BABBAN PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision is directed against the judgment and order passed by the 4th Additional Sessions Judge, Gaya in Criminal Appeal No. 32 of 1981 (152 of 1980) confirming the conviction and sentence against these accused petitioners passed by Shri B.K. Sinha, Judicial Magistrate, Ist Class, Gaya in G.R. Case No. 2524 of 1976, Tr. No. 859 of 1980. The accused petitioner Girija Tiwary has been convicted under Section 326/323 read with Section 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months ; accused petitioner Ramjatan Pandey and Babban Pandey have been convicted under Section 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one month, and accused petitioner Ram Jatan Pandey has been further convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. But the sentences passed against Ram Jatan Pandey under the two counts have been directed to run concurrently.

(2.) The case of the prosecution against these two accused -petitioners, briefly stated, is that the accused petitioner Girija Tiwary had mortgaged S. P. No. 225 appertaining to Khata No. 437 in village Utrain within Konch Police Station to the first informant Hari Mohan Mistry (P. W. 2) who came in possession of that land as a mortgagee ; that in the year 1976 the first informant had grown paddy on that land but on 17 -11 -1976 at about 2 p.m. when he (the first informant) returned from the market, he learnt that these accused persons alongwith Ram Pravesh Tiwary were harvesting paddy crop of that field ; that the first Informant went to that field along with his grandmother and protested ; that thereupon the accused petitioner Girija Tiwary asked the other accused to assault and kill him on which accused Ram Pravesh Tiwary (not petitioner) assaulted the first informant with Garansa on his head and accused Raujatan Pandey assaulted him with Lathi; that on alarm being raised by the grandmother of the first informant, some persons arrived there and thereafter the accused persons fled away from the field and that thereafter the first informant on the same day went to the Konch Police Station and lodged information about the occurrence at 6.30 p.m.

(3.) On the information lodged by the first informant, the formal F. I. R. (Ext. 1/1) was drawn and after usual investigation, the Police submitted charge -sheet against these accused petitioners and one Ram Pravesh Tiwary. As Ram Pravesh Tiwary was absconding, his case was split up from the case of these accused petitioners and the trial proceeded against these accused petitioners,