SURYA NATH UPADHAYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Appellants have been convicted u/s 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life. One of them namely Appellant No. 4 Bhola Dusadh is reported to have died during pendency of the appeal. Accordingly the appeal was pressed on behalf of rest of the Appellants alone.

(2.) The prosecution case briefly stated, is as follows. In the night of 11/12th December 1974 Behan Jee Upadhaya of Village Bithani within Dawat Police Station of Rohtas district was sleeping in the eastern room of his house along with his son Birendra Nath Upadhaya. His father Brij Kishore Upadhaya was sleeping in the eastern passage along with grand son Kanhaiya Upadhaya. At about midnight Behari Jee Upadhaya heard sound on the roof and awoke his son Birendra Upadhaya. When he came out the room on eastern varandah he flashed torch light and saw 10-12 dacoits armed with guns, dagger and bhala in the courtyard. He identified the Appellants amongst them. Gupteshwar Upadhaya had dagger, others were armed with guns. Bhola Dusadh and Ram Chandra Choudhary pointed their guns towards. Birendra Upadhaya giving threat not to shout otherwise they would be killed. Other miscreants entered northern, eastern and western rooms and started taking clothes, ornaments, cash box and a new Atlas cycle worth Rs. 7320/-. After taking these articles the miscreants went towards the eastern passage of the house. They opened the door and reached the passage where Brij Kishore Upadhaya and Kanhaiya Upadhaya were sleeping. Seeing the miscreants they fled away towards the cow-shed on the east. They were chased by Surya Nath Upadhaya, Rang Nath Upadhaya, Gupteshwar Upadhya and Behari Thakur. Behari Jee Upadhaya heard sound of three gun shots. Soon after Kanhaiya Upadhaya told him that Brij Kishore Upadhaya had been killed. The miscreants thereafter left the place.

(3.) Behari Jee Upadhaya lodged fardbeyan narrating the above occurrence at the Dawath Police Station at 9 AM on the next day i.e. 12th December 1974. In the fardbeyan he stated that the miscreants had climbed over the roof of the house from behind with the help of bamboo ladder and then came downstairs by the staircase inside the house. Thereafter they opened the door of the southern passage and the eastern passage. They remained in the house for about half an hour. While retreating they took away his torch and the gun belonging to his father. He also stated about the enmity with the accused persons. He stated that the accused persons were inimical, from before on account of pendency of a murder case against some of them of which his father i.e. Brij Kishore Upadhaya was complainant. On the basis of above fardbeyan the police registered Dawath PS Case No. 5/74 dated 12.12.1974. After completing the investigation chargesheet was submitted against Appellants 1 to 5 and they were put on trial. Later after three prosecution witnesses were examined the trial court summoned Appellant No. 6 to face trial in terms of Section 319 of the Code of Criminal Procedure and he too thus was put on trial.