BASISTH ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both the appeals were heard together as both arise out of the common judgment passed by the Additional Sessions Judge, Buxar In Sessions Trial No. 438 of 1992 whereby and whereunder, the appellant Sahai Lohar of Cr. Appeal No. 488/94 was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. The appellants of Cr. Appeal No. 365/94, namely, (1) Basisth Roy, (2) Manu Roy, (3) Sharma Roy, (4) Jagdish Roy, (5) Sharda Roy, (6) Kamala Roy, (7) Srinath Ray (8) Kamla Lohar, (9) Sharma Lohar, (10) Bhim Lohar and (11) Sheo Bachan Lohar were convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life.

(2.) The prosecution story in short is that on 24.7.1991 at about 6.00 p.m., the informant Matwar Kamu his brother Salik Kanu and son Rajendra Kanu (deceased) were planting bamboo on Government land in front of their house when the appellants along with one Govind Rai (since dead) came there. The appellant Sahai Lohar was armed with a country-made pistol whereas the remaining appellants were armed with lathi The appellant asked the informant and his brother las well as the deceased to refrain from planting the bamboos but the informant and his men did not listen and claimed that the land has been settled in their favour by the Government and it is in their possession. So they will plant the bamboos. It is alleged that all. the accused/appellants were enraged and hurled abuses and Govind Rai (since dead) assaulted Salika Kanu with lathi and Sharma Lohar also assaulted the informant's son with lathi as a result of which they sustained bleeding injuries on their heads. Thereafter, the informant's brother and his son fled away towards village Sitabpur in order to save themselves and they were chased by the assailants. The informant also followed them raising alarm bachao-bachao. When the informant's son Rajendra Kanu reached in the parti land of Gupteshwar Pandey situated in Ishwarpur Badhar, accused Govind Rai (since dead) ordered Sahai Lohar to fire at him whereupon, Sahai Lohar fired from his country-made pistol causing injury on the back of Rajendra Kanu, who fell down. Thereafter, the appellants fled away towards village Sitabpur and the informant, his brother and nephew Dina Kanu found that Rajendra Kanu is dead. The fardbeyan (Ext. 2) of the informant was recorded by the IO of this case on 25.7.1991 at 7.45 a.m. and a formal FIR was lodged under Sections 302/34 of the IPC read with Section 27 of the Arms Act against the appellants and one Govind Rai. The police submitted charge-sheet in the case against the aforesaid persons on the basis of which cognizance was taken and the case was committed to the Court of Sessions for trial.

(3.) The prosecution examined altogether 7 witnesses to prove the charges against the appellants out of whom PW 1 Salika Kanu, PW 2 Malika Kanu and PW 3 Matwar Kanu (informant) are eye-witnesses to the alleged occurrence. PW 4 Dhan Munna and PW 5 Parbhawati Devi who is widow of the deceased were tendered for cross- examination. PW 6 is Doctor S.K. Pandey, who held post- mortem examination on the dead body of the deceased and PW 7 Upender Nath Rai is the IO of the case.