AKHILESH OJHA Vs. STATE OF BIHAR WITH

JUDGEMENT

(1.) THROUGH these 8 Criminal Appeals all the ten convicted accused have challenged the judgment dated 30.5.2001 passed by learned 1st, Additional Sessions Judge Saran at Chapra in Sessions Trial No. 50 of 1977 arising out of Garkha P.S. Case No. 5(7)73 dated 5.7.1973 whereby they have been convicted for various offences relating to murder of Shambhu Nath Singh and Prabhu Nath Singh, two sons of informant Baijnath Singh on 5.7.1973 at about 7 A.M. in village Mohamadpur, P.S. Garkha, District Saran. They have also challenged the order passed by learned court on 31.5.2001 whereby the learned trial court has awarded various sentences including imprisonment for life to all the ten appellants.

(2.) Appellants Akhilesh Ojha (Cr. Appeal No. 265/ 2001), Keshav Singh (Cr. Appeal No. 275/ 2001) and Jitendra Singh (Cr. Appeal No. 280/2001) have been convicted for the offence under Sec. 302 read with Sec. 149 of the Indian Penal Code (hereinafter referred to as I.P.C.) and awarded life imprisonment and a fine of Rs. 2000/ - each and in default further R.I. for one year and six months. They have also been convicted under Sec. 148 of the I.P.C. for which they have been awarded R.I. for two years. Appellant Thakur Singh (appellant no. 2 of Cr. Appeal No. 275/2001) and appellant Ram Pravesh Singh (Cr. Appeal No. 290/2001) have been convicted for the offence under Sec. 302 read with Sec. 149 of the I.P.C. for which they have been awarded the same sentence as the aforesaid appellants. They have also been convicted under Section 147 I.P.C. for which they have been awarded one year six months R.I. each. Appellants Adalat Pandit (Cr. Appeal No. 296/01), Thakur Ojha (Cr. Appeal No. 336/ 2001), Gorakhnath Singh (Cr. Appeal No. 342/2001) and appellants Rajnath Singh and Bachcha Singh (appellants 1 and 2 of Cr. Appeal No. 344/01) have been convicted for the offences under Sec. 302 I.P.C. and awarded life imprisonment and also a fine of Rs. 3,000/ - and in default to undergo further R.I. for two years. They have also been convicted under Section 148 I.P. C. and awarded R.I. for two years each. Appellant Thakur Ojha has further been convicted for the offence under the Arms Act and awarded R.I. for two years. Except fine and sentences in default thereof, all other sentences are to run concurrently. According to the prosecution case, on 5.7.1973 at 8 A.M. Baijnath Singh father of the two deceased came to Garkha police station and his statement was recorded by A.S.I. Abdul Hai Mallik and on that basis the formal F.I.R. was instituted on the same date. The informant Baijnath Singh as well as A.S.I. Abdul Hai Mallik died before they could be examined during trial A.S.I. A.H. Mallik took up investigation at the initial stage till the investigation was taken over by the Officer -lncharge of Garkha police station S.I. Shatruhan Singh (P.W. 15) at about 12.15 P.M. on the date of occurrence itself at the village of occurrence. P.W. 15 has proved the writing and signature of A.S. I. A.H. Mallik on the F.I.R. which has been taken on record as Ext. 10 without any objection. The gist of investigation conducted by A.S.I. Mallik recorded in paragraphs 1 to 7 of the case diary have also been proved and marked as Ext. 11. The signature of Baijnath Singh on the F.I.R. has been proved by Bhrigunath Singh (P.W. 7) as Ext. 1/8.

(3.) ACCORDING to the F.I.R. the prosecution case, in brief is that on 5.7.1973 at about 7 A.M. appellants Thakur Ojha with gun, Patiram Ojha, Akhilesh Ojha, Jitendra Singh, Rajnath Singh, Gorakhnath Singh, Keshav Singh, Bachcha Singh and Adalat Pandit @ Kumhar, all with Bhalas and Thakur Singh and Ram Pravesh Singh with lathis came to orchard of Baijnath Singh in plot no. 4905. situated at a distance of 3 Furlongs towards south -east of the village. They started plucking mangoes. On this the informant alongwith his two sons Shambhu Nath Singh (deceased) and Prabhu Nath Singh (deceased) went there and prevented them from plucking mangoes. It led to verbal altercation. Patiram Ojha (since dead) ordered Thakur Ojha to assault. Thakur Ojha fired two shots with his gun at Shambhu Nath Singh as a result he sustained injuries and after moving for a little distance towards home i.e. towards west he fell down in the orchard of one Arjun Singh. After Shambhu fell down accused Gorakhnath Singh assaulted him with Bhala on the back of his chest. In the meantime Thakur Ojha further fired two shots at Prabhunath Singh, the elder son of the informant which caused injuries and he also fell down in the orchard of Arjun Singh. After he had fallen, he was assaulted by Rajnath Singh, Bachcha Singh, Adalat Pandit with Bhalas. Thereafter accused Jitendra Singh and Ram Pravesh Singh dragged Prabhunath Singh by both the hands towards east in the orchard of the informant. When the two sons of the informant died then the informant requested the assailants to kill him also but Patiram Ojha intervened saying that no useful purpose will be served by killing an old man; he should be allowed to live and cry. The names of Lachuman Singh (P.W. 8), Arjun Singh, since dead Badri Singh (P.W. 5), Bhrigunath Singh (P.W. 7) and Ram Prasad Singh (P.W. 4) were given out as witnesses in the F.I.R. with assertion that others who might have seen the occurrence would give their statements. The reason for the occurrence was said to be pendency of a Probate Case No. 1/65 in the Court of Additional Sessions Judge -Ill in respect of dispute over a Will in which the orchard where the occurrence had taken place was also involved.