DURGA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The three appellants have preferred this appeal against the order of their conviction for the offences under Section 302/149, 148 and 380/149 of the Indian Penal Code and sentenced to undergo respectively rigorous imprisonment for life, rigorous imprisonment for two years and rigorous imprisonment for three years awarded on 16th December, 2002 by the learned 3rd Additional Sessions Judge, Jamui in Sessions Trial no. 737 of 1999 arising out of Jhajha P.S. Case no. 8 of 1999.

(2.) The appellants, besides one Jadu Yadav, faced the trial and said Jaddu Yadav was also convicted and sentenced along with the appellants for the same offences as they have been convicted besides he was further convicted under Section 302 of the Indian Penal Code and 27 of the Arms Act but he died after preferring Cr.Appeal no. 13of 2003 which was to be heard along with the instant appeal but due to his death the appeal preferred by him was ordered to be abated.

(3.) The prosecution case, as stated in Exhibit-1/1, i.e., Fardbayan of Sikander Yadav (P.W.5) recorded on 20th January, 1999 at 10.30 A.M. at his house in village Patwa by Sub-Inspector of Police, Krishna Kumar (P.W.8), the Investigating Officer, is that in the previous night that is 19th January, 1999 at about 11.00 P.M. three persons scaled into his house through roof. On query by his mother and himself, they stated as "Tumhara Baap". They caught hold of him in his room then in the light of electric bulb he could identify them as Mohan Yadav (absconding), Durga Yadav and Nepali Yadav respectively. Appellants no. 1 and 2. Simultaneously, main door of the house was being pushed to be opened. Persons getting hold of the informant, proceeded to open the door. Taking advantage of the situation, the informant went upon the roof from where he could see that from the door, Jaddu Yadav (deceased appellant in Cr.Appeal no.13 of 2003) and Budhan Yadav, appellant no.3, along with few more entered into the house, started searching him and his father, Kesho Yadav (P.W.1) who got himself concealed behind bundle of straw. Other inmates of the house, that is, mother and wife of the informant, started requesting them to take ornaments and other articles but not to kill any one. Meanwhile, they caught hold of younger brother of the informant, Dinesh Yadav, and were telling to kill him. Then informant jumped from the roof outside and ran towards neighbouring village requested the people to come in rescue but they avoided. On rturn, he found that miscreants had killed his brother and escaped. Deceased Dinesh Yadav was shot at his buttock. Wife and mother of the informant narrated him the subsequent happenings such as inspite of their request, Durga Yadav, appellant no. 1, stated that "Dhan Sampatti Lena Nahi Aye Hain Yahan, Par Har Bahane Aye Hain" and all shot dead the deceased aged 22 years. Motive behind the occurrence, as stated, is previous litigation with respect to piece of land and has also stated that in the previous evening deceased was getting wheat irrigated, mother of appellant no.1, Durga Yadav, reacted sharply and uttered that she will not permit to utilize the wheat. The miscreants further took away one attach containing different papers relating to land and bank deposit etc. It is also stated that in the previous evening while he, being hand pump watcher, was returning from Jhajha with his associates, accused Yaddu Yadav, Nepali Yadav and Buddhan Yadav along with others called him but he avoided and went to his house. On the basis of above it is stated that the miscreants caught hold of him to kill and when he escaped his brother was shot dead.