ASHARFI PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 1.12.1987 passed by IInd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 45 of 1979 convicting and sentencing all the appellants to undergo rigorous imprisonment for life under Section 302 read with Section 149, Indian Penal Code and rigorous imprisonment for one year under Section 147, Indian Penal Code. Appellant Asharfi Prasad Singh has been further invited and sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 109, Indian Penal Code. The sentences passed against the appellants have been ordered to run on currently.

(2.) THE case of prosecution, in short, as disclosed in the fardbayan (Exhibit-5) of informant Surender Prasad Singh (P.W. 8) is that on 15.2.1976 at about 6-6.30 p.m., deceased Jaldhar Das, cousin brother of informant, was going towards a shop from his house and the way to shop passes through the house of appellant Asharfi Prasad Singh. At that time, informant was following his brother and he was about 30 to 40 steps behind him. When the deceased reached in front of the house of appellant Asharfi Prasad Singh, all of a sudden, all the five appellants alongwith 2 and 3 others, all armed with lathis, came from the house of appellant Asharfi Prasad Singh and they pounced on deceased and appellant Asharfi Prasad Singh order to kill the deceased on which deceased, raising hulla, started running and informant saw that appellants Bachu Prasad Singh and Bhola Singh assaulted the deceased with lathis on his head and the deceased, after receiving injuries, fell down and became unconscious. Informant also raised hulla on which villagers, namely, Keshaw Prasad Singh (P.W. 3), Ram Bilas Singh (P.W. 4), Prakash Singh (P.W. 7) and others came there and they also saw the occurrence. On seeing the villagers, the appellants fled away leaving behind the deceased. THEreafter, some other villagers, namely, Ramdeo Singh (P.W. 5), Ranveer Singh (not examined), Dinesh Singh (not examined) also came there and they saw the deceased in injured and unconscious condition. THE informant and the other witnesses, who had seen the occurrence, told them about the occurrence. Since the condition of deceased was critical, he was taken to Bhagalpur Sadar Hospital after arranging taxi instead of first giving information to Police Station. THE fardbayan (Exhibit-5) of informant was recorded at Bhagalpur Hospital on 16.2.1976 at about 9-9.30 a. m. when the deceased was lying in hospital in unconscious condition and was not in a position to speak. About the motive of occurrence, the informant, in his fardbayan (Exhibit-5), has stated that on the day of occurrence in the morning, an altercation took place between deceased on the one end and the appellant Asharfi Prasad Singh and others on the other end on account of irrigating land and appellant Asharfi Prasad Singh had given him threatening that he would finish the deceased. On the basis of fardbayan (Exhibit-5) of informant, formal First Information Report (Exhibit-2) was drawn against all the five appellants. Later on the deceased died and Section 304 in place of 323, Indian Penal Code was substituted in the First Information Report (Exhibit-2) at the request of police on 2.3.1976. After investigation, police submitted charge-sheet under Sections 147 and 304, Indian Penal Code against all the five appellants and after taking cognizance, the case was committed to the Court of Session where charge under Section 302 read with Sections 149, Indian Penal Code was framed against all the five appellants and besides this, an additional charge under Section 302 read with Section 149, Indian Penal Code against appellant Asharfi Prasad Singh was framed and all the appellants were put on trial.

(3.) SURENDER Prasad Singh (P.W. 8), the informant, in his evidence, has stated that deceased was his cousin and on 15.2.1976 at about 6.30 p.m., deceased was going to a shop from his house and the way to the shop passes near the house of appellant Asfrarfi Prasad Singh and at that time he was also following the deceased and he was at about 30 to 40 steps behind him and when the deceased reached near the house of appellant Asharfi Prasad Singh, all the five appellants alongwith two to three others all armed with lathis came out from the house of appellant Asharfi Prasad Singh and they ran towards deceased and appellant Asharfi Prasad Singh ordered to kill the deceased and deceased started running after raising hulla and when the deceased reached the Bathan of Fauji Singh, appellant Bachu Singh and Bhola Singh assaulted him with lathi on his head and the deceased, after receiving lathi blows, became unconscious and fell down and, thereafter, appellant Bideshu Singh and Sitaram Singh also assaulted the deceased with lathi. He has said that when the deceased was being assaulted, witnesses, namely, Krishna Singh (P.W. 3), Ram Bilas Singh (P.W. 4), Ramdeo Singh (P.W. 5) and Prakash Singh (P.W. 7) were there and he also raised hulla on which Ranveer Singh (not examined) and Dinesh Singh (not examined) came there andhe told them about the occurrence and the names of appellants. He has said that because the condition of the deceased was critical, therefore, he took the deceased to his house and told about the occurrence to the family members of deceased and, thereafter, brought the deceased on a cot to Rampur Dharmshala where a taxi was arranged and deceased was taken to Bhagalpur Sadar Hospital were they all reached at about 5 a.m. in the rooming. About the motive of occurrence, he has said that on the day of occurrence in the morning, an altercation had taken place between appellant Asharfi Prasad Singh and deceased on the point of irrigating land and there was exchange of abuses and appellant Asharfi Prasad Singh had given threatening that he would kill the deceased. He has said that on the next day at about 9-9.30 a.m., police came to the hospital and recorded his fardbayan (Exhibit-5). He has further added that on 20-2-1976 at about 11-12 O'clock in the night, deceased died at Bhagalpur Hospital and on 21.2.1976, police came and prepared inquest report on which he and Keshaw Prasad Singh both put their signatures. He has proved the inquest report (Exhibit-6) and has said that on the same day, post-mortem examination on the dead-body of deceased was conducted and he received the dead-body of deceased at about 4 p.m. and Ramdeo Singh (P.W. 5) was sent to the village of deceased for bringing his son for funereal and on 21.2.1976 at Barari Ghat, the dead-body of deceased was cremated and on 22.2.1976 in the morning, he and others came back to the village. To a question put in cross-examination whether appellant Asharfi Prasad Singh has filed a criminal case for assault on him and his son, appellant Bhola, with lathi in which the same date of occurrence has been given which is the date of occurrence of this case, he has replied that appellant Asharfi Prasad Singh has filed a case but he does not know the date of occurrence of that case and he has volunteered that in order to create defence, that false case has been instituted. He has admitted that his cousin Gaya, Ajab Lai and his nephew Awadhesh and nephew of witness Ramdeo Singh (P.W. 5) are accused persons in that case. He has also admitted that on 15.2.1976, the date of occurrence of the present case, he did not send any person to Shambhuganj Police Station in the jurisdiction of which his village falls for giving information about the occurrence and he did not send any information to chaukidar or Dafadar who raised at a distance of 50 to 60 yards from his house, He has admitted that in his fardbayan, he had stated that on hulla, Ramdeo Singh (P.W. 5), Ranveer Singh (not examined) and Dinesh Singh (not examined) had come to whom he told about the occurrence. He has further admitted that while carrying the deceased to Bhagalpur on taxi, he crossed Tarapur and Sultanganj and at both these places, there are Police Stations and Hospitals but deceased was not taken to any Hospital either at Tarapur or Sultanganj and no information to either of the two Police Stations was given.