AMAR NARAYAN CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Appellant in both the appeals have been convicted under Sections 302 and 447 of the Indian Penal Code by judgment dated 17-08-2012 passed by Sri Sarvajeet, learned Adhoc Additional District & Sessions Judge, Benipur, Darbhanga (hereinafter referred to as the 'Trial Judge') in Sessions Trial No. 222 of 1996 (arising out of Bahera P.S. Case No. 161 of 1995). Both the appellants were sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and fine of Rs. 5,000/- (five thousand) each and in default to pay, they have further been directed to undergo rigorous imprisonment for three months. Both the appellants were further sentenced under Section 447 of the Indian Penal Code to undergo rigorous imprisonment for three months and as such, accordingly both the appeals were heard together and are being disposed of by this common judgment.

(2.) Short fact of the case is that on 24-07-1995 at 22.00 hrs. (i.e. 10:00 PM) Assistant Sub-Inspector of Police S.K.H.Rizvi of Pirbahore Police Station, Patna recorded fardbeyan of Dayakant Choudhary (P.W.-3). The said fardbeyan was recorded in P.M.C.H., Indira Gandhi Surgical Emergency Ward. In the fardbeyan, the informant disclosed that near his house, there was a piece of land of his wife measuring 10 dhurs, over which, there were number of trees. Adjoining to the said land, in the southern area, there was about two and half katha of land of Hirdaya Narayan Choudhary, Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12) and Kanhaiya Choudhary. In the tola Habibhouar, on 23-07-1995, at about 8-9 in the morning, Hriday Narayan Choudhary, Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12) and Kanhaiya Choudhary had removed the ridge/boundry of his land and by intruding, expanded their land with the land of the informant, which was opposed by his son Ghanshyam Choudhary (deceased). Thereafter, some altercation took place. On 24-07-1995, again Hriday Narayan Choudhary, Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12) and Kanhaiya Choudhary started to plough the land in the morning at about 7:00 - 7:30 AM, thereafter, his son Ghanshyam Choudhary (deceased) again tried to restrain them, on which, the accused persons ran towards his son, however; he fled away and returned to his house. At about 8:30 AM, (1) Hriday Narayan Choudhary, (2) Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12), (3) Kanhaiya Choudhary (both 2 and 3 are sons of late Radhakant Choudhary), (4) Naveen Choudhary @ Naveen Kumar Choudhary (appellant in Cr.Appeal DB No. 1041/12) and (5) Praveen Kumar Choudhary (both 4 and 5 are sons of Hirday Narayan Choudhary) armed with deadly weapons reached to the door of the informant. Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12) was carrying garasa in his hand and Naveen Choudhary (appellant in Cr.Appeal DB No. 1041/12) was carrying barchhi and rest of the accused persons were carrying lathi. Immediately after their arrival, they started to assault buffalo of the informant, which was tied near the house of the informant and said action was opposed by Ghanshyam Choudhary (deceased). Thereafter, Naveen Choudhary using filthy language asked others that he is the main person for all the dispute, on which, Amar Narayan Choudhary (appellant in Cr.Appeal DB No. 854/12) gave garasa blow on his head and Naveen Choudhary (appellant in Cr.Appeal DB No. 1041/12) gave barchhi blow on his head. The informant further disclosed that his wife Devjanki Devi (P.W.-2) and Vivek Kumar Choudhary (P.W.-1) tried to save Ghanshyam Choudhary (deceased), however; they were also assaulted by fist and they received simple injuries. On hulla, Shambhunath Choudhary (P.W.-6), Pappu Choudhary @ Nawal Kumar Choudhary (P.W.- 5), Upendra Choudhary (not examined) and other villagers arrived and seen the occurrence. The informant's son was badly injured and he was carried on Ambassador car to Bahera Hospital. At about 10:00 AM, they reached there, where the injured was provided first aid and he was referred to the Darbhanga Medical College Hospital. However, the informant and others carried the injured to R.P.Memorial Nursing Home, Darbhanga, from where, he was referred to Tara Nursing Home, Patna and then, they carried Ghanshyam to Tara Nursing Home, Patna, where he was not admitted and doctor suggested to carry him to P.M.C.H. Emergency ward and on such advice, the injured was carried to P.M.C.H., where they reached at 7:30 on 24-07-1995. In P.M.C.H., during his treatment, injured died at 9:25 in the night. The informant stated that the reason for the said occurrence was dispute regarding partition of the land as well as forceful possession of informant's land. The said fardbeyan was identified by Shambhunath Choudhary (P.W.-6).

(3.) On the basis of said fardbeyan, a formal F.I.R., vide Bahera P.S. Case No. 161 of 1995, was registered on 29-07-1995 for offence under Sections 323, 147, 447, 149, 307, 304, 323, 302 of the Indian Penal Code against five named accused persons, which include both the aforesaid appellants. The said formal F.I.R. was drawn on 29-07-1995 at 22.15 hrs. (10:15 PM). After drawing formal F.I.R., the police started investigation. The place of occurrence was visited, number of witnesses were examined and after finding the case true against five said F.I.R. named accused persons, chargesheet was submitted on 20-09-1995, on which, learned Magistrate took cognizance of offence on 29-11-1995. After completion of formalities of supply of police paper and complying the provisions under Section 207 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), on 21-12-1995, the case was committed to the court of sessions and thereafter, it was numbered as Sessions Trial No. 222 of 1996. In the case, on 7th April, 1997, charge under Sections 447 and 323 of the Indian Penal Code was framed against both the appellants and other three accused persons. On the same date, separate charge was framed under Section 302 of the Indian Penal Code against both the appellants. On the same date, charge under Section 302 read with section 149 of the Indian Penal Code was framed against five accused persons, which include both the appellants. After framing of the charge, the accused persons denied charges and claimed to be tried and thereafter, to prove its case, the prosecution examined altogether 15 witnesses. Out of 15 witness, P.W.-5 (Nawal Kumar Choudhary), P.W.-6 (Shambhunath Choudhary), P.W.-9 (Leelakant Choudhary) and P.W.-14 (Chiranjiv Choudhary) had not supported the prosecution case and thereafter, they were declared hostile by the prosecution.