LALO MAHTO @ LALO YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 26.6.1989 passed by 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No. 119 of 1987/65 of 1984, convicting and sentencing the appellant Lalo Mahto alias Lalo Yadav to undergo RI for three years under Section 436 of the Indian Penal Code (in short, IPC) and remaining appellants to undergo RI for one year each under Section 147, IPC.

(2.) The case of the prosecution, in short, is that on 8.7.1978 at about 9-10 a.m., all the appellants along with co-accused Dwarika Yadav (since dead), variously armed with lathi, bhala, garansa, etc. came to the 'darwaja' of the house of informant Raj Kumar Mochi (PW 7) and appellant Baso Yadav ordered his companions to kill the informant on which the informant and his family members ran towards north leaving their house. Thereafter appellant Lalo Mahto and co-accused Dwarika Yadav set the thatched roof of eastern room of the house of informant on fire and all the appellants started brandishing their weapons. When the room of the house of the informant was completely burnt the appellants giving threatening to the informant left the place of occurrence. It is alleged that the room which was set on fire by the appellants was in occupation of the father of the informant and because of fire-bed, paddy, wheat etc. which were kept in the room were burnt to ashes. About the motive of occurrence it is alleged that there was land dispute between the informant and appellants and a proceeding under Section 144, Cr PC was initiated in which notices were served on the appellants. The informant out of fear did not go to police station immediately after the occurrence and on the same day at about 9 p.m. getting opportunity he proceeded to police station but met the police in the way and at about 10 p.m. on the date of occurrence his fardbeyan (Ext. 2) was recorded by ASI M. Hassan (not examined) in his village. An FIR (Ext. 3) has drawn under Sections 144 and 436, IPC against the appellants and co-accused Dwarika Yadav. After investigation the police submitted charge-sheet against the appellants and co-accused Dwarika Yadav under Sections 144/436, IPC. Before hearing on the matter of charge, co-accused Dwarika Yadav died and thereafter charge under Sections 436/149, IPC against all the appellants and a separate charge under Section 436, against appellant Lalo Mahto were framed. The appellants denied the charges and pleaded not guilty and their case as it appears from the examination of witnesses on their behalf as well as from the trend of cross-examination of prosecution witnesses is that at the relevant time, informant had no house in the village and the appellants have been falsely implicated in the case on account of enmity. After trial the Court below found the appellant Lalo Mahto guilty under Section 436, IPC and remaining appellants guilty under Section 147, IPC and convicted and sentenced them as indicated above.

(3.) Altogether 8 witnesses have been examined on behalf of the prosecution. Raj Kumar Mochi (PW 7) is the informant. Ram Sagar Prasad (PW 8) is the formal witness who has proved formal FIR (Ext. 3) and seizure list (Ext. 4). Bindeshwar Ravidas (PW 3) and Prasadi Ravidas (PW 4) are the hearsay witnesses and they are also witnesses on the seizure list (Ext. 4), which was prepared by police. Bindeshwar Ravidas (PW 3) has proved his signature (Ext. 1) on the seizure list. Kishun Ravidas (PW 5) has not supported the case of prosecution and he has been declared hostile. Radhe Mochi (PW 1), Bhola Ravidas (PW 2) and Jagdeo Ravidas (PW 6) are said to be the eye-witnesses.