BISHAMBHAR YADAV; RAMJEE YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Each of the two appellants stands convicted under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act and respectively sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for three years. The sentences are to run concurrently. The prosecution case as set out in the fardbeyan of the informant (PW 11), resident of village Jabahir Diar within district Buxar, as recorded on 27.3.1996 at 10 a.m. by Sub-Inspector, U.N. Paswan at the place of occurrence situated at Farhada Badhar, in presence of Achayabat Nath Yadav (PW 8) and Satyendra Yadav (PW 10) is that in the evening of 20.3.1996 he (informant) had come from his house to the residence of one acquaintance Jhagru Yadav at village Chakk Lahna Diar. That day (20.3.1996) in the night he (informant) learnt that his younger brother's father-in-law Bhim Yadav had also come to the house of Kapildeo Yadav of that village. Next day, 27.3.1996, in the morning he (informant) went to Bhim Yadav and met him there. In course of talk Bhim Yadav stated that he wished to meet his sister at the house of Triloki Yadav in village Paranpur and requested him to accompany him saying that they will return on the same day. On the request of Bhim Yadav the informant proceeded on foot with him in that morning at 6 a.m. and when he reached at a distance of about 1 Km. in Farhada Badhar they saw that some persons armed with rifle and gun were coming on two motorcycles from the side of Lahna Chak. The motorcycle borne persons stopped near them and then he (informant) saw that Swaminath Yadav carrying a rifle and Jay Narayan Yadav carrying a double barrel gun were seated on a Rajdoot Motorcycle driven by Jagdamba Yadav and another Rajdoot Motorcycle driven by Ramjee Yadav was boarded by Bishambhar Yadav, carrying rifle and Rajendra Yadav carrying gun. The persons carrying the arms got down from the motorcycles and therafter Jagdamba Yadav and Ramjee Yadav told the informant to keep away saying that they had no enmity with him but they abused Bhim Yadav and ordered to shoot him saying that he was a rangdar and he used to roam around and do panchayati in the village. At this Swaminath Yadav fired with his rifle on Bhim Yadav who fell down receiving the shot. The second shot was fired on Bhim Yadav by Bishambhar Yadav by means of rifle. Then Jag Narayan Yadav and Rajendra Yadav also fired their guns on the deceased. Thereafter the accused persons went away on the motorcycle. The informant further says that out of fear he had fallen down at some distance from the place of occurrence. After the departure of the criminals he (informant) got-up and going near the deceased he saw the deceased drenched with blood and dead. In the meantime, the informant further stated that Achayawat Nath Yadav (PW 8) and Satyendra Yadav (PW 10) had arrived there on bicycle from the side of Lahna Chaki and they stood at a distance of 50 yards from there. The time of occurrence is said to be at 8 a.m. on 27.3.1996. About the cause/motive for the occurrence it has been said in the fardbeyan that about one year ago Swaminath Yadav and Jagdamba Yadav were trying to forcibly occupy the land of Ramadhar Yadav regarding which there had been a panchayati and Bhim Yadav (deceased) had decided in that panchayati that the land belonged to Ramadhar Yadav hence Swaminath and Jagdamba were asked to leave the land due to which Swaminath and Jagdamba had threatened the deceased that any day they will take revenge of him (deceased). After recording of the fardbeyan it was read over to the informant (Ext. 1) and he put his signature on the same. On the basis of the fardbeyan Simri Police Station Case No. 29 of 1996 was instituted and investigation commenced. On completion of investigation charge-sheet was submitted against the two appellants and three other accused named in the F.I.R. who were shown as absconders : it is significant to note here that no charge-sheet was submitted against one of the accused, named in the R.I.R., Swaminath. The two appellants were tried by the sessions Judge Buxar in Session Trial No. 51 of 1997 and vide judgment dated 11.8.2000 the appellants have been convicted and sentenced as above.

(2.) As many as 11 witnesses were examined by the prosecution. The PW 11 Shivjee Yadav is the informant himself, PW 8 Achaywat Yadav and PW 10 Satyendra Yadav have been examined as eye-witness to the occurrence. The witness Krishna Prasad Sharma who happens to be a formal witness has been examined twice as PW 1 and PW 2. He has proved the writings on the fardbeyan Ext. 1 and writings on the first information report marked Ext. 2. PW 2 Jagdeo Mandal and PW 9 Nandjee Yadav are hostile witnesses who do not support the case of prosecution. PW 4 Dr. Ambika Prasad Mandal is the doctor who held postmortem examination on the dead body of the deceased. PW 6 Kapildeo Yadav is a witness on the point of seizure and he deposed that police had seized blood soaked earth from the place of occurrence and a seizure list (Ext. 5) was prepared and he had put his signature (Ext. 5/A) on the same. PW 3 Udaynand Paswan is the investigating officer who had recorded the fardbeyan and conducted investigation from 27.3.1996 to 15.7.1996. PW 7 Nirmal Kumar Singh is the another investigating officer who conducted further investigation after 2.8.1996 and submitted charge-sheet.

(3.) For appreciating the ocular evidence it is proper to discuss first the evidence of the doctor and the investigating officer. Dr. Ambika Prasad Mandal (PW4) deposed that on 27.3.1996 he conducted the postmortem examination on the dead body of deceased Bhim Yadav and found the following antemortem injuries on the person of the deceased.