DUKHHARAN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment of conviction dated 29.06.1991 and the order of sentence dated 1.07.1991 passed by the learned 4th Additional Sessions Judge, Aurangabad in Sessions Trial No.209/1984/82/1987 by which all the appellants have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and the appellant no.3 Sahendra Yadav has been further convicted under Sections 323/34 of the Indian Penal Code, but no separate sentence has been passed.

(2.) The prosecution case, in brief, is that on 10.01.1984 at about 4.00 P.M., the appellant no.1 Dukhharan Yadav and his sons appellant no.2 Mahendra Yadav and appellant no.3 Sahendra Yadav were digging the Ota (made up soil) and the northern wall of the informant (P.W.5) for making a whole in the wall for exit, her husband Chandradeo Yadav (deceased) protested the action of the appellants. While the deceased, husband of the informant was filling up soil, the appellant no.1 Dukhharan Yadav armed with Lathi, the appellant nos. 2 and 3 Mahendra Yadav and Sahendra Yadav armed with Khanti assaulted the husband of the informant, which caused injuries in his head. Her husband became senseless. He was taken to the Hospital. The occurrence was witnessed by Mushan Dusadh (P.W.1) and others. It has been further alleged that the informant was also assaulted with Lathi causing her injuries. The Fardbeyan of the informant (Ext.2) was recorded by A.S.I. R.S. Singh (P.W.9) on 10.01.1984 at about 9.30 P.M. in the Sadar Hospital, Aurangabad. On the basis of Fardbeyan, a formal FIR (Ext.3) was registered as Aurangabad P.S. Case No.16 dated 10.01.1984. After investigation, charge-sheet was submitted. Cognizance was taken. The case was committed to the court of sessions. Charges were framed. All the appellants were charged for the offence punishable under Sections 302/34 and 323/34 of the Indian Penal Code to which they denied and claimed to be tried. The defence of the appellants is that they are innocent and have been falsely implicated in this case due to land dispute between both the parties. After the trial, the appellants have been convicted and sentenced, as aforesaid.

(3.) The learned counsel for the appellants has submitted that there is no specific allegation of overt act against the appellants. There is no post-mortem examination report on the record to show the cause of death of the deceased. The deceased got injury on his head when he was extracting wood from the dilapidated house, which struck on the head of the deceased resulting into his death in the Hospital.