RAJENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Notice in these two special leave, petitions was confined to the question of sentence only. Special leave granted. Arguments heard.

(2.) The appellants are two brothers and the landlords of a house. They have both been convicted by the IIIrd Additional Sessions Judge, Arrah for having committed an offence punishable under S. 307 read with S. 34 of the Indian Penal Code, 1860, and sentenced to undergo rigorous imprisonment for three years. The learned Sessions Judge and the High Court have accepted the testimony of Mst. Janki Devi, P.W. 4, her grandson Rajesh, P.W. 3 and the two neighbours Bhagirath Mistri, P.W. 1 and Rajendra Mahato, P.W. 2 who reached the spot on hearing the alarm and have found that the prosecution has established the charge beyond all reasonable doubt. The testimony of the prosecution witnesses shows that on the morning in question while the complainant was warming herself in the angan of her house and her grandson was playing nearby, the appellants started abusing her from their kotha and threatened that she would be shot if she did not vacate the house. On her refusal they opened five rounds of fire from their guns. The complainant Smt. Janki Devi fled from the place and hid herself in a marai but her grandson Rajesh sustained a gunshot injury on his left thigh.

(3.) In mitigation of sentence Smt. Gyan Sudha Misra, learned, counsel for the appellants at first urged that the appellants were in possession of the house in dispute and the members of the family of the complainant-tenant Smt. Janki Devi, P.W. 4 came to forcibly dispossess them. On seeing the crowd, the. learned counsel asserts, the appellants had no other alternative but to open fire. There is no substance in the contention. The appellants in their defence had taken that plea but the learned Sessions Judge as well as the High Court have held that they have failed to substantiate it. On the contrary, the finding of the Courts below based on the testimony of Smt. Janki Devi and her grandson Rajesh is that on the morning in question the appellants started showering abuses on the complainant Smt. Janki Devi and threatened that if she did not vacate the house she would be shot. On her refusal, they opened five rounds of fire from their guns. The complainant fled away from the place and hid herself in a marai but as a result of the firing her grandson Rajesh sustained a gunshot injury on his left thigh.