SHANKAR YADAV @ SHANKER YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals arise out of judgment of conviction, dated 24.03.2007, and order of sentence, dated 31.03.2007, passed by Presiding Officer, Additional Court (F.T.C.) No. 1, Rohtas, at Sasaram, in Sessions Trial No. 379/2005, Trial No. 85/2005, arising out of Sasaram (Tilauthu) P.S. Case No. 674/04, convicting the five appellants under Sections 302 and 364 I.P.C. with direction to undergo imprisonment for life on both the counts. The two sentences have, however, been directed to run concurrently.

(2.) PROSECUTION 's case, as set out in the fardbeyan of Chhathan Yadav (P.W. 8), recorded by S.I. Hare Krishna Mandal (P.W. 9), Officer -in -Charge, Tilauthu P.S., on 15.12.2004, at 6:45 A.M., at the police station campus, is that on 14.12.2004, at about 10:00 A.M., when the informant was sitting in his khalihan, situate on the eastern end of Reriya village, and his brother, Guru Charan Yadav, was getting ready, with his tractor, to go to the market, the informant saw 40 -50 extremists, wearing black uniform, variously armed, coming from the side of village Nayagaon. Extremists were being led by appellants, Chotan Yadav, Baban Yadav and Jagdish Yadav. The extremists, having arrived at the khalihan, asked Guru Charan Yadav as to why had he threatened appellant, Shankar Yadav. Guru Charan Yadav explained his conduct, whereafter the extremists proceeded towards the village and Guru Charan Yadav went to Tilauthu market. The extremists, having entered the village, moved from one house to another and took food. Most of the extremists were entertained by the appellants, Shankar Yadav and Vishwanath Yadav. At about 12 noon, appellants, Shankar Yadav, Vishwanath Yadav and one Vijay Yadav, entered into the house of Saheb Yadav and brought him to the khalihan of Ishwar Singh, situate by the side of the house of Gaya Singh. Meanwhile, informant returned to his house and soon thereafter appellants, Shankar Yadav, Vishwanath Yadav and Vijay Yadav, along with the said extremists, came to the house of the informant and assaulted Upendra Yadav. Tengar Yadav, father of the informant, Chhathan Yadav (P.W. 8) not only protested, but warned the extremists that if they took away Upendra Yadav, he (Tengar Yadav) would report the matter to the police. This prompted the appellants, Shankar Yadav and Vishwanath Yadav, to push down Tengar Yadav to the ground, they climbed over his chest and also trampled over his belly causing his instantaneous death. It is further alleged by the informant, in the fardbeyan, that after about an hour of the death of his father, Tengar Yadav, wives of the appellants, Shankar Yadav and Vishwanath Yadav came to his house along with few of the extremists and forcibly caught hold of his mother, Sapti Devi (P.W. 6), and Chandrawati Devi (P.W. 7), wife of his brother, Dev Yadav, and took them to the khalihan of Ishwar Singh. Informant and his co -villager, Indradeo Yadav (P.W. 1), Jhanak Yadav (P.W. 2) and Rajdeo Yadav (not examined) also followed Sapti Devi and Chandrawati Devi to the khalihan and saw the extremists interrogating Saheb Yadav and Upendra Yadav about the murder of Surendra Yadav @ Overseer, son of the appellant, Shankar Yadav. During interrogation, the extremists also assaulted the two with butt of rifle. After sometime, appellants, Shankar Yadav and Vishwanath Yadav, brought Pintu Singh and Hira Yadav to the khalihan and they were also interrogated. At about 3:00 P.M., the extremists took those, who had been apprehended and were being interrogated, near the fig (Peepal) tree standing on the western side of the village. Informant also followed the extremists to the fig (Peepal) tree, wept and pleaded for the release of both, Saheb Yadav and Upendra Yadav. This persuaded the extremists to release the two. The extremists, however, took with them Pintu Singh and Hira Yadav. It is further stated, in the fardbeyan, that after departure of the extremists, appellants, Shankar Yadav, Vishwanath Yadav, Vijay Yadav (absconder), wife of Shankar Yadav (absconder), wife of Vishwanath Yadav (absconder), appellants, Chhathan Yadav, Baban Yadav and Jagdish Yadav, with common intention, assaulted Upendra Yadav and Saheb Yadav and killed them. Tengar Yadav was earlier killed by the accused persons at his house and thereby the accused persons killed altogether three persons. It is further stated, in the fardbeyan, that on the previous evening, some of the villagers had gone to the house of appellant, Jagdish Yadav, at village Naykagaon, looking for Pappu Singh and Hira Yadav and they were released on the following morning. The motive behind the occurrence has also been indicated in the fardbeyan saying that 1 1/2 month earlier, Surendra Yadav @ Oversheer, son of appellant Shankar Yadav, was killed as he was having illicit relation with the wife of Saheb Yadav and the present occurrence is in retaliation of the said murder. Perusal of the fardbeyan indicates that the same has been recorded in presence of Guru Charan Yadav, brother of the informant, who, however, has not been examined as a witness in the present case.

(3.) A charge was framed against the five appellants for offence under Section 302 I.P.C. Appellants, Shankar Yadav and Vishwanath Yadav, were further charged for the offence under Section 364 I.P.C.