LALA DUSADH AND ORS Vs. STATE OF BIHAR

JUDGEMENT

(1.) All four appeals arise out of the judgment and order of sentence dated 30.9.2004 passed by Additional Sessions Judge, Aurangabad. Fast Track Court No.ll in Sessions Trial No.40 of 1989/136 of 2003 whereby appellants have been convicted for an offence under Section 302/149 of the I.P.C. and sentenced rigorous imprisonment for life as also a fine of Rs.5,000/- and in default rigorous imprisonment for seven years. The appellant, Lala Dusadh has further been convicted for offence under Section 27 of the Arms Act and sentenced rigorous imprisonment for three years.

(2.) The F.I.R. of Aurangabad(M)P.S.Case No.568 of 1984 was instituted on the basis of statement of deceased Sumair Singh alias Sumair Narain Singh. The case of the prosecution as given in the fardbeyan of the informant is that informant was returning to his village from Aurangabad market in the evening along with his son, Kaushlendra Kumar Singh (P.W.1) and a teacher Kailash Singh Yadav (P.W.4). As soon as they reached near the canal of the Gajadhar bigha village, the accused namely, Lala Dusadh armed with gun, whereas, accused Sohan Dusadh and Krishna Dusadh armed with garasa and remaining appellant, namely, Shatroghan Duadh, Ramraj Dusadh and Raghunandan Dusadh armed with lathi came there. It is alleged that accused, Lala Dusadh exhorted to kill the informant/ deceased and fired two shots from his gun which hit in the stomach of the informant and he fell down. The other accused persons also started assaulting with Gadasa and lathi. The informant raised an alarm upon which the villagers came there. Having seen the assemblage of the villagers, the accused persons fled away towards their village inflicting several injuries to the informant Sumair. The informant/deceased received fire arm injury and the injury inflicted by garasa and lathi in his stomach and other parts of the body and also on his back. His family members and villagers, thereafter, carried him to Sadar Hospital Aurangabad for treatment where his fardbayan was recorded at 07.30 P.M. by Quasim Khan, SI of Aurangabad (M) P.S. and on that basis Aurangabad (M) P.S. Case No. 568 of 1984 was instituted u/s 147, 148, 149, 323, 307 IPC read with 27 Arms Act. The informant was referred by the doctor at Aurangabad hospital to Gaya considering his serious injuries. The P.W. 1 (informant's son) and P.W.4 were carrying him to Gaya hospital but he died on way to Gaya at Sherghati at about 10.30 P.M., as such informant and P.W.4, brought the deceased to Aurangabad hospital at 12 P.M. and for the whole night, they remained at the hospital but no information was given to the police in the night till next morning. Subsequently, the police came to the hospital on 31.12.1984 at 9 A.M. in the morning and the inquest report was prepared in the hospital itself. Section 302 IPC was added in the FIR by the order dated 04.01.1985. The case was investigated by P.W.5 and chargesheet submitted against all named accused persons. Finally, the case was committed to the court of Sessions for trial and all accused persons faced trial since they all pleaded not guilty. Their defence was of innocence and false implication due to enmity, at the instance of prosecution witness.

(3.) The prosecution examined seven witnesses in order to prove the charge framed against the accused persons. Kaushlendra Kr. Singh, PW 1 is the son of the deceased informant, who claimed to be the eye witness of the occurrence, Kailash Singh Yadav, P.W 4 is a teacher, who was also examined as eye witness. P.W.2 Jamuna Singh, who is the brother of the deceased also deposed as an eye witness. The name of Kaushlendra Kr. Singh and Kailash Singh Yadav is mentioned in the FIR as the persons accompanying the informant but so far P.W.2 is concerned, there is no reference of his presence, at the place of occurrence in the FIR. P.W.3 Dharmadeo Singh is a hearsay witness. P.W.5 is Kasim Khan, SI Aurangabad (M) P.S. who investigated the case and submitted chargesheet. P.W.6 Dr. Narain Pandit had conducted the postmortem on the dead body of the deceased and submitted postmortem report (Ext-8). P.W.7 is the formal witness who was tendered to prove the complaint-cum-protest filed by the P.W.1 Kaushlendra Kr. Singh, making a complain that the investigating officer is not investigating the case properly, being influenced by the accused persons.