IMPORTANT POINT
Out of eight appellants, appeal of A8 abated due to death, prosecution was successful in proving case against A1, A5, A6 and A7 only. Their conviction and sentence under Sections 302/34, 120B and 147 and 148 IPC maintained but appeals of A2, A3, A4 allowed. They were acquitted.

Headnote:Indian Penal Code, 1860-Sections 302/34, 120-B, 147 and 148-Offences under-Eight persons convicted under for murdering deceased Jagannath Singh who was Mukhiya of Mau Gram Panchayat-By trial Court-Affirmed by High Court-Appeals to Supreme Court-Incident witnessed by PW 3 who had accompanied with deceased-He could see participation by A1 Gaya Yadav, A5 Bhagwat Yadav, A6 Mukhiya Yadav, A7 Karn Yadav and A8 Deo Prasad Yadav (since dead)-No case proved against A2, A3 and A4-PW 3 was informant, independent witness, found reliable-Result appeals of A1, A5, A6 and A7 dismissed-Appeal of A8 abated-Appeals of A2, A3, A4 allowed.
       Held : PW-3 Lallan Bharti is the sole eyewitness. Nothing has been brought to our notice that the witness is related to the deceased. There is also no material, which would disclose the animosity between the witness and the accused. A suggestion was put to this witness that he is distantly related to the deceased to which he flatly denied. On the other hand, evidence disclosed that this witness was close to the deceased Mukhiya, would suggest that at the time of incident this witness was with the deceased Mukhiya would be quite natural and plausible, which would fortify his statement that he was with Mukhiya at the time of incident. Undisputedly, this witness is an independent witness. Similarly, being close to the deceased, the witness in the ordinary circumstances would not depose falsely against the accused and allow the real assailants being escaped unpunished. He has consistently deposed during the trial what has been stated by him in the ferd-beyan. At the risk of repetition we may recapitulate the sum and substance of what this witness has stated during the trial. In the evening of 15.3.1987 when the deceased Mukhiya was meeting people in Mau bazar on the eve of "Holika Dahan" the witness was also with him. First the accused Gaya Yadav requested the deceased to have supper in Kurkut Bigha on the occasion of "Holika Dahan" followed by the accused Karu Yadav which was reluctantly accepted by the deceased. The deceased along with the informant accompanied by two accused when started for village Kurkut Bigha to take supper. It was bright full moonlit night. When they came out of Mau village the witness saw 9-10 persons coming towards them at about 7.45 p.m. and when they were near the Kahua tree accused Gaya Yadav and Karu Yadav pushed the deceased down and then all the accused surrounded the deceased. The informant went back 4 or 6 steps from where he saw that Rahish Yadav and Khalitra Yadav were catching hold the two arms of the deceased and the accused Gaya Yadav and Bhagwat Yadav each fired a shot from the pistol at the deceased who fell down. Thereafter, the accused Mukhiya Yadav began to cut the neck of Mukhiya by pausli. Being frightened, the informant fled away from the spot and came to the darwaja of the deceased and narrated about the occurrence, when among others Jaiprakash Narayan Lal Singh (PW9) also reached there. He further stated that he wanted to go to the police station but people told him that the officer-incharge had gone to Agar village for Holi duty. This witness, further, stated that Mukhiyajee was a nice man of the area and the witness supported him in every election. He further stated that the firing was done from a distance of about 1½ yards. Accused Gaya Yadav fired from the west and Bhagwat fired from south-west and the deceased was facing towards the west. The statement of PW-3 with regard to the invitation extended by the accused to the deceased Mukhiya on 15.3.1987 is well corroborated by the statements of PW-4 and PW-5. (Paras 3 and 4)
       We are, therefore, clearly of the view that the testimony of PW-3 is trustworthy, inspires confidence and on the basis of which the prosecution has established its case beyond all reasonable doubts. (Para 7)
       Held thereafter : What is deduced from the aforesaid facts and circumstances is that the prosecution has been able to establish its case against accused A-1, Gaya Yadav, A-5 Bhagwat Yadav, A-6 Mukhiya Yadav and A-7 Ramashish Kr @ Karu Yadav beyond all reasonable doubts and the appeals in respect of them are, accordingly, dismissed. As already noticed, A-8 Deo Prasad Yadav had died during the pendency of the appeal and his appeal stands abated. So far as A-2 Madheshwar Yadav, A-3 Khalitra Yadav and A-4 Rahish Yadav are concerned, there is no evidence to show that they have shared the common intention to murder the deceased. No overt act has also been attributed to them. Therefore, the prosecution has failed to establish its case against them for the offence under Sections 302/34 IPC beyond reasonable doubts. Their appeal is, accordingly, allowed. They are acquitted of all the charges levelled against them. Their conviction and sentence are set-aside. They are set at liberty if not wanted in connection with any other case. Their bail bonds are cancelled and sureties discharged. A-1 Gaya Yadav, A-5 Bhagwat Yadav, A-6 Mukhiya Yadav and A-7 Ramashish Kr. @ Karu Yadav are on bail. They are directed to surrender to their bail bonds and serve out the sentence. The appeals are disposed of in the above terms. (Paras 11, 12, 13 and 14)

JUDGMENT

Sema, J.-A-1 Gaya Yadav s/o Raj Dev Yadav, A-2 Madheshwar Yadav s/o Rohan Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav s/o Ram Laxman Yadav, A-5 Bhagwat Yadav s/o Ram Kishan Yadav, A-6 Mukhiya Yadav s/o Shiv Nandan Yadav, A-7 Ramashish Kr. @ Karu Yadav s/o Shiv Pd. Yadav, A-8 Deo Prasad Yadav s/o Chandrika Yadav (since dead) were convicted for the offence under Sections 302/34, 120-B, 147 and 148 of the Indian Penal Code and were sentenced to rigorous imprisonment for life under the first two counts. No separate sentences were awarded for the offences under Sections 147 and 148 IPC. Being aggrieved, two appeals were preferred before the High Court. Criminal Appeal No. 213 of 1989 was preferred by five accused and Criminal Appeal No. 216 of 1989 was preferred by three accused. By a common judgment the High Court has dismissed their appeals and confirmed the conviction as recorded by the Trial Court. Before this Court, Criminal Appeal No. 483 of 1996 is preferred by A-1 Gaya Yadav, A-5 Bhagwat Yadav and A-6 Mukhiya Yadav. Criminal Appeal No. 484 of 1996 is preferred by A-2 Madheshwar Yadav, A-3 Khalitra Yadav, A-4 Rahish Yadav, A-7 Ramashish Kr. @ Karu Yadav and A-8 Deo Prasad Yadav. During the pendency of the appeal before this Court, A-8 Deo Prasad Yadav, expired and his appeal stands abated.

2. Shorn of necessary details, the prosecution story, briefly stated is that ferd-beyan (Ext.2) was lodged by Lallan Bharti (PW3) that on 15-3-1987 at about 7.30 p.m. the deceased Jagannath Singh, who was the Mukhiya of Mau Gram panchayat, was meeting people in Mau Bazar, where the informant was also present and talking to him The accused Gaya Yadav who belongs to the neighboring village Kurkut Bigha came there and requested the deceased for supper for the night in his village on the occasion of "Holika Dahan". The deceased was reluctant to accept the invitation on the ground that he has to meet several people and it would become late. At this time, the accused Karu Yadav, who is also of the village Kurkut Bigha arrived there and both the accused namely Gaya Yadav and Karu Yadav, insisted upon Mukhiya for the supper and assured him that he would be allowed to return soon and there would be no delay. The deceased succumbed to the request of the accused and decided to go and PW-3 the informant also accompanied him. It is stated that it was a moonlit night. The deceased Mukhiya, PW-3 Lallan Bharti and accused Gaya Yadav and Karu Yadav started for village Kurkut Bigha. As they came out of Mau village, PW-3 saw 9-10 persons coming from the opposite direction. PW-3 thought that these persons might be going somewhere on the occasion of "Holika Dahan". Soon those persons came closer to them and the accused Gaya Yadav and Karu Yadav gave a push to the deceased Mukhiya and thereafter all other accused persons surrounded him. Out of them he could recognize Bhagat Yadav, Mukhiya Yadav, Madeshwar Yadav, Rahish Yadav, Deo Prasad Yadav and Khalitra Yadav. Having seen the accused surrounding the deceased the informant retreated about 10-15 steps backward and thought that the accused persons would leave the deceased Mukhiya but instead accused Khalitra Yadav and Rahish Yadav caught hold of Mukhiya and accused Gaya Yadav and Bhagat Yadav fired at him from country made pistol. Thereupon, Mukhiya fell down. Thereafter, the accused Mukhiya Yadav who was armed with pausli bent over Mukhiya as if he was cutting the neck of Mukhiya. Simultaneously, all of them were uttering that Mukhiya should not survive. Being frightened the informant fled away from the scene. While fleeing he also saw 2-3 persons in the neighboring fields. He came back to Mau village and narrated the story about the occurrence. He further mentioned in ferd-beyan that while the accused Gaya Yadav and Karu Yadav were inviting Mukhiya for supper in the village Kurkut Bigha some persons of villages Sukata and Mau were also present. The ferd-beyan was recorded at 11.30 p.m. on the sa

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2003 Supreme(SC) 204

IMPORTANT POINTOut of eight appellants, appeal of A8 abated due to death, prosecution was successful in proving case against A1, A5, A6 and A7 only. Their conviction and sentence under Sections 302/34, 120B and 147 and 148 IPC maintained but appeals of A2, A3, A4 allowed. They were acquitted.

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IMPORTANT POINT
Out of eight appellants, appeal of A8 abated due to death, prosecution was successful in proving case against A1, A5, A6 and A7 only. Their conviction and sentence under Sections 302/34, 120B and 147 and 148 IPC maintained but appeals of A2, A3, A4 allowed. They were acquitted.