RAMDEO YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been preferred by five appellants against their conviction under Sections 302/149 & 323 of the Indian Penal code passed by learned 9th Additional Sessions Judge, Munger in Sessions Case No. 583 of 1983 arising out of Sheikhpura P.S. Case No. 25 of 1983. The appellants have been sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under Section 323 of the Indian Penal Code. Both the sentences are to run concurrently.

(2.) THE prosecution case as reveal from Exhibit 3, the fardbeyan of P.W. 3 Shidheshwar Prasad recorded on 01.02.1983 at Sheikhpura Referral Hospital at about 10.30 A.M. is that in previous afternoon i.e. on 31.01.1983, he had gone to Sheikhpura market and during return, near Nimi High School met with Baleshwar Prasad (deceased), who had gone to said High School to enquire about admission of his son in there in. Both in company of each other when arrived at South-West of village Gopichack at about 5.30 P.M., suddenly surrounded by 20-25 persons of said village armed with Lathi and Grassa, who started assaulting them indiscriminately, Baleshwar Prasad fell down. Anyhow the informant succeeded to escape from the place and in the way met with the villagers and intimated them including Krishna Prasad, Mani Prasad, Bindeshwar Mahton, Indradeo Prasad, Umesh Prasad (not examined) about the occurrence. He further claimed to have identified seven persons out of the mob of assailants, who faced trial out of whom Ramchandra Yadav and Ram Balak Yadav were armed with Grassa, but during trial they have been acquitted. Rest five appellants were armed with Lathi and all according to the informant assaulted both i.e. informant and Baleshwar Prasad (the deceased). However, some of the villagers brought the informant to the village and some proceeded to bring Baleshwar Prasad. Both were kept in the village whole night where the first aid was provided. Only on arrival at the village, the informant could know that P.W. 1 Rajeshwar Prasad who was engaged by the villagers to guard their fields since objected uprooting of Kheshari crop by Ramchandra Yadav, Ramdeo Yadav and Ramswroop Yadav, in retaliation, they brought him to their village and assaulted who on return to village, intimated the happenings to the villagers. Some of them went to the village of the appellants and chided and assaulted them by slaps and feast (Ramdeo Yadav (appellant no. 1), Ramchandra Yadav and Ramswaroop Yadav, the convicted accused). In the next morning when informant and Baleshwar Prasad, both were being brought to hospital for treatment, the deceased succumbed to injury near village Khakraha. THE informant arrived at hospital where he was treated and his statement was recorded. THE fardbeyan was witnessed by two persons, namely, Krishna Prasad and Awadh Prasad, none of these have been examined by the prosecution.

(3.) P.W. 3, Shidheshwar Prasad is the informant tried to support the prosecution version as narrated in fardbeyan. This witness admits that deceased, Baleshwar Prasad after being injured remained in his full senses till his death, but nowhere this witness speaks about any statement by said Baleshwar Prasad about the persons causing injuries to him or even to his companion, the informant. The person having injuries leading to his death in spite of being in full senses will not speak anything about the assailants or happenings with him, creates doubt against the version of his alleged companion. It is further surprising that in spite of having facilities to go to Sheikhpura even by train within 2-3 hours of such incident none of the two injured proceeded for suitable medical aid to the Government Hospital. This witness has tried to explain that in his village there was no medical aid available, but availability of the doctor at Sheikhpura is not ruled out. In paragraph no. 5 of cross-examination availability of the train at about 8.00 P.M. came into light. Besides this, this witness has also not been believed by the trial court at least to the extent that the two accused persons facing trial Ram Deo Yadav and Ram Balak Yadav, allegedly armed with deadly weapon like Garassa, but no such injury have been found either upon the informant or the deceased. Whereas, this witness was specific that these two persons have assaulted both the injures by such weapons on their hands. The above materials gave room to the learned counsel for the appellant who submits that testimony of this solitary eye-witness cannot be believed with respect to the appellant also. In absence of any corroboration, the witnesses discussed above have failed to corroborate the testimony of the witness, so the appellants also deserve some treatment which was provided to two co-accused facing trial alongwith.