NATHO MISHRA @ BAIDNATH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal is directed against the judgment of conviction and sentence of all the three appellants dated 5.3.1990 in Sessions Case No. 38/1984 whereby and whereunder while appellant no.1 Natho Mishra @ Baijnath Mishra has been convicted for offence under section 302 of the India Penal Code, the rest of the two appellants, namely, Chandramauli Mishra @ Buchi Mishra and Bedanand Mishra @ Buchan Mishra have been convicted for offence under section 302/34 I.P.C. and all of them have been sentenced to undergo R.I. for life.

(2.) THE prosecution case as has been set out by the informant Achhey Pathak (P.W.5) in his fardbeyan given to the police at 4.45 P.M. on 4.9.1981 is to the effect that at about 11.00 A.M. on the same day (4.9.1981) while he was in his field near Durga Asthan, and was getting his crop of maize harvested through his Bataidar Banarsi Rai (deceased), the appellants alongwith one Gangadhar Mishra having arrived over there had made a protest as with regard to harvesting of the maize crop Banarsi had retorted by saying that the maize crop was grown by him and on this the appellant, Natho Mishra @ Baijnath Mishra had given a blow by Bhala in the neck of Banarsi, as a result whereof Banarsi had fallen on the ground with bleeding injuries. It has also been alleged that the appellant Budhan @ Bedanand was armed with Bhala while two others, namely, appellant Chandramauli @ Buchi and Gangadhar were armed with lathi. THE informant has claimed that after assault on Banarsi when he had rasied hulla, a number of persons including Kapildeo (P.W.3), Kamli Rai (not examined), Shyam Mahto (P.W.4), Ido Mian (not examined), Ramdeo Mukhiya (P.W.2) had arrived at the place of occurrence. THE informant has also stated that after arrival of the aforementioned persons, all the appellants as well as Gangadhar Mishra had ran away towards their house and Banarsi in an injured condition was sought to be taken away for his treatment on a cot jointly by Shambhu Rai (not examined), Samsudi Mian (not examined), Guro Yadav (P.W.6), but Banarsi had succumbed to his injuries in the way to hospital soonafter near the house of one Rameshwar Choudhary. THE said fardbeyan was recorded in presence of Narsingh Rai (P.W.9) and Bipin Bihari Prasad (P.W.7) who were attesting witnesses. THE police having recorded the fardbeyan had instituted Bakhari P.S.Case No. 163 dated 4.9.1981and after investigation had submitted its charge sheet as against the appellants and Gangadhar Mishra (since dead) and the case being exclusively triable by the court of Sessions was accordingly committed and has consequently led to impugned judgment of conviction and sentence of the three appellants giving rise to this appeal.

(3.) THIS Court has accordingly also examined the evidence of P.W.1 Bahadur Yadav, who is said to be a Mazdoor engaged by Banarsi for cutting crops. He has supported the occurrence and therefore, when nothing has been taken away from him even in his cross-examination on the point of assault by Natho on Banarsi, a fact which has been consistently mentioned by even other witnesses, the manner of occurrence leading to fatal injury and the consequential death of Banarsi is beyond pale of doubt. The Evidence of other eye witnesses, namely, P.W.2 Ramdeo Mukhiya, P.W.3 Kapil Rai, P.W.4 Shyam Mahto and P.W.6 Guro Yadav are also of the same nature and from them this much becomes clear that they were in and around the field, the place of occurrence where fatal injury was given to Banarsi (deceased) by the appellant Natho. In that view of the matter, there is nothing for this Court to discard the evidence of eye witnesses and mere criticism that some of them, namely, P.W.1, P.W.6 and P.W.10 were not named by the informant in the F.I.R. as eye witnesses in no way would shake the evidence. An F.I.R. after is not supposed to be encyclopedia of occurrence and its witnesses.