Full Judgment Text
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CASE NO.:
Appeal (crl.) 763 of 2004
PETITIONER:
Ramashray Yadav & Ors.
RESPONDENT:
State of Bihar
DATE OF JUDGMENT: 08/11/2005
BENCH:
H.K. Sema & G.P. Mathur
JUDGMENT:
J U D G M E N T
G. P. MATHUR, J.
1. This appeal, by special leave, has been filed against the judgment
and order dated 15.1.2004 of Patna High Court, by which the appeal
preferred by the appellants was dismissed and their conviction under
Section 302 read with Section 34 IPC 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
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 and wanted to teach him a lesson. On
10.4.1998, the deceased Ram Parvesh Yadav along with his brother PW.12
Sidheshwar 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 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 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 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 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
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Parvesh Yadav and Sidheshwar Prasad had 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 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 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 3.30 p.m. on 10.4.1998, he was returning from village Tamara and
when he reached near Lehra Dak river, he heard sound of several gunshots
being fired. He along 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 of the deceased
at 7.30 a.m. on 11.4.1998 and had prepared the post-mortem report. In his
deposition, he proved the aforesaid report and stated that the 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
convicted all the three appellants under Section 302 read with Section 34
IPC and Section 27 Arms 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 affirmed the
findings of the learned Sessions Judge and dismissed the appeal.
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 on the solitary testimony of a witness who
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 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 submitted that there is no valid
ground which may warrant interference by this Court under Article 136 of
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 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
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witnesses turned hostile and even 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 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 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 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 assailants resorted to firing upon Ram Parvesh Yadav.
7. PW.5 Arjun Prasad has deposed that he was returning from village
Tamara at about 3.30 p.m. on 10.4.1998 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, 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 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 competent to investigate the
fact, may be proved."
The import of this Section was examined and explained in
considerable detail in State of 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 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. 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 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
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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 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. The legislature would not have intended to
limit the time factor to close proximity though a long
distance of time would deprive it of its utility even for
corroboration purposes.
28. We think that the expression "at or about the time
when the fact took place" in 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
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 :
"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."
(emphasis supplied)"
9. In Smt. Chander Kala v. Ram Kishan & Anr. AIR 1985 SC 1268, an
incident which took place on 10th March was narrated by the victim to
some of her colleagues on 11th March and it was held that the testimony of
her colleagues was admissible under Section 157 of the Evidence act and
could be used 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 appellants in causing the death of his brother by firing upon him lends
complete corroboration to the testimony of PW.12 Sidheshwar Prasad.
10. No infirmity 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 testimony by the statements of
PW3 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 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.