OM PRAKASH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal under Section 374(2) read with Section 389 (1) of the Code of Criminal Procedure has been directed against the judgment and order of conviction and sentence passed by the then Additional Sessions Judge I, Siwan in Sessions Trial No. 134/1994 whereby and whereunder the appellant has been convicted under Sections 302/ 324, IPC and sentenced to rigorous imprisonment for life under Section 302, IPC and rigorous imprisonment for two years under Section 324, IPC ordering to run both the sentences concurrently.

(2.) A fardbeyan (Ext. 3) was made by PW 2 Jainath Choudhary on 18-11-1993 at 5.30 hours at the emergency ward of Sadar Hospital at Siwan alleging that on the previous night at about 11 p.m. while the informant was sleeping in the verandah of his house and his son Mithilesh Kumar Yadav was also sleeping in the same verandah separately, he woke up hearing the screaming and crying raised by Mithilesh Yadav and saw that the accused Om Prakash Yadav alongwith two other unknown persons had torn the stomach with knife. After seeing the informant getting up the accusedappellant Om Prakash Yadav alongwith his associates rushed towards him. One of them attempted to close his mouth and Om Prakash had assaulted him in his chest and stomach on the lower part and other assailants had given knife blows on his back. He tried to catch the knife with his right hand due to which his right hand palm was also got injured by the knife. He became stunned, puzzled and started weeping and fled away towards south. At that very moment hearing hullah his brother Dudhanath Yadav (PW 1) came to the spot alongwith neighbour Yusuf Khan. Several other villagers also came to the spot. It was found that the abdomen of his son Mithilesh Yadav was totally torn and intestine had protruded. Both the injured were taken to Siwan Sadar Hospital where ultimately Mithilesh Yadav died and he was in the emergency room for the purpose of treatment. During the course of investigation the spot was verified. Accused appellant Om Prakash was arrested but no trace could be found about his two associates. Reports of injuries on the persons of both Mithilesh Yadav and the informant PW 2 had been collected. Dead body of Mithilesh Yadav was inquested and sent for postmortem. After postmortem examination report was collected and then charge-sheet had been submitted against the accused appellant under Section 302/326 of the IPC. On commitment before the Sessions Judge charges were framed against the accused appellant Om Prakash Yadav under Section 302, IPC and also under Section 326. IPC vide order dated 14-6-1994 and when the same was read over and explained to the accused appellant he pleaded not guilty.

(3.) At the first instance, the defence plea was total denial and it was suggested that there was no motive for committing the alleged occurrence. It was also suggested to the prosecution witnesses that the accused appellant has been falsely implicated at the instance of the enemies of the accused. But it was not disclosed as to the name of the enemy at whose instance the accused appellant had been implicated. It was further suggested that the informant and his son were known bad character people and they might have been assaulted somewhere else by the enemies and the accused appellant had been implicated but no specific instances of bad character had been cited from the side of the defence. But during the course of trial for the first time a new case was raised that in the house on the night of occurrence there was quarrel between the deceased and the informant and the informant had committed the murder of his son in drunken condition. After closure of the prosecution evidence DW 1 Mukichand Sah had been examined for and on behalf of the accused appellant to claim that the accused appellant has been implicated falsely at the instance of one Harendra Choudhary who had got litigating terms with the accused appellant but no specific instances were cited or case was made out as to how the said Harendra Choudhary is close to the informant. DW 1 had further stated that before him the informant had disclosed that he could not identify the assailants and the villagers also disclosed that the culprits could not be identified.