RAMDEO RAI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is preferred by the appellant, Ramdeo Rai Yadav, who was the first accused in the Sessions Trial Case No. 9/84 in the Court of 2nd Additional Sessions Judge, Darbhanga, challenging his conviction under S. 302, I.P.C. and the sentence of imprisonment for life imposed therefore.

(2.) Adumbrated in brief, the facts of the prosecution case are as follows: This appellant and four other accused who all were arrayed as accused Nos. 1-5 took their trial under S. 396 of the Indian Penal Code, alternatively under S. 302, I.P.C. on the allegations that on 6-5-1983 at about 8.00 p.m. they all while attempting to commit dacoity in the house of one Santosh Kumar Pansari (PW-8) in Mohalla Senapat of Darbhanga caused the death of PW-8s brother J. Prakash Pansari.

(3.) On the night of the fateful day, PW-8 was in his house. His brother, the deceased herein, Munshi Dashrath Sah (PW-2) and another Munshi Arjun Sah (not examined) were also present in a room abutting the outer verandah and were checking the account books of their family firm. At that point of time, PW-8 saw two miscreants entering the verandah and taking position near the door of the outer room. One of them was having' a revolver. PW-8 saw two more persons standing behind those two miscreants. The two miscreants (assailants) who first entered the verandah threatened PW-8, the deceased and others to be silent. PW-8 and the deceased suddenly pounced upon the two assailants and started jostling. One of the assailants assaulted PW-8 with the butt of the revolver 'hitting his nose and forehead when the latter attempted to throw a table fan on the assailants. In the meanwhile, the deceased and the assailant who was armed with a revolver, grappled each other, moved out of the verandah and in the course of the combat fell down in the garden. All the while the deceased was shouting 'Dacoit - Dacoit'. At this juncture, PW-8 heard sound of shooting and fell down. One of the assailants searched PW-8's pockets and then they all left without accomplishing dacoity. PW-8 moved to the garden and found his, brother dead. Nonetheless, the deceased was removed to the hospital where he was declared dead. According to PW-8, there was a fluorescent lamp being operated by battery cells shedding sufficient light in the scene locality which enabled PW-8 and others to identify the assailants. The assailants were seven in numbers and they all fled away in an Ambassador car parked near the scene house.