Holding

The prosecution evidence, including the brother’s testimony corroborated by the driver’s and by‑stander’s statements and medical evidence, was sufficient to establish the appellants’ participation beyond reasonable doubt, and the convictions under Section 302 read with Section 34 IPC and Section 27 Arms Act stand.

Summary

The deceased, a timber merchant, was shot dead by three local goondas who demanded a "goonda tax" which he refused to pay. The prosecution’s case rested on the testimony of the deceased’s brother (PW12), corroborated by the tractor driver (PW3) and a by‑stander (PW5), as well as medical evidence. Seven prosecution witnesses turned hostile, but the court found no infirmity in PW12’s account and held it substantially corroborated by the other independent witnesses. The appellants were convicted under Section 302 read with Section 34 of the IPC and Section 27 of the Arms Act. On appeal, the Supreme Court examined the admissibility of statements under Section 157 of the Evidence Act and affirmed that the corroborated testimony was sufficient to establish guilt beyond reasonable doubt. Consequently, the appeal was dismissed and the convictions upheld.

Issues considered

Whether a conviction under Section 302 read with Section 34 IPC and Section 27 Arms Act can be sustained on the sole testimony of an interested witness when corroborated by other statements.
Whether statements made to police under Section 161 CrPC and later to a police officer qualify as res gestae under Section 157 of the Evidence Act for corroboration.
Whether any infirmity or bias in the brother’s testimony defeats the prosecution case.
Whether the prosecution proved the participation of the appellants beyond reasonable doubt.

Legislation cited

Subjects

murderconspiracygoonda taxeyewitness testimonycorroborationSection 157 Evidence ActSection 34 IPCArms Acthostile witnesses

Judgment

RAMASHRA Y YADAY AND ORS. A
v.
STATE OF BIHAR

NOVEMBER 8, 2005

[H.K. SEMA AND G.P. MATHUR, JJ.] B

Penal Code, 1860-Section 302 rlw Section 34-Arms Act, 1959-
Section 21-Murder-Due to gun-shot injuries-Sole witness-Deceased, a
timber merchant-The three appellants-accused were local C
bullies("goondas") who allegedly demanded "rangdari tax"(goonda tax)
from deceased but he refused-Incident occurred when deceased alongwith
his brother, PW12 was returning back on a tractor trolley after loading
timber from the village-Solitary testimony of PWl 2-Conviction ofappellants
by Courts be/ow-Validity of-Held, valid-No infirmity· was found in the
evidence of PW12-Jt was substantially corroborated by statements of two D
independent witnesses, PW3, the driver of the tractor and PW5, who though
did not see the incident, heard gunshots and saw deceased in a badly injured
condition-Version of PW12 also consistent with medical evidence-
Participation of appellants in the crime established beyond reasonable
·doubt-Evidence Act, 1872-Section 157. E
Deceased was a timber merchant. According to the prosecution, he
alongwith his brother PW 12 went to the village on a tractor trolley to bring
timber. While they were returning after loading the timber, suddenly the three
appellants-accused came out from the bushes and started firing with country-
made pistol and rifle. PW3, who was driving the tractor, and the deceased F
jumped from the tractor and started running but the appellants chased the
deceased and fired number of gun shots, which hit him l\nd he fell down dead.
The appellants were local bullies/"goondas" who allegedly killed the deceased
since he refused to pay the "goonda tax" demanded from him. As many as 7
witnesses examined by the prosecution turned hostile. Only PW.12, supported G
the prosecution case. PW3, who was driving the tractor did not mention the
names of the appellants in his deposition in Court, hut excepting that he
completely corroborated the prosecution version. PW.S had not seen the
incident but he heard the sound of gunshots and rushed to the place of
occurrence where he saw the deceased lying in a badly injured condition and
H
75
76 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A PW12 who was standing nearby narrated the incident to him. The Sessions
Court convicted the appellants under Section 302 read with Section 34 IPC
and Section 27 of the Arms Act. High Court in appeal upheld the conviction.
Hence the present appeal.
..
.

Dismissing the appeal, the Court
B
HELD: 1.1. PW12 is the brother of the deceased. He has deposed that
the deceased was carrying on timber business and had also a saw mill. The
appellants were bullies or goondas of the locality and they used to demand
"rangdari tax" (Goonda Tax) from his brother, but he refused to pay the same
C and due to this reason, the appellants wanted to teach him a lesson. This shows
the motive for commission of crime and also explains the reason why as many
as 7 witnesses turned hostile and even PW3 who was driving the tractor, did
not mention the names of the appellants in his deposition in Court, though
they were named and were assigned the specific role of causing gunshot
injuries in his statement under Section 161 CrPC. [79-G-H; 80-A)
D
1.2. Except for mentioning the names of the three appellants, PW3 has
completely corroborated the prosecution version of the incident. He
corroborates the fact that PW12 had also gone with the deceased to village
Dabaul for bringing timber on a tractor of which he was the driver. He
E corroborates the fact that the incident took place at about 3.00-4.00 p.m. near
village Shekhopur when two-three persons suddenly appeared and started
firing upon the tractor. He also corroborates the fact that he saw deceased
being hit by gunshots and falling down dead towards eastern side of the tractor.
He further corroborates the presence of PW12 at the time when the assailants
resorted to firing upon deceased. [80-C, DJ
F
1.3. The testimony of PWS who had reached immediately after the
Incident and to whom PW12 had narrated the incident and the role played by
the three appellants In causing the death of his brother by firing upon him
lends complete corroboration to the testimony of PW12. [82-CI

G State of Tamil Nadu v. Suresh & Anr. [1998) 2 SCC 372 and Smt.
Chander Kala v. Ram Kishan & Anr., AIR (1985) SC 1268, relied on;

2. No Infirmity of any kind has been pointed out ih the testimony of
PW12, who is the brother of the deceased. His going along with his brother
for the purpose of bringing timber is most natural. There is substantial ·~

H corroboration to his testimony by the statements of PW3 and PWS. His version
RAMASHRAYYADAVv. STATEOFBIHAR[G.P.MATHUR,J.J 77
of the incident is consistent with medical evidence on record. Thus, the A
prosecution has established the participation of the appellants in the crime
in question beyond any reasonable doubt. (82-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 763 of
2004.
B
From the Judgment and Order dated 15.l.2004 of the Patna High Court
in Crl.A. (D.B.) No. 363 of2000.

D.P. Mukherje and Ms. Nandini Mukherjee for the Ap~e!lants.

B.B. Singh and Ms. Sunita R. Singh for the Respondent. c
The Judgment of the Court was delivered by

G.P. MA THUR, J. l. This appeal, by special leave, has been filed
against the judgment and order dated 15. l .2004 of Patna High Court, by which
the appeal preferred by the appellants was dismissed and their conviction D
under Section 302 read with Section 34 !PC and Section 27 Arms Act and the
sentence of imprisonment for life under the first count and three years R.I.
under the second count imposed by Second Additional Sessions Judge,
Hilsa, Nalanda, in Sessions Trial No.612 of 1998 were affirmed.

2. The case of the prosecution may be stated in brief. The deceased E
Ram Parvesh Yadav was carrying on timber business and was running a saw
mill at Hilsa. The appellants, Ramashray Yadav (A-1), Tanikan Yadav (A-2)
and Rajdeo Yadav (A-3), were bullies or goondas of the locality and they used
to demand "rangdari tax" (Goonda Tax) from the deceased, but he refused to
pay the same. Due to this reason, the appellants were hostile to the deceased F
and wanted to teach him a lesson. On 10.4.1998, the deceased Ram Parvesh
Yadav along with his brother PW.12 Sidhesliwar Prasad and some others went
on a tractor trolley to bring timber from village Dabaul. After loading the
timber, they returned from there and reached west of village Shekhopur at
about 3.30 p.m. Suddenly, the three appellants and two other unknown persons
came out from the bushes and started firing with country-made pistol and G
rifle. The labourers, the driver of the tractor and Ram Parvesh Yadav jumped
from the tractor and started running towards eastern side. The accused
chased Ram Parvesh Yadav and after covering some distance reached near
him and fired number of shots, which hit him and he fell down dead. Sidheshwar
Prasad gave his fard bayan to S.I. Deo Nath Bhagat, of Police Station, Hilsa
78 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A at about 5.00 p.m. The formal FIR of the incident was registered at the Police
Station at 7 .30 p.m. on the basis of which Crime Case No.139 of 1998 was
registered. S.I. Prabhu Nath Singh commenced investigation of the case and
after recording statement of witnesses under Section 161 Cr.P.C. and completing
other formalities submitted charge sheet against the three appellants. The
post-mortem examination conducted on the body of the deceased Ram Pravesh
B Yadav revealed that he had sustained large number of gunshot injuries.

3. After commitment of the case to the Court of Sessions, the appellants
were charged under Section 302 read with Section 34 IPC and Section 27 Arms
Act. The appellants pleaded not guilty and claimed to be tried. In order to
C establish its case, the prosecution examined in all 15 witnesses, out of whom
7 witnesses turned hostile. PW.12 Sidheshwar Prasad, brother of the deceased
who had accompanied him on the tractor to village Dabaul for bringing the
timber, gave the complete version of the incident in his deposition in Court.
PW.3 Karu Beldar was the driver of the tractor. He deposed that he had driven
the tractor trolley on which Ram Parvesh Yadav and Sidheshwar Prasad had
D gone to village Dabaul for bringing timber. When they were· returning to
village Hilsa at about 3.00-4.00 p.m. and had reached near village Shekhopur,
two-three people whom he could not recognize, came there and started firing ·
upon the tractor. Ram Parvesh Yadav ran towards eastern side, but after
receiving gunshot injuries he fell down and died on the spot. When confronted
E with his statement under Section 161 Cr.P.C., wherein he had mentioned that
the three appellants namely, Ramashray Yadav, Tanikan Yadav and Rajdeo
Yadav were present amongst the assailants and had fired from country-made
pistol and rifle upon the deceased, he denied to have given any such statement,
though he admitted that the police had recorded his statement at the police
station. He also denied to have. stated in his statement under Section 161
F Cr.P.C. that the accused appellants used to demand "rangdari tax" (Goonda
Tax) from the deceased and on .account of non-payment thereof, they had
committed his murder. PW.5 Arjun Prasad stated that at about 3.3CI p.m. on
l 0.4.1998, he was returning from village Tamara and when he reached near
Lehra Oak river, he heard sound of several gunshots being fired. He along
G with others rushed towards Mahua Khandha and saw one person lying on
the ground who had received large number of injuries. Sidheshwar Prasad was
standing nearby and on enquiry he informed him that on account of non-
payment of "rangdari tax", Ramashray Yadav, Tanikan Yadav and Rajdeo
Yadav had killed his brother Ram Parvesh Yadav by causing gunshot injuries.
PW.14 Dr. S.B. Singh had conducted post-mortem examination on the body
H of the deceased at 7 .30 a.m. on 11.4.1998 and had prepared the post-mortem
RAMASHRAYYADAVv. STATEOFBIHAR[G.P.MATHUR,J.] 79
report. In his deposition, he proved the aforesaid report and stated that the A
deceased had sustained gunshot injuries on his face, mouth, lumber region,
/ arms and hand. Three bullets were found inside the body which were taken
-.' out. In his opinion, death had occurred 16 to 24 hours prior to the holding
of post-mortem examination.

4. The learned Sessions Judge believed the case of the prosecution and B
convicted all the three appellants under Section 302 read with Section 34 IPC
and Section 27 Anns Act, whereunder sentence of imprisonment for life and
a sentence of three years R.I. respectively were awarded. The appellants
preferred an appeal before the High Court, which affinned the findings of the
leam.ed Sessions Judge and dismissed the appeal. C
5. Learned counsel for the appellants has submitted that as many as 7
witnesses examined by the prosecution had turned hostile. Only PW.12,
Sidheshwar Prasad, who is the brother of the deceased, had supported the
prosecution case and in these circumstances, it was highly unsafe to record
the conviction of the appellants en the solitary iestimony of a witness who D
is an interested witness, being brother of the deceased. Shri B.B. Singh,
learned counsel for the State, has, on the other hand, submitted that the
testimony of PW.12 Sidheshwar Prasad finds ample corroboration from the
testimony of PW.3 Karu Beldar and PW.5 Arjun Prasad, who are independent
witnesses. The eye-witness account of the incident is corroborated by the
medical evidence and in these circumstances, the trial Court and also the High E
Court were perfectly justified in recording the conviction of the appellants.
Learned counsel has also submitted that conviction can be based on solitary
testimony of an eye-witness, if the same inspires confidence and in the
present case the evidence of PW.12 Sidheshwar Prasad was of unimpeachable
character and there is no reason for discarding the same. It has thus been p
submitted that there is no valid ground which may warrant interference by
this Court under Article 136 o: the Constitution with the findings of fact
recorded by the two Courts.

6. PW.12, Sidheshwar Prasad is the brother of the deceased Ram Parvesh
Yadav. He has deposed that the deceased was carrying on timber business G
and had also a saw mill. The appellants were bullies or goondas of the locality
and they used to demand "rangdari tax" (Goonda Tax) from his brother, but
he refused to pay the same and due to this reason, the appellants wanted to
!
' teach him a lesson. This shows the motive for commission of crime and also
explains the reason why as many as 7 witnesses turned hostile and even H

f
I
80 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A PW.3, Karu Beldar who was driving the tractor, did not mention the names
of the appellants in his deposition· in Court, though they were named and
were assigned the specific role of causing gunshot injuries in his statement
under Section 161 Cr.P.C. PW.3 Karu Beldar has stated that the deceased Ram
Parvesh Yadav and Sidheshwar Prasad had gone to village Dabaul to bring
timber and he was driving the tractor. He has further deposed that while
B returning at about 3.00-4.00 p.m., when they reached near village Shekhopur,
two-three people suddenly appeared and started firing from their weapons. He
jumped from the tractor and ran away. He also saw that Ram Parvesh Yadav
had run towards eastern side, where he received gunshot injuries and fell
down dead. Except for mentioning the names of the three appellants, he has
C completely corroborated the prosecution version of the incident. He
corroborates the fact that PW.12 Sidheswar Prasad had also gone with the
deceased Ram Parvesh Yadav to village Dabaul for bringing timber on a
tractor of which he was the driver. He corroborates the fact that the incident
took place at about 3.00-4.00 p.m. near village Shekhopur when two-three
persons suddenly appeared and started firing upon the tractor. He also
D corroborates the fact that he saw Ram Parvesh Yadav being hit by gunshots
and falling down dead towards eastern side of the tractor. He further
corroborates the presence of Sidheshwar Prasad at the time when the a5sailants
resorted to firing upon Ram Parvesh Yadav.

E 7. PW.5 Arjun Prasad has deposed that he was returning from village
Tamara at about 3.30 p.m. on l 0.4.1998 and when he reached near river Lehra
Dak, he heard sound of several gunshots. He along with others ran towards
that side and saw a person lying badly injured in Mahua Khandha and PW.12
Sidheshwar Prasad was standing there. On enquiry, he told him that on
account of non-payment of "rangdari tax", appellants Ramashray Yadav,
F Tanikan Yadav and Rajdeo Yadav had killed his brother Ram Parvesh Yadav
by firing upon him. PW.5 had not seen the incident but he heard the sound
of gunshots and rushed to the place of occurrence where he saw the deceased
lying in a badly injured condition and Sidheshwar Prasad who was standing
nearby narrated the incident to him. It needs examination whether the testimony
G of PW.5 Arjun Prasad can be used as a corroborative piece of evidence.

8. Section 157 of the Evidence Act reads as under :

"157. In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact, at or about
the time when the fact took place, or before any authority legally
H
RAMASHRA Y YADA V v. STATE OF BIHAR [G.P. MATHUR, J.] 81
competent to investigate the fact, may be proved." A
The import of this Section was examined and explained in considerable
detail in State o/Tamil Nadu v. Suresh & Anr., [1998] 2 SCC 372 and paragraphs
26 to 28 of the reports are being reproduced below :

"26. The section envisages two categories of statements of witnesses B
which can be used for corroboration. First is the statement made by
a witness to any person "at or about the time when the fact took
place". The second is the statement made by him to any authority
legally bound to investigate the fact. We notice that if the statement
is made to an authority competent to investigate the fact such statement
gains admissibility, no matter that it was made long after the incident. C
But if the statement was made to a non-authority it loses its probative
value due to lapse of time. Then the question is, within how much time
the statement should have been made ? If it was· made
contemporaneous with the occurrence the statement has a greater
value as res gestae and then it is substantive evidence. But if it was D
made only after some interval of time the statement loses its probative
utility as res gestae, still it is usable, though only for a lesser use.
27. What is meant by the expression "at or about the time when the
fact took place"? There can be a narrow view that unless such a
statement was made soon after the occurrence it cannot be used for E
corroboration. A broader view is that even if such statement was
made within a reasonable proximity of time still such statement can be
used for corroboration. Tii'e legislature would not have intended to
limit the time factor to plose proximity though a long distance of time
would deprive it of its utility even for corroboration purposes.
F
28. We think that the expression "at or about the time when the fact
took place" ia Section 157 of the Evidence Act should be understood
in the context according to the facts and circumstances of each case.
The mere fact that there was an intervening period of a few days, in
a given case, may not be sufficient to exclude the statement from the G
use envisaged in Section 157 of the Act. The test to be adopted,
therefore, is that : Did the witness have the opportunity to concoct
or to have been tutored ? In this context the observation of Vivian
Bose, J. in Rameshwar v. State of Rajasthan, AIR (1852) SC 54 is
apposite :
H
82 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A "There can be no hard and fast rule about the 'at or about'
condition in Section 157. The main test is whether the statement
was made as early as can reasonably be expected in the
circumstances of the case and before there was opportunity for
tutoring or concoction. "

B (emphasis supplied)"

9. In Smt. Chander Kala v. Ram Kishan & Anr., AIR (1985) SC 1268,
an incident which took place on l 0th March was narrated by the victim to
some of her colleagues on 11th March and it was held that the kstimony of
her colleagues was admissible under Section 157 of the Evidence act and
C could be u.sed for the purpose of seeking corroboration to the testimony of
the victim. Thus, the testimony of PW.5 Arjun Prasad who had reached
immediately after the incident had happened and to whom PW.12 Sidheshwar
Prasad had narrated the incident and the role played by the three ~ppellants
in causing the death of his brother by firing upon him lends complete
D corroboration to the testimony of PW.12 Sidheshwar Prasad.

10. No infinnity of any kind has been pointed out in the testimony of
PW.12 Sidheshwar Prasad, who is the brother of the deceased. His going
along with his brother for the purpose of bringing timber is most natural.
There is substantial corroboration to his testiluvny by the statements of PW3
E Karu Beldar and PW.5 Arjun Prasad. His version of the incident is consistent
with medical evidence on record. In these circumstances, we have no hesitation
in holding that the ·prosecution has established the participation of· the
appellants in the crime in question beyond any reasonable doubt. We do not
find any error or illegality in the findings recorded by the trial Court and also
F by the High Court. The appeal is accordingly dismissed. The appellants shall
undergo the sentences as awarded by the Second Additional Sessions Judge,
Hilsa, Nalanda.

B.B.B. Appeal dismissed.