SHYAM BIHARI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30 -4 -1987 passed by 6th Addl. Sessions Judge, Arrah in Sessions Trial No. 250 of 1980 convicting and sentencing all the appellants to undergo R I. for life under Sections 302 /149 of the Indian Penal Code (in short, IPC) and RI. for a period of one year each under Section 147, IPC. Appellant Ganesh Yadav has been further convicted and sentenced to undergo RI. for two years under Section 379, IPC. All the sentences have, however, been ordered to run concurrently.

(2.) - The case of prosecution as disclosed from the fardbeyan, Of Chawkidar Bachan Yadav (not examined) recorded on 17 -12 -1977 at 8.30 a.m, is that on the night of 16 -12 -1977 there was a 'hulla' in the village that one Awadhesh Rai had been killed in Khil Badhar while watching his paddy crops. On hearing this 'hulla' Chawkidar Bachan Yadav along with other villagers went to Khil Badhar where he found dead body of Awadhesh Rai lying in a field of paddy with a fire arm injury on his waist and neck of the body was found cut. On enquiry Chawkillar Bachan Yadav came to know that the deceased with his ride along with Madan Rai (PW 6), Mun Mahesh Rai (PW 8), Bhadai Ahir (PW 3), Ayodhya Kahar (not examined) and Jhana Ahir (not examined) had gone to Khil Badhar for watching paddy crop. Madan Rai (PW 6) was armed with his licence gun. At about 12.30 O'clock in the night about 8 -10 persons armed with guns and rifles came from the western side and fired at Awadhesh Rai hitting on the right side of waist and when Awadhesh Rai fell down his rifle was thrown which was picked up by the miscreants and they also snatched gun from Madan Rai (PW 6) and said that they were Naxalites and ordered the deceased and his party to surrender and thereafter they left the place and went towards eastern side of the village. He also came to know that the miscreants fired three rounds. Chawkidar Bachan Yadav narRaied this incident to dafadar and in the morning he went to police station where he lodged the fardbeyan. In the fardbeyan, he stated that in spite of great persuasion Madan Rai (PW 6) did not agree to come to police station. He further stated that about the description of miscreants the persons who were with the deceased will be in a position to tell the same. On the basis of fardbeyan of Chawkidar Bachan Yadav a case against unknown was registered and police took up the investigation. It appears that later on investigation of the case was entrusted to Inspector, CID, Investigation Branch and charge -sheet under Sections 302/34 and 379, IPC was submitted against the appellants. After taking cognizance, the case was committed to the Court of Sessions where charges urider Sections 302/149, 147 and 379, IPC were framed against the appellants. The appellants denied the charges. The case of appellants as it appears from the trend of cross -examination of prosecution witnesses and from the evidence of witnesses examined on their behalf is that they have been falsely implicated in this case at the instance of Kapildeo Rai, who happens to be the 'Samadhi' of Madan Rai (PW 6) because Chawkidar Bachan Yadav, who is, brother of appellants Ganesh Yadav and Naresh Yadav, had lodged a complaint against Kapildeo Rai in respect of a land dispute between Kapildeo Rai and Awadhesh Rai. The Court below after trial found the appellants guilty under Sections 302/ 149, IPC and further found appellant Ganesh Singh guilty under Section 379. IPC and, accordingly, convicted and sentenced them as indicated above.

(3.) DR . Bhairaw Prasad (PW 7), in his evidence has stated that on 18. -121977, he was posted as Civil Assistant Surgeon, Sadar Hospital, Arrah and on that day at 10.00 a.m. he held postmortem examination on the dead body of Awadhesh Rai and found following ante -mortem injuries on the person of the deceased: