SUSHIL KUMAR MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present appeal is directed against the judgment dated 30.07.1998 and the order dated 31.07.1998 passed by the learned 7 th Additional Sessions Judge, Chapra in Sessions Trial No.163 of 1988 by which appellant no.1 Sushil Kumar Mishra @ Sushil Mishra has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years whereas appellant no.2 Rajeshwar Mishra has been convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year.

(2.) The prosecution case is based on the fardbeyan of P.W.4 Pashupati Kumar Singh. His oral statement with respect to an occurrence which is alleged to have taken place on 27.04.1986 at about 8 p.m. was recorded by a Sub Inspector of Police, namely, Mundrika Prasad of Awatar Nagar police station on 28.04.1986 at 8.45 a.m. at village-Mauzampur. It is stated in the fardbeyan that on the relevant date and at the time of occurrence, the appellants who are the co-villagers of the informant together with co-accused Premlal Singh and one unknown, being variously armed with bhala and garasa, all on a sudden, entered into the house of the informant. Appellant no.2 Rajeshwar Mishra is alleged to be armed with farsa whereas appellant no.1 Sushil Kumar Mishra @ Sushil Mishra and co-accused Premlal Singh are alleged to be armed with bhala. One another unknown accused is also alleged to have come armed with a lethal weapon. The informant alleges that appellant no.2 Rajeshwar Mishra exhorted others on which all the accused persons attacked upon him with their respective weapons with an intention to kill. The informant started shouting and on being injured, fell down in the courtyard. On the shouting made by the informant, Nandkishore Singh(P.W.3), Gopaljee Singh(not examined), Surendra Singh(not examined) and Chandradeo Singh(P.W.1) came to the place of occurrence and thereafter the accused persons fled away.

(3.) The fardbeyan was recorded on 28.04.1986 at 8.45 a.m. whereas the formal FIR, being Awatar Nagar Police Station Case No.58 of 1986, was registered under Sections 452, 307 and 324/34 of the Indian Penal Code on 29.04.1986. The FIR in question was transmitted to the court on 30.04.1986 and the same was received in the court on 01.05.1986. The Officer-in-Charge of the police station, namely, Mundrika Prasad who had reduced the fardbeyan in writing, after institution of the case, took up the investigation himself. The police submitted chargesheet in the case on conclusion of the investigation under Sections 452, 307 and 324 read with Section 34 of the Indian Penal Code. The learned Chief Judicial Magistrate concerned took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed charge under Section 307 read with Section 34 of the Indian Penal Code against the appellants and co-accused Prem Lal Singh. The accused persons did not plead guilty to the charge and claimed to be tried.