CRIMINAL APPEAL (DB) No.138 OF 1988
WITH
CRIMINAL APPEAL (DB) NO.178 OF 1988
WITH
CRIMINAL APPEAL (DB) NO.182 OF 1988
WITH
CRIMINAL APPEAL (DB) NO.183 OF 1988
WITH
CRIMINAL APPEAL (DB) NO.184 OF 1988
WITH
CRIMINAL APPEAL (DB) NO.186 OF 1988
*****
Against the judgment and order of conviction
dated 22.2.1988, passed by Sri Om Prakash Sinha, 2nd
Additional Sessions Judge, Nalanda at Biharsharif in
Sessions Trial No.258 of 1986/ 10 of 1987.
*****
KRISHNA MURARI MAHTON @ KRISHNA MURARI PRASAD:.. Appellant
(in Cr. Appeal (DB) No.138 of 1988)
ARUN MAHTON @ ARUN KUMAR: …. …… Appellant
(in Cr. Appeal (DB) No.178 of 1988)
SHAILENDRA MAHTO @ SHAILENDRA PRASAD: ….. Appellant
(in Cr. Appeal (DB) No.182 of 1988)
BAHADUR MAHTO @ INDERJIT @ INDERJIT SINGH: … Appellant
(in Cr. Appeal (DB) No.183 of 1988)
KAUSHLENDRA PRASAD @ KAUSHAL MAHTON: ….. Appellant
(in Cr. Appeal (DB) No.184 of 1988)
SURENDRA PRASAD @ SULI MAHTON: ….. Appellant
(in Cr. Appeal (DB) No.186 of 1988)
Versus
THE STATE OF BIHAR: ….. ….. …. Respondents
(in all appeals)
*****
For the Appellants: Mr. Rana Pratap Singh,
(in Cr.App.(DB) No.138/88) Senior Advocate with
Mr. Bal Mukund Prasad Sinha
Advocate
For the Appellants: Mr. Surendra Singh,
(in Cr.App.(DB)No.178/88) Senior Advocate with
Mr. Hemant Kumar Jha,
Advocate.
For the Appellant: Mr. Chitranjan Sinha
(in Cr. App.(DB) No.182/88) Senior Advocate with
Mr. Binoy Kumar, Advocate.
2
For the Appellant: Mr. Rana Pratap Singh,
(in Cr.App.(DB)No.183/88) Senior Advocate with
Mr. Anjani Kumar
Advocate.
For the Appellant: Mr. Anjani Kumar
(in Cr. App.(DB) No.184/88) Advocate.
For the Appellant: Mr. Manu Shankar Mishra,
(in Cr.App.(DB)No.186/88) Advocate.
*****
For the State : Mr. Lala Kailash Bihari Prasad
(in all cases) Public Prosecutor.
P R E S E N T
THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM
*****
S K Katriar, J. The six appellants have preferred the six
appeals arising out of a common judgment dated
22.2.1988, passed by the learned 2nd Additional
Sessions Judge, Nalanda at Biharsharif, in Sessions
Trial No.258 of 1986/10 of 1987 (The State of Bihar
Vs. Shailendra Mahton and five others), whereby Arun
Mahto alias Arun Kumar has been convicted under
section 302 of the Indian Penal Code. The remaining
appellants, namely, Krishna Murari Mahton alias
Krishna Murari Prasad, Shailendra Mahton alias
Shailendra Prasad, Bahadur Mahto alias Interjit alias
Inderjit Singh, Kaushlendra Prasad alias Kaushal
Mahton, and Surendra Prasad alias Suli Mahton have
3
been convicted under section 302 read with section 34
of the IPC. All the six appellants have been
sentenced to undergo rigorous imprisonment for life.
2. The prosecution case is that on 7.3.1986,
at 10.45 A.M., the informant Budhram Prasad (P.W.6),
along with deceased Vijay Yadav got into a Rajya
Transport bus bearing no.BHY 1355, at village
Nakatpura to go to village Poj. When the bus reached
village Muhammadpur, the accused persons came on two
motor-cycles from the west and stopped their motor-
cycles in front of the bus. They threatened the
driver that he would be done to death if he drove the
bus ahead. Accused Arun Mahton, Shailendra Mahton,
and Bahadur Mahton had arrived on one motor-cycle,
and Kaushal Mahton, Surendra Prasad alias Suli, and
one more accused whose name he did not remember at
that time had approached on another motor-cycle.
Accused Arun Mahton, Shailendra Mahton and Kaushal
Mahto were armed with rifles. Accused Bahadur Mahton
and one other accused whose name was not known to the
informant were wielding guns. Accused Surendra Prasad
alias Suli was armed with a country-made pistol in
his hand. All the accused persons got down from the
motor-cycles and surrounded the bus. In the meantime,
five to six persons emerged from the medicine shop of
Dr. Ramnandan Prasad and came near the bus. Some of
4
them were armed with pistols. They asked the
passengers of that bus to get down. The accused
persons did not allow Vijay Yadav to get down from
the bus. The informant got down from the bus out of
fear. When all the passengers of the bus got down and
only Vijay Yadav was left in it, accused Arun Mahton
fired the first shot from his rifle on Vijay Yadav.
After him accused Shailendra Mahton, Kaushal Mahton,
Bahadur Mahton and Surendra Mahton also fired from
the fire-arms they were wielding, at Vijay Yadav due
to which he died in the bus itself. Thereafter all
the accused persons left the place on their motor-
cycles. While the accused persons were fleeing away,
one motor-cycle fell on the ground and the accused
persons fled away towards Sherpur, leaving behind the
motor-cycle. Many residents of Nakatpura including
Lakhana Yadav, Baudhu Yadav, Misar Yadav and others
were present there and had witnessed the occurrence.
It has been alleged that murder of one Sudhir Mahton
a few years ago was the motive for the occurrence. It
was suspected that the deceased had his hand in the
murder of Sudhir Mahton leading to the retaliation in
the murder of Vijay Yadav. The Fardbeyan (Ext.2) of
P.W.6 was recorded by J.K. Sharma, S.I. of Police of
Asthawan P.S., on 7.3.1986, at 12.00 P.M, at village
5
Muhammadpur on the basis of which formal F.I.R.
(Ext.3) was drawn.
3. Investigation commenced. After completion
of investigation charge-sheet was submitted,
cognizance of the alleged offences was taken and the
case was committed to the court of sessions. Charge
against Arun Mahton was framed under section 302 of
the IPC as well as section 27 of the Arms Act.
Charges were framed against the remaining accused
persons under section 302 read with section 34 of the
IPC. Charges were framed and explained to the accused
persons. They pleaded not guilty and claimed to be
tried. The defence of the accused persons was that
they have been falsely implicated in this case due to
enmity.
4. The prosecution examined nine witnesses
in support of its case. P.W.1 (Rajendra Gope), P.W.2
(Raghubir Yadav), P.W.3 (Ram Lakhan Yadav), P.W.4
(Suresh Prasad), P.W.5 (Baudhu Gope), P.W.6 (Budhram
Prasad), and P.W.7 (Rajo Yadav), are eye witnesses.
P.W.8 is Sub-Inspector of Police who had investigated
the case and submitted charge-sheet. P.W.9 is the
Deputy Superintendent of Sadar Hospital, Biharsharif,
who had conducted the post-mortem on the dead body of
Vijay Yadav, the deceased.
6
5. The following documents were marked as
exhibits on behalf of the prosecution:
(i) Exhibit-1 – Signature of Suresh Prasad
on the seizure-list.
(ii) Exhibit-1/1 – Signature of Krishna
Prasad on the seizure-list.
(iii)Exhibit-1/2 – Signature of Suresh Prasad
on the inquest report.
(iv) Exhibit-1/3 – Signature of Krishna
Prasad on the inquest report.
(v) Exhibit-2 - Fard-beyan
(vi) Exhibit-3 - Formal F.I.R.
(vii)Exhibit-4 - Seizure-list
(viii)Exhibit-4/1- Seizure-list in which
Rajdoot motor-cycle was
seized.
(ix)Exhibit-5 - Carbon copy of death
inquest.
(x)Exhibit-6 - Post-mortem report.
6. The following are the material exhibits
on behalf of the prosecution:
a. Exhibit-I - Casette No. S.C.I.
b. Exhibit-II - Bullet (cartridge)
c. Exhibit-III - Bushirt
d. Exhibit-IV - Full pant
7. The defence examined one witness, namely,
Dr. Suresh Kumar Verma, in support of its case to
prove the case of alibi set up by accused Arun Mahto.
The defence also proved O.T. slip of Sadar Hospital,
Muzaffarpur, which has been marked Exhibit-A.
7
8. On a consideration of the materials on
record, the learned trial court found that the
occurrence had taken place in Bus No.BHY-1355 at
village Nakatpura. Accused Arun Mahton had fired the
first shot at Vijay Yadav from his rifle, followed by
fire-arm shots from the remaining appellants, as a
result of which he died inside the bus. He, therefore,
convicted and sentenced all the six appellants in the
aforesaid manner. They were, however, acquitted of
the charge under section 27 of the Arms Act because
of absence of the necessary sanction in terms of
section 30 of the Arms Act.
9. I would prefer to consider the evidence
of the informant (P.W.6) first of all. He is Budhram
Prasad, an agriculturist by avocation, and lk<+w (co-
brother) of the deceased. Both of them are Gharjamai
and living in their Sasural because their wives have
no brother. About 17 months ago they had together
left their Sasural and boarded a Rajya Transport bus
at village Nakatpura to go to Barbigha to purchase a
buffalo. The bus had stopped at village Muhammadpur
to enable passengers to get down and get in. As soon
as the bus had stopped, two motor-cycles with three
persons on each arrived and parked the same in front
of the bus. One of them went near the driver‟s door,
abused him in foul language and said that he would be
8
shot dead if he had taken the bus forwards. Arun,
Shailendra and Kaushal were armed with rifles, and
Bahadur and Suli were armed with pistols. The sixth
person whose name he was unable to recall was armed
with a gun. At this point of time, six persons armed
with pistols emerged from the medicine shop of Dr.
Ramanandan situate nearby. Arun had forced the driver
to get out of the bus. The other five motor-cycle
riders went to the rear gate of the bus and started
forcing the passengers to come out of the bus. The
persons who had emerged from the medicine shop of Dr.
Ramanandan stood at the driver‟s door. All the
passengers got out of the bus except Vijay Yadav. The
informant also got out of the bus and stood on a
raised place near the medicine shop. Arun came back
to the rear door, entered the bus and fired at Vijay
from his rifle. The other five accused persons also
fired at Vijay. He had received injuries in his
stomach (dks[k) and his chest, as a result of which he
died. The six accused persons got on their motor-
cycles and fled away. One of the motor-cycles slipped
a little distance away, in village Sherpur, which was
abandoned and the riders ran towards Sherpur village.
The six persons who had emerged from the medicine
shop of Dr. Ramanand ran away towards the village.
The informant identified Arun, Shailendra, Bahadur,
9
Kaushal and Suli who were present in court and
recognised them. The sixth person was not present in
court. He claimed that he can recognise him also. The
Sub-Inspector of Police reached the place of
occurrence and took down the fardbeyan of the
informant which was read over to him and he affixed
his thumb-impression marked Exhibit.2.
9.1) P.W.6 has stated in his cross-examination
that he was about 15-20 years ago married to the
daughter of Tek Lal of village Nakatpura. The second
daughter was married to Vijay Yadav (the deceased).
Both were co-brothers (lk<w), and cultivators, P.W.6
being the elder one. Both of them are engaged in
cultivation. He has further stated in his cross-
examination that both of them had taken their meals
before they had left their residence to catch the bus.
The informant had taken rice, pulses and vegetables.
Vijay had taken his meal separately. He was not aware
as to what food Vijay had taken. It had taken about
10 minuts from Nakatpura to reach Muhammadpur. After
the accused persons had got down from their motor-
cycles, they had started shouting "idM+k&s ekjks". They were
mentioning Vijay Yadav‟s name also. He claims to be
recognising the motor-cycle riders from before for
about 2-3 years. They used to perform Saraswati Puja
at Yadav‟s Lodge where he also used to visit and had
10
recognised them since then. He was not aware about
the avocations of the motor-cycle riders. He has
further stated in his cross-examination that he used
to supply milk to them. There was no problem about
payments. The six persons who had emerged from the
medicine shop stood at the driver‟s door. They had
not surrounded the bus. None of the passengers had
resisted the accused persons. Vijay had not attempted
to escape from the bus. P.W.6 had made no attempt to
save and protect Vijay out of sheer fear. The accused
persons had not misbehaved or ill-treated any one of
the passengers including the informant. He had
noticed the accused persons when he was getting out
of the bus. There was no exchange of words with them.
He knows a few residents of Muhammadpur. After
getting out of the bus, he had requested a few
residents of Muhammadpur to save and protect Vijay
but they had expressed their helplessness. Yadavs are
also amongst the residents of Muhammadpur. Vijay was
looking from inside the bus and had called for help.
He (P.W.6) said that he was helpless and was unable
to do any thing. Most of the passengers got scattered
and only a few remained there. The six persons who
had emerged from the medicine shop had not fired any
shot. All persons present there including the
passengers and the shop-keepers kept quiet and made
11
no attempt to control the situation. No teacher or
student from nearby middle-school or high school came
there. He had re-asserted that, after getting out of
the bus, he had proceeded towards the medicine shop
and stood on a raised place and was, therefore, able
to witness the occurrence. He has stated that he had
seen Indradeo near the medicine shop, but no other
acquaintance was present there. 5-6 shots had been
fired and people had started running away after
hearing the sound of the shots. He had denied the
suggestion that Indradeo Yadav had gone to the
medicine shop to call Dr. Ramanandan or that Indradeo
had seen the occurrence. Arun had fired the first
shot as a result of which Vijay had fallen down. The
accused persons had left the bus about 5-6 minutes
thereafter and the informant (P.W.6) had entered the
bus after a minute or two.
9.2) He has further stated in paragraph
47 of his cross-examination that he knew all the
accused persons as well as the names of their fathers.
He knew them at the time of occurrence also. He had
expressed complete unawareness about the death of
Sudhir. He has denied the suggestion as to the
details of the trial regarding the murder of Sudhir.
He has in paragraph 52 of his cross-examination
denied the suggestion that Vijay had taken liquor. He
12
has stated in paragraph 54 of his cross-examination
that he had met Vijay at 6.00 to 7.00 A.M.. Both were
going to Barbigha for purchase of buffalos. P.W.6 was
carrying 3,500/- in cash for the purchase. He has
further stated that Vijay was not drunk at the time
they left their residence. Both of them had got seats
in the bus on the left side of the engine. Arun had
pointed his rifle at Vijay, as a result of which he
could not get out of the bus. The firings in the bus
had taken place after he had got out of the bus.
After Arun had fired the shots, five more shots were
fired at him. He had noticed P.W.3 (Lakhan), P.W.5
(Baudhu), P.W.1 (Rajendra), P.W.7 (Rajo), and Mishra
near the dead body. Hira Chaukidar, resident of
village Muhammadpur, had informed the police
whereafter the Sub-Inspector of Police had arrived.
9.3) On a close scrutiny of the deposition of
P.W.6, it appears that he has fully supported the
prosecution case, and the defence has not been able
to elicit any contradiction in his deposition. He and
Vijay Yadav deceased had left Nakatpura together in
the bus. As soon as the bus had reached Nakatpura, it
was surrounded by the six appellants who had come on
two motor-cycles variously armed. He was unable to
recall the name of Krishna Murari but he asserted
that he can recognise him on seeing him. Arun had
13
got into the bus first of all and fired at Vijay
Yadav from a point-blank range. This was followed by
gun-shots by the remaining five appellants who were
standing in the rear portion of the bus. He along
with other co-passengers particularly of Nakatpura
were unable to save and protect him out of sheer fear.
Arun had fired the first shot, as a result of which
Vijay had fallen down. This was followed by fire-arm
shots by the remaining five appellants who were
standing inside the bus in the rear. Though P.W.6 has
stated that he and Vijay had taken food before
leaving the residence to get the bus, but he states
that they had not taken food together and was not
aware as to what food Vijay had taken giving rise to
the possibility that Vijay may or may not have taken
anything before leaving their residence. He claims to
have known the appellants for some time.
10. P.W.1 (Rajendra Gope) is an
agriculturist, and a resident of Nakatpura. He was
travelling by the same bus to Barbigha Hat along with
Budhram Gope and Vijay. He had boarded the bus along
with Budhram Gope and Vijay at village Nakatpura at
about 11.00 A.M. The bus stopped at village
Muhammadpur to enable passengers to get down and
board the bus. Two motor-cycles with three persons on
each had stopped in front of the bus. All the six
14
persons got down, surrounded the bus, started talking
in abusive language and had the passengers out of the
bus. Only Vijay remained inside the bus. He was
stopped from coming out of the bus at the gun point
by Arun, Shailendra, Bahadur, Kaushal, Suli and one
more person. They all were carrying fire arms. Dr.
Ramanand‟s shop was close by. 5-6 persons emerged
from his shop whom he was unable to recognise.
Kaushal, Shailendra, Bahadur and Suli had surrounded
the bus in the rear. The persons who had come out of
Ramanand‟s shop were at the driver‟s door. Arun Mahto
came to the rear gate of the bus. He shot at Vijay
Yadav. This was followed by indiscriminate firing by
other accused persons. Vijay dropped dead, whereafter
the accused persons went away in different directions.
He recognised Suli alias Surendra, Arun, Bahadur and
Kaushal who were present in court. Shailendra was not
present in the court room. He asserted that he can
recognise Shailendra also.
10.1) He has stated in his cross-examination
that he knew the accused persons from before. He used
to supply milk to them and that is how he recognises
them. Nakatpura and Muhammadpur are separated by “,d
dksl”. Nakatpura and Barbigha are separated about “ikap
dksl”. He was going to Barbigha market. It had taken a
total of 10 minutes after the bus was cleared of the
15
passengers. He had himself got out of the bus out of
sheer fear. The accused persons were standing at the
gate when he was getting out of the bus. They had not
threatened him and he had gone towards the shop of Dr.
Ramanand. Budhram was also standing with him. Some of
his co-villagers were also standing where Rajo
(P.W.7), Lakhan (P.W.3), Raghubir (P.W.2), Baudhu
(P.W.5), and Mishri Gope were present. We do not
remember the names of other persons. They were
standing on Tilha. The Tilha was about “nks&rhu gkFk”away
from the bus. P.W.1 and Budhram also stood on the
Tilha. The Tilha was up to waist height and had a
circumference of “pkj&ikap gkFk”. He has further stated in
his cross-examination that the accused persons had
confined Vijay in the bus and did not allow him to
get up from his seat. Arun Mahto was pointing a rifle
at his chest. The remaining accused persons were
standing at the rear-gate. Vijay wanted to get out of
the bus but were prevented by the accused persons at
gun point.
10.2) On a close perusal of the deposition of
P.W.1, it appears that he is a co-villager and a
resident of Nakatpura, had travelled with P.W.6 and
the deceased in the same bus. He has also stated that
Arun was first to fire shot at Vijay from point-blank
range. Vijay Yadav dropped dead. This was followed by
16
indiscriminate firing by other accused persons. He
had witnessed the entire occurrence while standing on
the Tilha. He had fully supported the mode and manner
of the occurrence, as well as participation of the
six appellants in the manner stated in the Fardbeyan,
and the defence has not been able to elicit any
contradiction in his testimony.
11. The evidence of P.Ws.2 to 5 are on the
same lines as P.Ws.1 and 6. P.W.2 (Raghubir Yadav) is
an agriculturist and resident of Nakatpura. He had on
that day, at about 11.00 A.M., gone to the clinic of
Dr. Ram Nandan to give him a call. When he reached
there, he noticed that a bus had reached there from
the west and stopped. Two motor-cycles with Arun,
Bahadur, Shailendra, Kaushal, Suli and Krishna Murari
came and stopped in front of the bus. They were armed
with rifles and guns. Arun had forced the passengers
to get out of the bus. Vijay Yadav was not allowed to
come out of the bus. In the meantime, 5-6 persons
emerged from the shop of Dr. Ram Nandan and he
recognised Dinesh, Devendra and Kishori amongst them.
Arun Mahto entered into the bus through the rear door
and shot at Vijay Yadav. Shailendra, Bahadur, Kaushal,
and Suli also fired shots at Vijay, as a result of
which he died in the bus. On hulla being raised, the
accused persons fled away on the two motor-cycles.
17
One motor-cycle fell down about 100 yards away
whereafter all of them took to their heels. He
identified Shailendra, Suli, Bahadur, Arun and
Kaushal who were present in court. Krishna Murari
was not present in court on that day. He claimed that
he recognises Krishna Murari and can identify him.
11.1) He has stated in his cross-examination
that he had gone to fetch Dr. Ram Nandan because his
daughter Saroj Kumari was unwell. Indradeo Yadav was
also present in the Dr. Ram Nandan‟s dispensary on
that day. He visits Muhammadpur once or twice every
month. Dr. Ram Nandan or his compounder was not
present in the dispensary when he reached there. Arun
was initially standing at the driver‟s door and the
remaining accused persons were at the rear door. The
driver was forced to come out of the bus due to
abusive language and threat of gun-shot. There was a
Tilha between Dr. Ram Nandan‟s clinic and the bus. He
perched himself on the Tilha along with 5-6 more
persons. Except one or two persons, all the remaining
persons from his village were on the Tilha. There
were about 50 persons in the bus, all of whom except
Vijay came out of the bus without protest carrying
their belongings in their hands, and dispersed. No
one attempted to save and protect Vijay. Budhram and
Rajendra, co-villagers, also stood on the Tilha. They
18
felt helpless because of the sight of rifle. He knew
the accused persons for one to two years. He used to
meet them at Yadav lodge where they assemble for Puja.
He has further stated in his deposition that when the
case relating to the other Vijay Yadav (not the Vijay
Yadav deceased of the present case) was in progress,
he used to watch the proceedings. He has denied the
suggestion that the said case had given rise to caste
frenzy between the Yadavas and Kurmis. He has further
stated in his deposition that he did not say anything
out of fear. People reached there about 15-20 minutes
after the accused persons had fled away. The driver‟s
door had been obstructed by Arun. The remaining five
accused persons were at the rear gate, who had not
allowed Vijay to come out of the bus. He had stayed
there till the arrival of the police. The police had
arrived there about 2-21/2 hours after the occurrence.
He had gone inside the bus to have a look at Vijay.
He must have earlier met Krishna Murari at least ten
times. He used to talk to him because they belong to
the same area. He had no other connection with
Krishna Murari. He knew him for about three years. He
had met Krishna Murari for the first time in a Barat
of Kurmis, whereafter they had met quite often. His
co-villagers also recognised Krishna Murari. He has
further stated in his cross-examination that he had
19
seen one mark of fire-arm shot in the bus. It was
embedded in the body of the bus and was that of a
rifle. He had not noticed the spent bullet on the
floor of the bus. The left side of the wind screen
was heavily broken, and pieces of glass had fallen
inside the bus as well as out side. After the murder,
Budhram, Rajendra and Indradeo had first of all
entered the bus. The dead body was lying on the floor
of the bus about “,d ls Ms<+ gkFk" away from the driver‟s
seat. While P.W.2 was perched on the Tilha, Vijay was
visible from inside the bus. Dr. Ram Nandan is not
M.B.B.S. Doctor. Budhram and Vijay were Sarhus. He
has denied the suggestion that Suli, Arun and Krishna
Murari have been made accused in the present case
because they were witnesses in the case of the other
Vijay.
11.2) P.W. 2 has supported the prosecution
case. His deposition is further noteworthy for the
reason that he had recognised Krishna Murari in a
situation where P.W.6 and P.W.1 have stated that they
were unable to recall the name of the sixth accused
person, although they claimed that they can identify
him. He has further stated in his deposition that
Dinesh, Devendra and Kishori were amongst the six
persons who had come out of the clinic of Dr. Ram
Nandan. He has also deposed that there existed a
20
Tilha between the clinic and the bus and he along
with other P.Ws. stood on that. He has further
deposed that there was a case relating to the other
Vijay and he used to watch those proceedings. He had
denied the suggestion that the case of other Vijay
had given rise to a caste-frenzy in the area. He had
stayed there until the arrival of the police which
had reached 2-21/2 hours after the occurrence which is
consistent with the prosecution case that the Sub-
Inspector of Police had received the information when
he was attending a crime meeting at Biharsharif. He
had noticed the gun-shot mark in the bus. The left
side of the front wind screen was substantially
broken.
12. P.W.3 (Ram Lakhan Yadav) is an agriculturist and a resident of Nakatpura. He has
deposed to the effect that about 17 months ago on a
Friday at about 11.00 A.M., he was in a tea shop at
Muhammadpur and was taking tea. A bus reached there
and stopped. Six persons wielding fire-arms reached
there on two motor-cycles and parked their
motorcycles in front of the bus. They got down from
the motor-cycles and surrounded the bus. Five persons
stood at the gate for the passengers and forced them
to come out of it after using abusive language. Vijay
remained inside the bus. 5-6 persons emerged from the
21
shop of Dr. Ramanand and stood at the driver‟s gate.
The accused persons were Arun Mahto, Shailendra Mahto,
Bahadur Mahto, Kaushal Mahto, Suli Mahto and Krishna
Murari Mahto. They got into the bus and shot at Vijay,
whereafter they ran away. He recognised Bahadur Mahto,
Shailendra Mahto, Arun Mahto, Kaushal Mahto and Suli
Mahto who were present in court. Krishna Murari Mahto
was not present in court. P.W.3 was a regular visitor
to Muhammadpur and he had on that day reached there
at about 10.00 A.M..
12.1) He has stated in his protracted cross-
examination that the tea-shop owner used to send his
servant with tea inside the bus but it did not happen
on that day. Arun Mahto asked the driver to come out
of the bus otherwise he would be shot dead. The
driver was pulled out of the bus but did not run away
out of fear and stood on the road. Khalasi got out of
the bus through the rear gate. It had taken about
five minutes for the passengers to come out of the
bus and was coming out with small belongings in their
hands. He had noticed Indradeo of his village there.
He stood on a collection of stones situate at a
distance of 5-7‟ from the bus along with others. He
went over the mound of stones when the bus was being
evacuated of the passengers some of whom stood near
the mound. Vijay was shot-dead as soon as he stood up
22
from the seat. After committing the murder of Vijay,
the accused persons went away in different directions.
He knew them for about 1 -11/2 years. Arun Yadav was a
leader and he knew him. He had gone to the lodge on
invitation where the accused persons were living. He
stayed there for about two hours after the occurrence
and the police had reached there in his presence.
Vijay Yadav deceased was engaged in cultivation at
his Sasural.
12.2) His deposition is on the same lines as
that of P.W.2 and is particularly noticeable for the
reason that he has named Krishna Murari amongst the
six accused persons who had come on the motor-cycles
and done Vijay Yadav to death. He has fully supported
the prosecution case, and the defence in its
protracted cross-examination has not been able to
elicit any contradiction.
13. P.W.4 is Suresh Prasad, is an
agriculturist, and a resident of Nakatpura. He is a
formal witness and has proved his signature and that
of Krishna Prasad on the seizure-list prepared by the
Investigating Officer which have been marked Exhibits
1 and 1/1. On the same day, the investigating officer
had prepared the inquest report and had put his
signature thereon. Krishna Prasad had also recorded
his signature thereon which has been marked Exhibits
23
1/2 and 1/3 respectively. The inquest report was
prepared along with the carbon copy. He had put his
signature at the road side of Muhammadpur at about
2.30 P.M. He had gone there on hearing hulla.
14. P.W.5 (Baudhu Gope) is an agriculturist
and resident of Nakatpura. His deposition is on the
same lines as that of P.Ws.2 and 3, and had gone to
Dr. Ramanand‟s shop to obtain medicines for his wife.
He has fully supported the prosecution case, and the
defence has not been able to elicit any contradiction
in his lengthy cross-examination. His deposition is
particularly noticeable for the reason that he had
also seen and recognised Krishna Murari amongst the
six accused persons.
15. P.W.7 is Rajo Yadav, an agriculturist, a
resident of Nakatpura, and is a tendered witness.
16. P.W.8 is Jai Keshav Sharma and is the
Investigating Officer. He has deposed to the effect
that he was, on 7.3.1986, posted as Sub Inspector of
Police at Asthawa Police Station. He had on that day
at about 11.00 A.M., received information about the
occurrence as well as the place of occurrence. He was
then at Biharsharif and from there reached the place
of occurrence at about 12.00 noon. He had recorded
the statement of Budhram Prasad as per the version
given by him which was read out to him and feeling
24
satisfied he had put his left thumb-impression. The
Fardbeyan in the hand-writing of the investigating
officer bears his signature and has been marked
Exhibit.2, which was forwarded to Asthawa Police
Station to be recorded as F.I.R. The formal F.I.R. is
in the hand-writing of Ramanuj Ram, A.S.I.. He
recognised his signature and has been marked
Exhibit.3. He had taken the statement of Budhram for
the second time and had inspected the place of
occurrence. He has given the description of the place
of occurrence and the position of the bus. The bus
had stopped at the bus-stop. One dead body was found
inside the bus near the engine. He has also given the
description of inside of the bus. He had also found
and collected the spent bullet of .315 bore of rifle.
Lot of blood was found near the dead body. All the
seats inside the bus were in a disturbed state. There
were also marks of gun-shot inside the bus in the
front portion. He has also given the description of
the dead body and the manner in which it was lying.
He has given the description of the wounds/injuries
on the dead body which was covered with blood. He
has given the description of clothes which he was
wearing. Blood was found on the Kachcha as well as
Pucca portion of the road underneath the bus. He also
found the motor-cycle bearing No.BHE-94, lying on the
25
ground about 100 yards from the bus. He had prepared
three copies of the seizure-list with the help of
carbon in the presence of Krishna Prasad Yadav and
Suresh Prasad who had affixed their signature
thereupon. The seizure-list and his signature has
been marked Exhibit-4. He also prepared the inquest
report with the signature of Krishna Prasad and
Suresh Prasad recorded in his presence. The same has
been marked Exhibit-5. He has also given the
description of the motor-cycle which was seized in
presence of Ram Nageena and Naresh Prasad. He had
prepared three copies of the seizure-list with the
help of carbon with the signatures of the witnesses.
The seizure-list has been marked Exhibit-4/1. The
Dy.S.P. and the Inspector of Police had also reached
the place of occurrence. He then forwarded the dead
body of Vijay Yadav for post-mortem along with the
constables named therein. He has given reasonable
details of the investigation. He has also stated in
his deposition that he had recorded the statements of
various witnesses. He had gone to village Balwapur in
search of Krishna Murari but he could not be found.
He concluded the investigation on the receipt of the
post-mortem report. He had sent a blue-coloured shirt
soaked in blood for chemical examination. He has also
proved the material exhibits marked Exhibits-I to IV.
26
He has, inter alia, stated in his lengthy cross-
examination that he has received the information of
the occurrence while he was attending the crime
meeting presided over by the Superintendent of Police
at Biharsharif. He has further stated in his cross-
examination that in view of the statement of Indradeo
Prasad he had raided the house of Dinesh and Devendra.
He has also stated that he does not remember to have
seen a Tilha in front of the medical shop of Dr.
Ramanand.
16.1) On the prayer of accused Krishna Murari,
P.W.8 was recalled for his cross-examination. His
lawyer did not turn up for cross-examination and was,
therefore, discharged on 5.12.1987. He was, however,
subjected to a detailed cross-examination at the
instance of accused Krishna Murari on 15.12.1987. He
has, inter alia, stated in his cross-examination that
he had recorded the statements of the driver and the
conductor. He has further stated in paragraph 69 that
the names of Devendra Mahto and Dinesh Prasad had
come up during the course of investigation leading to
raid of their houses but they were found absconding.
But he did not pursue it any further. He has given a
detailed narration of the course of investigation
commencing with the receipt of information of the
occurrence till the submission of the charge-sheet.
27
He has proved exhibits which along with his oral
testimony, fully support the prosecution case. The
defence in its detailed cross-examination has not
been able to elicit any contradiction.
17. P.W.9 is Dr. C.P. Sinha. He has stated
in his deposition that he was then posted as Civil
Assistant Surgeon. He has deposed to the effect that
on 7.3.1986, he was posted as Civil Assistant Surgeon
at Sadar Hospital, Biharsharif. On that day, at 4.30
P.M., he conducted the post-mortem on the dead body
of Vijay Yadav, son of Kailash Yadav of Village
Nakatpura, a male aged 25 years. He has proved the
post-mortem report marked Exhibit-6, wherein he noted
the following findings.
(1) One circular penetrating bullet wound of
3/4″ diameter with ragged lacerated
inverted margin on the front of right
side of chest at the level of 8 th rib,
fracturing it and piercing through the
liver (entry wound) and passing out on
the right side of the back with the
lacerated circular opening of 2″
diameter with a ragged everted circular
margin.
(2) One penetrating bullet wound with the
injury on right side of chest lateral to
the nipple of 3/4″ diameter with ragged
inverted irregular margin piercing the
right lung, heart, left lung and passing
out with exit at the level of 11th rib
28
opening being of 2″ diameter, causing
the lacerated wound of 21/2″x2″ on the
left elbow medially.
The injuries were caused by fire-
arm and were grievous in nature fired
from a distance of about 25‟-30‟.
(3) On dissection abdominal cavity contained
about two pounds of blood. Stomach
contained six ounce of liquid with
alcoholic smell. Intestines contained
gasses and faecal matters.
(4) Urinary bladder was empty. Liver was
lacerated.
(5) Both lungs and the heart were lacerated
at their middle portion with left
lung, lower lobe lacerated and blood
present in thoracic cavity of about
three pounds.
(6) Brain, spleen, and Kidneys were pale.
Genetalia were normal.
(7) In my opinion, the death occurred due to
fire-arm injuries described above
leading to shock and haemorrage. The
time elapsed between the death and P.M.
about 8-12 hours.
17.1) He has stated during the course of
cross-examination that process of digestion does not
continue after the death of the man. Alcohol is not as
easily digestible as water. Vegetarian diet digest
faster provided there is less quantity of fat in it.
His finding regarding the distance of firing cannot
29
vary from 2 to 3 feet both sides. He has denied the
suggestion that his deposition to the effect that
finding regarding the presence of alcoholic smell in
the stomach, and the distance of firing, has been
given to help the accused. The direction in injury
nos.1 and 2 were resulting from firing down-ward
suggesting that the shooter was on a higher place. If
shooter and the deceased are on the same level, then
the bullet will passes through his body horizontally.
17.2) He was sought to be subjected to
separate course of cross-examination at the instance
of accused Krishna Murari but was discharged because
none appeared to cross-examine him on 5.12.1987. He
was, however, subjected to cross-examination at the
instance of accused Krishna Murari on recall on
4.1.1988. He has, inter alia, stated that injury no.1
was alone sufficient to cause death in ordinary course
of nature. One can survive for about half an hour
after sustaining injury no.1. Apart from the two
injuries, he has emphasised and also stated in his
post-mortem report that he has found two fire-arm
injuries on the dead body. He did not find any other
injury like abrasion, bruise or scuffling mark on the
dead body. He found six ounces of alcohol in the dead
body which was sufficient to cause intoxication. He
cannot say that the deceased was a habitual drunkard.
30
17.3) In view of the consistent, trust-worthy,
and unshaken testimony of the eye-witnesses, the
evidence of P.W.9 needs very close scrutiny.
18. The defence has examined one witness to
prove the plea of alibi on behalf of Arun Mahto. D.W.1
is Dr. Suresh Kumar Verma. He has deposed to the
effect that he is posted as Assistant Professor at
Shri Krishna Medical College, Muzaffarpur, since
24.10.1981. He has Post-graduate degrees. He works in
the hospital from 8.00 to 12.00 A.M. during summer,
and from 8.30 A.M. to 12.30 P.M. during winter,
besides teaching in the college. He also attends to
the outdoor patients in the department. The
prescriptions are issued to the out-door patients as
per the register. He had worked in the out-door
patient department on 7.3.1986. He had examined Arun
kumar aged 26 years, son of Ambika Prasad Singh of
village Naya Bidha, P.S. Barh. He was suffering from
bleeding nose. As an out-door patient, he had given
him prescription and had prescribed the medicines. He
had examined the patient thoroughly, and had also
cauterised the bleeding point in his nose. He has
identified the patient standing in the dock of the
court room. He has proved the prescription written in
his own hand-writing and is marked Exhibit-A. The
entry number of this prescription is E.N.T./927, dated
31
7.3.1986, which also bears the seal of the Sadar
Hospital, Muzaffarpur. He has not brought the out-door
patient register from the Sadar Hospital, Muzaffarpur.
He has brought a photo copy of the relevant entry of
out-door register. He had examined the patient between
10.00 A.M. to 11.00 A.M. He usually devotes about ten
minutes in examining one patient. Exhibit-A does not
mention the identification mark of the patient. He
identified the patient because he had been to him with
the court‟s summons and had also shown to him a photo
copy of the prescription (Exhibit-A). He has also six
fingers in one of his legs which is not stated in
Exhibit-A. He has denied the suggestion that he has
manufactured Exhibit-A.
19. The accused persons had thereafter made
statements under Section 313 of the Cr.P.C.. They
denied their involvement in the alleged offence and
claimed to be tried.
20. On a consideration of the materials on
record and the submissions of the learned counsel for
the parties, the learned trial court held that the
prosecution has been able to prove the place and the
manner of occurrence as stated in the Fardbeyan. He
has further held that the medical evidence supports
the prosecution case. He has next held that, as per
the post-mortem report, the variation of time of about
32
2-3 hours is not of much consequence. He has also
dealt with the finding in the port-mortem report that
fatal shots were fired from 20-25‟ which is
inconsistent with the prosecution case and held that
it does not hit the core of the prosecution case. He
has next held that no adverse inference can be drawn
on account of non-production of the clothes of the
deceased which he was wearing at the time of his death
and is not fatal to the prosecution case. Failure to
produce independent prosecution witnesses is also not
material in this case. Non-production of Indra Deo and
other witnesses mentioned in the F.I.R. also does not
hit the prosecution case. He has further held that the
driver and the conductor ought to have been examined
as prosecution witnesses. He has next found that in
view of the position that the post-mortem report has
found small quantity of liquor in the stomach of the
deceased does not lead to the conclusion that he was a
criminal and had been killed elsewhere. The learned
trial court has also considered the issue whether or
not Tilha existed between the bus and the clinic of Dr.
Ram Nandan and has held that the discrepancy in the
prosecution case and the deposition of the I.O. is not
a serious lacuna in the prosecution case. He has also
found the motive to kill Vijay Yadav is that one
Sudhir Mahto was some years ago killed at Nakatpura.
33
He has rejected the plea of alibi set up by Arun Mahto.
He has also found that Krishna Murari was one of the
six persons who had come on the two motor-cycles, had
got into the bus to kill Vijay Yadav, and absence of
his name in the F.I.R. does not entitle him to
acquittal. The accused persons had the common
intention to eliminate Vijay Yadav.
21. Learned counsel for the appellant Arun
Mahto has led the main attack before us. He has not
challenged the place and the mode and manner of
occurrence. He has challenged the involvement of Arun
Mahto in particular, and the appellants in general, on
various counts, with extra emphasis on the post-mortem
report. He submitted that the medical evidence has
rendered the testimony of the eye witnesses completely
false. He has relied on the following reported
judgments:
(i) A.I.R. 1987 S.C. 826(Amar Singh and
others v. State of Punjab) paragraph 9.
(ii) (2003)3 S.C.C. 153 (State of Punjab v.
Sucha Singh and others) paragraphs 8
and 10
(iii)(2003)6 S.C.C. 380 (Thaman Kumar v.
State of Union Territory of Chandigarh),
paragraph 16.
34
According to the eye witnesses, the assailants had fired six fire-arm shots at the
deceased, but the post-mortem report suggests that the
deceased had sustained only two shots. This rules out
the possibility of more than two persons participating
in the assault. He relies on the following reported
judgments:
(i) A.I.R. 1976 S.C. 2263 = (1976)4
S.C.C.394 Lakshmi Singh and others v.
State of Bihar) paragraphs 14 and 15.
(ii) A.I.R. 1987 S.C. 826 (Amar Singh and
others v. State of Punjab) paragraph 9.
(iii) A.I.R. 1991 S.C. 4(Budhwa, alias
Ramcharan and othes v. State of Madhya
Pradesh).
He has also submitted that the direction
of fire was from up to down which also falsifies the
eye witnesses. He relies on the judgment reported in
A.I.R. 1988 S.C. 1158 (Awadhesh and another v. State
of Madhya Pradesh). It has also been submitted that
in view of the position that the eye witnesses
entered into a conspiracy to falsely implicate
innocent persons, no reliance can be placed on any
part of their testimony to convict a single accused.
He has also submitted that the medical evidence also
falsifies the prosecution case that the incident took
35
place at 11.00 A.M. after the deceased had taken his
morning meal. In fact, the medical evidence indicates
that the murder was perpetrated between 4.00 A.M. to
8.00 A.M., before the deceased had performed his
morning ablutions and before he had taken the morning
meal.
22. The learned Public Prosecutor has
submitted that the Fardbeyan was recorded promptly
eliminating all chances of false implication. Law is
well settled that the real assailants cannot be
acquitted because some body has been wrongly
implicated or wrongly left out. He next submits that
all the eye-witnesses have consistently stated that
the bus had reached Nakatpura at 11.oo A.M., and the
entire occurrence was over in about 10 minutes‟ time.
In view of the clear evidence on this point, the
different time of death given in the post-mortem
report has to be rejected as false and collusive. In
any case, medical science is not so developed as to
give the exact time of death. He relies on the
following reported judgments:
(i) A.I.R. 1985 S.C. 1715= (1985)4 S.C.C.
80 (Pattipati Venkaiah Vs. State of
Andhra Pradesh), paragraph 10.
(ii) (2008)1 S.C.C. (Cri) 64 (Budh Singh
Vs.State of M.) paragraphs 14 and 18.
36
He next submits that the illegalities and/or
the irregularities in the investigation do not by
itself affect the prosecution case which really
depends on the substantive evidence. He relies on the
judgment in Budh Singh (paragraph 26) (supra). He next
submits that Arun had fired the first two shots from
point-blank range as a result of which Vijay had
fallen down and died. This was followed by
indiscriminate firing from some distance within the
bus which may have pierced the wind-screen and gone
out. He relies on the following reported judgments:
(i) (1997) S.C.C. (Cri) 716 (Mithilesh
Upadhyay v. State of Bihar).
(ii) 2002 S.C.C. (Cri) 175 (Munshi Prasad &
others Vs. State of Bihar).
He next submits that six persons had come on
two motor-cycles variously armed, were a determined
lot and performed their criminal act with remarkable
planning, confidence, determination, and precision.
They are obviously liable under section 302 read with
Section 34 of the IPC. In view of the consistent
evidence of the prosecution witnesses on each and
every aspect of the matter, the medical evidence is
false and collusive and meant to support the accused
persons. He next submitted that non-examination of
independent witnesses is not of much consequence.
37
Reliability of the prosecution witnesses is of vital
importance. He submits in the same vein that
examination of the driver and Khalasi would have been
a better course for the prosecution but their non-
examination will not affect the prosecution case for
the said reason. He relies on the following reported
judgment:
(i) A.I.R. 1994 S.C. 1029 (Lakhbir Singh &
Anr. V. State of Punjab).
He next submits that the eye-witnesses had not
intervened and did not make attempt to save and
protect Vijay Yadav out of sheer fear, which is a
natural conduct. He relies on the following reported
judgment:
(i) A.I.R. 1988 S.C. 696 (Appabhai and Another
Vs. State of Gujrat).
23. We have perused the materials on record
and considered the submissions of learned counsel for
the parties. P.W.6 (Budhram Prasad), the informant, is
the Sarhu (co-brother) of the deceased. Both of them
were Gharjamai because their father-in-law does not
have a son. He has stated in the Fardbeyan that both
of them had left village Nakatpura together and were
travelling in the same bus of Rajya Transport, namely,
BHY-1355. Vijay Yadav had occupied the very front seat
behind the wind screen and was separated from the
38
driver by the engine. The informant had also occupied
one of the front seats. He has further stated that it
had taken about 10 minutes to cover the distance
between Nakatpura and Muhammadpur. The bus had stopped
at Muhammadpur to enable the passengers to get down,
and to enable the new passengers to get in, and for
that purpose the bus stopped opposite the clinic of Dr.
Ram Nandan. He has further stated that there was a
Tilha of waist height between the bus and the clinic.
As soon as the bus had stopped opposite the clinic of
Dr. Ram Nandan, two motor-cycles with six persons came
there and parked their motor-cycles in front of the
bus. He has in the Fardbeyan mentioned the names of
the accused persons as Shailendra Mahto, Surendra
Prasad alias Suli, Kaushal Mahto, Bahadur Mahto and
Arun Mahto. He has further stated that he was unable
to recall the name of the sixth person. As soon as
they got down from the motor-cycles, Arun Mahto stood
at the driver‟s door and threatened him at gun point
to get out of the bus. The other five persons went to
the rear gate meant for the passengers and forced them
to get out of the bus by using abusive language and at
gun point. All the six persons were wielding fire-arms.
Arun Mahto was with a rifle. This was simultaneously
followed by emergence of 5-6 persons variously armed
from the clinic of Dr. Ram Nandan who stood behind
39
Arun Mahto. The driver got out of the bus under threat,
whereafter Arun Mahto paced towards the rear gate and
stormed into the bus followed by the remaining five
persons. It appears that Arun Mahto proceeded towards
Vijay Yadav and fired two shots at him as a result of
which he dropped dead. It further appears that the
remaining five appellants also got into the bus and
had fired shots. He has further stated that he along
with some other co-villagers of village Nakatpura had
got upon the aforesaid Tilha and were in a position to
watch the happenings inside the bus. He has further
stated that soon after Vijay Yadav dropped dead, all
the six persons fled away on their motor-cycles, one
of which slipped at some distance away. They abandoned
the motor-cycle and ran away towards Village Sherpur.
He has further stated that one Sudhir Mahto of Village
Nakatpura had been murdered a few years ago and this
was the reason and the motive for the murder of Vijay
Yadav.
P.W.6 has, in his deposition, fully
supported the prosecution case. Equally P.Ws.1, 2, 3,
and 5 have fully supported the prosecution case. P.W.8
(I.O.) has also fully supported the prosecution case,
except that he does not remember to have noticed the
Tilha. In our view, this is not of any consequence for
the reason that the aforesaid prosecution witnesses,
40
who are co-villagers, were obviously close to the
deceased and must have been interested in his welfare
and stood on the Tilha, giving them some height so
that they could see the happenings in the bus. They
have consistently stated about the existence of the
Tilha, and the omission on the part of P.W.8 (the I.O.)
to notice it does not make it non-existent, nor the
evidence of the aforesaid prosecution witnesses to
that extent is adversely affected. It is a possible
situation that in the nervousness of a close person
having being shot dead in such a brutal manner, the
prosecution witnesses might have failed to bring the
same to the pointed notice of the investigating
officer. On a perusal of the deposition of P.W.8, it
appears to us that he had failed to notice it. He has
not stated that it was pointed out to him and he did
not find it. The Tilha does not appear to be so raised
that it would without fail attract attention.
Furthermore we cannot ignore the reality in India,
particularly in villages where needlessly assembled
piles of earth or stones is found, and may not always
attract attention. We are, therefore, of the view that
failure on the part of the I.O. to notice the Tilha is
a minor omission and does not cut at the prosecution
case. We, therefore, find and hold that the
41
prosecution has been able to prove the place and the
manner of occurrence.
24. We may now consider the medical evidence.
From a perusal of the post-mortem report, it appears
that there were five holes in the body, two of which
are entry wounds and three of which are exit wounds.
According to the medical report, the five holes seem
to have been caused by two bullets. On the other hand,
the eye witnesses have deposed that Arun had fired at
a point blank range. It appears that the two shots
that he had fired really hit the deceased and had
killed him. He had obviously fired while standing, and
the eye-witnesses have deposed that Vijay was sitting
in his seat, as a result of which he died. The eye
witnesses have undoubtedly stated that the remaining
five accused persons, who were standing inside the bus
in the rear, had also fired. We must, however, notice
the finding in the post-mortem report that the two
shots had been fired from a distance of 25‟ to 30‟.
This obviously is an error on the part of the doctor
in view of the consistent evidence of the eye
witnesses that Arun Mahto had fired from a point-blank
range. It is further relevant to state that the eye-
witnesses, particularly P.W.2, have stated that the
Rajya Transport bus was in a very poor condition and
42
the shots, if any, fired by the five persons from the
rear may have made their exit through the wind-screen
which had broken down.
25 It further appears from the medical
evidence that the time elapsed between death and the
post-mortem was 8-12 hours. The post-mortem had
commenced at 4.30 P.M. which takes the time of
occurrence back to 5.00 A.M. to 8.00 A.M.. This is
obviously an error in the post-mortem report because
we have already found hereinabove that the bus had
undoubtedly reached the place of occurrence at 11.00
A.M., and the crime was completed within a period of
10 minutes. Furthermore, such an assessment of time of
death is based on estimate coupled with experience and
no scientific full-proof clinical formula is available
to assess the exact time of death.
26. Learned counsel for the appellants has
also placed emphasis on the finding in the post-mortem
report that P.W.6 has deposed to the effect that they
had together taken food and left for the journey. On
the other hand, the post-mortem report does not find
presence of food particles in the stomach. On the
contrary, it contained gases and faecal matters. In
this connection, the deposition of P.W.6 has to be
read as a whole. Though he has stated that he and
Vijay Yadav had taken their food together, but says in
43
the same vein that they had not eaten together and was
not aware as to what Vijay had eaten. It is just
possible that Vijay may not have eaten anything.
Furthermore, there is omission in the post-mortem
report to mention this. We have found the evidence of
the eye witnesses trust-worthy and, therefore, the
post-mortem report will have to give way to the
evidence of the eye-witnesses. There is no
inconsistency between the two. This explains the
medical report as a whole which on the whole is not so
inconsistent with the evidence of the eye witnesses
that the two cannot exist side by side.
27. The conflict between the evidence of
eye-witnesses and the medical evidence has been the
subject matter of a large number of judicial
pronouncements. Law is well settled that medical
evidence is not gospel truth, is at the instance of
doctors who are human beings capable of both making
mistakes and of falling prey to usual human failings.
If the evidence of eye-witnesses is trust-worthy, and
the medical evidence is doubtful, then the latter will
give way to the former.
28. The judgment of the Supreme Court
reported in A.I.R. 1998 S.C. 2606 (State of Bihar v.
Ram Padarath Singh and others) may be considered. The
trial court had convicted the accused persons under
44
section 302 read with sections 34/149 IPC. The High
Court found discrepancies between the ocular evidence
and the medical evidence, discarded the former, and
gave preference to the latter. The Supreme Court on
appeal restored the judgment of the trial court after
holding that the High Court was not right in rejecting
the evidence of the eye-witnesses which had led to
miscarriage of justice. The inconsistency was not such
that the two cannot stand together. Paragraph 8 and 18
are reproduced hereinbelow for the facility of quick
reference:
... ... ... ...
... ... ... ...
But what the High Court failed
to appreciate was that all the eye-
witnesses had seen the incident from
some distance.
... ... ... ...
... ... ... ...
on the basis of such an inconsistency
or discrepancy it was not proper for
the court to raise a doubt regarding
the witnesses having seen the actual
assault on Boudhu.
... ... ... ...
... ... ... ...
No doubt, to that extent their
evidence can be said to be
inconsistent with the medical evidence.
But it is not an inconsistency of that
type where one can say that the ocular
evidence and the medical evidence
cannot stand together and which would
justify raising of a doubt regarding
the truthfulness of the evidence of
the eye-witnesses. The inconsistency
clearly appears to be the result of
confusion and does not indicate an
attempt to describe the incident by a
person who had not really seen it. The
45
High Court therefore was not right in
rejecting the evidence of the eye
witnesses as regards the assault on
Boudhu, on these grounds.”
(Emphasis added)
28.1) The Supreme Court has observed in
its judgment reported in (1990)3 S.C.C. 190= 1990
S.C.C. (Cri)378= A.I.R. 1990 S.C. 1459 (Vijayee Singh
v. State of U.P.) that where the evidence is clear,
cogent and creditworthy, and where the court can
distinguish the truth from falsehood, the mere fact
that the injuries are not explained by the prosecution
cannot by itself be a sole basis to reject such
evidence, and consequently the whole case, where the
evidence is so clear and cogent, so independent and
uninterested, so probable, consistent and creditworthy,
that it outweighs the effect of the omission on the
part of the prosecution to explain the injuries.
28.2) It has been observed in (1973)3 S.C.C.
881= 1973 S.C.C. (Cri) 563= A.I.R. 1972 S.C. 2593 (Ram
Lagan Singh vs. State of Bihar) that the prosecution
is not called upon in all cases to explain the
injuries received by the accused persons. It is for
the defence to put questions to the prosecution
witnesses regarding the injuries of the accused
persons. When that is not done, there is no occasion
46
for the prosecution witnesses to explain any injury on
the person of an accused.
28.3) It has been observed in (1988)2 S.C.C.
95= 1988 S.C.C. (Cri) 279= A.I.R. 1988 S.C. 863 (Hare
Krishna Singh v. State of Bihar), that the obligation
of the prosecution to explain the injuries sustained
by the accused in the same occurrence may not arise in
each and every case. In other words, it is not an
invariable rule that the prosecution has to explain
the injuries sustained by the accused in the same
occurrence. If the witnesses examined on behalf of the
prosecution are believed by the Court in proof of
guilt of the accused beyond reasonable doubt, question
of obligation of the prosecution to explain injuries
sustained by the accused will not arise. When the
prosecution comes with a definite case that the
offence has been committed by the accused and proves
its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain
how and under what circumstances injuries have been
inflicted on the person of the injured.
28.4) The observations of the Supreme Court in
its judgment reported in (2005) S.C.C.(Vol.1) (Cri)
178= 2004 Cr.L.J. 4881 (Anil Kumar v. State of U.P.),
are relevant in the present case. Paragraph 12 is
reproduced hereinbelow:
47
… … … … … …
… … … … … …
“The presumption that FIR was ante-
timed was on an erroneous reading of
the evidence of P.W.3. The trial
court completely lost sight of the
fact that P.W.3 was an illiterate
rustic lady and minor variance in her
statement should not be given primacy
when the evidence itself was recorded
long time after and it should not
have been made the basis for coming
to a conclusion that the FIR was
ante-timed. It is trite law that when
oral evidence is credible and cogent,
that medical evidence is to the
contrary, is inconsequential. Only
when the medical evidence totally
improbabilises the oral evidence, can
adverse inference be drawn. This is
not a case of that nature. ”
29. It thus appears to us that law is well
settled that in case of conflict between the evidence
of the eye-witnesses and the medical evidence, the
latter can in appropriate cases give way to the former
provided the eye-witnesses are consistent and trust-
worthy. No sanctity is attached to the medical report
and it is just another piece of evidence capable of
errors and liable to common human failings. The present
case is really covered by the aforesaid judgments of
the Supreme Court in, particularly State of Bihar v.
Ram Padarath Singh (supra). The inconsistency between
the prosecution witnesses and the medical evidence in
the present case is not such that they cannot stand
together. All the eye-witnesses had seen the occurrence
while standing on the Tilha a little distance away from
48
the bus. They had consistently deposed that Arun Mahto
had fired the first shot(s) as a result of which Vijay
Yadav fell down. P.W.6 has stated in paragraph 37 of
his deposition as follows:
“37. lcls igys v#.k us xksyh ekjh ftlls og fxj x;k…”
This was followed by the five shots from
the fire-arms of the other five accused persons
standing in the rear of the bus. It is obvious that
the shots fired by these five appellants had passed
over Vijay Yadav who had already fallen on the ground
and the shots had pierced the wind-screen and had
gone out of the bus.
P.W.2 has stated in his deposition that
the wind-screen had broken down, as a result of which
pieces of glasses of the wind-screen had fallen
inside and outside the bus. Furthermore, as has been
observed by the Supreme Court in Ram Lagan Singh V.
State of Bihar (Supra), the prosecution is not called
upon in all cases to explain the injuries received by
the accused persons. It is for the defence to put
questions to the prosecution witnesses regarding the
injuries of the accused persons. When that is not
done, there is no occasion for the prosecution
witnesses to explain any injury on the person of an
accused. As has been stated by the Supreme Court in
the State of Bihar V. Ram Padarath Singh (supra),
49
that on the basis of such an inconsistency or
discrepancy it was not proper for the court to raise
a doubt regarding the witnesses having seen the
actual assault.
30. It thus appears to me that the evidence
of the eye-witnesses is consistent, creditworthy, and
without any contradictions. The apparent
inconsistency in the medical evidence is of minor
nature, is such that it does not affect the core of
the prosecution case, and is not such that the two
cannot stand together. The defence did not at all
cross-examine the prosecution witnesses to explain
the absence of all the alleged injuries on Vijay. In
fact, presence of two shots instead seven is clearly
explained by the evidence of eye-witnesses that the
shots of the five accused from the rear of the bus
had their exit through the wind-screen which was
found broken and the glass pieces were found
scattered inside as well as outside the bus. The
bullets must have landed at some distance away from
the bus, and it may not have occurred to anybody to
locate and collect the spent bullets. The murder of
Vijay was thus the result of the concerted action of
the six appellants.
31. Learned counsel for the appellant has
submitted that the murder of Sudhir Mahto in 1983 led
50
to the formation of two groups, namely, Kurmis versus
yadavs and became inimical to each other. In his
submission, in cases of group rivalries, there is a
tendency to falsely implicate innocent persons. He
has placed reliance on the judgments reported in
A.I.R. 1991 S.C. 4 (Budhwa v. State of M.P.) and
A.I.R. 2002 S.C. 1949 (Bijay Singh v. State of Bihar).
The contention is stated only to be rejected. There
is no evidence on record to support this submission.
On the contrary, P.W.2 has stated in his deposition
that the murder of Sudhir Mahto had not led to any
perpetual group rivalry and enmity. Paragraph 17 of
his deposition is reproduced hereinbelow:
“17.tc fot; ( bl okn ds ezrd ugha ) dk eqdnek py
jgk Fkk rks eqdnes dh dkjjokbZ ns[kus eSa U;k;ky; esa vkrk
Fkk@ ,slh ckr ugha gS fd ml eqdnes ds dze
z esa ,d tkfrokn dk
ekgkSy gks x;k Fkk ftlesa dqjeh ,d rjQ rFkk Xokyk nwljh vksj gks
x;s Fks@”
Furthermore, culpability of the appellants has been clearly established by substantive evidence. The reported judgments are inapplicable to the present case.
32. Some argument was advanced also on the
question of motive. It appears that Sudhir Mahto was
killed at Nakatpura and people of the Mahto community
entertained doubts that Vijay Yadav was instrumental
in the murder of Sudhir Mahto. The motive is thus
51established. In any case, law is well settled that
motive need not necessarily be proved to establish
the culpability of the accused. It often happens that
the accused alone knows what moved him to a
particular course of action. The evidence of the
prosecution witnesses in the present case establishes
the motive on the part of the accused persons to kill
Vijay Yadav. In any case, the murder of Vijay Yadav
has been fully established on the basis of evidence
on record de horse motive.
33. Learned counsel for the appellants has
also contended that Indra Deo Yadav had been
interrogated by the police who had mentioned the
names of Dinesh and Devendra as culprits but he did
not name the six appellants. It appears to us in view
of the materials on record that the police had raided
the houses of Dinesh and Devendra who were absconding
and did not pursue it any further. It appears to us
that this does not adversely affect the prosecution
case because the I.O. was able to solve the mystery
and were able to trace the accused persons with
materials to support the charge-sheet. The police did
not, therefore, feel the necessity of pursuing Indra
Deo, Dinesh and Devendra.
34. The six persons who came out of the
clinic of Dr. Ram Nandan had surely stood at the
52
driver‟s gate, behind Vijay Yadav, and had not
committed any overt act. Paragraph 30 of the
deposition of P.W.6 is reproduced hereinbelow:
“30.Mk0 jke uUnu ds nok[kkuk ls tks N% vkneh
vk;s os xksyh vkfn ugh pyk;s”
Even if it is conceded that the six persons
who had emerged from the clinic of Dr. Ram Nandan and
all or a few of them were armed, the police could
have filed charge-sheet against them under section
302 read with section 149 of the IPC. The police,
however, in exercise of its powers of investigation
and formation of opinion did not submit charge-sheet
against them which, if challenged at that stage,
could have been examined by the court. It remained
unchallenged and, therefore, submission of the
charge-sheet excluding them became final. Law is well
settled that if a person has been wrongly let off,
then that does not become a ground for acquittal of
the charge-sheeted persons. The contention is
rejected.
35. Learned counsel for the appellants has
further submitted that the bus had stopped in a busy
area of Muhammadpur where a large number of local
persons had assembled, none of whom has been examined.
It is common experience that people by and large keep
away from criminal cases to avoid the harassment of
53
police station and courts and also to avoid the wrath
of the accused persons. The deceased was obviously of
a different village and, therefore, they may not have
been much aggrieved, or concerned about him. Law is
well settled that non-examination of one or the other
witnesses is not of much consequence. The credibility
of the prosecution witnesses is of vital importance.
Supreme Court has observed in State of Bihar Vs. Ram
Padarath Singh (supra), that veracity of eye-
witnesses cannot be doubted on the ground that no
independent witness from the nearby place was
examined. Paragraph 10 of the judgment is reproduced
hereinbelow:
“10. The High Court also rejected the
evidence of the eye-witnesses on the
ground that no independent witnesses
from the nearby place namely Koria
Haibatpur, were examined by the
prosecution. According to the High
Court, it created a doubt regarding the
eye-witnesses being genuine and their
evidence being truthful. The High Court
failed to appreciate that the incident
had happened near the embankment at a
little distance from Koria Haibatpur
Chowk. Nothing was brought out in the
evidence of any of the prosecution
witnesses, including the investigating
officer, to indicate that any other
person was present near the place of
the incident or that he had seen the
incident. In absence of such material
on record, the High Court was not
justified in assuming and then
proceeding on the basis that
independent witnesses must have been
available and yet they were not
examined by the prosecution. The
54prosecution had examined two persons
Navin Rai and Biso Kunwar who were
passing by the Koria Haibatpur Chowk.
There is nothing on record to show that
they were in any manner connected with
Subhash and his brothers or inimical to
the accused. If independent persons
were not willing to tell the police
that they had seen the incident, the
prosecution cannot be blamed for not
examining independent persons as eye-
witnesses and veracity of the evidence
of the witnesses examined as eye-
witnesses cannot be doubted on that
ground. The High Court was, therefore,
not justified in disbelieving the
evidence of the eye-witnesses on this
ground. ”
(Emphasis added)
36. Learned counsel for the appellants has
further submitted that the evidence of P.W.6 (Budhram),
the informant, to the effect that Hira Kotwal lodged
a report with Asthawa Police Station which has been
withheld by the prosecution because it was contrary to
the present prosecution case. It is difficult to
accept the submission because there is no evidence on
record to show that he had lodged a first information
report in writing. The deposition really creates the
impression that he had orally informed Asthawa Police
Station of the occurrence.
37 Learned counsel for the appellants next
submitted that none of the prosecution witnesses, who
are all co-villagers, made any attempt to protect and
save Vijay. The persons present there, including those
55
of Nakatpura, must have felt over-whelmed by the brute
force at the command of such a large number of persons
„nks dksl„ away from their village. All of them were
completely unarmed and must have felt helpless. Any
interference or attempt to help Vijay would have meant
inviting death. P.W. 6 has stated in his deposition
as follows:
25. “…eSu
a s Mj ls fot; dks NwM+kus dk iz;Ru
ugha fd;k…”
“27. eqgEeniqj esa esjh tku&igpiu ds yksx gS@
eSu
a s cl ls mrjdj eqgEeniqj ds dqN vkneh dks dgk fd fot;
dks cpkus dk mik; fd;k tk; ij os cksys fd gels D;k dgrs
gks@ eqgEeniqj es Hkh ;kno yksx gS@
a …fot; cl ls >kad
jgk Fkk@ mlus geyksxksa dks enn ds fy;s iqdkjk@ eSu
a s dgk fd
eSa D;k d#a D;k mik; gS@ esjk dksbZ mik; mUgsa cpkus dk ugha
pyk@”
31. “ogka mifLFkr ;k=h yksx ,oa nqdkunkj ?kVuk
dks pqipki ns[krs jgs@ dksbZ Hkh vkneh ;k dksbZ nqdkunkj
eqnkygksa dks jksdFkke djus ogka ugh vk;k@”
It appears to us on a perusal of the
entire materials on record including the extracted
portion of the evidence of P.W.6 that the people felt
over-whelmed by the brute force at the command of the
accused persons who were afraid of losing their own
lives, felt helpless, and did not intercede on behalf
of the deceased.
38. Learned counsel for the appellant
Krishna Murari has adopted the arguments advanced by
learned counsel for the appellant Arun Mahto. He has,
56
however, submitted that neither the Fardbeyan, nor
P.W.6 in his deposition, mention the name of Krishna
Murari. It appears to us that the correct position is
that the Fardbeyan as well as P.W.6 state that there
was a sixth person whose name he was unable to recall
whom he will be able to recognise on seeing him, and
not that there was no sixth person. In view of the
materials on record, Krishna Murari was charge-
sheeted. P.Ws.2, 3, 5 and 8 have stated the name of
Krishna Murari as the sixth accused. The contention
is, therefore, rejected.
39. Learned counsel for the remaining
appellants have adopted the arguments advanced by
learned counsel for the appellant Arun Mahto. They
have advanced some arguments in addition which have
really been covered by the contentions advanced on
behalf of Arun Mahto and, therefore, do not need
separate consideration.
40. In the result, the appeals are dismissed
and the impugned conviction and sentences are hereby
upheld. Arun Mahto is convicted under section 302 of
the IPC, and sentenced to undergo rigorous
imprisonment for life. The remaining accused persons
are convicted under section 302 read with section 149
of the IPC. I am mindful of the position that the
learned trial court has convicted the remaining
57
appellants under section 302 read with section 34 of
the IPC. Law is well settled that in appropriate
cases, the conviction under section 302 and 34 of the
IPC can be converted into one under section 302 read
with section 149 of the IPC provided no prejudice has
occurred to them. We see none in this case. In view
of the presence of five persons, which is an
essential ingredient of section 149 IPC, the
remaining appellants are convicted under section 302
read with Section 149 of the IPC, and are sentenced
to undergo rigorous imprisonment for life. Their
bails bonds are cancelled and are directed to
surrender before the learned trial court forthwith to
serve out the remainder of their sentences.
(Sudhir Kumar Katriar,J.)
S.M.M.Alam, J. I agree.
(Syed Md. Mahfooz Alam, J.)
Patna High Court, Patna
Dated the 16th day of September, 2008
S.K.Pathak/ (A.F.R.)
58