GANESH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) All these four appeals have been heard together and are being disposed of by this common judgment because all these appeals are directed against the judgment and order dated 17.7.1993 passed in Sessions Trial No. 309 of 1990, 40 of 1992 convicting all the appellants under Section 302/34 of the Indian Penal Code (in short, IPC) and Section 27 of Arms Act and sentencing each of them to undergo imprisonment for life. From the operative portion of the judgment and order of Court below it appears that sentence has been passed for the offence under Section 302/34 and no separate sentence has been passed under Section 27 of Arms Act though not specifically mentioned so.

(2.) The case of prosecution in short is that on 5.10.1988 informant Dinesh Sah (PW 5) at about 6.00 a.m. came out of his house and proceeded towards bank of Ganga river to attend the call of nature. In the way at a nala on the bank of Ganga river he saw all the five appellants along with co- accused Ramjee Yadav and Bithal Yadav sitting there. Appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav were armed with pistols. After attending the call of nature when the informant came upside from the bank of Ganga river he found all the aforesaid persons had surrounded his brother Ganesh Sah. When informant went to rescue his brother, appellants Kapildeo Yadav and Anandi Yadav chased him to assault. The informant out of fear started running away and when he turned back he saw that appellant Ram Krishna Yadav @ Ledha Yadav and co- accused Bithal Yadav had caught hold of his brother Ganesh Sah and appellants Pandit Yadav @ Rajendra Yadav, Ganesh Yadav and co-accused Ramjee Yadav were firing shots from their pistols on his brother Ganesh Sah. About 3-4 shots were fired. The informant raised nulla. On hearing his bulla as well as the sound of firing villagers, namely, Kanhai Pandit (PW 1), Lallan Sah (PW 3), Bhumi Sah (not examined) and others came there. On seeing the witnesses running to the place of occurrence co-accused Ramjee Yadav and Bithal Yadav fled away towards eastern side and remaining appellants fleeing away towards western side. Ganesh Sah after receiving injuries fell down and died at the spot. The informant thereafter with the help of villagers took the dead body of his deceased brother Ganesh Sah to police station where his fardbeyan (Ext. 5) was recorded by SI of Police, Ram Narayan Singh (PW 7). About the genesis of occurrence the informant in his fardbeyan has stated that his deceased brother was a licensee clerk of Akbar-nagar Bus Stand and appellant Pandit Yadav was also trying for this post and proceedings under Sections 107 and 144 of the Code of Criminal Procedure had been initiated and an incident of assault had also taken place between them for which a criminal case was registered by the police. On the basis of fardbeyan a formal FIR (Ext. 6) was drawn under Section 302/34, IPC and Section 27 of the Arms Act against all the five appellants and co-accused Ramjee Yadav and Bithal Yadav. After investigation the police submitted charge-sheet against all the five appellants. In the same charge-sheet Ramjee Yadav and Bithal Yadav, who are" named in the fardbeyan, were shown absconder along with one more co-accused Shyamdeo Jha. After cognizance the case was committed to the Court of Sessions where charges under Section 302/34, IPC and Section 27 of Arms Act were framed against the appellants. The (appellants denied the charges. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses and from the evidence of two witnesses examined on its behalf is that no occurrence, as alleged, ever took place and a number of criminal cases were pending against the deceased at the time when the occurrence is said to have taken place and they have been falsely implicated in this case.

(3.) In order to prove its case eight witnesses have been examined on behalf of prosecution. Md. Shakoor (PW 8) is a formal witness, who has proved the fardbeyan (Ext. 5) and formal FIR (Ext. 6). Lallan Sah (PW 3) and Bhuneshwar Sah (PW 4) have not supported the case of prosecution and they both have been declared hostile. Dinesh Sah (PW 5), the informant and Kanhai Pandit (PW 1), both are said to be eye-witnesses to the occurrence. Dr. N.N. Bhagat (PW 6) had held autopsy on the dead body of Ganesh Sah. Ram Narayan Singh (PW 7) is the I.O.