RAJ BALI CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals have been heard together and are being disposed of by this common judgment because both these appeals are directed against the judgment and order dated 27.6.1987 passed by Ist Additional Sessions Judge, Muzaffarpur, in Sessions Trial No.162 of 1978/106 of 1983, convicting and sentencing all the appellants to undergo imprisonment for life under Section 449 of the Indian Penal Code (in short, IPC). Appellant Raj Kishore Chaudhary has further been convicted and sentenced to undergo imprisonment for life under Section 302, IPC and remaining appellants have further been convicted and sentenced to undergo imprisonment for life under Sections 302/149, IPC. Besides this, appellant Raj Kishore Chaudhary has further been convicted under Sections 148/324, IPC and remaining appellants have further been convicted under Section 147, IPC but no separate sentence under these heads has been passed against them.

(2.) The case of prosecution as disclosed in the fardbeyan (Ext. 4) of informant Shailendra Kumar (PW 8) recorded on 23.7.1977 at Sahebganj Hospital by the then SI Uma Kant Sharma (PW 11) is that on 22.7.1977 at about 9.30 p.m. the informant was sitting at the darwaja of his house and his father deceased Ram Chandra Kunwar had returned from Muzaffarpur from duty as well as after attending a case there and he after taking out his shirt was keeping the same on the chowki kept in the verandah of the house. At that time, all the appellants along with 2-3 others came there and they surrounded the father of informant. Appellant Raj Kishore Chaudhary was armed with bhala, appellant Rajbali Chaudhary was armed with gun, appellant Uma Shankar Chaudhary was armed with phrsa, appellant Ramashray Tiwary was armed with phatha (bamboo stick) and other appellants were armed with lathis. Appellant Raj Kishore Chaudhary after giving order to his companions to kill the father of informant gave a bhala blow on the abdomen of the father of informant. The father of informant fell down. When the informant tried to rescue him appellant Raj Kishore Chaudhary gave a bhala blow on the back of the informant. The informant also fell down. On India villagers, namely, Nirsu Kunwar (PW 1), Shankar Kunwar (not examined), Mugal Kunwar (not examined), Maheshwar Kunwar (not examined) Munar Ram (not examined), Nathuni Ram (not examined) and Deo Kunwar (not examined) came there. Appellants thereafter fled away towards their residences. The informant and his father were brought to hospital where fardbeyan of the informant was recorded. About the genesis of occurrence, the informant in his fardbeyan has stated that there was a land dispute between the informant and appellants Uma Shankar Chaudhary and Ramashray Tiwary and proceedings under Sections 144, 145 and 107, Cr PC and a criminal case between them were pending at the time of occurrence. On the basis of fardbeyan, a case under Sections 147, 148, 149, 324 and 307, IPC was registered against the appellants. On 25.7.1977, the father of informant succumbed to injuries and Section 302, IPC was also added to the FIR. After investigation police submitted charge-sheet under Sections 147, 148, 324, 302 and 448, IPC against all the appellants. After cognizance, the case was committed to the Court of Sessions where charge under Section 449, IPC against all the appellants, charges under Sections 148 and 302, IPC against Raj Kishore Chaudhary, charges under Sections 148, 302/149, IPC against appellants Rajbali Chaudhary and Uma Shankar Chaudhary and charge under Sections 147 and 302/149, IPC against appellants Bishwanath Chaudhary, Kedar Chaudhary, Baiju Chaudhary, Sheo Chaudhary, Biralal Chaudhary and Ramashray Tiwary were framed. The appellants denied the charges levelled, against them. Their case, as it appears from the trend of cross-examination of prosecution witnesses and from the witnesses examined on their behalf, is that at the time of occurrence appellant Raj Kishore Chaudhary had gone to Dewaria to see his ailing sister and on the day of occurrence the informant and his party had gone to the land of appellants, up-rooted their granary and started looting the grains and when the appellants protested the prosecution party assaulted them with lathi and bhala and they also set the straw of appellants on fire and when villagers came there and tried to rescue the appellants, in that process father of informant received injuries. The Court below after trial found the appellants guilty and convicted and sentenced them as indicated above.

(3.) In order to prove its case, the prosecution has examined 12 witnesses. Shailendra Kumar (PW 8) is the informant. Dr. Anant Mohan Das (PW 12) is the doctor who had first examined the deceased Ram Chandra Kunwar on 23.7.1977, Dr.J. P. Saxena (PW 7) is the doctor who had conducted post-mortem examination on the dead-body of deceased Ram Chandra Kunwar. Bishwanath Prasad (PW 4) is a formal witness who has proved the protest petition (Ext. 1) and vakalatnama (Ext. 2). Khelawan Rai (PW 6) is a tendered witness. Jawahar Pd. Ratnesh (PW 9) was posted as Judicial Magistrate, Ist Class, at the relevant time who recorded the dying declaration of the deceased. Rajendra Jha (PW 10) is also a formal witness who has proved formal FIR (Ext. 6). Uma Kant Sharma (PW 11) is the Investigating Officer (IO). Nirshu Kunwar (PW 1), Arbind Kumar (PW 2), Sumitra Devi (PW 3) and Manoj Kumari (PW 5) are said to be the eye-witnesses to the occurrence.