DWARIKA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been filed against the judgment and order of conviction dated 19th of March, 1988 passed by Sri. Harishankar Prasad, 14th Additional District & Sessions Judge, Munger in Sessions Trial No. 137 of 1980, whereby Dwarika Yadav has been held guilty under Sections 148, 302 and 307/149 I.P.C. and sentenced to undergo R.I. for two years under Section 148 I.P.C., R.I. for five years under Section 307/149 I.P.C. and further R.I. for life under Section 302 I.P.C. So far as accused Chano Yadav, Banwari Gope and Chhotu Yadav are concerned, they have been held guilty under Sections 148, 307, 302/149 I.P.C. and sentenced to undergo R.I. for two years under Section 148 I.P.C., R.I. for five years under Section 307 I.P.C. and further R.I. for life under Section 302/149 I.P.C., whereas Pano Yadav has been held guilty under Sections 307/149 and 302/149 I.P.C. and sentenced to undergo R.I. for five years under Section 307/149 and further sentenced to R.I. for life under Section 302/149. All the sentences were directed to run concurrently. Out of the five appellants, Dwarika Yadav and Banwari Yadav@ Banwari Gope died during pendency of the present appeal, hence their appeals abated in pursuance to affidavit filed on their behalf vide order dated 25.03.2010 passed by Division Bench of this Court.

(2.) THE prosecution case as per the fardbeyan of Singheswar Mahto recorded on 23.11.1979 at Lakhisarai Hospital by M.H.Khan, the Police Officer of Lakhisarai P.S. is to the effect that on 23.11.1979 at 7:30 A.M. accused Dwarika Yadav, Chhotu Yadav, Chano Yadav, Borhan Yadav, Banwari Yadav and Pano Yadav armed with sharp cutting weapons were cutting his paddy crops over an area of about two bighas. When the informant somehow came to know about this, he went to his land with his brother Sobhi Mahto, nephew Nepali Mahto to forbid the accused persons upon which Chhotu Yadav ordered to assault and then Dwarika Yadav assaulted with Farsa to Sovi Mahto, Banwari Yadav assaulted with farsa to Nepali Mahto and Chhotu Yadav assaulted with farsa to the informant and Banarsi Mahto. THE informant then raised alarm on which the villagers assembled and then the accused persons fled away. It is also alleged by the informant that he received farsa injuries on neck, right hand, left hand and as a result of which one finger was chopped off. It is also alleged that the informant's brother Sobhi Mahto got injuries between the eye and nose and in both legs whereas Banarsi Mahto also received injury on left hand and the back whereas the Nepali Mahto received injuries on the neck, head and left leg and thereafter the villagers carried them to the hospital. It is also claimed by the informant that the occurrence has been seen by Triloki Mahto, Nikhedi Mahto, Ramcharitar Mahto and Parmeshwar Mahto. On the basis of the aforesaid fardbeyan Halsi P.S. Case No. 6 of 1979 was registered under Sections 147, 148, 149, 302, 307 of the Indian Penal Code against six accused persons. THE police after investigation submitted charge sheet against Dwarika Yadav U/S 148, 302 307/149 I.P.C, against Chano Yadav, Banwari Gope and Chhotu Yadav U/S 148, 307, 302/149 I.P.C and against Pano Yadav U/S 307/149 and 302/149 I.P.C and consequently cognizance was taken. Charges were framed against all six chargesheeted accused under Sections 302 and 307 I.P.C., against Dwarika Yadav, Chano Yadav, Chhotan Yadav, Banwari Yadav under Section 148 I.P.C., against Pano Yadav under Section 147 I.P.C., against Chano Yadav, Chhotan Yadav and Banwari Yadav under Section 307 I.P.C. and against Dwarika Yadav under Section 302 I.P.C. also.

(3.) CONSIDERING the prosecution case, the evidence on record and the finding of the learned Trial Court, it is necessary to reappraise the evidence of P.Ws 2 to 5 and P.W. 7, who claimed themselves to be the eye witnesses. P.W. 7, Singheshwar Mahto is the informant of the case and as per his evidence, the land over which the occurrence took place is 1 acre 37 decimal of Khata No. 61, Plot No. 1069 which was purchased from Sami Ahmad and Wasi Ahmad and the said purchase was made in the name of five brothers of the informant. It is claimed by the informant that the paddy crop was grown by them on the said land and the accused persons were never in the possession over that. The allegation is that on the date of occurrence the accused persons cut paddy crop on the north western extremity of an area of two bighas. It is also admitted by P.W. 7 that adjacent to his land, 1.37 decimals of the land was being ploughed by the accused side. P.W. 7 in his evidence has clearly stated that Chhotu Yadav ordered then Dwarika Yadav assaulted with farsa to Sobhi Mahto and when Sobhi Mahto fell down in the land of Dwarika Yadav, then Dwarika Yadav assaulted him with farsa on both the legs. Thereafter Nepali Mahto was assaulted by Banwari Yadav with Farsa and Banarsi Yadav was assaulted by Chhotu Yadav by farsa where as Chano Yadav assaulted the informant.