SURJDEO SINGH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by sole appellant is directed against the judgment and order passed by Ist Addl. District and Sessions Judge, Patna in Sessions Trial No. 159/82 convicting and sentencing the appellant to undergo RI for a period of five years under Section 307 of the Indian Penal Code (in short "IPC") and RI for a period of two years under Section 379, IPC. Both the sentence have, however, been ordered to run concurrently.

(2.) The case of prosecution in brief is that on 7.6.1981, the informant Salaud-din Mallick (PW 5) along with his two children, Abban Mallick (PW 3) and Badri Thakur (PW 2) at about 5.00 p.m. joined a 'barat' party which proceeded for village Kataka where the marriage of son of cousin of informant was to take place on that day. The informant was carrying his licensed gun with him. His nephew Sabbir Ahmad (PW 4), because of some work had stayed in the way for sometime and therefore, he was following the 'barat party. When the 'barat party reached near the village Kataka and was at a distance of about 500 feet from the village the appellant along with 5-6 unknown persons all of a sudden came there and surrounded the informant and ordered his companions to assault the informant saying that the informant was the uncle of 'sarpanch' Sabbir Ahmad and 'sarpanch' used to boast on the strength of the informant. Two companions of appellant caught hold of the informant and appellant by putting a country-made pistol on the chest of informant pressed the trigger of pistol but the pistol did not fire and thereafter, the appellant with the butt of his country- made pistol started assaulting the informant. The companions of appellant also started assaulting the informant. Then Badri Thakur (PW 2) came to rescue the informant. The appellant fired from his country-made pistol causing injuries on the face of Badri Thakur (PW 2) as a result he fell down on the ground. The informant also fell and thereafter, the appellant after snatching the gun of informant fled away along with his companions. On 'hulla' raised by informant his nephew Sabbir Ahmad (PW 4) who was following the 'barat' party came running at the spot and saw the appellant running away and he chased the appellant and identified him. About the motive of occurrence the case of prosecution is that the appellant had enmity with Sabbir Ahmad (PW 4), nephew of informant. The informant submitted a written report (Ext. 1) about the occurrence before the officer-in-charge, Paliganj Police Station and a case under Sections 307/379/34, IPC and under Section 27 of Arms Act was registered against the appellant and 5-6 unknown persons and the police after investigation submitted charge-sheet against the appellant under Sections 307/324/323/379/34, IPC and 27 of Arms Act. After cognizance the case was committed to the Court of Sessions where charges under Section 307/379, IPC were framed against the appellant. The appellant denied the charges framed against him. His case before the Court below as it appears from the trend of cross-examination of prosecution witnesses was that he has been falsely implicated in this case on account of enmity.

(3.) In order to prove its case the prosecution has examined seven witnesses. Salauddin Mallick (PW 5) is the informant. Badri Thakur (PW 2) is said to be a witness who had also received injuries at the hands of appellant at the time of occurrence. Ekramuddin (PW 1) is a hearsay witness. Abban Mallick (PW 3), whose name has been recorded as Akbar Mallick by the trial Court in his deposition, is an eye-witness to the occurrence. Sabbir Ahmad (PW 4), the nephew of informant had reached the place of occurrence immediately after the occurrence and had seen the appellant running away with the licensed gun of informant. Dr. Randhir Prasad Sinha (PW 6) is the Doctor who had examined the informant and Badri Thakur. Thakur Devendra Prasad Singh (PW 7) is the IO of this case.