LAKSHMI MUKHIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH the appeals have been preferred by the sole appellant Lakshmi Mukhiya against the order of conviction and sentence passed by 1st Additional Sessions Judge, Darbhanga in Sessions Para No. 246 of 1993 (T.R. No. 80 of 1993) whereby and whereunder the appellant was convicted under Section 302/34 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life.

(2.) THE case of the prosecution as per the FIR (Ext. 5) is that on 2.11.1989 as about 1.00 p.m. the appellant along with Bhola Mukhiya and Jiwachh Mukhiya and others started fixing pegs and Tatti on the land of the informant and at that time the appellant was armed with Khanti whereas accused Bhola Mukhiya had a Farsa, Jiwachh Mukhiya had a Parer and other accused were having lathi and Garasa. It is alleged that the informant and his uncle, namely, Ghutar (deceased) protested to the illegal acts of the accused -persons, whereupon, the appellant ordered to assault and he himself hurled a Khanti blow on the head of Ghutar who fell down followed by Jiwachh Mukhiya who assaulted the informant with Parer and the informants uncle was also assaulted. Accused Raju is said to have assaulted the informant with lathi. On hulla raised by the informant the witnesses, namely, Ram Prasad. Ram Shreth and others came whereupon the accused -persons fled away. Thereafter, the informant, his uncle and Ghutar went to police station where the statement of the informant (Ext. 1) was recorded and a case under Sections 447,341 and 323 of the IPC was registered and all the three injured persons were referred to hospital at Kusheshwar As -than where they were examined by Dr. Mithilesh Jha who granted injury reports (Exts. 33/1 and 3/2). Dr. Jha referred Ghutar Kukhiya to DMCH and informant took his brother to Darobhanga but he died at the Bus Stand itself without receiving any treatment at DMCH. The case was converted into one under Section 302 of the IPC and charge -sheet was submitted against the accused persons. However, the appellant alone faced the trial for the charge under Section 302/34 of the IPC. The appellant denied the charge and his defence was that he is innocent and has been falsely implicated in the case.

(3.) IN order to prove the charge, the prosecution examined as many as ten witnesses in the case out of whom PW 9 B.K. Jha and PW 10 Ram Deo Singh are witnesses of formal nature who proved Exts. 3 to 3/2 and 5. So there is nothing significant in their evidence. In this case there are tow I, Os, out of whom PW 6 Dharnidhar Singh only arrested the accused and submitted charge - sheet and the main investigation was conducted by PW 7 SI. R.P. Singh PW 8 Dr. A.R. Kishore conducted the postmortem examination on the dead body of the deceased and has proved the postmortem report (Ext. 2) PW 1 Ram Prasad Mukhiya. PW 2 Ram Ashish Mukhiya, PW 3 Anti Devi, wife of deceased, PW 4 Choudhary Mukhiya (informant) and PW 5 Govind Mukhiya are all eye witnesses to the alleged occurrence out of whom PW 1 and PW 2 are independent witnesses.