SUNAINA YADAV AND ORS. Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals have been preferred by the six appellants against the judgment and order of conviction and sentence dated 2.4.1992 and 3.4.1992, respectively as passed by the 4th Additional District and Sessions Judge, Nalanda in Sessions Trial No. 341 of 1988/112 of 1990, whereby appellant Raghunandan Yadav has been found guilty for offence punishable under section 302 of the Indian Penal Code (for short 'I.P.C.'). rest have been found guilty primarily for offence punishable under Section 302/149 of the I.P.C. and all of them have been found guilty for offence punishable under Section 148 of the I.P.C. and Section 27 of the Arms Act. They have been variously sentenced, all up to life imprisonment with direction that the sentences would run concurrently. All the appellants are related to each other; inasmuch appellants Pramod Yadav and Sunaina Yadav alias Sunil Yadav are sons of appellant Raghunandan Yadav. Appellant Ramdeo Yadav is son of appellant Yugal Yadav. Appellant Bijendra Yadav and rest are Gotias (agnates). They are all alleged to have shot dead Jai Prakash Yadav, son of Sitaram Yadav (PW 9).

(2.) THE prosecution case is based upon a fardbeyan recorded by Umesh Chandra Dubey, Inspector of Police of Rahul Police Station, District Nalanda upon statement of Sitaram Yadav (PW8), father of the deceased, in the early hours of morning on 23.6.1986, inter -alia, alleging that at about 2 a.m. while the informant and his family members were sleeping in their house, they heard appellant Raghunandan Yadav shouting and abusing them. He got up and heard Raghunandan Yadav screaming that informant's buffalo had become loose and had entered his khand adjacent to his house. Informant then asked his son (deceased) Jai Prakash Yadav to go and fetch the buffalo. Jai Prakash Yadav went, got the buffalo back and tied near his house. Where after all the six accused persons, variously armed with guns and rifle, came and started abusing the informant and his family members. Jai Prakash Yadav and the informant then came out and told them to stop abusing. On this, it is alleged, appellants Yugal Yadav and Ramdeo Yadav started pulling Jai Prakash Yadav (deceased), Sunaina Yadav then ordered for killing Jai Prakash Yadav, upon which appellant Raghunandan Yadav fired from his rifle hitting Jai Prakash Yadav on his chest, as a result of which dropped dead. All the accused persons, thereafter, went away. While this was happening and people were screaming, several villagers assembled there. This fardbeyan was signed by the informant and two other witnesses, but none of the attesting witnesses was examined in course of trial. The prosecution case further is that the Police had immediately come after hearing the gun -shot and after recording fardbeyan, they immediately arrested some of the accused persons. Investigation was carried out and charge -sheet having been filed and cognizance having been taken, the case was committed to the Court of Session for trial. Charges having been framed and the accused persons having pleaded not guilty, they were tried, convicted and sentenced as stated above.

(3.) STARTING with the evidence of PW 8 Sitaram Yadav (informant), who is father of the deceased, he states that at 2 am on 23.6.1986 while he and his family members were sleeping on the terrace of their house, they heard appellant Raghunandan Yadav abusing them and shouting that the informant's buffalo has become loose and has trespassed into his private land adjacent to the house. Thereafter, all the persons came down. Informant asked his son Jai Prakash Yadav to fetch buffalo, upon which he went and brought the buffalo and tied it with the peg. When this was being done, all the six accused persons variously armed with rifle and gun, with the exception of Bijendra Yadav, who had a gun in his hand and Pramod Yadav, who had a khanti, in his hand, came and started abusing the informant and his family members. They protested, upon which appellant Sunaina Yadav is said to have ordered to kill, whereupon appellants Yugal Yadav and Ramdeo Yadav caught hold of Jai Prakash Yadav and appellant Raghunandan Yadav shot at him in his chest, as a result of which Jai Prakash Yadav fell down. He further states that apart from his family members, Ganesh and one Chhote had also seen the occurrence. Jai Prakash Yadav, who dropped to the ground, was then put on a cot to be taken for treatment, but he was found dead. In paragraph 12 of his cross -examination, he admits that his son, deceased Jai Prakash Yadav, was involved in several cases of theft and dacoity. There had been orders passed under Anti Gunda Act (Bihar Control of Crimes Act). He had been detained several times. Informant had a licensee gun, which he had about 3 -4 years back deposited with a dealer, but it had not been returned to him. In paragraph 13 of his cross -examination, he admits that as between PW 2 Ganesh Yadav and the appellants there had been a proceeding under section 144 of the Code of Criminal Procedure (for short 'Cr.P.C.') in relation to their adjoining lands. In paragraph 14 of his cross -examination, he admits that there is a Pathna Farm, situated east of the village on Ranchi -Patna Road, but denies of any Police patrolling to be there in the night. In paragraph 17 of his cross -examination, he states that appellant Raghunandan Yadav was not carrying any arms earlier but when he came alongwith other accused persons, they were all variously armed. He admits that his son was also abusing the appellants. He admits that he had made statement before the Police about details of arms, which were in the hands of the accused persons. He says that at the place, where deceased Jai Prakash Yadav fell down, there was no bleeding or stains of blood. There was blood stain in his vest, which was taken by the Police. He denied the suggestion that, in fact, there had been 7 -8 rounds of firing and that the deceased was killed elsewhere and his dead body had been brought and kept at his house and the appellants were confined in their house. He denied the suggestion that they themselves fired 7 -8 rounds to attract the Police. The Police went to the house of the three appellants and arrested them, but he was not aware what were seized from their house.