YOGI CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arising out of the same judgment and order dated 9-5-2001 passed by 5th Additional Sessions Judge. Begusarai, in Sessions Trial No. 53/99 convicting and sentencing both the appellants to undergo R. I. for life under Section 302/34 of the Indian Penal Code (in short IPC) and to undergo R. 1. for life under Section 27 of Arms Act but ordering both the sentences to run concurrently are being disposed of by this common judgment.

(2.) The case of prosecution briefly stated is that on 27-6-1998 informant Sadhu Sharan Paswan (PW-10), the then chaukidar of Bit No. 10/4 was on duty at the house of Shailendra Kunwar (PW-9) Situate at Village Kunwar Tol, P. S. Karpura, District-Begusarai, where he was deputed after the murder of Pankaj Kunwar son of Shailendra Kunwar in the month of April. On that day in the night when informant was making preparation for going to bed at about 12.30 O' Clock in the night he found 5-6 persons flashing torch light coming from south direction and when they came at a distance of 50-60 yards from informant; they hurried towards him and when he inquired who they were, one of them asked his companions to catch hold of informant and his voice to informant appeared to be of appellant Yogi Choudhary. Out of fear, informant ran towards west in the house of Gango Pandit (not examined) and fell down. After some time, he heard sounds of firing from the roof of the house of Shailendra Kunwar where Bhagwati Devi, mother of Shailendra Kunwar, Birendra Kunwar alias Gonga brother of Shailendra Kunwar and Md. Muslim, servant of Shailendra Kunwar were sleeping. After some time informant from the house of Gango Pandit saw that all miscreants were running away towards south. Informant raised 'hulla' but no body from neighborhood or village came there. The informant then went to the Police Station at about 3 O' Clock in the morning and along with police force came to the house of Shailendra Kunwar where he found the doors of the house opened and when he went on the roof of the house he found Bhagwati Devi, Birendra Kumar and Md. Muslim lying dead with fire arm injuries and also found blood in copious quantity fallen on the roof of the house. The Fardbeyan of informant was recorded at the place of occurrence by S. I. Adi Kant Mahto (PW-11), I. O. About the motive of occurrence informant in his Fardbeyan has stated that all the three deceased had deposed in Court in a murder case which was lodged for the murder of Pankaj Kunwar, son of Shailendra Kunwar and 4 days prior to occurrence deceased Bhagwati Devi told the informant that appellant Yogi Choudhary in front of Rabi Mahto (not examined) had told that he will teach a lesson to Shailendra Kunwar. He further stated that appellant Yogi Choudhary and others were accused in that case. He further raised a suspicion against the persons who were accused in the case of murder of Pankaj Kunwar for directly or indirectly participating in the occurrence of this case. On the basis of Fardbeyan of informant a case under Sections 302/34 IPC and 27 of the Arms Act against the appellant Yogi Choudhary and some unknown was registered and police after investigation submitted charge sheet against both the appellants. Cognizance of the case was taken and case was committed to the Court of session where charges under sections 302/34 and 27 of Arms Act were framed against the appellants who after trial were found guilty and were convicted and sentenced as indicated above.

(3.) The case of defence as it appears from the trend of cross examination of prosecution witnesses and defence witnesses examined on their behalf is that they have been falsely implicated in this case on account of enmity.