MAHABIR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THERE are ten appellants in all in these two appeals. All of them have been convicted under section 302/34 of the Indian Penal Code and awarded sentence of imprisonment for life. Appellant Lalendra Yadav in Cr. Appeal No. 489 of 1998 has further been convicted under section 27 of the Arms Act and awarded sentence of rigorous imprisonment for six years.

(2.) THE occurrence in connection with which the appellants have been convicted took place in the night of 21/22 April, 1996. The occurrence was reported by P.W. 10 Dwarika Prasad {hereinafter called &aposthe informant&apos) on 22.4.1996 at 10.00 A.M. According to him, he along with his deceased brother Gendo Yadav and younger brother Ram Swaroop Yadav went to sleep in the Khalihan situated on the south of the house. At about 10.00 P.M. 20 to 25 persons variously armed came there. He identified the appellants amongst them. They caught hold of the informant and his brothers and took them towards the forest on the southeast of the village. Out of fear, they did not raise alarm. On the way the miscreants asked them to give up their claim over the land of Bishunpur else they would be killed. The informant out of fear immediately agreed to the demand. Gendo Yadav, however, did not agree and entered into argument. Meanwhile, they had reached Chhapra Nala on the outskirts of the village. Sahdeo Paswan gave order to kill Gendo Yadav as he was not agreeing to their demand. Thereupon, Lalendra Yadav shot at him from his rifle. Sahdeo Paswan assaulted him with saif. After Gendo Yadav fell down, Sangeet Paswan gave tangi (kulhari) blow on the face causing cut injury and breaking of teeth. Chando Yadav gave saif blow on the stomach, The other appellants also assaulted the victim with stone, khanti and lathi. Gendo Yadav died as a result of these assaults. The informant and his other brother Ram Swaroop Yadav pleaded mercy and they were let off.Thereafter, the informant returned to his house. Being afraid of the miscreants he kept confined to his house. After the police came, he lodged the fardbeyan.

(3.) AT the trial, the prosecution examined 15 witnesses in all to prove its case out of whom P.W. 1 Binod Sharma, P.W. 2 Raj Kumar Yadav, P.W. 3 Ram Balak Prasad Yadav were formal, while P. W. 3A Jasiya Devi and P.W. 11 Sabitri Devi @ Yamuni Devi turned hostile and did not support the prosecution case. Out of the rest, P.W. 4 Naresh Yadav, P.W. 5 Fudan Thakur, P.W. 6 Jahur Mian and P.W. 8 Fulwa Devi were examined as hearsay witnesses, P.W. 12 Sukhdeo Prasad and P.W. 13 Bindeshwari Prasad Yadav claimed to have seen the appellants taking the deceased and his two brothers i.e. last seen the deceased. P.W. 9 Dr. Anandi Kumar Manjhi and P.W. 14 Lal Kishun Ram were official witnesses who respectively conducted the post mortem and investigated the case and submitted charge sheet. P.W. 7 Ram Swaroop Yadav and P.W. 10 Dwarika Prasad, the informant himself, were examined as eye -witnesses.