NAUJADIK YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 16.6.87 passed by 2nd Addl. Sessions Judge, Patna in Sessions Trial No. 201 of 1982 convicting and sentencing all the appellants to undergo imprisonment for life under Section 302 read with Section 149 of the Indian Penal Code (In short, I.P.C.). Appellant Naujadik Yadav has been further convicted and sentenced to undergo R.I. for one year under Section 27 of Arms Act, 1959 but both the sentences passed against him have, however, been ordered to run concurrently.

(2.) The case of prosecution in short is that at village Narauli Mathia, P.S. Paliganj, District Patna a wrestling competition was used to be organised on every Sunday under the management of Bujhawan Yadav (PW 5). On 11.2.79 two wrestlers, namely, Rabindra Mochi of village Narauli Mathia and Pahalwan Rajan Yadav of village Pansari took part in the wrestling. When Rabindra Mochi defeated Pahalwan Rajan Yadav the appellants and their companions ran to assault Rabindra Mochi. When informant Kameshwar Manjhi (deceased) tried to stop the appellants, co-accused Rajdhari Yadav (since dead) ordered to kill the informant on which co-accused Sudheshwar Yadav (since absconding) fired from his pistol at Kameshwar Manjhi and when Kameshwar Manjhi fell down appellants assaulted him with 'lathis'. Co-accused Rajdhari Yadav assaulted Nanhku Manjhi (PW 7) with 'lathi' causing injury on his head. When Raktu Yadav (PW 6) caught hold of co-accused Sudheshwar Yadav appellant Naujadik Yadav gave him threatening to release Sudheshwar Yadav otherwise he would also be shot dead. Raktu Yadav then released co-accused Sudheshwar Yadav who jumped in a river in order to escape but he was caught on the other side of river by Chandeshwar Mishra (not examined). After occurrence, informant Kameshwar Manjhi was taken to Paliganj State Dispensary where his fardbeyan (Ext. 3) was recorded by A.S.I. Raj Kishore Chaubey (PW 13) at 10.30 p.m. Informant was thereafter taken to Patna Medical College & Hospital where he on the next day i.e., on 12.2.79 succumbed to injuries. On the basis of fardbeyan (Ext. 3), a case under Sections 324/307/341/34, I.P.C. and Section 27 of the Arms Act, 1959 was registered against 'sala' (brother-in-law) of one Jangi Yadav and 4-5 unknown persons of village Pansari because in the fardbeyan the informant had stated that it was 'sala' of Jangi Yadav who had fired at him by his pistol causing injury on his chest and he did not name the persons who assaulted him and others with 'lathis'. After investigation, the police submitted charge-sheet against all the appellants as well as against co-accused Sudheshwar Yadav, Rajdhari Yadav and Rajan Yadav under Section 148, 149, 302 and 324, I.P.C. After taking cognizance, the case was committed to the Court of Sessions. Co-accused Sudheshwar Yadav absconded and his case was separated. Co-accused Rajdhari Yadav and Rajan Yadav did not appear and from the evidence of PW6, it appears that they both died. Charge under Sections 302/149 and 27 of the Arms Act, 1959 were framed against all the five appellants who pleaded not guilty. The case of appellants before the trial Court as it appears from the trend of cross-examination of prosecution witnesses is complete denial of their participation in the occurrence and their false implication. After trial, the Court below found all the appellants guilty under Section 302 read with Section, 149, I.P.C. and appellant Naujadik Yadav guilty under Section 27 of Arms Act, 1959 and, accordingly, convicted and sentenced the appellants as indicated above.

(3.) Altogether 13 witnesses have been examined on behalf of prosecution. Bujhawan Yadav (PW 5), Raktu Yadav (PW 6) and Nanhku Manjhi (PW 7) are said to be eye-witnesses to the occurrence. Tapeshwar Manjhi (PW 2), Ravindra Das (PW 4), Kamal Yadav (PW 8), Suraj Deo Singh (PW 11) have not supported the case of prosecution and they have been declared hostile. Awadhesh Yadav (PW 9) and Chander Manjhi (PW 10) are tendered witnesses. Bindeshwar Manjhi (PW 12) is a witness on the inquest report which was prepared by police after taking the charge of dead body. Dr. Rama Shanker Prasad (PW 3) is a formal witness who has proved the post-mortem examination report (Ext. 2) in the pen of Dr. R.B. Choudhary, who, according to him, is dead now. Indradeo Mochi (PW 1) on seeing some persons hurling 'lathis' fled away from the place of occurrence and had heard the sound of firing and when he came back to the place of occurrence, he saw informant with injuries on his chest and he then along with others took the informant first to police station and then to hospital where fardbeyan of informant was recorded on which he also put his signature (Ext. 1). Raj Kishore Chaubey (PW 13) is the I.O.