KALESHWAR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an appeal by First informant PW 6 Kaleshwar Rai, who happens to be the son of deceased Chandeshwar Rai, challenging the acquittal of respondent no. 2 Gorakh Rai, respondent no. 3 Lakshmeshwar Tiwari @ Lachhu Tiwari and respondent no. 4 Navin Tiwari who were originally arrayed as accused nos. 1 to 3 respectively in Sessions Trial No. 252 of 1992 and who came to be acquitted of the offences alleged against them by the learned Fast Track Court No.-I, Darbhanga, Bihar on 23/12/2019.

(2.) Briefly stated it is case of the prosecution that in the night intervening 19/20/7/1991, at about 2 AM, when Chandeshwar Rai (since deceased) was at his bore-well in his field, accused persons including accused no.1 Gorakh Rai, accused no. 2 Lakshmeshwar Tiwari and accused no. 3 Navin Tiwari along with convicted accused Baidya Nath Tiwari @ Baiju Tiwari and absconding accused Pramod Tiwari formed an unlawful assembly with common object to eliminate Chandeshwar Rai. Convicted accused Baidya Nath Tiwari and accused no. 1 Gorakh Rai was armed with Farsas whereas accused no. 2 Lakshmeshwar Tiwari @ Lachhu Tiwari was armed with Bhala and accused no. 3 Navin Tiwari was armed with lathi. The accused persons encircled Chandeshwar Rai and accused no. 2 Lakshmeshwar Tiwari @ Lacchu Tiwari exhorted and ordered other accused persons to kill Chandeshwar Rai. Acting on order of accused no. 2 Lakshmeshwar Tiwari, convicted accused Baidya Nath Tiwari gave a blow of Farsa, accused no. 1 Gorakh Rai also gave a blow of Farsa to Chardeshwar Rai when other accused persons were surrounding him. Hearing shouts of Chandeshwar Rai, it is averred by the prosecution that P.W. 2 Yugheshwar Rai and P.W. 3 Rajendra Rai rushed to the scene of occurrence and saw the incident. According to the prosecution case, P.W. 4 Jitendra Rai and P.W. 6 Kaleshwar Rai who happens to be sons of deceased Chandeshwar Rai reached on the spot of the incident soon after the incident and heard dying declaration of their father Chandeshwar Rai who disclosed that he was assaulted by accused no. 1 Gorakh Rai and convicted accused no. 4 Baidya Nath Tiwari by means of Farsa. Chandeshwar Rai was then taken to the hospital where he succumbed to the injuries. Postmortem examination of dead body of Chandeshwar Rai came to be conducted by P.W. 8 Dr. V.C. Verma of Darbhanga Hospital on 20/7/1991.

(3.) After completion of investigation, the accused persons came to be charge sheeted. It is seen that initially they were charged for the offence punishable under Sec. 302 with the aid of Sec. 34 of the Indian Penal Code but subsequently at the time of the argument, the charge was altered to one under Sec. 302 r/w 149 of the Indian Penal Code. It is not seen from the record that thereafter an opportunity was granted to the accused persons for further cross-examination of prosecution witnesses in the wake of alteration of charge for imposing vicarious liability under Sec. 149 of the Indian Penal Code.