AWADHESH DUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction and sentence recorded by 1st Addl. Sessions Judge, Buxar in Sessions Trial No. 495 of 1989, whereby and whereunder the appellants have been convicted under Sections 302/ 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

(2.) The prosecution case as per the FIR (Ext. 3), in short, is that on 22.4.198 at about 5.00 p.m. the informant and his uncle were washing their hands after taking refreshment at the door of their house when accused Sheo Narayan Dubey (since dead), Awadhesh Dubey and Bhim Dubey along with four unknown persons all being armed with rifles came and accused Sheo Narayan Dubey fired upon the informant's uncle, namely, Indrajit Pandey who succumbed to the injury. The informant ran inside the house to save his life but he was chased by accused Sheo Narayan Dubey, Awadhesh Dubey and Bhim Dubey along with two unknown persons who entered into the courtyard and appellant Awadesh Dubey fired upon the informant's mother, namely, Prabhawati Devi who also succumbed to the injury in the courtyard itself. The informant ran towards the roof of the house to save his life but the assailants chased him and went to the roof so the informant came down through stair case and was running but in the meantime one of the assailants fired from his rifle causing injury on right elbow and hand. The informant managed to conceal himself in the house of one Jagu Kamkar and when the assailants fled away the informant came out from the house of Jagu Kamkar and found that his father Sahdeo Pandey, uncle Indrajit Pandey and mother Prabhawati Devi were lying dead. The villagers brought the dead body of the informant's servant Bansh Narayan Pandey and the informant learnt from his cousin brother Kaulesh Dubey that accused Mira Devi and pointed towards Bansh Narayan Pandey to the accused that he was the informant's servant and so the accused- persons shot him dead. It is further alleged that accused-persons took away the gun of the informant's father. The motive as alleged in the FIR is that the father of the informant had deposed against the accused-persons in some other case two months before the occurrence and accused- persons had held threats that the entire family will be eliminated. In the alleged occurrence Gita Kumari was also murdered and her dead body was recovered later on.

(3.) On the basis of the fardbeyan of the informant a case under Sections 449, 302, 307, 324, 326, 380/34 and 120-B of the IPC read with Section 27 of the Arms Act was registered and after completing investigation the police submitted charge-sheet in the case against the appellants and six others and 10 persons were shown in the absconder column under Sections 302, 307, 324, 326 and 382 of the IPC. The cognizance was taken by the Addl. Chief Judl. Magistrate, Buxar and the case was committed to the Court of Sessions. Altogether 9 accused faced the trial out of which 7 were acquitted of the respective charges framed against them. Charges were framed against the appellants under Sections 302 and 149 of the IPC as also under Sections 307/149 of the IPC but the trial Court acquitted the appellants of the charges under Sections 307/149 of the IPC.