NATHUNI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant appeal is directed against the judgment and order dated 24-11-1987 passed in Sessions Trial No. 300 of 1985 by Shri Narendra Narayan Singh, 3rd Additional Sessions Judge. Ara wherein and whereunder the appellant Nathuni Yadav had been convicted under Section 396 of the Indian Penal Code and further had been sentenced to undergo rigorous imprisonment for life under the aforesaid section, stating therein that the period undergone by him, as under-trial prisoner, would be set-off as provided under Section 428 of the Code of Criminal Procedure.

(2.) Case of the prosecution relates to an offence occurred on 22-05-1984 at about 11 p.m. Ram Pravesh Ojha (deceased) was sleeping at Sahan i.e., open space outside his house, where his sons Barmeshwarnath Ojha (PW-6), Gore Ojha (PW 8) and Rinku Ojha were also sleeping, whereas the informant, brother of the deceased, Brijlal Ojha was sleeping in the courtyard (Sahan) in the house and the ladies were sleeping inside the rooms. The deceased Ram Pravesh Ojha raised alarm and thereafter there was a firing upon which the aforesaid Rampravesh Ojha again raised alarm. The inmates of the house opened the main door whereupon 10-15 dacoits armed with 'lathi', 'Bhala' and guns, entered in the house by force. Two of them remained near the informant. The rest dacoits entered into the house and looted away the articles of the house. The voice of one of the accused was identified by the informant which was the voice of accused, Nathuni Yadav (appellant) when the miscreants were enquiring whether Shankara had come outside shouting in colloquial dialect "Shankara Nikalal Ki na re" Thereafter they retreated from the house. It was found that Rampravesh Ojha was lying in injured condition. There was bleeding from wounds of his head and chest, Rampravesh Ojha was said to have stated that Nathuni Yadav (the appellant) son of Paras had assaulted him.

(3.) The fardbeyan of the informant was recorded on 23-05-1984 at 22 am in the Referal Hospital Shahpur, where Rampravesh Ojha in injured condition, had been taken for treatment. The dying declaration of Rampravesh Ojha was said to have been recoded by the Sub-Inspector of Police. Birendra Singh (PW 13) who had also recorded the fardbeyan (Exhibit-3) of the informant at the referral hospital, Shahpur. The dying declaration of Rampravesh Ojha is at Exhibit-8, recorded in presence of Dr. S.K. Pandey (PW-12) and Dr. Satyaram Singh (not examined) who certified the recording of dying declaration in their presence.