DHIRENDRA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both the appellants have challenged the judgment and order of conviction dated 23rd December, 1987 passed by learned Sessions Judge, Saharsa in Sessions Trial Case No. 41 of 1986 whereby and whereunder both the appellants were convicted under Section 302, 307 and 326 of the Indian Penal Code and sentenced to undergo imprisonment for a period of seven years and rigorous imprisonment for five years, respectively. The sentences were directed to run concurrently and further the period undergone in custody was directed to be set off under Section 428 of the Code of Criminal Procedure.

(2.) The prosecution case is necessary to be discussed for considering the grounds of appeal of the appellants. The prosecution story starts with the fardbeyan of the informant Chandra Kishore Yadav (P.W.7) recorded by Officer-in-Charge S.J. Murmu of Sourbajar Police Station on 30.03.1985 at 7 a.m., to the effect that in the night of 29.03.1985, the informant along with his brother, Birendra Yadav (P.W.4) was sleeping on the Machan (bamboo bed) in bungalow (outer house). Younger brother of the informant Ram Bilash Yadav (P.W.5) was sleeping in bungalow (outer house) on a Chouki. Youngest brother of the informant Shivjee Yadav (P.W.6) was sleeping with his mother in the courtyard (Aangan). The informant got up when someone hit with a sharp cutting weapon on his head and saw Dhirendra Yadav (Appellant No.1) armed with Farsa and Ram Chandra Yadav (Appellant No.2) armed with a spade (Kudal), standing. Whereas 2 to 5 unknown persons were standing when Dhirendra Yadav and Ram Chandra Yadav started assaulting the informant (P.W.7) and Birendra Yadav (P.W.4) with spade and garasa (sharp cutting weapon), repeatedly. The elder brother of the informant Birendra Yadav (P.W.4) after getting down from Machan (bamboo bed) ran towards south. In the meantime, Dhirendra Yadav (Appellant No.1) and Ram Chandra Yadav (Appellant No.2) followed him and started assaulting Birendra Yadav (P.W.4) with spade and farsa towards south of the Baithka. As a result of which Birendra Yadav (P.W.4) fell down, on which appellant no.1, Dhirendra Yadav, stated that Birendra Yadav (RW.4) has died. Thereafter, both the appellants came and assaulted on the neck of Ram Bilash Yadav (P.W.5), the elder brother of the informant who was sleeping on the Chouki. After repeating the blows for sometime the appellant, Ram Chandra Yadav stated that "here all have been killed" and all decided to go inside to finish others and then they all went inside the house where the mother and the younger brother of the informant were sleeping. It is asserted by the informant that he kept quiet, as he was scared and after sometime all the four accused persons came out from the house and fled away towards south while making noise. Thereafter, people from the village came to find Shivjee Yadav (P.W.6) injured and the mother of the informant dead, inside the house. Then the villagers brought the informant and the other injured, to hospital. It was disclosed by the informant that accused Dhirendra Yadav and Ram Chandra Yadav were the step brothers of the informant and there was dispute for the sake of partition. The informant claimed to identify two unknown accused persons. On the basis of the aforesaid allegation Sourbajar RS. Case No. 33 of 1985 dated 30.03.1985 was registered under Sections 324, 326, 307 and 302/34 of the Indian Penai Code. Maheshwari Yadav (P.W.2) and Rajeshwar Yadav (not examined) were made attesting witnesses to the fardbeyan (Ext.5). The First Information Report was registered on 30.03.1985 at 7 a.m. and Column-3 of the formal part of the First Information Report suggests that it was transmitted through Special Messenger, whereas formal part also reflects that the First Information Report was received in the court of learned Chief Judicial Magistrate on 01.04.1985. The police after investigation, submitted charge sheet which led to taking of cognizance and commitment of the case to the Court of Sessions, when charges were framed under Sections 302, 307 and 326 of the Indian Penal Code.

(3.) The prosecution in order to substantiate the charges examined eleven witnesses, of which Narayan Pd. Yadav (P.W.1), Birendra Yadav (P.W.4), Ram Bilash Yadav (P.W.5) and Chandra Kishore Yadav (P.W.7) claimed themselves to be eye witness to the assault upon three injured, i.e. P.Ws.4, 5 and 7. Maheshwari Yadav (P.W.2) is a hearsay witness who came to know about the manner of assault through P.W.7, though, he witnessed both the appellants fleeing away from the place of occurrence. RW.3 is the witness to the seizure of blood stained earth, blood stained Farsa, blood stained quilt and blood stained towel from the southern room of the Baithka. Though, the other seizure list witness Kapildeo Yadav has not been examined. P.W.6 Shivjee Yadav is another injured who was sleeping with the deceased in Angan and he is the only witness to the assault made to the deceased as well as to the assault made to this witness. Chandra Kishore Yadav (P.W.7) is the informant of this case. Dr. Suresh Pd. Singh (P.W.8) examined the injuries of four injured i.e. P.Ws. 4, 5,6 and 7. Dr. Jang Bahadur Singh (P.W.9), conducted the post-mortem examination on the dead body of the deceased Guljharia Devi. Rajendra Yadav (P.W.10) is the Chowkidar who was given the dead body challan for taking the dead body to the hospital for post-mortem examination. Samuel John Murmu (P.W.11) is the Investigating Officer of the case.