KISHUN CHAUHAN @ NONIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 30.6.1987 passed by the Sessions Judge, Siwan, in Sessions Trial No. 109 of 1984 convicting and sentencing the appellants Shri Kishun Chauhan and 3ai Kishun Chauhan to undergo" rigorous imprisonment for life each under Sections 302/34 of the Indian Penal Code (in short IPC) and convicting and sentencing appellant Ganga Sagar Chauhan to undergo rigorous imprisonment for six months under Section 323 IPC Appellant Bal Kishun Chauhan has further been convicted and sentenced to undergo rigorous imprisonment for six months under Section 323 IPC and both the sentences passed against him have been ordered to run concurrently.

(2.) The case of prosecution as stated in the fardbeyan (Ext. 3) of informant Raghunath Prasad (PW 7), in short, is that on 7.12.1983 at about 6 a.m. informant was collecting cow dung in his 'bathah situate adjacent to north-east corner of his house consisting 'nad (manger) and 'khuta' (pegs). Appellant Shri Kishun Chauhan armed with 'bhala' and appellant Bal Kishun Chauhan armed with 'farsd came there and started uprooting 'nad and 'khuta. When informant raised protest on this action of appellants, Gopal Chauhan armed with lathi alongwith Awadhesh Tiwary also came there. Appellant Shri Kishun Chauhan and Bal Kishun Chauhan said that they would uproot the 'nad' and 'khuta' because those belonged to them. On further protest by informant, Gopal Chauhan assaulted him with lathi on his right hand causing injury. Informant ran to his house and informed his father Khedan Chauhan (since deceased) and his brother Swaminath Chauhan (PW 1) that he had been assaulted by Gopal Chauhan. Thereafter informant along with his father and brother Swaminath Chauhan went to his bathan. Father of informant asked the appellants not to cause damage to his 'nad and 'khuta' because those belonged to him. On this Awadhesh Tiwary ordered to kill him and thereafter appellant Shri Kishun Chauhan gave a 'bhald blow on the right side of chest of the father of informant and appellant Bal Kishun Chauhan gave 'farsa' blow on the head of father of informant who after receiving injuries fell down and became unconscious. Appellant Shri Kishun Chauhan also gave a 'bhald blow on the left hand of Swaminath Chauhan (PW 1) and when Sonia Devi (PW 2), sister of informant, came there for help she was assaulted by appellant Ganga Sagar Chauhan with lathi. On 'hulla villagers including Bhavdeo Tiwary (PW 5) came there and witnesses the occurrence. The informant after putting his father on a cot took him to State Dispensary, Darauli where his father was declared dead. Fardbeyan of informant was recorded by SI Gopal Prasad (CW 1) of Darauli Police Station on 7.12.1983 at 9 hours in the State Dispensary, Darauli. On the basis of fardbeyan formal FIR (Ext. 4) under Section 302/34, IPC was drawn against all the three appellants and Gopal Chauhan and Awadhesh Tiwary. Gopal Prasad (CW 1) took up the investigation of the case, prepared inquest report for the dead body of deceased Khedan Chauhan and injury certificates for informant and his brother Swaminath Chauhan (PW 1). visited the place of occurrence, seized blood stained crop and a blood stained brick and after recording the statements of witnesses submitted charge- sheet against the three appellants before us and Gopal Chauhan under Section 302/34, IPC. Co-accused Awadhesh Tiwary was not sent up for trial. On 7.3.1984 cognizance of the case by CJM, Siwan, was taken. When the case was pending for commitment to the Court of Session, co-accused Gopal Chauhan died and therefore on 11.5.1984 the case of present three appellants was committed to the Court of Session where charges under Sections 302 and 324, IPC against Shri Kishun Chauhan for intentionally causing the death of Khedan Chauhan and voluntarily causing hurt to Swaminath Chauhan (PW 1) with a bhala which is a sharp cutting weapon, charge under Section 302, IPC against Bal Kishun Chauhan for intentionally causing death of Khedan Chauhan and charge under Section 323, IPC against Ganga Sagar Chauhan for voluntarily causing hurt to Sonia Devi were framed. The appellants denied the charges. The case of appellants before the Court below was that at the time of occurrence appellant Bal Kishun Chauhan and Shri Kishun Chauhan were digging drain in their land for irrigation purpose when informant along with several others came there and assaulted them and if his father, who had come there, in exercise of the right of private defence of appellants received some injuries the appellants can not be said to have committed any offence. Two witnesses were examined on behalf of the appellants in the Court below. After trial the Court below found the appellants Bal Kishun Chauhan and Shri Kishun Chauhan guilty under Section 302/34, IPC and appellants Ganga Sagar Chauhan and Bal Kishun Chouhan under Section 323, IPC and accordingly convicted and sentenced them as stated above.

(3.) In order to prove its case the prosecution examined 8 witnesses. Three Court witnesses were also examined. Raghunath Prasad (PW 7) is the informant. Dr. R.K. Choubey (PW 8) is the doctor who had held postmortem examination on the dead body of deceased Khehan Chauhan. Swaminath Chauhan (PW 1) is brother of informant and besides claiming himself to be eye witness to the occurrence he is also said to have received injuries. Satya Narayan Bherihar (PW 2), Shiv Narayan Roy (PW 3). Kapildeo Tiwary (PW 4), Bhavdeo Tiwary (PW 5) and Sonia Devi (PW 6), sister of informant and also one of injured persons, are said to be eye witnesses to the occurrence. Gopal Prasad (CW 1) is the I.O of this case and Bipin Bihari Verma (CW 3) is the doctor who had examined other injured persons from the side of informant and Bhup Narayan Tiwary (CW 2) is a formal witness who has proved four injury reports (Exts. 11 to 11/3) in the pen of CW 3 in respect of injuries sustained by informant, his brother Swaminath Chauhan (PW 1) and his sister Sonia Devi (PW 6).