STATE OF BIHAR Vs. NEPAL MAHTO

JUDGEMENT

(1.) Then accused, as noted in the judgment of the trial court, which is the judgment under appeal, were put on trial on various charges including the charges under Section 302 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the Code') on the allegation that they formed an unlawful assembly and in prosecution of the common object of that assembly, they caused the death of one Chandrika Rai in village Samaria, Tola Brahmsthan. This village lies under police station Rivilganj in the district of Saran. Five of them, namely, Nepal Mahto, Sudisuba Rai, Baiju Rai alias Baijnath Rai, Nathuni Rai and Jatan Mallah were acquitted of the charges by the trial court against which the State preferred an appeal under Section 378 of the Code of Criminal Procedure which has been registered as Government appeal No. 17 of 1979. This appeal against Nepal Mahto was dismissed and was admitted against other respondents and it was directed that the same be heard alongwith Criminal Appeal No. 39 of 1959. This second appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure by appellants Bharat Rai, Lachuman Rai, Balli Rai, Maku Rai and Baban Mallah alias Babban Choudhary against the order of conviction by the same impugned judgment dated 25th January, 1979 passed by the 2nd Additional Sessions Judge, Chapra.

(2.) These five appellants of Criminal Appeal No. 39 of 1979 have been convicted of the charge under Section 302 read with Section 149 of the Code and each one has been sentenced to suffer imprisonment for life. Appellant No. 3 Balli Rai has been further convicted under Section 148 of the Code but there has been no order of sentence under this charge. The rest of the appellants, being appellant No. 1 Bharat Rai, appellant No. 2 Lachuman Rai, appellant No. 4 Maku Rai and appellant No. 5 Babban Mallah alias Babban Choudhary have been held to be guilty of the charge under Section 147 of the Code but here again there has been no order of sentence under this charge. Appellant No. 3 Balli Ram and appellant No. 4 Maku Rai have also been further convicted under Section 397 of the Code as it was alleged by the prosecution that they removed two milk containers (drums) one carried by the deceased Chandrika Rai and the other by P. W. 2 Bhagwan Rai. Appellant No. 2 Lachuman Rai has also been held guilty of the charge under Section 379 of the Code for removing the 'Hasuli' from the neck of P.W. 5 Rashmi Devi. Appellant no. 5, Babban Mallah has further been convicted under Section 323 of the Code for causing voluntary hurt to Rashmi Devi (P. W. 5) but no separate sentence has been passed against any one on these charges.

(3.) Since both the appeals, that is, Government appeal and the Criminal Appeal by the accused arise out of the same judgment and so, for the sake of convenience both are being disposad of by this judgment.