(1.) Criminal Appeal (DB) No.405 of 2014 is filed by appellant/ convicted accused Nepali Yadav whereas Criminal Appeal (DB) No.443 of 2014 is filed by appellant/convicted accused Nilesh Yadav. By these appeals, they are challenging the Judgment and Order dtd. 15/4/2014 and 19/4/2014 respectively passed by the learned Adhoc Additional Sessions Judge-IV, Bhagalpur, in Sessions Trial No.170 of 2012, thereby convicting them of the offences punishable under Sec. 302 read with 34 of the Indian Penal Code as well as under Sec. 27 of the Arms Act. Appellant/convicted accused Nepali Yadav is sentenced to suffer imprisonment for life apart from a direction to pay fine of Rs.25000.00 and in default, to undergo rigorous imprisonment for five years for the offence punishable under Sec. 302 read with 34 of the Indian Penal Code. For the offence punishable under Sec. 27 of the Arms Act, he is sentenced to suffer rigorous imprisonment for two years apart from a direction to pay fine of Rs.2000.00 and in default, to undergo rigorous imprisonment for six months. Appellant/ convicted accused Nilesh Yadav is sentenced to suffer life imprisonment apart from a direction to pay fine of Rs.5000.00and in default, to undergo rigorous imprisonment for one year for the offence punishable under Sec. 302 read with 34 of the Indian Penal Code. For the offence punishable under Sec. 27 of the Arms Act, he is sentenced to suffer rigorous imprisonment for two years apart from imposition of fine of Rs.1000.00 and in default, to undergo further rigorous imprisonment for three months. Substantive sentences are directed to run concurrently. As both these appeals are arising out of the same Judgment and Order of conviction and resultant sentence imposed on the accused therein, those are being decided by this common Judgment. For the sake of convenience, the appellants shall be referred to in their original capacity as "the accused".
(2.) Facts in brief leading to the prosecution of the accused persons can be summarized thus:
(3.) We heard the learned counsel appearing for both the appellants at sufficient length of time. It is argued on behalf of the appellants that the Investigating Officer is not examined by the prosecution and this fact has caused prejudice to the accused because contradictions in evidence of the witnesses could not be put to the Investigating Officer. The members of the prosecuting party are having inimical disposition with the accused persons and despite availability of independent witnesses, not a single independent witness is examined. It is further argued that evidence of P.W.5 Kundan Kumar shows that he has not seen the actual occurrence. Medical evidence is not corroborating the version of alleged eye witnesses and there is discrepancy in respect of the spot of the incident coming on record from evidence of the so-called eye witnesses examined by the prosecution. According to the learned counsel for the appellants, some witnesses have spoken about the spot of the incident as southern bank of the river whereas others have stated about northern bank of the river. It is further argued that there is inordinate delay in lodging the F.I.R. Though the F.I.R. of P.W.7 Rahul Kumar shows that it was recorded at 12.45 P.M. of 12/3/2010, the printed formal F.I.R. shows that it was recorded at 17 hours, i.e., 05.00 P.M., when the information was received at the Police Station. This, according to the learned counsel for the appellants, implies that there is deliberate antitiming of the F.I.R. in order to implicate as many persons as accused in this case. Therefore, the accused persons are entitled for benefit of doubt.