BINOD YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal by appellants has been filed against the judgment and order dated 27.3.1996 passed by IIrd Additional Sessions Judge, Khagaria in Sessions Case No. 221 of 1994 convicting and sentencing both the appellants to undergo rigorous imprisonment for life under Sections 302/34 of Indian Penal Code (in short 'IPC') and to undergo rigorous imprisonment for five years each under Section 27, Arms Act. Both the sentences have, however, been ordered to run concurrently.

(2.) THE case of the prosecution, as stated in the First Information Report, in short, is that on the night of 1.4.1994, informant Guneshwar Sada (P.W. 7), after taking his meal, was sleeping in his house. His son Bajrangi Sada was also sleeping with his wife in a house which he had constructed three years ago on the land of one Brijmohan Prasad. THE informant heard sound of firing and also alarm raised by his daughter-in-law and, thereafter, when he went running to the house of his son, he saw both the appellants firing at his son and at that time, Ganeshi Yadav and Ram Swamp Yadav were also standing there. THE moment, informant reached the house of his son, both the appellants fired at his son. At the time of occurrence, it was moonlit night and the informant, in the light of moon, identified the appellants and their companions. He saw that both the appellants fired one shot each as the result of which his son died at the spot. He saw both the appellants and their companions, all carrying country-made pistols and on the sound of firing, Ram Pravesh Sada (P.W. 1), Ram Pukar Sada (P.W. 2), Mahendra Sada (P.W. 6) and others came running to the place of occurrence and they also saw the occurrence. According to informant, occurrence took place at 11 p.m.. THE informant at about 1 a.m. on 2.4.1994 went to Alauli Police Station and lodged the First Information Report (Exhibit. 4). For the motive, the informant stated in first information report that his deceased son Bajrangi Sada had constructed his house on the land of landlord Brijmohan Prasad of village-Sanhauli and for this reason, at the instance of Brijmohan Prasad, appellants and their other two companions, committed the murder of his son. THE First Information Report was registered under Sections 302/34, IPC and Section 27, Arms Act against both the appellants, Ganeshi Yadav and Ram Swamp Yadav. THE police, after investigation, submitted charge-sheet against both the appellants and Ganeshi Yadav. Co-accused Ram Swarup Yadav was not sent up for trial.

(3.) GUNESHWAR Sada (P.W. 7), the informant, in his evidence, has stated that on the day of occurrence, he was lying in his 'Angan' and his son was sleeping in the 'verandah' of house when both the appellants along with Ganeshi Yadav and Ram Sharan armed with pistols came from northern side and he then stood up and, thereafter, the appellants and their companions asked each other for killing soon otherwise there would be 'hulla' and at the time, he was at a distance of three 'lagga' from his son. He has, further, said that appellant Binod Yadav fired from his pistol on the left eye of deceased and appellant Balbir Yadav fired from his pistol on the left lateral side of chest of deceased and his son, after tossing for about two to four times, died. He has also said that on hearing the sound of firing, P.Ws. 1, 2 arid 3 came there and he, after the occurrence, went to Alauli police station and lodged the First Information Report. Kaleshwari Devi (P.W. 9) is the wife of deceased and she has said that on the day of occurrence at about 11 p.m., she was sleeping by putting her hand on the body of deceased in her house and when both the appellants removed her hand, she awoke and saw both the appellants armed with pistols and they fired at her husband and fled away. According to her, appellant Binod Yadav fired at the eye of deceased and appellant Balbir Yadav fired at the lateral side of chest of deceased. She has also said that on hearing the sound of firing by pistol, informant, P.Ws. 1, 2 and 3 came there. Ram Pravesh Sada (P.W. 1) and Ram Pukar Sada (P.W. 2) have said that at the time of occurrence, they were in their respective houses and when they heard sound of firing, they came out from their houses. P.W. 1 has said that sound of firing had come from the house of deceased and when he was going there by running in the way, he saw both the appellants along with Ganeshi Yadav and one another who could not be identified by him and when he reached the house of deceased, he found the deceased lying dead in the pool of blood and the wife of deceased told him that both the appellants, after firing at her husband, had fled away. P.W. 2 has said that after hearing the sound of firing when he came out from his house and proceeded towards west, he saw both the appellants and Ganeshi Yadav armed with pistols but out of fear, he did not tell anything to them and when he went to the house of deceased, he found dead-body of deceased lying in the pool of blood and deceased and injuries on left eye and on left lateral side of the chest and informant, P.Ws. 1 and 6 were also there. Manohar Sada (P.W. 3) has said that at the time of occurrence, he was lying at his house when he heard sound of two firings and also of crying and when he went running towards the house of deceased, he found deceased tossing on a 'chauki' and informant had caught hold of him and wife of deceased told him that both the appellants, after firing at her husband, had fled away along with Ganeshi Yadav. Driver Sada (P.W. 4) has said that on the day of occurrence at 11 p.m., he was in his house when he heard sound of two firings and when he, after coming out from his house, went towards west, he found both the appellants along with Ganeshi Yadav coming from there and all of them were armed with pistols and when he went to the house of deceased, he found the dead-body of deceased and informant and wife of deceased told him that deceased had been murdered. He has not said that either the informant or wife of deceased told him the name of assailants. Mahendra Sada (P.W. 6) has also said that on the day of occurrence at about 11 p.m., he was in his house when he heard the sound of firing and when he left his house, he saw both the appellants along with Ganeshi Yadav fleeing away towards east and all the aforesaid persons had pistols with them. It was a moonlit night and when he went to the house of deceased, he found the dead-body of deceased lying in the pool of blood having injuries on his left eye and left lateral side of his chest and at that time informant, wife of deceased, P.Ws. 1, 2 and 3 were present there. Narendra Kumar (P.W. 8), the Investigating Officer of this case, in his evidence, has said that on 2.4.1994, he was posted at Gogri police station as a Junior Sub-Inspector of Police and on that day, on the basis of statement of informant. Gogri P.S. Case No. 21 of 1994 was registered and he was entrusted the investigation of the case. According to him, he visited the place of occurrence, which is a hut of one room without any door on the land of one Brijmohan Prasad and there was 'Ekchari' (verandah) towards east of this hut and under this 'Ekchari', a 'chauki' with a plastic bed, was there on which dead-body of deceased was lying in the poof blood and there was sufficient blood on the plastic bed and also beneath the "chauki', and he also found front portions of two fired 303 cartridges. According to him, the southern portion of 'Ekchari' was covered by 'tatti' and its northern side was open and there was open courtyard towards north and east of this 'Ekchari' and there was open field towards sought of the place of occurrence. He has further said that he prepared the inquest report of the dead-body of deceased and sent the dead-body of deceased for post-mortem examination along with a 'challan' (Exhibit-3) prepared by him and after recording the statement of witnesses and completing the investigation, submitted charge-sheet. He has proved the formal First Information Report (Exhibit-4) and fardbayan of informant (Exhibit-5).