JITENDRA RAJBANSHI & ANR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 20.5.1992, passed by Sri Mishri Lal Choudhary, Vth Additional Sessions Judge, Aurangabad in Sessions Trial No. 232 of 1991/09 of 1991, whereby and whereunder learned Additional Sessions Judge V, Aurangabad held the appellants guilty of the charge under Section 395, IPC, convicted both the appellants and sentenced each of the appellants to undergo rigorous imprisonment for ten years under Section 395, IPC.

(2.) The prosecution story, as it appears from fardbeyan of Kashi Sao, the informant (PW 11), in short, is that in the intervening night of 26-27.1.1990 at about 10.00 p.m. the informant after dinner had slept at southern roof of his house. About 11.30 to 11.45 hours in the night, hearing hullah of "Chor-Chor" by family members of his house, he awoke. Thereafter, the informant having torch and one danda in his hand climbed northern roof with the help of bamboo ladders and in the flash of torch light, he saw 7-8 dacoits in his courtyard, who after entering into his house looted articles. When the informant was coming down through the help of ladder, 2- 3 unknown dacoits restrained him on the ladder itself, upon, which the informant assaulted two dacoits with danda As per informant, one dacoit spoke that "Kashia Aa Gaya", two dacoits climbing ladders caught the informant and snached his torch and danda and started assaulting him with rod and butt of the gun. The informant alongwith family members started shouting loudly. In the mean time younger brother of informant Krishna Sao (PW 12) was caught and assaulted by dacoits. Basant Sao (PW 8), who was blind, was also assaulted by dacoits. Thereafter, hearing hullah, villagers started collecting and dacoits started indiscriminate firing and hurling bombs on villagers. Villagers also started hurling the brick-bats, pebble etc. On dacoits. Some of dacoits, knowing themselves surrounded by villagers, climbed on roof and started fleeing, jumping from the roof. Some of dacoits after taking articles, fled away from eastern darwaja. Villagers chased dacoits while fleeing and some of dacoits were hurt in course of their encounter with villagers. The informant further stated that his brother Kishori Sao (PW 2) told him that he had identified two of the dacoits. named Raja Ram Rajwar @ Billar, son of Ganauri Rajwar and Jitendra Rajwansi, son of Jagan Rajwansi, both of village-Ami, P.S.Daud Nagar, who are appellants in this appeal and further told that dacoits were 18-20 in numbers and were speaking local language. Some of the dacoits were in fullpaint, some were in payjama, some were in lungi and sweater. The age of the dacotis were in between 25-35 years. Some of dacoits were of white complexion, some were of black and sawala. Some dacoits had covered their faces with gamchha, dacoits had looted and taken away clothes, ornaments, etc. Dacoits had assaulted informant on the head and body and so it was bleeding profusely. As per informant, he hired one Maxi of Doman Mehra and went to Daud Nagar Hospital, where he was treated. The informant also claimed to identify dacoits after seeing them.

(3.) The statements of informant Kashi Sao (PW 11) was recorded on 27.1.1990 at about 8.15 hours at Daud Nagar State Dispensary by Dy. S.P. Vinod Kumar and he himself investigated the case and after completion of investigation, submitted charge-sheet against the appellants under Section 395, IPC, showing five dacoits died in column 2 of the charge-sheet. The learned C.J.M. took cognizance of the offence under Section 395, IPC and later on the case was committed to the Court of Sessions for trial. Both the appellants were tried and the learned trial Court after trial held guilty of the offence under Section 395, IPC, convicted and sentenced them as indicated in paragraph 1 of this judgment.