SHIV DAYAL SINGH Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals are directed against the common Judgment of conviction dated 28.04.2010 and Order of sentence dated 04.05.2010 passed by the Additional Sessions Judge, Fast Track Court No.1, Chapra, Saran, in Sessions Trial No.211 of 2000, whereunder both the appellants, namely, Shiv Dayal Singh {in Criminal Appeal (DB) No.683 of 2010} and Surendra Pathak {in Criminal Appeal (DB) No.620 of 2010} have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

(2.) The prosecution case, as set out in the fardbeyan (Ext.5) of the informant Nayan Devi (P.W.7), is that on 23.01.2000 at about 10.00 A.M., her husband Kavindra Pandey, after taking bath, was offering Puja at Braham Asthan situated at about 40 -50 yards south from her house and she was taking water for offering Puja to the Hand -pump situated at 15 -20 yards east to the Braham Asthan. All of sudden, she saw her brother -in -law Surendra Pathak {appellant in Criminal Appeal (DB) No.620 of 2010} having bomb, his son Kameshwar Pathak having Fasuli, Sanjay Pathak having Bhala, Krishna Pathak having Gupti, Ram Janam Pathak having Fasuli, Radha Mohan Pathak having Daab, Shiv Dayal Singh {appellant in Criminal Appeal (DB) No.683 of 2010) having Garasa and Birju Singh having pistol and Daab in their hands coming out from Arhar field situated near Braham Asthan. Surendra Pathak hurled bomb at her husband which caused injury in his leg then he ran towards house to save his life making cry. But Shiv Dayal Singh assaulted through Farsa from behind on right leg, Birju Singh assaulted with Daab on the upper part of right elbow, then her husband fell down. Thereafter, all the accused persons surrounded her husband and caused injury through Daab, Fasuli and Garasa. Krishna Pathak, at that time, cut the neck of her husband and Sanjay Pathak caused fracture injury on his right hand. On the sound of explosion of bomb and hulla, her cousin father -in -law Manager Pathak (P.W.3), his son Jitendra Pathak (P.W.4), cousin mother -in -law Gayatri Devi (not examined) came but they were chased by the accused persons. On 'hulla' some villagers came, then all the accused persons fled away towards east. Thereafter, she alongwith others went near her husband, who was dead. He was stained with blood sustaining cut injury on right arm, left armpit, in left hand below the elbow upto wrist and fracture injury on right elbow. There was also blackish swelling below the left knee. She stated that cause of occurrence is old enmity.

(3.) On the basis of fardbeyan (Ext.5) of the informant, Nayan Devi(P.W.7), Taraiya P.S. Case No.6 of 2000. was instituted on 23.01.2000 for the offence under Sections 147, 148, 149, 302 of the Indian Penal Code and 3/4 of the Explosive Substance Act. The police submitted the charge -sheet No.25 of 2000. on 03.05.2000 against the accused -appellant Shiv Dayal Singh continuing the investigation against rest accused. After cognizance of the offence, the case of the accused -appellant Shiv Dayal Singh was committed to the court of sessions bearing Sessions Trial No.211 of 2000 and charge was framed on 06.09.2000 under Section 302 of the Indian Penal Code. Later on, police submitted the supplementary charge -sheet no.101 of 2000 against accused -appellant Surendra Pathak on 05.11.2000 and his case was also committed to the court of sessions for trial bearing Sessions Trial No.27 of 2002 and charge was framed against him also under Section 302 of the Indian Penal Code on 05.07.2002. After examination of Dr. Deepak Kumar, who conducted the post -mortem examination over the dead of the deceased Kavindra Pandey, as P.W.1 in Sessions Trial No.211 of 2000 on 06.11.2000, the Sessions Trial No.27 of 2000 relating to accused -appellant Surendra Pathak was amalgamated with Sessions Trial No.211 of 2000. Due to that reason, Dr. Deepak Kumar was again examined as P.W.9 on 23.03.2006.