BABAN TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE four appellants were put on trial in Sessions Trial No. 2 of 1994 after being indicted of committing offences under Sections 307 and 323 of the Indian Penal Code. The trial culminated in the impugned judgment dated 26.06.2002 by which appellant no. 1, Baban Tiwary was held guilty of committing offence under Section 307 of the Indian Penal Code and was directed to suffer rigorous imprisonment for five years as also to pay a fine of Rs. 1,000/ -, else, to suffer rigorous imprisonment for a further period of six months. As regards the rest of the appellants, namely, Sunil Kumar Tiwary, Ashok Tiwary and Bipin Tiwary, they were convicted of committing offence under Section 323 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for one year as also to pay a fine of Rs. 500/ - each and in case of default to suffer rigorous imprisonment further for three months. The appellants have preferred the present appeal to question the correctness of the finding of their guilt and the appropriateness of the sentence passed upon them.

(2.) SOME of the facts appear admitted as may appear from the evidence of P.W. 1 and P.W. 6, the informant himself that the appellants and the informant were litigating for a path way and a proceeding under Section 147 of the Code of Criminal Procedure had also been drawn up between the parties as appears from paragraph 12 of the evidence of the informant (P.W.6). The dispute pertained to a land which was 'Gair Mazarua Malik' in nature under Khata No. 116, Khesra No. 654 and it was further admitted that appellant Baban Tiwary had obtained the settlement of part of that plot in his favour as appears admitted by P.W. 6, the informant, in paragraph 13. As may also appear from the evidence of P.W. 1 in paragraph 5, the part of the land was also used as path way by the appellants and three decimals of area of part of that particular land had been settled in favour of appellant Baban Tiwary.

(3.) IN the background of the above admitted facts which appear from the evidences of witnesses, it was alleged by the informant (P.W. 6) in his Fardbeyan that he was putting a fence on his land by creating a 'Tati' over it, when the appellants came there and forbid him to do so stating that the land belonged to them, the informant claimed the land as his and insisted upon fixing the 'Tati' over it. The accused persons came armed with Lathis and Dandas and started dealing incessant blows to the informant (P.W. 6). Seeing the informant being assaulted, his mother (P.W. 8), his Bhabhi P.W. 7, Gendawati Devi and others like Rumali Devi (not examined) and Harendra Thakur (not examined) came there to save P.W.6, but they were also assaulted by the appellants. The informant (P.W.6) and other injured witnesses were rushed to the hospital where they were examined by P.W. 5, Dr. Braj Kishore Prasad on 05.01.1993. After examining Gendawati Devi ( P.W. 7), P.W. 5 found the following injuries on her person: