SHAMBHU RAI Vs. STATE

JUDGEMENT

(1.) THIRTY six accused-appellants have preferred this appeal against a judgment dated 3-10-1978 of conviction rendered by I Additional Sessions Judge, Ghazipur in Sessions Trial No. 102 of 1976. Five of the appellants, Shambhu Rai, Kamaksha Rai, Munni Lal, Chandradeo Rai, Udai Rai, have been convicted of the offences punishable under lections 147, 323, 325, 429, 436, 364 and 302, all read .with section 149 of the IPC. Rest of the appellants Basan Rai, Dina Rai, Tarkeshwar, son of Ram Raksha Rai, Shri Ral, Baliram Rai, Uma Rai, son of Chandrika, Sivil Rai, Raja Ram Rai, Tarkeshwar, son of Suraj Rai, Singhasan Rai, Janardan Rai, Uma Rai, son of Badan, Harihar Rai, son of Dubri Rai,, Rama Rai, Chandrahas Rai. Sita Rai, Gurudutt Rai, Lala Rai, Nand Kishone Rai, Harihar Rai, son of Lodi Rai, Sheo Muni Rai, Viodhyachal Rai, Raghunath Rai, Mukteshwar Upadhyaya, Uma Shanker alias Bombay Rai, Kashi Rai, Sudarsban Rai, Abhai Rai, Chhabi Nath Rai, Mahendra Rai and Ayodhya Rai have been convicted of the offences under sections 147, 323, 325, 429 and 436, all read with 149 IPC. All these appellants have been sentenced under sections 147/149 IPC to R. I. for two years under sections 323/149 IPC R. I. for one year 325/149 for 1 1/2 years, 429/149 IPC 5 years, and 436/149 IPC to R. I. for 10 years. Those convicted under section 364/149 IPC have been further sentenced to R. I. for 10 years and under section 302/149 IPC to Imprisonment for life. AH the sentences have been ordered to run concurrently. All the 36 appellants, the two deceased Radhey Shyam and Banarasi, the first informant, the victims and the eye witnesses are all residents of village Sherpur within jurisdictio Darshan Singh v. State of Punjab, 1988 CrLJ 909 of Police Station Bhanwar Koal, district Ghazipur. In the said village the abadi of Haxizans, to which community the deceased and the other victims belong is situated separate and a little away from the abadi of the upper caste people to which the accused persons belong. The Dera ana Khalihan of Ram Chandra Rai and Mangla Rai, the two other persons, who lost their life, shortly before Radhey Shyam and Banarasi were done to death, are situated at a distance of about three furlongs east of the Harijan' basti.

(2.) THE prosecution story, as set out in the FIR lodged by the informant Muneshwar (PW 1) and the statements of the materia! witnesses, in brief, is that deceased Radhey Shyam the son of informant was working as a ploughman of accused-appellant Shambhu Rai. Three days before the incident to which this case relates, there took place a dispute between deceased Radhey Shyam and Paras Rai the son of Shambhu Rai, about carrying the hay from the khalihan of Shambhu Rai. On refusal of Radhey Shyam to carry the hay, Paras Rai twisted his arm and also beat him. Whan Dulad, the married sister of Radhey Shyam tried to save his brother, Paras Rai beat her too. la the night of 26/27- 4-1975, some unknown persons, it is alleged, murdered two bhumidhars named Ram Chandra Rai and Mangla Rai in their Khalihan on the outskirts of the villaye and also caused hurt to Jagdish Rai the brother of Paras Rai. THE injured Jagdish Rai was taken by some persons to the Police Station. Some time after the said [incident, a little after day break on 27-4-1975 the accused appellants barring Mahendra Rai and Ayodhya Rai, named above, forming an unlawful assembly, came to the house of informant Muneshwar in the Harijan basti and in furtherance of their common object caught hold of deceased Radhey Shyam, son of Muneshwar, and Banarasi, son of Sheo Govind Harijan, and took them to the Khalihan of Ram Chandra Rai where he was lying dead, followed by the informant Muneshwar, Phulan (PW 2) Bulli (PW 3) Ram Ugrah (PW 20), Mohan, Sohan and Sheo Baran of the locality. Reaching near the Peepal tree, situated in the southern portion of the Khalihan the assailants started assaulting Radhey Shyam and Banarasi by lathis, ballam and gandasa. Despite the entreaties witn folded hands of the informant and others, they [paid no heed, and kept assaulting the two victims Radhey Shyam and Banarasi mostly by lathis, till they fell dead. After having accomplished their object of committing the two murders, the aforesaid 34 assailants along with a mob of about four to five hundred bhumidhars, led by village Pradhan appelant Mahendra Rai, and appellant Ayodhya Rai, started proceeding towards the Harijan basti raising slogans of victory and proclaiming their intention to burn the Harijan basti, Seeing this and apprehending danger to their life, the informant and others witnessing the incident of murder, ran for their lives and took shelter behind hedge of Behya shrubs at a short distance from the Harijan Basti, from where the 'Basti" was visible. THE aforesaid mob of bhumidhars indiscriminately set fire to the houses of Harijans by sprinkling kerosene oil. THE fire soon engulfed a sizeable part of the basti. THE miscreants who had surrounded the locality from almost all the sides, started beating the females, children and other inmates trying to retrieve their belongings, and some of them also indulged in looting property. THE burning spree was continued for quite some time and besides the houses, the moveables and grains, even the cattle and the crops in the Khalihans situated in the basti, were all burnt by the miscreants.

(3.) SINCE there was prevailing tension in Sherpur and other villages in the locality on account of certain earlier incidents of murder, and other offences involving members of different castes, P.A.C. had been posted in village Basania and the Sub Inspectors of Police Station, Bhanwar Koal, and officials of the crime section of the C.I.D used to frequently visit the said area for patrolling. In the night of 26/27-4-75 S.I. Ram Nagina Singh (PW 22) of Police Station Bhanwar Koal was on-night dirty at Masons Out Post, Inspector M. P. Singh of the Crime Branch C.I.D., Ghazipur was also present in the locality, having gone to check the P.A.C. camp. On receiving information about the incident having occurred in village Sherpur, and request to return to the Police Station, PW 22 Ram Nagina Singh before returning to the police station informed Inspector M P. Singh, who along with other police officials and a posse of P.A.C. proceeded to village Sherpur. The FIR Exhibit Ka 1 of this incident was recorded at the police station in the presence of Ram Nagina Singh and he immediately started for the place of occurrence for investigation, where PW 24 Inspector' M. P. Singh and other officials had already arrived. Reaching village Sherpur at about 11 A.M. he joined Inspector M. P. Singh, Dina Nath Chaubey, S? O. Police Station Mohamdabad, and other police officials, in the task of extinguishing the fire in the Harijan basti and providing security. Seven of those injured in this incident of arson and assault were sent for medical examination the same day.