BOUKU MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants before us, who are ten in number in this appeal, have challenged the judgment and order dated 18.12.1987 passed in Sessions Trial No. 93 of 1982 by lllrd Additional Sessions Judge, Saharsa convicting and sentencing them to undergo rigorous imprisonment for life under Ss. 302/149 of Indian Penal Code (In short "IPC").

(2.) THE facts giving rise to this case, briefly stated, are that informant Mukund Paswan (P.W. 10) on 13.12.1980 at about 9 AM went to Sour Bazar Police Station and lodged a First Information Report stating therein that on the same day at about 6 -7 AM when he was in his house, he heard 'hulla ' that a man was lying dead in the mango orchard of Shankar Mandal with his throat cut and clothes sprinkled with blood. He went to the orchard and found a dead body lying on the northern ridge of orchard. The age of deceased was about fifty to fifty five years and his throat was cut with a sharp edged weapon and blood in cupious quantity was found at the place. Deceased was wearing dhoti, ganjee (vest) and kurta and fifty yards south -west from the body, there was a gamcha with certain things tied in it and about twenty yards north -east, a bloodstained towel was found lying. The deceased was wearing a plastic shoe in his left foot and other shoe was lying by his side. On hulla, a number of persons assembled there but no body could identify the deceased. It appeared that some unknown persons, on previous night, had committed the murder by cutting the throat of deceased with a sharp edged weapon. The informant further found that both eyes of deceased were taken out. The police registered a case u/s. 302 of the Indian Penal Code against unknown and took up the investigation of the case. During investigation, the police came to know the identity of deceased who was Motilal Sah and whose dead body was identified by his son Gyani Sah and some others and it also came to know that deceased was having litigation with appellants and was seen with them. The police, after completing the investigation, submitted chargesheet u/s. 302 of the Indian Penal Code against all the appellants and, accordingly, cognizance was taken and case was committed to the Court of Sessions where it was numbered as Sessions Trial No. 93 of 1982 and it was transferred to the Court of IIIrd Additional Sessions Judge, Saharsa where charges u/s. 302/149 of the Indian Penal Code were framed against the appellants and after trial, they were found guilty and were convicted and sentenced to undergo rigorous imprisonment for life u/s. 302/149 of the Indian Penal Code.

(3.) ALTOGETHER sixteen witnesses on behalf of prosecution have been examined in this case, Bhup Narayan Yadav (PW 2) is a witness on the inquest report and seizure lists prepared by Investigating Officer. He has proved his signature (Ex -hibit -1) and signature of Kapildeo Yadav (Exhibit -1/1) on the inquest report. He has said that the Investigating Officer had seized a gamcha with which half kilogram of chura (pressed rice) was tied and had also seized blood -stained soil and had prepared two separate seizure lists on which he put his signature (Exhibits -1/2 and 1/ 3). On these seizure lists, he has also proved the signatures of Kapildeo Yadav (Exhibits -1/4 and 1/5). He has further stated that Investigating Officer had seized a blood -stained towel lying near the dead body and had prepared seizure list on which he and Kapildeo Yadav put their signatures (Exhibits -1/6 and 1/7). Thithar Yadav (PW4) and Kailu Mukhiya (PW6) have stated that police had shown them a towel which belonged to the appellant Saro Yadav. Thithar Yadav (PW 4) has said that colour of towel was yellow and white whereas Kailu Mukhiya (PW6) has said that colour of towel was red, yellow and white. Thithar Yadav (PW4), in cross -examination, has admitted that he has seen many towels of the same type and the towel, which was shown to him, did not carry any special mark. Kailu Mukhiya (PW 6), in cross -examination, has admitted that such type of towels are easily available in market and a number of persons carry such type of towels. Oli Mian (PW 8) is a tendered witness. Bishundeo Sah (PW8A) is the nephew of deceased. He has said that deceased was having land dispute with the appellants and there was a proceeding u/s. 107 of Criminal Procedure Code (In short "Cr PC") between them and once appellants had surrounded the deceased for killing him for which a proceeding u/s. 116 of the Code of Criminal Procedure was drawn against the appellants. He has further said that on a Friday, deceased had come to Court in connection with proceeding u/s. 107 of the Code of Criminal Procedure and on that day, appellants had also appeared in the Court and after Court hours, he went to Govergarha and on Saturday when he went to Sour Bazar Police Station, he found the gamcha and plastic shoe of deceased and, thereafter, he went to Baijnathpur Chowk where he saw dead body of deceased. Kapildeo Prasad Yadav (PW 9) is also a tendered witness. Mukund Paswan (PW10) is the informant of this case. He has said that on Saturday in the morning, he heard that in the orchard of Shankar Mandal, a man had been killed and he then went to the orchard where he saw a dead body and found that throat of deceased had been cut and his both eyes were taken out and a blood -stained towel and a gamcha tied with chura were found lying near the dead body and he then went to Police Station where he lodged the First Information Report giving the aforesaid facts. In cross -examination, he has admitted that even on enquiry from neighbouring persons, he could not know anything about the deceased. Braj Kishore Singh (PW11) has proved a receipt issued in his writing and signature (Exhibit -2) in favour of deceased for his becoming a member of Janta Party. He has also proved a letter (Exhibit -3) in the handwriting of deceased which was addressed to Sub -Divisional Police Officer, Saharsa for taking action u/s. 116(3) of the Code of Criminal Procedure Ramchandra Singh (PW 12), who is the Investigating Officer of this case, in his evidence, has said that on 13.12.1980, he recorded the statement of informant Mukund Paswan (PW 10) which was read over and explained to informant who put his signature on it. He has proved the First Information Report (Exhibit -4). He has further said that on the same day at about 10 AM, he went to the mango orchard of Shankar Yadav and found the dead body of deceased and prepared inquest report (Exhibit -5). He has further said that he inspected the place of occurrence and found blood, in cupious quantity, fallen on the place of occurrence and he found a gamcha tied with chura and a blood -stained towel lying near the dead body which was seized by him. According to him, he found a receipt of Janta Party from the pocket of kurta of deceased (Exhibit -2) and a letter (Exhibit -3). He also seized bloodstained soil, plastic shoes and prepared seizure lists (Exhibits -6, 7 and 8). He has further said that from the documents found in the kurta of deceased, he came to know that dead body belonged to Moti Sah son of Mauji Sah of village -Arsi and he sent the dead body for post mortem examination. He has further said that Gyani Sah (not examined), Ramdeo Sah (PW 1) and Bishundeo Sah (PW 8A) came to Police Station and identified the gamcha and shoes saying that those belonged to deceased Moti Sah and at Baijnathpur Chowk, Gyani Sah, son of deceased, Ramdeo Sah and Bishundeo Sah, after seeing the dead body of deceased, identified it as of Moti Sah. According to him, Kailu Mukhiya and Thithar, after seeing seized towel, had stated that the towel belonged to appellant Saro Yadav. He has further said that he handed over the charge of investigation to Dinanath Mishra when he was transferred from Sour Bazar Police Station.