MOHAN PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This criminal appeal is so preferred under Section 374(2) of the CODE OF CRIMINAL PROCEDURE, 1973 by the sole accused-appellant, namely, Mohan Pandey, against the judgment of conviction and sentence so passed by the 7th Addl. Sessions Judge, Arrah, dated 19th of July, 1989 in Section Tr. No. 377 of 1988 by virtue of which the sole accused-appellant is convicted under Sections 455 8B 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years under Section355 of the I.P.C and R.I. for seven years under Section 307, I.P.C. The sentences so imposed are directed to run concurrently.

(2.) The prosecution case, in short, is that on 1.5.1988 when the first informant, namely, Smt. Anita Kumari was sleeping in her parent's house at about 4 a.m. in the morning her mother had left the house for performing Puja at Brahmpur and had locked the house from outside throwing the key on the roof of the house. When on the first floor, as per the prosecution story, the first informant Anita Pandey was sleeping and at that time, there was no other family member in the house the said key was so given by the mother of the first informant by throwing the same on the roof which was so received by her and after the departure of the mother Anita Pandey slept but within ten minutes on finding movement of some persons she got up and could locate the sole accused-appellant Mohan Pandey scaling and coming over the roof of her house-house of the sole accused-appellant, as claimed, being next to the house of the first informant and at that time, according to the first informant, the sole accused-appellant was armed with dagger which he started hurling on her with an intent to do away with her life. In a bid to save her life, she wanted to catch hold of the dagger as a result of which there was cut-marks on her fingers. She also claims to have made hue and cry by fighting with accused-appellant, who was going to kill her and several persons assembled on the ground floor in front of the house of the first informant and the accused-appellant the managed to flee away by scaling the wall of the roof and jumping into the roof of his own house. The key of the house which was thrown by her when Vishwanath Pandey's wife is said to have opened the door and the neighbours assembling along with her could see and locate the informant having stabbed injuries on her person the being sent to Referral Hospital for treatment where her fared-beyan was so recorded and the police station case was so registered.

(3.) After due investigation, police submitted a charge-sheet against the sole accused-appellant and on the basis of that taking cognizance the case record got committed to the Court of Sessions; the accused-appellant got charged under Sections 455/307 of the I.P.C. for his committing lurking house-trespass by entering into the building in possession of Anita Pandey and used as dwelling house and in that course making the preparation for causing hurt to the first informant ever assaulting her with dagger with such intention and under such circumstances that if by that act, he would have caused of her death would have been guilty of causing murder of the first informant, an offence coming under the purview of Section 307 of the I.P.C. The accused-appellant denied of committing the offence, as alleged, and claimed to be tried.