable in the present
case specially when there is no direct or indirect evidence connecting the
appellants with the offence. It is a case in which there would have been no
conviction, what to say awarding punishment like death sentence.
11. In the last I feel tempted to say that Additional Judge while
passing the impugned judgment has crossed all norms while convicting the
appellants, there being no legal evidence on record. The temptation of
publicity may be one of the reasons while passing the judgment of conviction
and imposing death sentence. Such temptations must be resisted by the
Judicial Officers. They are bound to deliver judgments, and award
punishment in accordance with law.
12. Accordingly the death sentence imposed by the trial court is
not affirmed and Death Reference No.16 of 2007 is negative. Criminal
Appeal No. 1502 of 2007, Cr.Appeal No.7 of 2008 and Cr.Appeal No.10 of
2008 are allowed. The conviction and sentence passed against the appellants
are set aside. All the appellants are in jail, they are directed to be released
forthwith, if not required in any other case.
(Mridula Mishra, J)
I agree
(Syed Md. Mahfooz Alam, J)
Patna High Court
The 18thday of Nov.2008
N.A.F.R./sss