SUNDER YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 21st January, 1998 passed by Sri Dharnidhar Jha, Additional Sessions Judge III, Saharsa, in Sessions Trial No. 87/1996 whereby the sole appellant, Sunder Yadav, has been convicted and sentenced to R.I. for life with fine of Rs. 15,000/- under Section 302 read with Section 34 of the IPC. In case of default in payment of find he has further been sentenced to R.I. for two years.

(2.) The facts giving rise to the present appeal are that on 5-8-1995 at 8 a.m. the buffalo of the informant (deceased), Gajendra Yadav was tied in his cattle shed. His own brother, the appellant, also tied his buffalo in that shed whereupon buffaloes of both started fighting with each other. At this, the informant, Gajendra Yadav, asked the appellant to take away his buffalo from his cattle shed but he did not agree. Then the informant, Gajendra Yadav, himself went to take out the buffalo of the appellant from his cattle shed. In the mean time, the appellant, Sunder Yadav and the absconding co-accused, Mahendra Yadav, came there with farsa and lathi. The appellant gave a farsa blow on the head of the informant, Gajendra Yadav and he sustained cut injury. Thereafter the co-accused, Mahendra Yadav, also gave a farsa blow on his head which produced cut injury and blood started oozing out. The appellant repeated farsa blow on the fingers of his left hand and he sustained out injuries on his two fingers. The further case of the prosecution is that while the informant was lying injured on the ground, the co-accused, Mahendra Yadav, assaulted him indiscriminately with lathi portion of farsa and he sustained injuries all over his body. Soon thereafter, the wife of the informant came and noticing his condition started weeping and raised alarm. Her outcry attracted the witnesses, Dinesh Yadav, PW1 and many other villagers whereupon the accused persons made good escape from there. Thereafter, Dinesh Yadav, PW 1, removed the informant on the Rickshaw of Kameshwar Sharma, DW1, to the State Dispensary, Sour Bazar for treatment,

(3.) The first I.O. of this case, PW 4, Dinbandhu Dubey, A.S.I, of Sour Bazar Police Station recorded the fardbeyan of the informant, Gajendra Yadav (Ext. No. 1) on the same day, i.e., 5-8-1995 at 10.45 a.m. in presence of the witnesses, his wife Anmol Devi, PW 3 and Dinesh Yadav, PW 1 in Sour Bazar State Dispensary. On the basis of his fardbayan a formal FIR was drawn up and Sour Bazar PS Case No. 167 of 1995 was registered under Sections 341, 323, 324, 307/34 and 447 of the Indian Penal Code against the appellant, Sunder Yadav and the co-accused, Mahendra Yadav (since absconding). He visited the PO on the same day, i.e., 5-8-1995 and recorded the statements of the witnesses. The informant, Gajendra Yadav, died in Sardar Hospital, Saharsa and Saharsa Police prepared the inquest report (Ext. No. 2). Later on he handed over the charge of the investigation of this case to the handed over the charge of the investigation of this case to the Second Investigating Officer of this case, PW 5, Anand Mohan Singh, Sl of Sour Bazar Police Station. He obtained the post-mortem report (Ext. No. 3), completed the investigation and submitted charge-sheet showing the co-accused, Mahendra Yadav as abseconder. The case of the absconding co-accused, Mahendra Yadav, was separated vide order dated 19-6-1996 and the case of the accused-appellant, Sunder Yadav, was committed to the Court of Sessions. The accused-appellant was put on trial before the Additional Sessions Judge-Ill Saharsa.