SHIVAN ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants Shivan Roy, Raj Kishore Roy, Rajo Roy and Bhutto Roy @ Hari Kishore Roy and the accused Subhash Roy, Billo Roy, Dilip Roy and Anil Kumar Roy, who appear to be coming of common ancestor, their inter se relation being that of fathers, brothers, sons and cousins were put up for trial before the 4th Additional Sessions Judge, Purnea. The appellant Shivan Roy stood charged under Sections 302 and 148 of the Indian Penal Code (hereinafter referred to as the Code) while the appellants Raj Kishore Roy, Rajo Roy and Bhutto Roy @ Hari Kishore Roy and the accused Subhash Roy, Billo Roy, Dilip Roy and Anil Roy stood charged under Section 302 read with Sections 149 and 147 of the Code and the appellant Bhutto Roy was charged under Sections 148, 324 and 302 read with Section 149 of the Code for having committed murder of their agnate Hardeo Yadav in prosecution of common object of them all on the 4th October, 1987 at village Mirchaibari under Banmankhi Police Station of Purnea district. The Trial Court vide the judgment and order, dated the 3rd and the 4th October, 1997 rendered in Sessions Trial No. 171 of 1988 found and held the appellants guilty and convicted the appellant Shivan Roy under Sections 302 and 148 of the Code and sentenced him to undergo rigorous imprisonment for life under the first count and rigorous imprisonment for two years under the second count and it convicted and sentenced the appellants Raj Kishore Roy, Rajo Roy and Bhutto Roy to undergo rigorous imprisonment for life each under Section 302 read with Section 149 of the Code and it further sentenced them to undergo rigorous imprisonment for one year each under Section 147 of the Code, the sentences having been ordered to run concurrently acquitting the accused Subhash Roy, Billo Roy, Dilip Roy and Anil Roy of the charges levelled against them.

(2.) For disposal of the case, it would be relevant and convenient to state, in brief the factual scenario as highlighted by the prosecution. The informant Yasoda Devi (PW 8) is the wife of the deceased Hardeo Yadav. At about 3 p.m. on the 4th October, 1987 she left her home for flour mill for grinding of wheat. She noticed that the appellant Raj Kishore Roy was dragging her husband Hardeo Yadav with gamchha wrapped around his neck along the road from the temple where he was playing cards. She started crying and protested against high handed and illegal act of the appellant Raj Kishore Roy but the latter paid no heedto her word. In the meanwhile, the appellants Shivan Roy, Bhutto Roy and Rajo Roy having armed themselves with spear, lathi and arrow and bow respectively, the accused Billo Roy taking a farsa and Subhash Roy, Dilip Roy and Anil Roy having lathi in their hands along Paro Devi, mother of the appellant Shivan Roy arrived at the scene of the incident. Paro Devi who was not sent up for trial allegedly exhorted her son Shivan Roy to do away with the deceased and in pursuance of her order and instigation Shivan Roy pierced spear in the abdomen of the deceased and Billo Roy inflicted Jarsa blow on him as a result of which he sustained injuries on his both palms.

(3.) The deceased in injured condition was taken to Banmankhi State Dispensary in the evening. Dr. Daya Nand Roy (PW 13) attended on him and as the condition of the deceased was serious he informed Raghunath Roy (PW 11), Officer-in-charge, Banmankhi Police Station as well as Tarkeshwar Roy (PW 12), Block Development Officer, Banmankhi for recording his statement. PW 12 who was Block Development Officer as well as Executive Magistrate recorded the dying declaration (Ext. 6) of the deceased at about 7.30 p.m. on 4.10.1987 in presence of the doctor (PW 13). PW 11, Raghunath Roy recorded the fardbeyan of PW 8 Yasoda Devi at about 8 p.m. in the hospital. On the basis of her fardbeyan, Banmankhi P.S. Case No. 223 of 1987 was registered under Section 307 besides some other bailable sections of the Code referred to above though the dying declaration of the deceased was recorded half an hour earlier. The injured Shivan Roy (deceased) was referred to Sadar Hospital, Purnea where he succumbed to injury in course of treatment on the 6th October, 1987. Autopsy on the dead body of the deceased was conducted by Dr. Indra Prasad Bhagat (PW 10) on the 7th October, 1987. After the death of the deceased, Section 302 of the Code was added.