JAGDISH PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals have been heard together and are being disposed of by this common judgment because both the appeals are directed against the judgment and order dated 19.8.87 passed by 4th Addl. Sessions Judge, Arrah in Sessions Trial No. 374 of 1984 convicting and sentencing appellant Jairam Pandey to undergo imprisonment for life under Section 302 of the Indian Penal Code (in short, I.P.C.), appellant Jagdish Pandey to undergo imprisonment for life under Section 302 read with Section 109, I.P.C. (in the last para of judgment wrongly typed as 302/149) and appellant Madan Pandey to undergo life imprisonment under Section 302 read with Section 34, I.P.C. All the appellants have been further convicted under Section 440, I.P.C. and appellant Jairam Pandey has further been convicted under Section 27 of Arms Act, 1959 but no separate sentences under these heads have been passed.

(2.) The case of prosecution in short is that informant Rajdayal Pradhan (P.W. 7) got his fardbeyan (Ext. 4) recorded by S.I. Kameshwar Prasad Singh (P.W. 6) on 9.7.84 at 13.15 hours at Dumraon Police Station Campus stating therein that on the same day at about 8.30 a.m. he along with his deceased brother Jagdayal Pradhan was near his house when all the three appellants along with co-accused Jitendra Pandey came in a lane. Appellant Jairam Pandey was armed with his licensee gun, appellant Mohan Pandey was carrying 'bhala' and appellant Jagdish Pandey and co-accused Jitendra Pandey were carrying 'lathis'. All the aforesaid four persons at the order of appellant Jagdish Pandey started cutting earth from the land situate north to the land of informant. The cutting of earth would have caused stagnation of water near the house of informant. The informant and his deceased brother asked the appellants not to cut the earth and on this point an altercation took place between both the parties. The villagers, namely, Bhikhari Rai (P.W. 1), Kamalwash Pradhan (P.W. 2), Jay Ram Pradhan (P.W. 3) came there and tried to pacify the matter but appellant Jairam Pandey did not listen to them. When informant and his brother raised protest appellant Jagdish Pandey ordered for killing on which appellant Jairam Pandey fired from his gun hitting the deceased Jagdayal Pradhan, the brother of informant, who received injuries on his abdomen, chest and arm and fell down. The informant then with the help of villagers carried his injured brother Jagdayal Pradhan on a cot to Dumraon for treatment and when he reached near Dumraon Station his injured brother died. Thereafter, the informant with the dead body of his brother on a tractor came to Dumraon Police Station and got his fardbeyan (Ext. 4) recorded. Since the place of occurrence lies within Semari Police Station. Dumaraon police made endorsement on the fardbeyan for forwarding the same to Semari Police Station and the fardbeyan was handed over to Pradeep Singh (P.W. 8), who at the relevant time was posted at Semari Police Station and had reached. Dumraon Police Station on the same day at about 2.00 p.m. After receipt of fardbeyan he sent the fardbeyan to the Semari Police Station for registering a case and took up the investigation. After investigation charge-sheet under Sections 302/34, 302/109, 440, I.P.C. and 27 of Arms Act, 1959 was submitted against the appellants and co-accused Jitendra Pandey. After taking cognizance, the case was committed to the Court of Session where the trial of co-accused Jitendra Pandey was separated for conducting an inquiry under the Children Act in respect of his plea that on the day of occurrence he was less than 16 years and charge under Section 440, I.P.C. against the three appellants Jairam Pandey, Jagdish Pandey and Mohan Pandey, charges under Section 302, I.P.C. and Section 27 of Arms Act against appellant Jairam Pandey, charge under Section 302 read with Section 34, I.P.C. against appellants Jagdish Pandey and Mohan Pandey and charge under Section 302 read with Section 109, I.P.C. against appellant Jagdish Pandey were framed. The appellants denied the charges. The case of the appellants as it appears from the trend of cross-examination of prosecution witnesses as well as from the witnesses examined on behalf of the appellants is that on the day of alleged occurrence appellant Jagdish Pandey was at Patna where he had gone on 8.7.84 for participating in the 'saradh' of one Surajdeo Sastri and he returned from Patna on 10.7.84 and appellant Jairam Pandey was posted as commercial clerk at Tetulmari railway station within the Dhanbad Division of Eastern Railway and the appellants have been falsely implicated in this case. The Court below after trial found all the appellants guilty under Section 440, I.P.C.. It further found appellant Jairam Pandey guilty under Section 302, I.P.C. and 27 of Arms Act, appellant Jagdish Pandey guilty under Section 302 read with Section 109, I.P.C. and appellant Mohan Pandey guilty under Section 302 read with Section 34, I.P.C., and sentenced them as indicated above.

(3.) In order to prove its case the prosecution has examined eight witnesses. Rajdayal Pradhan (P.W. 7) is the informant. Dr. Bimal Chand Kumar (P.W. 4) is the doctor who had held post-mortem examination on the dead body of deceased Jagdayal Pradhan. Pradeep Singh (P.W. 8) is the I.O. of this case. Ram Mithun Rai (P.W. 5), a police constable, had carried the dead body of deceased to Buxar Hospital for post-mortem examination and the doctor who conducted the post-mortem examination had given him a bottle containing pellets. He has proved the sealed bottle (Material Ext. I). S.I. Kameshwar Prasad Singh (P.W. 6) was posted at Dumraon Police Station where he recorded the fardbeyan (Ext. 4) of informant and made an endorsement (Ext. 3) for forwarding the case to Semari Police Station and had prepared inquest report (Ext. 5). Bhikhari Rai (P.W. 1), Kamalwash Pradhan (P.W. 2) and Jay Ram Pradhan (P.W. 3) are said to be eye-witnesses to the occurrence.