MAHENDRA RAI Vs. MITHILESH RAI

JUDGEMENT

(1.) These two sets of appeals one by the informant Mahendra Rai, cousin brother of the deceased and another by the State of Bihar are directed against the judgment and order of the High court of Patna passed in Criminal Appeals Nos. 272 and 307 of 1988 reversing the judgment and order passed by the Additional Sessions Judge (1 Patna at Barh dated 20/5/1988 in Sessions Trial No. 135 of 1986 whereby respondent 1 Mithilesh Rai was convicted under Section 302 for brutal murder of Arun Rai and sentenced to capital punishment, while Respondents 2 and 3, namely, Madan Rai and Raj Naresh Rai were convicted under Section 302 read with Section 109 Indian Penal Code and sentenced to undergo life imprisonment and other two co-accused, namely, Rajendra Rai and Ram Das Rai were acquitted.

(2.) The prosecution case was that in the morning of 17/5/1985 there was some dispute and altercation between the deceased Arun Rai, a boy aged about 12 years and the accused-Respondent 2 Madan Rai on the price of milk. The deceased Arun was insisting to sell the milk at the rate of Rs. 5. 00 per litre while the respondent Madan Rai was not agreeable for the same. This dispute infuriated the accused-Respondent 3 Raj Naresh Rai as well as the acquitted accused Ram Das Rai and Rajendra Rai who according to the prosecution instigated the accused-Respondents 1 and 2, Mithilesh Rai andmadan Rai to kill Arun Rai at any cost. It is alleged that on the same day at about 12 noon when deceased Arun Rai was sleeping on a cot under a mango tree in an orchard near his house, the accused-Respondent 1 armed with a kakut, along with his cousin Respondent 2 Madan Rai went there. Accused Madan Rai caught hold of the head of Arun and the respondent Mithilesh Rai gave a heavy blow with the kakut (chaff-cutter) on the neck of Arun Rai. The incident was seen by Mahendra Rai, Public Witness 11, Jagdish Rai, Public Witness 7, Jageshwar Rai, Public Witness 8, Kalicharan Rai, Public Witness 9 and other persons who also tried to apprehend the culprits but since they threatened them by saying that in case they proceeded further they would also meet the same fate. Thereafter the accused persons ran away towards their house. The victim, Arun Rai, died on the spot. According to the prosecution Respondent 3 Raj Naresh Rai is said to have handed over the weapon of offence to Respondent 1, Mithilesh Rai sometime before the occurrence, while the two other acquitted accused are held to have instigated and abetted their sons, Respondents 1 and 2 to commit the said murder sometime in the morning on the date of occurrence.

(3.) At about 3.30 p. m. on the date of occurrence Kailash Prasad, Public Witness 13, Officer in charge of Police Station, Athmalgola, received information about the commission of said murder, he, therefore, after making an entry in the Station Diary proceeded to Village Dashinichak with a police party where he recorded Fardbeyan, Ext. 10 of Mahendra Rai, Public Witness 11, the cousin of the deceased at about 5.30 p. m. on the basis of which a formal FIR Ext. 12 was drawn under S. 302/34 Indian Penal Code against the 3 respondents and the acquitted accused. He prepared an inquest report Ext. 9 at the place of occurrence and seized bloodstained earth. The dead body of the deceased was sent to the hospital, Barh.