UPENDRA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) OUT of the eight appellants on whose behalf the appeal was filed, Mushahru Yadav, (appellant No. 2) died during its pendency. Hence, the appeal in so far as he was concerned abated. (See order, dated 28.4.2004) and it survives with regard to the remaining seven appellants. Among the remaining appellants, Upendra Yadav (appellant No. 1) stands convicted under Section 302, 324 and 148 of the Penal Code and sentenced to undergo rigorous imprisonment for committing murder, RI for three years for causing grievous hurt and RI for two years for rioting. Bhupi Yadav @ Bhupendra Yadav (appellant No. 3) Maheshwari Yadav (appellant No 4) and Kali Yadav (appellant No. 5) are convicted under Sections 302/149 and 147 of the Penal Code and sentenced and to undergo RI for life and one year respectively for the two offences. Pratap Yadav (appellant No. 6) and Rajendra Yadav (appellant No. 8) are convicted under Section 324 and 148 of the Penal Code and sentenced to undergo RI for three years and two years respectively for the two offences. Dhirendra Yedav (appellant No. 7) is convicted under Section 323 and 148 of the Penal Code and sentenced to undergo RI for two years each for the two offences. There was another accused Brijketu Yadav facing trial with the seven appellants. He was charged under Sections 302/149 and 147 of the Penal Code. He was, however, acquitted of the charges because apart from the informant no other prosecution witnesses named him before the trial Court.

(2.) THE prosecution case was instituted on the basis of the statement of Shankar Yadav (PW 6) made before the Officer Incharge of Madhepura P.S. at Mahdepura hospital on 27.6.1976 at 6.30 p.m.. The police officer went to Madhepura hospital on receipt of an O.D. slip, intimating him that a number of people, including Upendra Yadav (appellant no. 1) had ar rived at the hospital with injuries on their person. The statement of Shankar Yadav was recorded by the Officer Incharge as fardbeyan (Ext. 1) and a formal FIR incorporating it was drawn up later on the same day at 8 p.m.

(3.) THE police after investigation submitted charge sheet against all the thirteen accused named in the FIR and all of them were summoned for trial. Upendra Yadav (appellant No. 1) was charged under Sections 302, 324 and 148 of the Penal Code. Raghuni Yadav (not before the Court) against whom the allegation is that he ordered his men to shoot and kill the members of the prosecution party was charged under Sections 302/109 and Section 148 of the Penal Code. Mushahru Yadav (appellant No. 2), Bhupi Yadav @ Bhupendra Yadav. (appellant No. 3), Maheshwari Yadav (appellant No. 4), Kali Yadav (appellant No. 5), Rajendra Yadav (appellant No. 8) and Sheonandan Yadav (not before the Court) were charged under Sections 302/149, apart from other minor Sections of the Penal Code. The rest of the accused were charged under Section 307 or 324 depending upon the specific act attributed to them, apart from Sections 147, 148 etc. it is not clear why the six accused alone were picked -out for being charged under Section 302 with the aid of Section 149 of the Penal Code while the rest of the accused were charged on the basis of the specific overt acts allegedly committed by them.