AJAY YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 16.12.2008 and 18.12.2008 respectively passed by the Additional Sessions Judge, Fast Track Court No. 8, Purnea in Sessions Trial No. 323 of 2002, Trial No. 202 of 2006 arising out of K.Hat Police Station Case No. 143 of 2001, G.R. No. 800 of 2001, whereby the Appellants have been convicted for offences under Sections 364, 302, 201 of the Indian Penal Code and sentenced rigorous imprisonment for life under Section 302 of the Indian Penal Code and fine of Rs. 20,000/-, in default of payment of fine, they have been awarded further two years imprisonment. The Appellants for conviction under Section 364 of the Indian Penal Code have been sentenced rigorous imprisonment for ten years and for conviction under Section 201 of the Indian Penal Code rigorous imprisonment for five years. The fine imposed as per the direction in the impugned judgment has to be paid to the widow of the deceased-. In case the widow is not present, the legal heirs of the deceased.

(2.) Bidyanand Prasad Yadav (P.W. 8) the informant gave a written report at K.Hat Police Station on 8.5.2001 at 10.30 A.M. informing that on the same day he alongwith his elder brother Basudeo Prasad Yadav had come to Purnea for purchasing new radiator (ready water) for tractor. They had also brought the old radiator for its repair. They came at the shop of Guddu Mistri, which is situated at near Ford Company, Shiv Mandir and asked Guddu Mistri to repair the old radiator (ready water) and also requested Guddu Mistri to go with them for purchasing the new radiator. The informant alongwith his brother and Guddu Mistri came to a shop situated south to Ford Company for purchasing radiator. At about 9.15 A.M. one white colour sumo car came and stopped by the side of the road. Three persons came out from that sumo car and the informant identified two of them being his villagers Sanjay Yadav and Ajay Yadav. The third person could not be identified by him. These three persons came near the shop where the informant and his brother were standing and tried to catch them. Informant managed to free" himself and ran away. Those three persons thereafter caught his brother Basudeo Yadav and dragged him to the car and seated in the Sumo Car and kidnapped for killing him. In the written report the informant has admitted that the land dispute is going on with Ajay Yadav and Sanjay Yadav and the cases are pending in Court. The informant claimed that because of old enmity the accused persons have kidnapped his brother Basudeo Yadav and taken away him for the purposes of killing him.

(3.) On the basis of this written report K. Hat P.S. Case No. 143 of 2001 was instituted under Sections 364, 302, 201 of the Indian Penal Code against the Appellants and one unknown person. The case was being investigated but as per the evidence of P.W. 8 the informant, it transpires that on 8.5.2001 itself the dead body of his brother was found by the Chowkidar near Toopamari Bridge at Kochadham, he gave information at Kochadham Police Station and on the basis of his fardbeyan Kochadham P.S. Case No. 25 of 2001 was instituted against unknown. The dead body was sent for post mortem on 8.5.2001 at 9 P:M. and on the next date i.e. 9.5.2001 at 9 A.M. post mortem was conducted by Dr. V.S. Das, Civil Assistant Surgeon, Sub-Divisional Hospital, Kishanganj. Since the dead body was not claimed by any one, as such after being photographed it was buried. Subsequently on 13.5.2001 the Officer In-charge of K. Hat Police Station called the Informant at Police Station where Officer-in-charge of Kochadham Police Station was also present. The Officer-in-Charge of Kochadham P.S. has shown him the photograph of unclaimed dead body, which he identified as Basudeo Yadav his brother. The informant thereafter accompanied the Officer-in-charge of Kochadham Police Station and came at Kochadham. The buried dead body was exhumed and he identified the dead body of his brother. P.W. 8 in para 5 of his evidence has stated that he had gone to Kochadham alongwith his villagers and he gave mukhagni to his brother according to Hindu rites at Kochadham and dead body was again buried. Investigation of Kochadham P.S. Case No. 25 of 2001 and K. Hat P.S. Case No. 143 of 2001 were conducted by the same Investigating Officer, charge-sheet was submitted against two named accused persons of K. Hat P.S. Case No. 143 of 2001. The Magistrate took cognizance of the offences and committed the case to the Court of Sessions for trial. Statement of accused persons were recorded under Section 313 of the Code of Criminal Procedure where they denied their participation in the offence. They pleaded innocence and also of false implication, on account of previous enmity.