KISHORI MANDAL @ KISHORI DHANUK Vs. STATE OF BIHAR

JUDGEMENT

(1.) Criminal Appeal No. 106 of 1990 (DB) has been filed on behalf of Kishori Mandal @ Kishori Dhanuk, Chande Musahar, Jaggu Manjhi, Bholba Manjhi, Asarfi Manjhi, Fukawa Musahar, Sogarath Manjhi, Kirit Manjhi, Binde Manjhi, Mahabir Manjhi, Belba Manjhi and Nokha Manjhi. They have been convicted and sentenced by the 2 nd Additional Sessions Judge, Sitamarhi in connection with Sessions Trial No. 55 of 1987/116 of 1988 dated 16.03.1990, whereby all the appellants have been found guilty under Sections 148, 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code. No separate sentence was passed for offence under Section 148 of the Indian Penal Code.

(2.) According to fardbeyan (Ext.6) of P.W.9 Devendra Thakur, the informant that the occurrence is dated 21.01.1986 at 11.00 a.m. The informant P.W.9, P.W.8 Chandeshwar Paswan and Budhan Mahto (the deceased) were working under Vishwambhar Tiwari of Village Radhaur. On 21.01.1986 Vishambhar Tiwari went to Dumra at 7.00 a.m. At about 10.00 a.m. P.W.7 Sundar Mahto came to the resident of Malik at Village Radhaur from village Makunahia and told that Sita Rai, Kishori Dhanuk, Belwa Manjhi, Sheetala Manjhi, Sogarath Manjhi, Mahabir Manjhi, Binde Musahar, Bholwa Manjhi, Kamma Musahar, Jaggu Manjhi, son of Badri Musahar aged 25 years, son of Rebi Musahar aged about 25 years, son of Dasaian aged 25-26 years and 40-50 persons of Village Makunahia, Radhaur and Sahaniapatti are cutting and throwing earth on the road from the field along with the wheat crop. Upon this information, the informant P.W.9, Budhan Mahto (the deceased), P.W.8 Chandeshwar Paswan, P.W.7 Sundar Surhi and P.W.4 Laxmi Thakur went on the land of their mentor at Village Makunahia at 11.00 a.m. and saw accused Sita Rai, Kishori Dhanuk, Belwa Manjhi, Sheetala Manjhi, Sogarath Manjhi, Mahabir Manjhi, Binde Manjhi, Bhola Manjhi, Kamma Manjhi, Jaggua Musahar, son of Badri Musahar, son of Rabi Musahar and son of Dasaian Musahar are cutting earth from the land in which standing crop of wheat and throwing the said earth on the road. The informant, the deceased, Chandeshwar Paswan and others protested and asked the accused persons against damaging the wheat crop. Upon this accused Sita Rai asked the accused persons to kill them. 60-70 accused persons surrounded them and started assaulting with sharp cutting weapon as well as back portion of the spade. Accused Sita Rai gave a blow by means of his spade on the head of the informant with great force causing cut and bleeding injury. His second attack with the spade which the informant warded of with his right hand and in course of this attack the informant received injury on his right hand and blood came out. Kishori Dhanuk, Belwa Manjhi, Sogarath Manjhi, Sheetala Manjhi, Binde Manjhi, Bholwa Manjhi, Kamma Manjhi son of Badri Musahar and Dasaian musahar seriously assaulted him on his back by the back portion of their spades. Sita Rai pointed out to deceased Budhan Mahto and asked the accused persons to kill him in place of Maalik of the land. Thereafter, the accused persons started assaulting the deceased Budhan Mahto by means of their spades. In course of that accused Sita Rai gave a blow by means of Kudal on the head of the deceased causing cut injury. The deceased fell down on the ground and then the accused Kishori Dhanuk, Belwa Manjhi, Sogarath Manjhi, Sheetala Manjhi, Mahabir Manjhi, Binde Musahar, Bholwa Manjhi, Kamma Musahar, Jaggua Musahar, son of Badri Musahar, son of Rabi Musahar and son of Dasaian Musahar besides 40- 50 other accused persons indiscriminately assaulted by means of sharp portion and back portion of their spades. Such indiscriminate assault upon the informant caused injury near right eye-brow, both the hands, right buttock. Due to impact of the injuries the deceased become unconscious. Sundar Mahto and Laxmi Thakur slapped from there and stood on the road and saw the occurrence. Son of Rabi Musahar assaulted Chandeshwar Paswan while he was running away causing injury on his buttock and right shoulder by means of spade. Profuse blood was coming out from the injuries of the deceased Budhan Mahto seeing this, the accused persons escaped. P.W.3 Siya Kant Mishra, P.W.1 Sarvajeet Jha, P.W.5 Ram Ballam Thakur, P.W.10 Bhuneshwar Tiwary and many others witnessed the occurrence. Budhan Mahto (the deceased) was brought to Radhaur turning in an unconscious condition on a tyre-cart of the Maalik. P.W.8 Chandeshwar Paswan, P.W.4 Laxmi Thakur, P.W.3 Siya Kant Mishra and Ballam Thakur (not examined) accompanied him. P.W.8 Chandeshwar Paswan, Sanichar Paswan (not examined), the Chowkidar respectively of village Makunahia and Radhaur came there. When they boarded on the bus for Sitamarhi, both the Chowkidar returned. Deceased Budhan Mahto died in the bus so none went to the police station to lodge the information. Fardbeyan (Ext.6) resulted into formal First Information Report (Ext.5) of Sursand P.S. Case No. 8 of 1986 under Sections 147, 148, 149, 341, 447, 426, 323, 324, 307 and 302 of the Indian Penal Code and the investigation was started. The inquest report (Ext.4) was prepared, injury report of Devendra Thakur (Ext.2), post-mortem examination report (Ext.3) was obtained. Statements of the witnesses were recorded. Place of occurrence was seen and after investigation the case was found to be true and charge sheet was submitted. Thereafter, the cognizance was taken by the learned SubDivisional Judicial Magistrate, Sitamarhi (E) and the case was committed to the court of Sessions where charge under Sections 148, 341, 426 was explained to Kishori Mandal, Chande Musahar, Fukwa Musahar, Jaggu Manjhi, Sogarath Manjhi, Kirit Manjhi, Binde Manjhi, Mahabir Manjhi, Bholwa Manjhi, Belwa Manjhi, Asarfi Manjhi and Nokhe Manjhi. Charge under Section 324 read with Section 149 of the Indian Penal Code, charge under Section 326 read with Section 149 of the Indian Penal Code, charge under Section 307 of the Indian Penal Code and charge under Section 302 read with Section 149 of the Indian Penal Code was explained to Kishori Mandal, Chande Musahar, Fukwa Musahar, Jaggu Manjhi, Sogarath Manjhi, Kirit Manjhi, Binde Manjhi, Mahabir Manjhi, Bholwa Manjhi, Belwa Manjhi, Asarfi Manjhi and Nokhe Manjhi. Charges under Section 302 of the Indian Penal Code and Section 326 of the Indian Penal Code were explained to accused Kishori Mandal. Charges under Sections 148, 341, 426, 447, 324/149, 326/149 and 302/149 of the Indian Penal Code was explained Saheb Manjhi. All the accused persons pleaded their innocence, so the trial proceeded.

(3.) The defence of all the accused persons was of false implication on account of enmity.