Patna High Court
FIDDU YADAV @ RAJU RANJAN KUMAR @ RAJU RANJANversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The convictions of Rajesh Yadav and Fiddu Yadav under Section 302 read with Section 149 IPC and Section 27 of the Arms Act are affirmed, while Rambarat Yadav and Jalendra Yadav are liable only under Sections 147 and 323 IPC, as the evidence proved their participation in rioting and hurt but not murder or a common object to kill.
Summary
The appeals arose from Kaler P.S. Case No. 31 of 2015 concerning the murder of Umesh Pandey, a peon/guard at Aganur High School, who was shot dead on 24.06.2015. The prosecution alleged that the appellants, along with others, formed an unlawful assembly, dragged the deceased outside the school gate, assaulted him, and fired at him, causing death. The trial court convicted Rajesh Yadav, Fiddu Yadav, Rambarat Yadav and Jalendra Yadav under Sections 302/149 IPC and Section 27 of the Arms Act, sentencing them to life imprisonment. On appeal, the High Court examined the evidence of the deceased's sons (P.W. 5 and P.W. 6), medical evidence, the alleged oral dying declaration, and the plea of interested witnesses. It held that the oral dying declaration was not reliable and that the medical evidence did not fully corroborate the close-range firing claim, but the direct testimony of P.W. 5 and P.W. 6, though interested, was trustworthy regarding the assault and shooting. The Court affirmed the convictions of Rajesh Yadav and Fiddu Yadav under Section 302/149 IPC and Section 27 Arms Act, but set aside the murder conviction of Rambarat Yadav and Jalendra Yadav, convicting them only under Sections 147 and 323 IPC for rioting and hurt. Accordingly, the appeals of Rajesh and Fiddu were dismissed, while those of Rambarat and Jalendra were partly allowed.
Issues considered
- Whether the trial court correctly appreciated the evidence to convict the appellants under Sections 302/149 IPC and Section 27 of the Arms Act.
- Whether the evidence of P.W. 5 and P.W. 6, sons of the deceased and interested witnesses, could be relied upon without independent corroboration.
- Whether the alleged oral dying declaration was trustworthy, voluntary, blemishless and reliable, and whether the deceased was fit to make it.
- Whether the prosecution established an unlawful assembly and common object so as to attract Section 149 IPC.
- Whether non-recording of P.W. 2's information as FIR and alleged suppression of the first information entitled the accused to an adverse presumption.
- Whether the medical evidence corroborated the ocular account regarding the nature of firearm injuries.
- Whether Rajesh Yadav was implicated solely on the basis of an inadmissible police statement.
- Whether Rambarat Yadav and Jalendra Yadav shared the common object to commit murder or were liable only for rioting and hurt.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure — s. 154, 161, 162, 313
- Indian Evidence Act, 1872 — s. 25, 26
- Indian Penal Code — s. 120B, 141, 142, 143, 147, 148, 149, 302, 307, 323, 341, 504, 506
Subjects
- Criminal Law
- Murder
- Unlawful Assembly
- Common Object
- Section 149 IPC
- Interested Witness
- Oral Dying Declaration
- Firearm Injuries
- Arms Act
- Rioting
- Vicarious Liability
- Appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.329 of 2019
Arising Out of PS. Case No.-31 Year-2015 Thana- KALER District- Jehanabad
======================================================
RAJESH YADAV, Son of Late Rajkishor Singh Resident of Village- Karnaul
Chandi, P.S.- Charpokhari, District- Bhojpur (Ara)
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 332 of 2019
Arising Out of PS. Case No.-31 Year-2015 Thana- KALER District- Jehanabad
======================================================
RAM BRAT YADAV @ RAMBARAT YADAV @ RAMBRAT SINGH, Son
of Ishwar Yadav Resident of Village - Hichhan Bigha, P.S.- Daued Nagar,
Distt.- Aurangabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1059 of 2019
Arising Out of PS. Case No.-31 Year-2015 Thana- KALER District- Jehanabad
======================================================
FIDDU YADAV @ RAJU RANJAN KUMAR @ RAJU RANJAN, Son of
Rambarat Yadav Resident of Village - Hichchanbigha, P.S.- Daudnagar, Distt
- Aurangabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 192 of 2022
Arising Out of PS. Case No.-31 Year-2015 Thana- KALER District- Jehanabad
======================================================
JALENDRA YADAV, Son of Late Chhedi Yadav, Resident of Village-
Hichhanbigha, P.S.- Daudnagar, District- Aurangabad.
... ... Appellant/s
Patna High Court CR. APP (DB) No.329 of 2019 dt.27-02-2026
2/54
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 329 of 2019)
For the Appellant/s : Mr.Ramchandra Singh, Advocate
Mr.Shankar Kumar, Advocate
Mr.Radha Krishna, Advocate
For the State : Mr.Ajay Mishra, APP
For the Informant : Mr.Ashok Kumar Singh, Advocate
MrAbhishek Kumar Singh, Advocate
(In CRIMINAL APPEAL (DB) No. 332 of 2019)
For the Appellant/s : Mr.Tej Kumar Maharaj, Advocate
For the State : Mr.Ajay Mishra, APP
For the Informant : Mr.Ashok Kumar Singh, Advocate
MrAbhishek Kumar Singh, Advocate
(In CRIMINAL APPEAL (DB) No. 1059 of 2019)
For the Appellant/s : Mr.Diwakar Upadhyaya, Advocate
For the State : Mr.Ajay Mishra, APP
For the Informant : Mr.Ashok Kumar Singh, Advocate
MrAbhishek Kumar Singh, Advocate
(In CRIMINAL APPEAL (DB) No. 192 of 2022)
For the Appellant/s : Mr.Mr.Ramakant Sharma, Sr. Advocate
Mr.Mayank Raj, Advocate
Mr.Adarsh Prasar, Advocate
For the State : Mr.Dilip Kumar Sinha, APP
For the Informant : Mr.Abhishek Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 27-02-2026
The present criminal appeals arise out of a common
occurrence and have been heard together, as they challenge two
separate judgments of conviction and orders of sentence passed
by the learned Additional Sessions Judge-II, Jehanabad, in
sessions trials arising from Kaler P.S. Case No. 31 of 2015.
2. Criminal Appeal preferred by appellant Fiddu Yadav
@ Raju Ranjan Kumar arises out of Sessions Trial No. 287 of
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2016/256 of 2018, wherein judgment of conviction was
delivered on 01.08.2019 and order of sentence passed
thereafter.
3. The remaining appeals preferred by appellants
Jalendra Yadav, Rajesh Yadav and Rambrat Yadav arise out of
Sessions Trial No. 287 of 2016 along with Sessions Trial Nos.
431/2017, 98/2018 and 188/2017, wherein judgment of
conviction was passed on 20.02.2019 and order of sentence
subsequently.
4. Since both sets of appeals arise out of the same First
Information Report, same occurrence, common evidence and
involve identical questions of fact and law, they are being
disposed of by this common judgment.
5. The prosecution case, as unfolded in the fardbeyan of
the informant and the First Information Report, in brief, is that
on 24.06.2015 at about 12:00 noon an occurrence took place
near Aganur High School within the jurisdiction of Kaler
Police Station in the district of Arwal.
6. The informant, Pratibhesh Pandey, stated that his
father Umesh Pandey was employed as a peon at Aganur High
School and was usually deployed near the school gate for
safety and security. It is alleged that certain miscreants,
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including one Pankaj Kumar and his associates, used to sit near
the school gate armed with weapons and often indulged in
objectionable activities. The deceased had objected to such
conduct and had reported the matter to the local police.
7. It is further alleged that on 23.06.2015, the local
police conducted a raid in connection with the said activities,
which allegedly angered the accused persons. On the following
day, i.e., 24.06.2015, at about noon, the accused persons
including Fiddu Yadav, Jalendra Yadav, Rambrat Yadav, Rajesh
Yadav and others, allegedly came armed with firearms and
other weapons and in furtherance of their common object fired
upon Umesh Pandey and assaulted him, causing grievous
injuries. He was taken towards hospital but succumbed to his
injuries on the way.
8. On the basis of the said fardbeyan, Kaler P.S. Case
No. 31 of 2015 was registered under Sections 147, 148, 149,
341, 323, 504, 506, 307 and 302 of the Indian Penal Code and
Section 27 of the Arms Act.
9. Investigation was taken up by the Investigating
Officer who inspected the place of occurrence, recorded
statements of witnesses and, after completion of investigation,
submitted charge-sheet against the accused persons under
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Sections 147, 148, 149, 341, 323, 504, 506, 302 and 120B of
the Indian Penal Code and Section 27 of the Arms Act.
10. The case being triable by the Court of Sessions was
committed to the court of learned Sessions Judge, Jehanabad,
and subsequently transferred to the court of learned Additional
Sessions Judge-II for trial and disposal.
11. Upon perusal of materials available on record,
charges were framed against the accused persons under
Sections 147, 148, 149, 302, 323, 341, 504 and 506 of the
Indian Penal Code and Section 27 of the Arms Act. The charges
were read over and explained to the accused persons in Hindi,
to which they pleaded not guilty and claimed to be tried.
12. In order to bring home the charges, the prosecution
examined altogether nine witnesses and also exhibited
documentary evidence including post-mortem report,
fardbeyan, formal FIR, seizure list, FSL report and material
exhibits including ammunition.
13. The defence did not adduce any oral or
documentary evidence and the case of the defence, as gathered
from cross-examination and statements recorded under Section
313 Cr.P.C., is that of denial and false implication.
14. The principal question before the trial court was
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whether the prosecution had been able to establish beyond
reasonable doubt that the accused persons, being members of
an unlawful assembly and in furtherance of their common
object, committed the murder of Umesh Pandey by firearm and
thereby committed offences punishable under Sections 302/149
IPC and allied sections.
15. In the separate trial relating to appellant Fiddu
Yadav @ Raju Ranjan Kumar, the learned trial court, upon
appreciation of oral and documentary evidence, held that the
prosecution had been able to establish the charges under
Sections 147, 148, 302 read with Section 149 IPC and Section
27 of the Arms Act.
16. The trial court found that the evidence of
prosecution witnesses, particularly the family members and
other supporting witnesses, coupled with medical evidence and
surrounding circumstances, proved the case beyond reasonable
doubt against the accused. The accused Fiddu Yadav was
accordingly convicted and sentenced to undergo imprisonment
for life along with fine for the offence under Section 302/149
IPC and further sentence under the Arms Act.
17. In the connected sessions trials against Jalendra
Yadav, Rajesh Yadav and Rambrat Yadav, the learned trial
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court, upon consideration of the same set of evidence, arrived
at similar findings and held that the prosecution had been able
to establish the charges under Sections 147, 148, 506 and 302
read with Section 149 IPC and Section 27 of the Arms Act.
18. The learned trial court, however, recorded that the
prosecution failed to prove certain minor charges such as
Sections 341 and 504 IPC and acquitted the accused of those
charges, but held them guilty for the principal offences relating
to rioting, unlawful assembly and murder in furtherance of
common object.
19. Accordingly, all the accused persons were convicted
and sentenced to undergo imprisonment for life and to pay fine,
with sentences under the Arms Act and other sections directed
to run concurrently.
20. Aggrieved by the aforesaid judgments of conviction
and orders of sentence, the present appeals have been preferred
by the appellants challenging the legality, correctness and
propriety of the findings recorded by the learned trial court.
21. Since all the appeals arise out of the same
occurrence, involve common questions of law and fact and
were heard analogously, they are being disposed of by this
common judgment.
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22. The appellants have preferred the present appeals
assailing the judgments of conviction and orders of sentence
primarily on the following grounds:
1. That the learned trial court failed to properly
appreciate the evidence on record in its correct perspective.
2. That there is no reliable eye-witness to the actual
occurrence of firing and the case of the prosecution rests
primarily upon hearsay and circumstantial evidence.
3. That the alleged dying declaration attributed to the
deceased is oral in nature and not corroborated by any
independent witness or medical officer and therefore cannot
form the sole basis of conviction.
4. That independent witnesses available at the place of
occurrence were not examined by the prosecution, which
creates serious doubt regarding the veracity of the prosecution
case.
5. That there exist material contradictions and
inconsistencies in the testimonies of prosecution witnesses
which have not been properly appreciated by the trial court.
6. That the prosecution has failed to establish the
existence of any unlawful assembly or common object so as to
attract the provisions of Section 149 of the Indian Penal Code.
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7. That the appellants have been falsely implicated due
to prior enmity and village rivalry.
23. On the aforesaid grounds, the appellants have
prayed for setting aside the judgment of conviction and order
of sentence.
24. Learned counsel appearing on behalf of the State
has supported the findings recorded by the trial court and
submitted that the prosecution has been able to prove the
charges beyond reasonable doubt.
25. It has been contended that, The occurrence is
supported by medical evidence. The Motive stands established,
The deceased had named the accused persons while being
taken to hospital, The Presence of prosecution witnesses at the
place of occurrence stands proved and Minor discrepancies do
not affect the core of the prosecution case.
26. It appears from the evidence of P.W 1 Dr. Umesh
Prasad that the medical officer who conducted the post-mortem
examination on the dead body of deceased Umesh Pandey.
27. He has deposed that on 24.06.2015 he was posted as
Medical Officer at Sadar Hospital and on that day he conducted
the post-mortem examination over the dead body of Umesh
Pandey. During examination he found multiple ante-mortem
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firearm injuries on the person of the deceased. He noticed
firearm entry wounds on vital parts of the body including chest
and head. On internal examination he found laceration of the
lung and brain and accumulation of blood in the thoracic and
cranial cavity. He also recovered a bullet from inside the body.
28. According to his opinion, the injuries were ante-
mortem and caused by firearm. He opined that the death was
caused due to shock and haemorrhage resulting from firearm
injuries. He proved the post-mortem report prepared by him
and his signature thereon.
29. In cross-examination, this witness stated that he did
not mention the exact time since death in the post-mortem
report. He also admitted that certain formal particulars such as
case number were not mentioned in the report. However, he
denied the suggestion that the post-mortem report was prepared
in collusion with the police or that he had not properly
conducted the examination. Nothing substantial could be
elicited in his cross-examination to discredit his testimony
regarding the nature of injuries or cause of death.
30. PW–2 Dr. Dhruv Narayan Mishra has been
examined as a prosecution witness to prove the circumstances
preceding and immediately following the occurrence.
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31. He has deposed that on the date of occurrence, i.e.,
24.06.2015, at about 12:00 noon, he was taking classes in
Aganur High School. While he was inside the classroom, he
heard the sound of firing, which according to him was of three
to four gunshots. Due to fear, he did not immediately come out
of the classroom. After about ten minutes, when he came out,
he found that Umesh Pandey, the peon of the school, was lying
outside the school gate in an injured condition having sustained
gunshot injuries. He stated that seeing the condition of the
injured, he went to the police station to inform the police.
When he returned, he found that the injured had already been
taken towards hospital for treatment.
32. This witness has further stated that the cause of the
incident was the conduct of one Pankaj Kumar, who used to sit
outside the school and allegedly harass girls. According to him,
the deceased had objected to such conduct and had informed
the police. He also stated that the police had arrested Pankaj
Kumar on the previous day, and while being taken by the
police, Pankaj Kumar had threatened the deceased. He further
stated that thereafter, at about noon, the incident of firing took
place.
33. In his deposition, this witness initially made
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statements indicating that from the roof of the school he had
seen certain persons assaulting the deceased and taking their
names. However, subsequently, when confronted, he stated that
he had not seen the actual firing.
34. In cross-examination, this witness admitted that at
the time of firing he was inside the classroom and had not
witnessed the occurrence with his own eyes. He clearly stated
that he did not see who fired the gunshots. He admitted that his
knowledge regarding the assailants was not based on direct
perception of the occurrence.
35. PW–3 Santu Prasad Verma has deposed that on the
date of occurrence at about 12:00–12:15 p.m. he was taking
class inside the school. During that time he heard the sound of
gunshot. According to him, after about ten minutes he along
with students came outside and saw that Umesh Pandey had
sustained gunshot injuries and was lying on the ground outside
the school. He stated that thereafter the injured was taken to
hospital and there was commotion in the school premises. He
further stated that he did not know the cause of the occurrence
and did not know who had fired upon the deceased.
36. As this witness did not support the prosecution case
regarding identification of the assailants, he was declared
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hostile and was cross-examined by the learned Additional
Public Prosecutor. During cross-examination by the
prosecution he denied having stated before the police that he
had seen the accused persons assaulting the deceased or that he
had named any of the accused as participants in the occurrence.
He was confronted with his previous statement recorded under
Section 161 Cr.P.C., but he did not support the same and
maintained that he had not seen the actual occurrence.
37. In cross-examination by the defence, he reiterated
that at the time of occurrence he was inside the classroom and
had not witnessed the incident with his own eyes.
38. PW–4 Vimleshwar Singh has deposed that on the
date of occurrence at about noon he was present in the teachers’
room of the school when he heard the sound of firing. He came
outside and saw that Umesh Pandey had sustained gunshot
injuries and was lying in an injured condition. He stated that
thereafter the injured was taken to hospital. He further stated
that he did not know the cause of the occurrence and had not
seen who had assaulted the deceased.
39. As this witness did not support the prosecution case
regarding the involvement of the accused persons, he was
declared hostile and cross-examined by the prosecution. During
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such cross-examination, he denied having made any statement
before the police implicating the accused persons. He was
confronted with his earlier statement allegedly recorded during
investigation, but he did not support the same and stated that he
had not seen the occurrence.
40. In cross-examination by the defence, he reiterated
that he had not seen the persons who had committed the assault
and that he did not know who had fired upon the deceased.
41. PW–5 Vikash Kumar Pandey, son of the deceased,
has deposed that on the date of occurrence at about noon he
was present at Aganur High School along with his father.
According to him, his father was working as a peon in the
school. He has stated that while he and his younger brother
were present there for collecting certain certificates and money,
some persons called his father outside the gate. Shortly
thereafter, some children raised alarm that his father was being
assaulted.
42. He stated that he and his brother rushed towards the
gate and saw that several accused persons including Fiddu
Yadav, Rajesh Yadav, Rambrat Yadav and others were dragging
his father outside the school gate and assaulting him.
According to this witness, the accused persons assaulted his
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father with fists and kicks and thereafter took out firearms. He
has specifically alleged that one of the accused fired at the head
of his father and thereafter other accused persons also fired, as
a result of which his father fell down. Even thereafter, the
accused persons continued to assault him. He further stated that
after the occurrence the accused persons fled away from the
place of occurrence.
43. He has also spoken about the motive and previous
dispute relating to objection raised by his father against certain
activities of the accused persons near the school premises.
44. In cross-examination, this witness was subjected to
lengthy questioning. He admitted certain facts regarding his
education, residence and relationship with the deceased. He
was questioned regarding the exact manner of occurrence,
presence of other persons and surrounding circumstances. He
denied the suggestion that he was not present at the place of
occurrence or that he had falsely implicated the accused
persons. He also denied the suggestion that the accused persons
were innocent or that he was deposing falsely due to enmity.
45. Despite lengthy cross-examination, he remained
consistent on the material aspect that he had seen the accused
persons assaulting and firing upon his father.
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46. The testimony of PW–5 is that of a close relative of
the deceased being his son. His presence at the place of
occurrence appears natural and probable. His evidence
provides a direct account of the assault upon the deceased and
attributes specific roles to the accused persons. Though he is an
interested witness, his testimony cannot be discarded solely on
that ground and requires careful scrutiny.
47. His evidence finds corroboration from medical
evidence regarding firearm injuries and from other surrounding
circumstances. Nothing substantial has been elicited in cross-
examination to discredit his presence at the place of occurrence
or the core of his testimony.
48. PW–6 Vipul Kumar Pandey, another son of the
deceased, has deposed that on the date of occurrence at about
12:00 noon he was present at Aganur High School along with
his father and brother. According to him, he had gone there to
receive certain certificates and money from his father. He
stated that during that time a person came and called his father
outside the school gate. His father then went outside and
shortly thereafter some children raised alarm that the peon was
being assaulted.
49. This witness has deposed that he and his brother
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rushed towards the gate and saw several accused persons
including Fiddu Yadav, Rajesh Yadav, Rambrat Yadav, Jalendra
Yadav and others assaulting his father. He stated that the
accused persons dragged his father outside the gate and
assaulted him with fists and kicks. He further stated that
thereafter some of the accused persons took out firearms and
fired upon his father. According to him, the first shot was fired
at the head of his father and thereafter other shots were also
fired, as a result of which his father fell on the ground in an
injured condition. Even thereafter, the accused persons
continued to assault him and threatened the witnesses with dire
consequences.
50. He further stated that after the accused persons fled
away, he and others arranged a vehicle and took the injured
towards hospital. He has also stated that on the way to hospital
his father was uttering the names of the accused persons as the
assailants. Ultimately, his father succumbed to the injuries.
51. In cross-examination, this witness was questioned at
length regarding his presence at the place of occurrence, the
manner in which the occurrence took place and the sequence of
events thereafter. He admitted that several teachers and
students were present in the school at that time. He was also
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questioned regarding prior disputes and other surrounding
circumstances. He denied the suggestion that he had not
witnessed the occurrence or that he was falsely implicating the
accused persons. He maintained that he had seen the accused
persons assaulting and firing upon his father.
52. Nothing material could be elicited in his cross-
examination so as to completely discredit his presence at the
place of occurrence or his version regarding the assault.
53. PW–6 is also a son of the deceased and therefore an
interested witness. However, his presence at the place of
occurrence appears natural in view of his statement that he had
gone to the school to receive certificates and money from his
father. His testimony provides a direct account of the
occurrence and attributes specific roles to the accused persons.
His evidence also supports the prosecution case regarding the
alleged oral dying declaration made by the deceased while
being taken to hospital.
54. His testimony broadly corroborates the version
given by PW–5 and also finds support from the medical
evidence regarding firearm injuries. Though being a related
witness his testimony requires careful scrutiny, it cannot be
discarded solely on that ground.
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55. PW–7 is the informant of the case and another son
of the deceased. He has deposed that on the date of occurrence
he received information regarding the assault upon his father
and rushed towards the place of occurrence. Upon reaching
there he found his father in injured condition having sustained
gunshot injuries. He, along with others, arranged for a vehicle
and took the injured towards hospital for treatment.
56. He has further deposed that while being taken to
hospital his father was uttering the names of the accused
persons including Fiddu Yadav, Rajesh Yadav, Rambrat Yadav
and others and stating that they had assaulted and shot him. He
has stated that thereafter his father succumbed to injuries
during treatment.
57. He has proved the fardbeyan recorded by the police
and the formal FIR drawn on its basis.
58. In cross-examination, this witness admitted that he
had reached the place of occurrence after receiving information
and had not witnessed the actual act of firing with his own
eyes. He was questioned regarding the sequence of events,
presence of other persons and circumstances under which the
statement of the deceased was allegedly made. He denied the
suggestion that no such statement was made by the deceased or
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that the accused persons had been falsely implicated.
59. PW–8 and PW–9 are the Investigating Officers who
conducted investigation of the case at different stages. They
have deposed regarding the steps taken by them during
investigation including visiting the place of occurrence,
preparing inquest report, recording statements of witnesses,
seizure of materials and submission of charge-sheet against the
accused persons.
60. They have proved the formal FIR, inquest report,
seizure list and other documents prepared during investigation.
They have also stated that upon completion of investigation
and finding sufficient materials against the accused persons,
charge-sheet was submitted under the relevant sections of law.
61. In cross-examination, the Investigating Officers
were questioned regarding the manner of investigation, non-
examination of certain witnesses and alleged inconsistencies in
statements recorded during investigation. They denied the
suggestions that the investigation was biased or that the
accused persons had been falsely implicated.
62. Mr. Ajay Thakur, learned Senior Advocate on behalf
of the appellant Rajesh Yadav in Criminal Appeal (DB) No.
329 of 2019 submits, at the outset, that Rajesh was not named
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in the FIR. The evidence on record is not clear how name of
Rajesh transpired during investigation of Kaler P.S. Case No.
31 of 2015 dated 24th of June, 2015. However, it transpires
from the evidence of the Investigating Officers, namely, P.W. 8
and P.W. 9 that Rajesh Yadav was booked in connection with
above-mentioned case as an accused on the basis of his
statement admitting the guilt before P.W. 8. It is needless to say
that any statement before the Police is not admissible in
evidence and shall not be proved as against the person accused
of any offence under Sections 25 and 26 of the Indian Evidence
Act. Therefore, the above-named accused was implicated in
this case on the basis of inadmissible evidence except the
alleged confessional statement recorded by P.W. 8. Prosecution
failed to produce any incriminating evidence against the
accused Rajesh Yadav. Therefore, he was wrongly convicted by
the Trial Court.
63. Mr. Thakur further submits that from the evidence of
P.W. 2 Dr. Dhruv Narayan Mishra who was the headmaster of
Aganur High School, it is ascertained that on 24 th of June, 2015 at
about 12:00 noon he was taking class, he heard three or four
sounds of firing. He could not immediately come out of his class
out of fear to see the incidence. About 10 minutes after he heard
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the sounds of firing, he came out of the premises of the school and
found Umesh Pandey, Guard of the said school lying being hit by
gunshot injuries in a critical situation. Then he went to Police
Station to inform the matter. When he returned the school, he
found that the sons of Umesh Pandey had already taken him to the
hospital by a tempo for medical treatment. It is urged by Mr.
Thakur that information given by P.W. 2 in the Police Station was
first information about the incident. It is the duty of the Police to
record such information that discloses cognizable offence and to
register FIR on the basis of the said information. It is not
necessary that in the initial statement, the informant is required to
state the name(s) of the assailants. However, Police did not
register FIR on the basis of information given by P.W. 2 Dr. Dhruv
Narayan Mishra at the earliest point after incidence.
64. It is contended by the learned Advocate on behalf of
the accused Rajesh Yadav that it is of course within the power and
authority of the Police Officer of the jurisdictional Police Station
not to treat a cryptic information as FIR, but, obviously, it is the
duty of the Police to at least record the said information in the
General Diary Entry Book of the Police Station. During trial of the
case, the Investigating Officer failed to produce any record of any
information submitted by P.W. 2 as to whether such information
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given by P.W. 2 was in the nature of disclosing a cognizable
offence on the basis of which the Police was responsible for
recording FIR. Had it been so, the statement of P.W. 7 Prativesh
Kumar Pandey which was recorded by Md. Shahid Ashraf, SHO,
Kaler Police Station on the date of occurrence at 02:45 P.M. ought
not to have been treated as FIR and such statement would have
been hit by the provision contained in Section 162 of the Cr.P.C.
In any case, when the Investigating Authority failed to produce the
information received by them for the first time about the incident,
the Court ought to hold that the Investigating Authority was
withholding the first information about the incident only to
suppress the actual fact and an adverse presumption may be drawn
in favour of the appellants for suppression of the first information
about the incident. It is open for the Court to presume, had the
first information been produced, it might not implicate the accused
persons / appellants.
65. It is also submitted by Mr. Thakur that amongst the
witnesses, P.W. 1 is the Autopsy Surgeon; P.W. 2 is the
Headmaster of the school; P.W. 3 Santu Prasad Verma; and P.W. 4
Bimleshwar Prasad Singh are two Assistant Teachers of the school
who were taking class on the date and time of the occurrence. P.W.
5 Vikash Kumar Pandey and P.W. 6 Vipul Kumar Pandey are to
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sons of the deceased who claimed themselves as eye-witnesses of
the occurrence. P.W. 7 is the informant. It is already recorded that
P.W. 8 and P.W. 9 are the Investigating Officer of Kaler Police
Station Case No. 31 of 2015. P.W. 9 submitted charge-sheet
against the appellants.
66. Thus, it is contended by the learned Advocate on
behalf of the appellant, Rajesh Yadav, that the Trial Court recorded
the order of conviction and sentence against the appellants only on
the basis of the alleged eye witnesses’ account of P.W. 5 and P.W.
6. P.W. 7 Prativesh Kumar Pandey is the informant but admittedly
he did not see the occurrence. He came to the place of occurrence
after the incident and saw his father lying drains with blood
having gunshot injuries on his person. He narrated the incident in
his fardbeyan about what he had heard from his brothers, P.W. 5
and P.W. 6.
67. In this regard, it is submitted by the learned
Advocates on behalf of the appellant Rajesh Yadav that both P.W.
5 and P.W. 6, who claimed themselves as eye-witnesses of the
occurrence, are interested witnesses. They claimed that on the date
of occurrence at about 11:00 A.M., they came to the school to
collect the school leaving certificate of their younger brother and
the sum of Rs. 2500/- which was deposited in the school. It is also
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learnt that the deceased received the school leaving certificate of
his youngest son and a sum of Rs. 2500/- from the school
authority on 23rd of June, 2015. There is absolutely no explanation
that when the deceased already collected the school leaving
certificate and some money which his youngest son was entitled to
get why did not he brought it to his house after his duty hours on
23rd of June, 2015. On the contrary, he had kept the said document
and money in the school itself. Failure to explain the above fact by
the prosecution is another suspicious circumstance which the
prosecution failed to explain. It is submitted by Mr. Thakur that
the above story was manufactured only to show P.W. 5 and P.W. 6
as eye-witnesses of the occurrence. Since P.W. 5 and P.W. 6 are
closed relatives of the deceased and they are interested in the
outcome of the case, the Trial Court committed a gross error in
accepting their evidence without any independent corroboration.
68. Mr. Thakur next argues that according to the
prosecution case, the deceased suffered gunshot injury from a very
close range. It is practically stated by the alleged eye- witnesses
that one of the accused fired at the deceased touching the barrel on
his body. When a person receives gunshot injury from a very close
range, there would be marks of charring, blackening and singeing
around the entry point of the wound but the Autopsy Surgeon did
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not find any such charring, blackening and singeing around the
entry wound of injury no. 2 being a gunshot injury on the right
side mid auxiliary line of fourth rib opening the chest cavity with
laceration of right lung with opening interior chest between nipple
and sternum with corresponding exit wound. Thus, the medical
evidence does not corroborate the nature of injury received by the
deceased as narrated by the alleged eye-witnesses.
69. Thus, the learned Advocate for the Rajesh Yadav
submits that evidence on record is not at all sufficient to hold this
appellant guilty for committing offence under Section 302 read
with Section 149 of the IPC and Section 27 of the Arms Act.
70. Mr. Ramakant Sharma, learned Senior Counsel on
behalf of the appellant Fiddu Yadav has adopted the argument
advanced by Mr. Ajay Thakur. He further submits that as per the
evidence of P.W. 5 Vikash Kumar Pandey, the deceased was
dragged from the school premises outside the gate by accused
Fiddu Yadav, Rajesh Yadav, Pappu Yadav, Jailendra Yadav,
Rambarat Singh and 2/3 unknown persons. After taking him
outside the entrance gate of the school, the accused persons
assaulted him by fist, blows and kicks for sometime. Thereafter,
accused Fiddu Yadav, Rajesh Yadav, Pappu Yadav and Guddu
brought out pistols from their waist. Fiddu Yadav first resorted to
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gunshot injury upon his father on his head. Then Rajesh and
Pappu assaulted him by gunshot injury. Father of P.W. 5 fell down
on the ground. Thereafter also the accused persons assaulted
father of P.W. 5 by fist, blows and kicks. Then all three persons
fled away from the spot, riding on a black colored motorcycle.
Fiddu was sitting on the middle of the motorcycle brandishing a
riffle on his hand. P.W. 6 Vipul Kumar Pandey also gave the same
account of incident in his deposition.
71. It is submitted by Mr. Sharma, the learned Senior
Counsel on behalf of the Fiddu Yadav that the Investigating
Officer did not take any attempt to recover the fire-arm with help
of which, the appellant Fiddu Yadav allegedly fired at the victim.
The Investigating Officer also did not take any attempt to recover
the fire-arm from Rajesh Yadav and Pappu Yadav. Therefore, the
nature of fire-arm was not established during trial of the case. It is
found from the evidence of the Autopsy Surgeon as well as P.W. 5
and P.W. 6 that one bullet perforated the chest of the deceased
having exit wound on the back of the deceased. Surprisingly
enough, no empty cartridge was found from the place of
occurrence. The Investigating Officer seized one fired cartridge
which was recovered after post-mortem examination. The said
fired cartridge was not sent to a FSL or to any Ballistic Expert to
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get the scientific opinion as to whether the injuries caused to the
deceased were actually caused by the seized cartridge.
72. In view of such anomalies, the appellant Fiddu
Yadav was entitled to get benefit of doubt.
73. Learned Counsels on behalf of the appellant
Rambarat Singh and Jailendra Yadav adopted the argument
advanced by Mr. Thakur and Mr. Sharma.
74. The learned Advocate on behalf of the
State/respondents, on the other hand, supports the impugned
judgement, stating, inter alia, that the appellants were convicted
on the basis of the eye-witnesses’ account. There is no reason to
disbelieve P.W. 5 and P.W. 6 only because they are sons of the
deceased. During cross-examination of the above-named two
witnesses, the defence even did not suggest that they had enmity
with the appellants or that they falsely implicated them in a false
case. Therefore, there is no reason to take any alternative decision
against the appellants.
75. We have duly considered the submissions made by
the learned counsels for the appellants and the State/respondents.
76. It is found from the record that initially accused
Rajesh Yadav and Jailendra Yadav were charged for the offences
punishable under Sections 148, 149, 302, 323, 341, 504 and 506
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of the IPC and Section 27 of the Arms Act. Subsequently, charge
under the same penal provisions was framed against Rambarat
Singh and thereafter Fiddu Yadav @ Raju Ranjan Kumar. The
accused persons pleaded not guilty when the charge so framed,
was read over and explained to them. Therefore, trial of the case
commenced.
77. On perusal of the impugned judgement, this Court
finds that the appellants were convicted and sentenced to suffer
imprisonment for life for the offence punishable under Section
302 read with Section 149 of the IPC and also to pay fine of Rs.
10,000/-, in default, further rigorous imprisonment for one year
each. They were also sentenced to suffer rigorous imprisonment
for three years with fine of Rs. 5,000/- each, in default of payment
of fine fuhrer rigorous imprisonment six months each for the
offence under Section 27 of the Arms Act by two separate
judgement dated 21st of February, 2019 and 2nd August, 2019.
78. It is needless to say that Section 147 of the IPC is
the penal provision for rioting. Section 148 is the penal provision
for rioting with deadly weapon. Section 149 speaks about
vicarious liability of every member of unlawful assembly guilty of
offence committed in prosecution of common object.
79. Section 141 of the IPC defines “unlawful assembly”
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as an assembly of five or more persons, if the common objection
of the persons composing that assembly is:
“1. To overawe by criminal force, or
show of criminal force, the Central or any State
Government or Parliament or the Legislature of
any State, or any public servant in the exercise of
the lawful power of such public servant; or
2. To resist the execution of any law, or of
any legal process; or
3. To commit any mischief or criminal
trespass, or other offence; or
4. By means of criminal force, or show of
criminal force, to any person to take or obtain
possession of any property, or to deprive any
person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he
is in possession or enjoyment, or to enforce any
right or supposed right; or
5. By means of criminal force, or show of
criminal force, to compel any person to do what he
is not legally bound to do, or to omit to do what he
is legally entitled to do.”
80. Thus, the ingredients of “unlawful assembly” is the
number of persons forming assembly must be five or more and
their common object would be to commit and act described in first
to fifth of Section 141 of the IPC.
81. It is settled preposition of law that common object of
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the persons composing the assembly could be formed on the spur
of the moment and does not require prior deliberations. The
Courts of conduct adopted by the members of such assembly; their
behavior before, during and after the incident and the arms carried
by them are a few basic relevant factors to determine the common
object. The basic and relevant factors to determine the common
object is succinctly stated in the case of Manjit Singh v. State of
Punjab reported in (2019) 8 SCC 529. In this regard, the Hon’ble
Supreme Court relied on its earlier decision in Sikandar Singh v.
State of Bihar reported in (2010) 7 SCC 477 in paragraph 14.3
and 14.4 which runs as hereunder:-
“14.3. We may also take note of the
principles enunciated and explained by this Court as
regards the ingredients of an unlawful assembly and
the vicarious/constructive liability of every member of
such an assembly. In Sikandar Singh [Sikandar
Singh v. State of Bihar, (2010) 7 SCC 477 : (2010) 3
SCC (Cri) 417] , this Court observed as under : (SCC
pp. 483-85, paras 15 & 17-18)
“15. The provision has essentially two
ingredients viz. (i) the commission of an offence
by any member of an unlawful assembly, and
(ii) such offence must be committed in
prosecution of the common object of the
assembly or must be such as the members of
that assembly knew to be likely to be committed
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in prosecution of the common object. Once it is
established that the unlawful assembly had
common object, it is not necessary that all
persons forming the unlawful assembly must be
shown to have committed some overt act. For
the purpose of incurring the vicarious liability
for the offence committed by a member of such
unlawful assembly under the provision, the
liability of other members of the unlawful
assembly for the offence committed during the
continuance of the occurrence, rests upon the
fact whether the other members knew
beforehand that the offence actually committed
was likely to be committed in prosecution of the
common object.
* * *
17. A “common object” does not require a
prior concert and a common meeting of minds
before the attack. It is enough if each member of
the unlawful assembly has the same object in
view and their number is five or more and that
they act as an assembly to achieve that object.
The “common object” of an assembly is to be
ascertained from the acts and language of the
members composing it, and from a
consideration of all the surrounding
circumstances. It may be gathered from the
course of conduct adopted by the members of
the assembly. For determination of the common
object of the unlawful assembly, the conduct of
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each of the members of the unlawful assembly,
before and at the time of attack and thereafter,
the motive for the crime, are some of the
relevant considerations. What the common
object of the unlawful assembly is at a
particular stage of the incident is essentially a
question of fact to be determined, keeping in
view the nature of the assembly, the arms
carried by the members, and the behaviour of
the members at or near the scene of the
incident. It is not necessary under law that in
all cases of unlawful assembly, with an unlawful
common object, the same must be translated
into action or be successful.
18. In Masalti v. State of
U.P. [Masalti v. State of U.P., AIR 1965 SC
202 : (1965) 1 Cri LJ 226] a Constitution
Bench of this Court had observed that : (AIR p.
211, para 17)
‘17. … Section 149 makes it clear that if an
offence is committed by any member of an
unlawful assembly in prosecution of the
common object of that assembly, or such as the
members of that assembly knew to be likely to
be committed in prosecution of that object,
every person who, at the time of the committing
of that offence, is a member of the same
assembly, is guilty of that offence; and that
emphatically brings out the principle that the
punishment prescribed by Section 149 is in a
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sense vicarious and does not always proceed on
14.4. In Subal Ghorai Subal
Ghorai v. State of W.B., (2013) 4 SCC 607 : (2013)
2 SCC (Cri) 530] , this Court, after a survey of
leading cases, summed up the principles as
follows :
“52. The above judgments outline the
scope of Section 149 IPC. We need to sum up
the principles so as to examine the present
case in their light. Section 141 IPC defines
“unlawful assembly” to be an assembly of five
or more persons. They must have common
object to commit an offence. Section 142 IPC
postulates that whoever being aware of facts
which render any assembly an unlawful one
intentionally joins the same would be a
member thereof. Section 143 IPC provides for
punishment for being a member of unlawful
assembly. Section 149 IPC provides for
constructive liability of every person of an
unlawful assembly if an offence is committed
by any member thereof in prosecution of the
common object of that assembly or such of the
members of that assembly who knew to be
likely to be committed in prosecution of that
object. The most important ingredient of
unlawful assembly is common object.
Common object of the persons composing that
assembly is to do any act or acts stated in
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clauses “First”, “Second”, “Third”,
“Fourth” and “Fifth” of that section.
Common object can be formed on the spur of
the moment. Course of conduct adopted by the
members of common assembly is a relevant
factor. At what point of time common object of
unlawful assembly was formed would depend
upon the facts and circumstances of each case.
Once the case of the person falls within the
ingredients of Section 149 IPC, the question
that he did nothing with his own hands would
be immaterial. If an offence is committed by a
member of the unlawful assembly in
prosecution of the common object, any
member of the unlawful assembly who was
present at the time of commission of offence
and who shared the common object of that
assembly would be liable for the commission
of that offence even if no overt act was
committed by him. If a large crowd of persons
armed with weapons assaults intended
victims, all may not take part in the actual
assault. If weapons carried by some members
were not used, that would not absolve them of
liability for the offence with the aid of Section
149 IPC if they shared common object of the
unlawful assembly.
53. But this concept of constructive liability
must not be so stretched as to lead to false
implication of innocent bystanders. Quite
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often, people gather at the scene of offence out
of curiosity. They do not share common object
of the unlawful assembly. If a general
allegation is made against large number of
people, the court has to be cautious. It must
guard against the possibility of convicting
mere passive onlookers who did not share the
common object of the unlawful assembly.
Unless reasonable direct or indirect
circumstances lend assurance to the
prosecution case that they shared common
object of the unlawful assembly, they cannot
be convicted with the aid of Section 149 IPC.
It must be proved in each case that the person
concerned was not only a member of the
unlawful assembly at some stage, but at all the
crucial stages and shared the common object
of the assembly at all stages. The court must
have before it some materials to form an
opinion that the accused shared common
object. What the common object of the
unlawful assembly is at a particular stage has
to be determined keeping in view the course of
conduct of the members of the unlawful
assembly before and at the time of attack,
their behaviour at or near the scene of
offence, the motive for the crime, the arms
carried by them and such other relevant
considerations. The criminal court has to
conduct this difficult and meticulous exercise
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of assessing evidence to avoid roping innocent
people in the crime. These principles laid
down by this Court do not dilute the concept
of constructive liability. They embody a rule of
caution.”
82. In the aforesaid judgement, the Hon’ble Supreme
Court has sounded words of caution recording, however, the
concept of constructive liability must not be so stretched as to lead
to false implication of innocent bystanders. Quite often, people
gather at the scene of offence out of curiosity. They do not share
common object of the unlawful assembly. If a general allegation is
made against large number of people, the Court has to be cautious.
It must guard against the possibility of convicting mere passive
onlookers who did not share the common object of the unlawful
assembly. Unless reasonable direct or indirect circumstances lend
assurance to the prosecution case that they shared common object
of the unlawful assembly, they cannot be convicted with the aid of
Section 149 IPC.
83. Coupled with the above-mentioned principle of law
enunciated by the Hon’ble Supreme Court while considering a
case based on common object under Section 149 of the IPC, we
may also state before discussing the factual position of this batch
of appeals available from the evidences on record led by the
prosecution during trial that there is no law that discards the
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evidence of interested witness in respect of an incident on the
ground that they are closed relatives of the deceased.
84. On the contrary, it is the common experience of the
Court that specially in criminal cases, independent witnesses do
not want to come forward and dispose against the accused persons
out of fear. In spite of their knowledge and specific statement
during investigation, they preferred not to disclose the incident
during evidence and often turned hostile. It is the witnesses whose
near and dear once suffered serious injury causing end of his life,
do not want to falsely implicate the innocent person at the cost of
the real culprits. Only caution which has been sounded by the
Apex Court is that the evidence of interested witness shall be
subject to close scrutiny so that some innocent person may not be
held guilty for commission of offence. We may refer to the
following decisions of the Hon’ble Supreme Court in support of
our observation in the cases of Gajula Venkateswara Rao v. State
of A.P. reported in (2002) 6 SCC 487, Ram Sanjiwan Singh v.
State of Bihar reported in (1996) 8 SCC 552 and Bhagga v. State
of M.P. reported in (2007) 13 SCC 442.
85. Bearing the aforementioned principles in mind, let
us now independently considered the evidence on record. It is not
in dispute that Umesh Pandey was a Guard of Aganur High
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School. Indisputably, he died on 24th of June, 2015 on being hit by
fire-arm. On 24th of June, 2015 at about 12:00 noon, his post-
mortem was done on the same day at 03:45 P.M. at Sadar
Hospital, Arwal. The Autopsy Surgeon found the following
injuries on the dead body of Umesh Pandey:-
“I) A hole on right side mid axillary line 4”
rib (size 1 cm) and opening of chest cavity-there is
laceration of right lung with opening on Anterior
chest between Nipple and Sternorn exist wound. Size
2 cm, chest cavity shows blood mixed fluid. There is
no charing and blackening on entrance side.
II) A hole on near left ear size 1 cm and
opening on head (vertit region) size 2 cm exit would.
Brain cavity blood and blood clot present and
lacerated brain materials.
III) A hole on left hand index finger size 1
cm and opening on in between index and middle
finger blood and blood clot present. Exit would size 2
cm.
IV) A hole on back side 6th vertiora inernal
examination - Rupture blander collection fluid and
blood. Pillet is found in Shoulder: (one Pillet) and
received by kaler Thana ( fire arm injury)”
86. Accordingly, death is caused by Cardio respiratory
failure due to external and internal hemorrhage of brain and
internal hemorrhage lungs.
87. On perusal of the post-mortem report, we find that
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the deceased received three gunshot injuries. One on the head,
another on the chest and the third-one on left hand index finger.
Two of the wounds had corresponding exit wounds. During post-
mortem examination the Autopsy Surgeon recovered one fired
cartridge from his body. The said fire-arm was examined by the
Ballistic Expert in Forensic Science Laboratory, Patna. In
connection with Kaler P.S. Case No. 31 of 2015 dated 24th of
June, 2015, the Ballistic Expert opined that the fired bullet which
was sent for scientific examination was of .315 / 8 mm caliber
rifle cartridge and through microscopic examination, he opined
that the said bullet marked ‘A’ was fired from country made fire-
arm designed to fire .315 / 8mm caliber rifle cartridge. Thus, it is
found that at least one of the fire-arms was a country made rifle
through which exhibit A was filed and it was extracted from the
body of the deceased. From the evidence of P.W. 5 and P.W. 6, it is
ascertained that they went to Aganur High School on 24th of June,
2015 at about 11:00 A.M. When they were collecting the
certificate of P.W. 6 Vipul Kumar Pandey and sum of Rs. 2500/-,
somebody called his father from outside. After a while some
students raised hue and cry saying that some people was
assaulting his father. Hearing this P.W. 5 and P.W. 6 rushed to the
place of occurrence. Along with them, some teachers and students
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also rushed to the place of occurrence. P.W. 5 saw Fiddu Yadav,
Rajesh Yadav, Pappu Yadav, Guddu, Jalendra Yadav, Rambarat
Singh and 2 / 3 other unknown persons were forcibly pulling him
outside the gate. As soon as, he was taken outside the school
premises, the said persons severely assaulted him by fists, blow
and kicks. After assaulting him for a while, Fiddu Yadav, Rajesh
Yadav, Pappu Yadav, Guddu brought out pistols from their waist.
Fiddu Yadav fired at his head. Thereafter, Rajesh Yadav and Pappu
Yadav also fired at him. Receiving three gunshots, the father of
P.W. 5 feel down. Even thereafter, the accused persons assaulted
him by fists, blow and kicks. Thereafter, Rajesh Yadav, Fiddu
Yadav and Pappu Yadav left the place riding on a black colored
motorcycle. Fiddu Yadav was brandishing a rifle while leaving the
place. Other persons left the place walking.
88. P.W. 6 corroborated the evidence of P.W. 5 on all
material details. It is found from his evidence that on the date of
occurrence at about 12:00 noon, he and P.W. 5 were with his
father. They were taking the certificate and sum of Rs. 2500/-
from him. At that time, a student came and told his father that
somebody was calling from outside the gate of the school. His
father went to open the gate. After sometime, some students raised
hue and cry that some outsiders were fighting with the father of
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P.W. 5 and P.W. 6. Hearing this, they rushed to the place of
occurrence and saw that Fiddu Yadav, Rajesh Yadav, Rambarat
Singh, Jailendra Yadav, Guddu, Chhootu Mahto and 2 / 3
unknown persons were assaulting their father. Both P.W. 5 and
P.W. 6 requested them to leave their father but they did not. On the
contrary Fiddu Yadav, Rajesh Yadav, Pappu and Guddu brought
out pistol from their waist and declared that they would kill
Umesh Pandey because he made some allegations to the police.
Then Fiddu Yadav fired at Umesh Pandey on his head. Rajesh and
Pappu also fired at the chest and waist of the deceased. The father
of the P.W. 5 and P.W. 6 fell down on the ground, receiving
gunshots injuries, drains with blood. Even after that the accused
persons assaulted him with fists, blow and kicks. They also
threatened the witnesses directing them not to make any complaint
to the police. Thereafter, Fiddu Yadav and his associates left the
place towards Hichhin Bigha Village. After about half an our, the
brother of P.W. 5 and P.W. 6, namely, Prativesh Kumar Pandey
came to the spot with a tempo and took his father with the help of
same villagers to Kaler Hospital. On the way, they found an
ambulance. The Medical Officer referred the injured to District
Hospital, Arwal. On the way, the father of P.W. 5 and P.W. 6 were
murmuring the names of Fiddu Yadav, Rajesh Yadav, Pappu
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Yadav, Guddu, Choottu, Jailendra, Rambarat and etc. and was
telling that they had assaulted his father. The Trial Court accepted
the last part of evidence of P.W. 5 and P.W. 6 as a statement of the
deceased made to the witnesses immediately before his death and
it is in the nature of oral dying declaration.
89. There is no dispute on the question that a dying
declaration can be the sole basis for convicting the accused.
However such a dying declaration should be trustworthy,
voluntary, blemish-less and reliable. In the instant case, both
P.W. 5 and P.W. 6 stated in their statement In-Chief that while
their father was being taken to Kaler Hospital by a tempo with
the help of other local villagers, their father was murmuring the
names of Fiddu Yadav and other accused persons as his
assailants. P.W. 6 also deposed in the similar manner regarding
his father’s statement stating the names of the accused persons
as his assailants. On the way to Arwal District Hospital, the
deceased died. The Trial Court considered the aforesaid
evidence and held that immediately before his death, the
deceased made oral dying declaration implicating the accused
persons while he was taken to the hospital by a tempo.
90. In Poonam Bai v. State of Chhattisgarh reported
in (2019) 6 SCC 145, the Hon’ble Supreme Court held as
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hereunder:-
“16. As far as the oral dying
declaration is concerned, the evidence on record
is very shaky, apart from the fact that evidence
relating to oral dying declaration is a weak type
of evidence in and of itself. As per the case of the
prosecution, the deceased had made an oral
dying declaration before Lalita Sahu (PW 2),
Pilaram Sahu (PW 3), Parvati Bai (PW 4), and
others. Though PWs 2, 3 and 4 have deposed
that the deceased did make an oral dying
declaration before them implicating the
appellant, this version is clearly only an
afterthought, inasmuch as the same was brought
up before the trial court for the first time. In
their statements recorded by the police under
Section 161 of the Code of Criminal Procedure,
these witnesses had not made any statement
relating to the alleged oral dying declaration of
the deceased. These factors have been noted by
the trial court in its detailed judgment. Thus, the
evidence of PWs 2, 3 and 4 relating to the oral
dying declaration is clearly an improved version,
and this has been proved by the defence in
accordance with law.”
91. In Arun Bhanudas Pawar v. State of
Maharashtra reported in (2008) 11 SCC 232, the Hon’ble
Supreme Court held in paragraph no. 25 that the oral dying
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declaration made by the deceased ought to be treated with care
and caution since the maker of the statement cannot be
subjected to any cross-examination. In the said reported decision
the alleged dying declaration had not been made to any doctor
or to any independent witness, but only to the mother who
arrived at the hospital only on the following day at about 3.30
p.m. when Medical Officer had already operated the deceased
for his injuries and thereafter he was lying on the bed in
unconscious condition with oxygen tubes having been inserted
in his nostrils. The prosecution has not brought on record any
medical certification to prove that after operation the deceased
was in a fit condition to make the declaration before his mother.
The evidence of alleged oral dying declaration by the deceased
to his mother relied upon by the prosecution and accepted by the
trial court and the High Court was held to be not cogent,
satisfactory and convincing to hold that deceased before his
death was in a fit condition to make oral declaration to his
mother.
92. In the instant case, it is not in dispute that the
deceased received three gunshot injuries, out of which two
injuries were very serious and fatal and would cause death of a
person in normal circumstance. From the autopsy report, it is
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found that as a result of gunshot injury received by the deceased
on his head his brain matter was lacerated. The gunshot which
struck on his chest caused perforation of sternum and lungs with
exit wound on the back. There is absolutely no evidence that the
deceased was physically and mentally fit to make the alleged
dying declaration to his sons.
93. P.W. 7 is the informant. He is one of the sons of
the deceased. He brought out a tempo and took his father to
hospital for medical treatment. It is obvious that if the deceased
had made any dying declaration, the informant would have
stated the said fact of oral dying declaration in his fardbeyan.
However, in the fardbeyan, he remained silent about making of
oral dying declaration by his father.
94. It appears also from the evidence of P.W. 5, P.W. 6
and P.W. 7 that they took their father to the hospital with the
help of local villagers. It is obvious that if the deceased made
some oral dying declaration, it would have been heard by the
local villagers who accompanied the above-named witnesses to
the hospital. However, the prosecution failed to examine any
independent witness in support of such oral dying declaration.
95. Under such circumstances, we are of the view that
the Trial Court committed gross error in appreciating the
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evidence of P.W. 5, P.W. 6 and P.W. 7, so far as it relates to oral
dying declaration and held the appellants guilty for committing
murder of the father of the above-named witnesses.
96. The learned Advocate on behalf of the appellants
voluntary raised a question as to why the information made by
the headmaster of the school, P.W. 2 to the Police was not
treated as a complaint under Section 154 of the Code of
Criminal Procedure.
97. It is also contended by the learned Advocate on
behalf of the appellants that the prosecution purposefully
suppress the initial statement about the incident made by the
P.W. 2. In such circumstances, the accused persons are entitled
to get an adverse presumption to the effect that had the first
information made by P.W. 2 being brought by the prosecution, it
would have disclosed some other story not involving the
appellants.
98. We are not in a position to accept such argument
advanced by Mr. Thakur in this regard because of the fact that
on the above fact, the Investigating Officer was not cross-
examined. From the evidence of P.W. 2, Dr. Dhruv Narayan
Mishra, it is ascertained that he appeared at the place of
occurrence after about ten minutes of the incident and found the
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deceased lying in injured condition with profused bleeding from
the place of injuries which he sustained by gunshots. He did not
see the assailants. He only informed in the local Police Station
that the gatekeeper of his school was murdered by some
unknown persons. There is no procedural error, if Police does
not accept such cryptic information as FIR and proceed to the
spot to ascertain the facts and circumstances of receiving injury
by the gatekeeper of the said school.
99. Be that as it may, from the evidence of P.W. 5 and
P.W. 6, it is found that both the witnesses were present with his
father at the time of occurrence. At the risk of repetition if we
independently discuss the evidence of P.W. 5 and P.W. 6, it
appears that P.W. 5 saw accused Fiddu Yadav, Rajesh Yadav,
Pappu Yadav, Guddu, Rambrat Yadav and Jalendra Yadav and
2/3 unknown persons who were forcibly pulling their father in
order to bring him outside the school premises through a mini
gate. As soon as, they were successful to bring him outside
school premises, they started physically assaulting him by fist,
blows and kicks. After he was assaulted for few minutes, Fiddu
Yadav, Rajesh Yadav, Pappu Yadav and Guddu brought out
pistols from their waist. First Fiddu Yadav resorted to a gunshot
injury on the head of the father of P.W. 5. Then Rajesh and
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Pappu opened fire at him causing injury on his chest and left
hand index finger. Receiving gunshot injuries, the injured fell
down on the ground. Thereafter also the appellants assaulted
him by fist, blows and kicks for about 4 to 5 minutes. Rajesh,
Fiddu and Pappu leave the place by black coloured pulsar
motorcycle. At the time of departure, Fiddu Yadav was
brandishing his rifle. Other assailants left the place towards their
village by foot. P.W. 6 also gave the same account of statement
in his evidence claiming himself to the eye-witness of
occurrence.
100. They also stated on oath that one Pankaj Kumar
used to tease the girl students of the said high school. The
deceased asked him not to tease the girls students inside the
school but Pankaj Kumar did not pay any heed to the words of
the deceased. The deceased also informed the matter to the
Police and Police conducted raid in the said school and arrested
the said Pankaj Kumar. Fiddu Yadav, Rajesh Yadav and Pappu
Yadav were the associates of Pankaj Kumar. As Pankaj Kumar
was arrested by Police, the appellants committed murder of the
father of P.W. 5 and P.W. 6 by resorting two gunfire. The post-
mortem report supports the evidence of P.W. 5 and P.W. 6 so far
as the cause of the death of the father of P.W. 5 and P.W. 6 is
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concerned.
101. Now the question that naturally arises for
consideration as to whether the evidence of P.W. 5 and P.W. 6 is
required to be ignored and discarded on the ground of
interestedness.
102. It is not the law that the evidence of an interested
witness cannot be accepted without corroboration. They should
not be equated with that of a tainted evidence or that of a
approver so as to require corroboration as a matter of necessity.
The evidence of an interested witness does not suffer from any
infirmity as such but the Courts required as a rule of prudence,
not as a rule of law that the evidence of such witness should be
scrutinized with a little care. Once that approach is made and the
Court is satisfied that the evidence of interested witness having
a ring of truth, such evidence could be relied upon even without
corroboration. Indeed, there may be circumstance, where only
interested evidence may be available and no other or when only
witnesses who deposed are the close family members of the
deceased. In such cases, it would not be proper to insist that the
family member should be disbelieved merely because of their
interestedness. On the other hand, it is open for the Court to
hold that the sons of the deceased before whose eyes the father
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was killed in broad day light will not implicate a wrong person/s
at the cost of real culprits.
103. Based on the reasons stated above, We have no
hesitation to rely on the evidence of P.W. 5 and P.W. 6 against
the accused persons.
104. In these batch of appeals, Appellants, Rajesh
Yadav, Fiddu Yadav @ Raju Ranjan Kumar, Rambarat Yadav @
Rambarat Singh and Jalendra Yadav are faced trial in the Court
below. The accused persons who also faced the trial along with
them have not filed any appeal against the judgement passed by
the Trial Court.
105. In the FIR, one Chhotu, village Kera, P.S.
Daudnagar in the district of Aurangabad was named as an
accused but the Investigating Officer failed to arrest the said
accused and till date he did not face trial. Name of Rajesh and
Pappu were not stated in the FIR. However, it is stated in the
FIR that beside the named accused persons, there were 5 / 6
other persons. During investigation of the case, the name of
Rajesh and Pappu transpired. Rajesh was arrested and he faced
trial. Against the judgement of order of conviction and sentence,
Rajesh Yadav, Fiddu Yadav, Rambarat Singh and Jailendra
preferred these appeals.
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106. On close scrutiny of evidence of P.W. 5 and P.W.
6, this Court finds that Rambrat Singh and Jailendra Yadv along
with Fiddu, Rajesh and other accused persons in a group came
to Aganur High School and all of them forcibly took away
deceased Umesh Pandey out of the school gate and started to
assault him by fist, blows and kicks. The Autopsy Surgeon
found urinary bladder of the deceased was raptured. However,
bladder of the deceased was not raptured as a result of any
gunshot injury but it is obviously due to the result of physical
assault perpetrated by the members of the unlawful assembly to
the deceased. Subsequently, the deceased was murdered by
gunshot injury inflicted upon him by the Fiddu Yadav, Rajesh
Yadav and Pappu Yadav.
107. In view of the above finding, we hold that the
Trial Court rightly convicted the appellants Rajesh Yadav and
Fiddu Yadav for the offence under Section 302 of the IPC / 302
read with Section 149 of the IPC and Section 27 of the Arms
Act.
108. Since this Court does not find any evidence of
committing murder of the deceased by Rambarat Singh and
Jalendra Yadav, except the evidence of rioting within the
meaning of Section 147 and causing hurt to the deceased
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punishable under Section 323 of the IPC. The appellants,
namely, Rambarat and Jalendra are convicted and sentenced to
suffer imprisonment for the offence punishable under Sections
147 / 323 and sentence to suffer rigorous imprisonment for one
year for the offence punishable under Section 147 of the IPC
with fine of Rs. 1,000/-, in default of payment of fine further
simple imprisonment for a period of one month for the offence
punishable under Section 147 of the IPC.
109. The above-named appellants i.e., Rambarat and
Jalendra are also sentenced to suffer simple imprisonment for
six months for offence punishable under Section 323 of the IPC
with fine of Rs. 1,000/-, in default to suffer simple
imprisonment for the offence punishable under Section 323 of
the IPC.
110. The period of incarceration by appellants
Rambarat Yadav and Jalendra Yadav shall be set off against the
period of actual punishment.
111. The Criminal Appeal (DB) No 329 of 2019 and
Criminal Appeal (DB) No. 1059 of 2019 filed by Rajesh Yadav
and Fiddu Yadav are dismissed.
112. The judgement and order of conviction and
sentence passed against the appellants, namely, Rajesh Yadav
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and Fiddu Yadav be affirmed.
(Bibek Chaudhuri, J)
( Dr. Anshuman, J)
uttam/-
AFR/NAFR NAFR
CAV DATE 18.02.2026
Uploading Date 27.02.2026
Transmission Date 27.02.2026
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