PUJARI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals are being disposed of by this common judgment as both the appeals arise out of the same judgment and order dated 4.7.1989 passed by the 1st Assistant Sessions Judge, Khagaria, in Sessions Case, No. 508 of 1985, convicting and sentencing the appellants to undergo R.I. for 10 years each under Section 395 of the Indian Penal Code, 1860.

(2.) When these appeals were called for hearing, nobody appeared on behalf of the appellants in Cr. Appeal No. 297 of 1989. In view of the decision of the Supreme Court in the case of Bani Singh v. State of U.P. , this appeal is also being disposed of on merit after considering the materials on record and hearing the learned Counsel for the State.

(3.) The case of the prosecution, in short, is that on 24.12.84 the informant Girish Shankar Pd. Singh (P.W. 4) was sleeping in his dalan. At about 12.15 p.m. he woke up on hearing the sound of barking of dogs and the then saw 4-5 persons standing at the darwaja of the dalan who were flashing torchlight, out of which one person chided the informant and asked him to keep quiet otherwise he would be killed. The informant then knew that those persons were dacoits. Two of the dacoits remained standing at the darwaja of his dalan whereas others went towards the courtyard of his house. About 5-6 minutes thereafter, the informant heard the sound of firing from the house of his brother Awadhesh Pd. Singh (P.W. 3). About 10 minutes thereafter, he saw 10-12 dacoits coming to the darwaja of his dalan by dragging a man and thereafter going towards south west direction. When the informant came out from his dalan, he found his nephew Dilip Pd. Singh (P.W. 1) and his son Bimal Pd. Singh (P.W. 2) raising hulla that the dacoits after assaulting his brother Awadhesh Pd. Singh (P.W. 3) were dragging him. He also found blood in sufficient quantity fallen in the angan. The wife of Awadesh Prasad Singh (not examined) told him that the dacoits after entering the house had taken away the articles and her husband had fired at one of the dacoits who received injuries but her husband also received injuries when one of the dacoits fired and the dacoits had taken away her husband. Thereafter, when the informant came out from the house of Awadhesh Pd. Singh, he found that one man wrapping a blanket was coming slowly towards him. When that man reached near the informant he found that man was his brother Awadhesh Pd. Singh who had received bleeding injuries on his neck. The informant, arranged a rickshaw and sent Awadhesh Pd Singh to hospital for treatment. The wife of Awadhesh Pd. Singh further told the informant that dacoits had taken away a double-barrel gun from the house. Further case of the prosecution is that when Awadhesh Pd. Singh was being sent to hospital, he was not in a condition to speak because of injuries received on his neck. Besides, the double barrel gun, the dacoits took away two boxes from the house of Awadhesh Pd. Singh. The fardbeyan (Ext. 1) of the informant was recorded by the police on 15.12.84 at 5 p.m. at his house and a case under Section 395 of the Indian Penal Code, 1860 against unknown was registered. During the course of investigation, co-accused Subodh Rai was put on T.I. parade and he was identified by witnesses. After investigation the police submitted charge-sheet against Prakash Yadav and Satan Yadav (appellants of Cr. Appeal No. 297 of 1989) along with co-accused Subodh Rai. Appellant Pujari Yadav (appellant of Cr. Appeal No. 273 of 1989) and others were shown absconders. Thereafter, appellant Pujari Yadav surrendered before the Court below and he was put on T.I. parade and he was identified by Dilip Pd Singh (P.W. 1) and Bimal Pd Singh (P.W. 2) and supplementary charge-sheet was submitted against him also. After cognizance the case was committed to the Court of Session and the appellants along with co-accused Subodh Rai and Umesh Prasad Yadav who was shown absconder in the charge-sheet but who later on surrendered in Court were put on trial. After trial the Court below found the appellants guilty under Section 395 of the Indian Penal Code and convicted and sentenced to undergo R.I. for 10 years each. Co-accused Subodh Rai and Umesh Prasad Yadav were not found guilty and accordingly they were acquitted.