NILESH KUMAR PATHAK 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 19.11.1987 passed by 7th Addl. Sessions Judge, Arrah in Sessions Trial No. 7 of 1986 convicting and sentencing both the appellants to undergo imprisonment for life under Section 302 of the Indian Penal Code (in short, IPC) read with Section 34 of IPC.

(2.) The case of prosecution, as stated in fardbeyan (Ext. 3) in short, is that on 4.7.1985 at about 12 O'Clock in the noon informant Raj Narain Singh Yadav (PW 8) had gone to plough the land of Sheo Shankar Pathak (PW 1) situate north of the village. Brij Mohan Pathak (since death), son of Sheo Shankar Pathak carrying seeds for his field had accompanied him. At that time, both the appellants were standing near a 'machan' (scaffold) in their field situate towards east of the field where the informant had gone to work. A 'karaha' (drain) at that time was originating from the boring of appellant Nilesh Pathak was passing along the southern ridge of the field of deceased Brij Mohan Pathak and going towards west and then turning towards north and from this 'Karaha' the land of appellants was being irrigated. When deceased Brij Mohan Pathak asked the informant to plough the field appellant Nilesh Pathak came from his 'machan' to the field of deceased Brij Mohan Pathak and requested him to allow the 'karaha' to remain otherwise there would be difficulty in irrigation. Deceased Brij Mohan Pathak agreed. Thereafter, informant started ploughing the field and when he completed one round of ploughing the deceased Brij Mohan Pathak asked him to sow the seeds in lines and he then started sowing the seeds and when he reached north east corner of the field he saw that appellant Nilesh Pathak threw the deceased on the ground and thereafter appellant Viveka Nand Pathak @ Guddu Pathak came running from the 'machan' and gave dagger blows to the deceased. After receiving injuries, when the deceased tried to run away appellant Viveka Nand Pathak again gave dagger blow on the back of the deceased and the deceased then fell in the field. The informant raised 'India' and both the appellants fled away towards west north side. On 'hulla' raised by informant Sheo Shankar Pathak (PW 1), Mithlesh Kumar Pathak (PW 5), Chatura Nand Pathak (PW 4), Ratneshwar Pathak (not examined) and others came there and they also saw the appellants running away. By the time witnesses reached deceased Brij Mohan Pathak died. The fardbeyan of informant was recorded on the same day at 3.30 p.m. by Dilip Kumar (PW 10) and on the basis of fardbeyan (Ext. 3) a formal FIR (Ext. 1) under Sections 302/34, IPC was drawn against both the appellants and after investigation charge-sheet against both the appellants under Sections 302/34, IPC was submitted. After taking cognizance the case was committed to the Court of Sessions where charge under Sections 302/34, IPC was framed against both the appellants.

(3.) The case of appellants before the Court below was complete denial of the charge against them and their false implication in this case. The Court below after trial held both the appellants guilty under Sections 302/34, IPC and convicted and sentenced them to undergo imprisonment for life.