LAWS(SC)-1996-1-75

BEHARI PRASAD Vs. STATE OF BIHAR

Decided On January 09, 1996
BEHARI PRASAD Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) All these appeals arise out of a common judgment dated March 31, 1987 passed by the Patna High Court in Criminal Appeal No.390 of 1982, (Udya Prasad and two others v. State of Bihar) and Criminal Appeal No.382 of 1983 (Sheoji Prasad v. State of Bihar), arising out of the judgment dated July 18, 1983 passed by the learned 4th Additional Sessions Judge. Arran in Sessions Trial No.314 of 1981. By the impugned judgment, the High Court has dismissed both the appeals and convictions and consequential sentence passed by the learned Additional Sessions Judge against the convicted appellants were affirmed by the High Court.

(2.) The four accused namely Sheoji Prasad (A/1), Udai Prasad (A/2), Parameswar Prasad (A/3) and Behari Prasad (A/4) stood charged under Section 302 read with Section 149 and 34, I.P.C. for being members of an unlawful assembly with the common object and common intention to commit murder of one Lal Babu on April 5, 1980 at about 1.00 p.m. at Arran town. The accused No.2 Udai Prasad was further charged under S.302, 148 I.P.C. and Section 27, Arms Act. The accused Nos. 3 and 4 namely Parameswar Prasad and Behari Prasad were also charged under Section 143 and 302/149, I.P.C. Accused No.1 Sheoji Prasad was also charged under Sections 323 and 147, I.P.C. for causing voluntary hurt to Nanoji (P.W.1) with a hockey stick and for commiting the offence of rioting. There was another accused Rameswar Prasad, the father of the accused No.2 Udai Prasad and accused No.3 Behari Prasad but he had died before the trial was completed. Excepting the accused Sheoji Prasad, the other three accused are close relations. The accused Nos. 2 and 4 are real brothers and accused No.3. Parameswar Prasad is the uncle (father's brother) of the accused Nos.2 and 4. The deceased Lal Babu was nephew (brother's son) of Rameswar (deceased) and accused No.3 Parameswar Prasad. The common ancestor of the deceased and the accused Nos. 2 to 4, namely, Baijnath Prasad had self acquired properties. In the ancestral house at Mohalla Mahadeva at Arran town, all the sons of Baijnath Prasad excepting the deceased accused Rameswar Prasad used to reside. The said Rameswar used to stay with the members of his family including his two sons namely accused No.2 Udai Prasad and accused No.4 Behari Prasad in a separate house near Lalji Kothi close to Shismahal chowk in the town of Arran which is within the market area. The members of the family of Rameswar used to stay on the upper floor of the said house and in the ground floor there were two shops. The incident of murder had happened close to the said shops. The northern shop of the said house was given by Baijnath to the father of the deceased Lal Babu since deceased. The remaining portion was given by Baijnath to his order two sons Gajadhar Prasad (P.W.4) and Beni Prasad, the deceased father of P.W.1 Nandji Prasad. Such disposition of his properties of Baijnath was not liked by his two other sons namely Rameswar (deceased accused) and Parameswar (A/3). It appears that probate proceeding was pending between the five sons of Baijnath and their successers-in-interest. The interest of deceased Beni Prasad and deceased Badri Prasad were represented by their sons Nandji Prasad (P.W.1.) and the deceased Lal Babu.

(3.) The residential portion of the house where accused Rameswar used to live with his family members fell in the share of Lal Babu and suit for eviction of Rameswar was filed by Ram Babu. The show room in the ground floor of the said house which was given to the father of Ram Babu by Bajinath was tenanted and accused No.1 Sheoji Prasad was the tenant of the said shop room. A suit for eviction of Sheoji was filed and such suit was fought up to this Court. The tenant Sheoji Prasad compromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would deliver vacant possession of the same to the deceased Ram Babu. Since vacant possession was not delivered, an execution case was instituted in the Court of the learned Munsif at Arran. The executing Court passed an order directing delivery of possession by the officer of the Court.