STATE OF BIHAR Vs. BAMDEO MISHRA

JUDGEMENT

(1.) THIS Government Appeal has been preferred by State of Bihar against a judgment of acquittal dated 30th April, 1987 passed by Ist. Additional Sessions Judge, Darbhanga in S.T. Case No. 23/81/11/86 whereby respondent Nos. 1 to 13 have been acquitted of all the charges framed against them including a charge under Section 302/149 of the Indian Penal Code. A criminal revision application at the instance of information of the concerned police case i.e. Darbhanga P. S. Case No. 26 dated 13.7.1980 has been heard together with the Government Appeal as it is also directed against the same judgment of acquittal.

(2.) ACCORDING to the prosecution case, on 13.7.1980 at about 7 a.m. all the named accused - persons/respondents variously armed with lathi and farsa came over the P.O. land situated in Koth Bandh which lies north -east of the village of the parties with ploughs and bullocks and began ploughing the land of the prosecution party measuring 8 kathas 2 -3/4 dhurs appertaining to khata No. 462 and middle part of khasra No. 87. This was seen by the informant Taranand Mishra (P.W. 11) the deceased Jai Shankar Mishra, Jai Bihari Mishra (P.W. 5) and Devendra Kumar Mishra (P. W. 7) who were sitting at their Bathan. They went to their land and made a protest by raising the question as to why the accused -persons were cultivating the land belonging to the informant party. Upon this Bamdeo Mishra, respondent/accused No. 1 ordered to kill them and Surendra Mishra respondent/accused No. 12 gave a farsa blow - on the head of the informant causing bleeding injures. Accused No. 1 Bamdeo Mishra gave a lathi blow on the head of the informant 'snephew Jaishankar Mishra (deceased) as a result of head injuries Jashankar Mishra fell down after becoming unconscious. Devendra Kumar Mishra (P.W. 7) was assaulted on head with a farsa by respondent/accused No. 13, Baidyanath Mishra. This caused bleeding injury on the head of Devendra Kumar Mishra. The remaining accused -persons assaulted the informant and his brother Jai Bihari Mishra (P.W. 5) with lathis. The occurrence was witnessed by Upendra Mishra (P.W. 2), Ram Kumar Mishra (P.W. 3) and other co -villagers, with the help of witnesses Jai Shankar Mishra was carried on a cot in unconscious State to Darbhanga Medical College and Hospital for treatment where other injured were also given treatment and at about 4 P.M. Jai Shankar Mishra died due to the head injury.

(3.) IN order to prove the prosecution case as many as 24 witnesses were examined on behalf of the prosecution which include Dr. R.N. Jha (P.W. 1) who has proved the injuries upon the informant and other two injured witnesses P.W. 5 and P.W. 7 and the informant (P.W. 11). The other important witnesses are P.W. 6, Shyam Bihari Mishra who is father of deceased, P.W. 14, Dr. V.C.S. Verma who held autopsy and prepared postmortem report of the deceased, P.w. 19, Dr. Ravindra Kumar who proved bed head tickets of the deceased as well as of the informant, P.W. 20, an advocate who claims to have delivered possession over the P.O. land to the prosecution party in his duty as an Advocate Pleader Commissioner acting under the orders of the Civil Court and P.W. 2.1, Shri B.K. Jha who is the Investigating Officer of the case. Through formal witnesses the prosecution has brought on record several documents which have been exhibited as Exhibits series, Exhibits 4/17 and 4/18, Exhibits 10, 10/1, 15 and Exhibits 26 to support the prosecution claim that a partition suit bearing No. 16 of 1950 was filed by the informant, his father and two brothers in which judgment and decree was passed in the year 1963. Three appeals by different defendants against final decree were dismissed in 1967 and execution case No. 7/70 was filed for implementation of the final decree. According to prosecution one Krishnadeo Lal Das was appointed as Pleader Commissioner for effecting the delivery of possession but he was obstructed in the year 1973 and for that a Misc. Case No. 15/73 was filed against accused Gajendra Mishra and others. Thereafter another Pleader Commissioner Kamini Mohan Prasad (P.W. 20) was appointed. He effected delivery of possession over the concerned agricultural lands including the land that is part of khasra No. 87 on 26.12.1976. He was also obstructed in executing the delivery