MAHAMAYA GOPAL PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arise out of judgment of conviction and order of sentence dated 9/10.08.2010 passed by Additional Sessions Judge, F.T.C.-V, Ara in Sessions Trial No. 559 of 2008 arising out of Koilwar P.S. Case No. 95 of 2008 whereunder both the appellants have been convicted for the Patna High Court CR. APP (DB) No.985 of 2010 dt.22-09-2015 2 offence under Sections 302/34 read with Section 120B of the Penal Code, sentenced to suffer rigorous imprisonment for life, appellant Vakil Ram has further been convicted for the offence under Section 27 of the Arms Act, thereunder he has been asked to further suffer rigorous imprisonment for three years with direction to pay fine of Rs. 2,000/-, in default of payment of fine to suffer further simple imprisonment for three months. His sentences have, however, been directed to run concurrently.

(2.) Prosecution case as set out in the fardbeyan of informant Nand Gopal Singh recorded by Assistant Sub-Inspector Bismillah Khan, Ara Town Police Station on 03.06.2008 at 11:30 hours near the Post Mortem House in Sadar Hospital, Ara in front of the dead body of his brother Ramesh Prasad and son Yogesh Kumar is that he has land dispute from before with the son of his cousin Mahamaya Gopal. In the morning of 03.06.2008, Mahamaya Gopal called his accomplice, namely, Ram Ayodhya Sah resident of Bhopatpur, Vakil Ram also resident of Bhopatpur, Shushil Kumar, Raju both sons of Ram Ishwar Mahto co-villagers, Vakil Rai resident of Durjanchak, Krishna Rajak resident of Jalpura and Sanjay Thakur also a co-villager to assemble at his darwaja variously armed with country made katta, Sten Gun, pistol, stick and asked them to proceed towards the pond situate behind the house of the informant and to cut its soil. Around 8:00 am brother of the informant Ramesh Prasad and his son Yogesh Kumar Patna High Court CR. APP (DB) No.985 of 2010 dt.22-09-2015 3 forbade them from cutting soil on which Mahamaya Gopal exhorted his men to kill the two and on his orders Ram Ayodhya Sah shot from his country made katta causing injury to Yogesh Kumar and Vakil Ram shot Ramesh with his country made Sten gun. Both the injured fell on the ground. Having seen the assault, the informant and son of deceased Ramesh, Chandra Prakash @ Bholi intervened to save the two injured whereafter, Raju assaulted the informant with lathi causing injury on middle finger of his left hand, Sanjay Thakur assaulted Chandra Prakash also with the lathi. After the neighbours from the vicinity collected, the accused persons resorted to firing and fled away. Informant further stated that Rukmini Devi mother of Mahamaya Gopal was also exhorting the accused persons to kill all of them. Yogesh died at the place of occurrence itself but the injured Ramesh died in the way while being carried to the hospital. The dead body of both the deceased have been brought to the hospital for necessary action and presently, the fardbeyan is being recorded. In the fardbeyan the informant also stated that the occurrence has been witnessed not only by his family members but also by the persons of the neighbourhood who shall state about the same. Informant having made his fardbeyan, perused the same in presence of his nephew Chandra Prakash @ Bholi, which was also read over to him, he having found the contents true put his signature. Besides the informant, Chandra Prakash @ Bholi also put his signature Patna High Court CR. APP (DB) No.985 of 2010 dt.22-09-2015 4 over the same as attesting witness. Bismillah Khan, Assistant Sub-Inspector, Ara Town Police Station having scribed the fardbeyan, forwarded the same to Station House Officer Koilwar Police Station for necessary action. In the light of the fardbeyan, Sub-Inspector Prem Sagar Dubey of Koilwar Police Station registered the First Information Report on 03.06.2008 stating that Shri Jai Prakash Chaudhary Officer-In-Charge Koilwar Police Station has already taken up its investigation at the place of occurrence. From column no. 15 of the First Information Report it appears that the same was dispatched to court on 03.06.2008 and from the initials of the Chief Judicial Magistrate, Bhojpur, Arah made on the first page of the First Information Report it appears that the same was received in court on 04.06.2008.

(3.) Officer-In-Charge Koilwar Police Station Shri Jai Prakash Chaudhary having received the telephonic information about the occurrence in village Sripalpur in the morning of 03.06.2008 has come to village Sripalpur along with Assistant Sub-Inspector Prem Sagar Dubey and other members of the Police Party and found the dead body of Ram Ayodhya Sah at the place of occurrence by the side of the road in a ditch. Assistant Sub-Inspector Prem Sagar Dubey conducted inquest proceeding over the dead body of Ram Ayodhya Sah as also prepared the seizure list of the incriminating articles recovered by the side of the dead body of Ram Ayodhya Sah i.e. country made pistol, five Patna High Court CR. APP (DB) No.985 of 2010 dt.22-09-2015 5 live cartridges, broken spectacles and small bicycle. After inquest and seizure, the dead body of Ram Ayodhya Sah was sent for post mortem to Ara Sadar Hospital. Shri Jai Prakaash Chaudhary, Officer-In-Charge Koilwar Police Station and the Police Party assisting him at the place of occurrence in village Sripalpur also learnt that two other persons have also suffered injury, have been taken to Ara Sadar Hospital. After learning such fact, Investigating Officer Shri Jai Prakash Chaudhary proceeded to Ara Sadar Hospital. By the time Sri Chaudhary reached the hospital, fardbeyan of the instant case was already scribed by Assistant Sub-Inspector, Bismillah Khan of Ara Town Police Station at 11:30 hours, the inquest of the two deceased Yogesh Kumar and Ramesh Prasad was also conducted at 12:00 noon and 12:20 pm respectively near the post mortem house in Ara Sadar Hospital by Assistant Sub-Inspector, Bismillah Khan in presence of the informant and his nephew Chandra Prakash @ Bholi. Shri Jai Prakash Chaudhary, the Investigating Officer of the case having reached Ara Sadar Hospital, met not only the informant and his nephew Chandra Prakash @ Bholi but also other witnesses of the case and recorded their police statement. In the light of the fardbeyan, the police statement of the informant as also of Chandra Prakash @ Bholi, other witnesses, the contents of the inquest, post mortem reports of the two deceased the Investigating Officer Shri Jai Prakash Chaudhary, Officer-In- Patna High Court CR. APP (DB) No.985 of 2010 dt.22-09-2015 6 Charge Koilwar Police Station found the allegations true against both the accused, submitted chargesheet against them on 30.08.2008. After submission of chargesheet, cognizance was taken, police papers supplied to the two accused persons and case committed to the court of Sessions. The Trial Court framed charges against two sent-up accused persons under its order dated 15.10.2009 to which both pleaded not guilty and claimed to be tried.