BINOD PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS criminal appeal has been preferred against the judgment and order dated 21.3.1988, passed by Sri Narendra Bahadur Verma, Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No. 216/86, whereby he has been pleased to convict appellant no. 1 Binod Prasad under Section 302 of the Indian Penal Code, and Section 27 of the Arms Act, and sentenced him to undergo imprisonment for life under Section 302 of the I.P.C., and rigorous imprisonment for three years under Section 27 of the Arms Act. He has further been pleased to convict the remaining two. appellants, namely, Manoj Prasad and Chandrashekhar Prasad under Sections 302/34 and 323 of the I.P.C., and sentenced each of the appellants to undergo imprisonment for life under Section 302/34 of the I.P.C., and rigorous imprisonment for six months under Section 323 of the I.P.C., and ordered that all the sentences shall run concurrently. The prosecution case, as per the fardbeyan of Govind Kumar (P.W. 7) son of deceased Dwarika Prasad recorded by S.I. Balmiki Sharma (P.W. 8) on 26.12.1985 at 12.00 noon at village Kakhara in Kewali Khandha within Noorsarai Police Station, District Nalanda, in brief, is that on 26.12.1985 at about 6 A.M. Dwarika Prasad (deceased), father of the informant, was uprooting the Dhania crop from his field for selling it in the market. The informant's uncles Mathura Prasad and Shyamlal Prasad were assisting the informant's father. The field from which the informant's father was uprooting Dhania is situated in Kewali Khandha. In the meantime, the informant's father noticed that the field of Manoj Prasad (appellant no. 2) was being irrigated and he was taking water for the purpose of irrigation through his field. At this the informant's father asked appellant Manoj Prasad not to take water through his field as he had not allowed him to irrigate his field by taking water his the field as a result of which the potato field of the informant remained unirrigated. At this some altercation took place between the informant's father and said Manoj Prasad and Manoj Prasad left the place. Further case is that at about 8.30 A.M. the said Manoj Kumar again came alongwith appellants Binod Prasad and Chandrashekhar Kumar and with his mother. Appellant No. 1 Binod Prasad was armed with countrymade pistol and the rest appellants were armed with lathi. As soon as they came near the informant's father, Binod Prasad, who was armed with countrymade pistol, fired at his father who sustained injury at his waist on the right side. Being injured he fell down in the potato field of Ramautar Mahto. Thereafter appellants Manoj and Chandrashekhar Kumar assaulted him with lathi. The informant, his uncle Marthua Prasad and Shyamlal Mahto tried to save the informant's father whereupon both the appellants assaulted them with lathi as a result of which the informant and his both uncles received injuries on their persons. After about five to seven minutes of receiving firearm injury, the informant's father succumbed to his injuries. On hulla and on hearing the sound of firing the farmers who had their fields in the vicinity including Manoj Kumar, son of Jidhu Mahto, Ramashish Prasad son of Kishun Mahto and several others reached there and witnessed the occurrence. However, the appellants managed to escape. The above fardbeyan was given in presence of the witnesses, namely, Raghu Mahto and Anjani Kumar of village Kakhara and both the persons put their signatures as witnesses of the fardbeyan. It appears that signature of witness Anjani Kumar has been marked as Ext. t, signature of Raghu Mahto has been marked as Ext. 1/1 and signature of Govind Kumar (informant) has been marked as Ext. 1/2 but inadvertently on the fardbeyan it has wrongly been mentioned as Ext. 1/3. The entire fardbeyan has been marked as Ext. 4.

(2.) AFTER recording the said fardbeyan, S.I. Balmiki Sharma sent the same to Noorsarai Police Station for institution of the first information report and at the spot he took up the investigation and on receipt of the fardbeyan at the concerned Police Station, Noorsarai P.S. Case No. 109/85 dated 26.12.1985 under Sections 302 and 323/34 of the Indian Penal Code and Section 27 of the Arms Act was instituted and accordingly, formal F.I.R. was drawn.

(3.) THE defence case, as per the trend of cross -examination, the evidence of the defence witnesses and the fardbeyan of the so -called counter case, in brief, is that on the alleged date of occurrence, no such occurrence had taken place as disclosed by the prosecution in the fardbeyan of the informant rather on the alleged date and time of occurrence, the informant's side assaulted all the appellants with Khanti and lathi and while the appellants were running away from the place of occurrence in order to save their lives, P.W. 1 Mathura Prasad opened fire and due to firing done by him; deceased Dwarika Prasad sustained firearm injuries and died. In support of its case, the defence has also examined two D.Ws. and have brought the fardbeyan and formal F.I.R. of the counter case on record which have been marked as Exts. A and B, respectively. The defence has also brought injury reports of injured appellants Binod Prasad and Mapoj Prasad on record which have been marked as Exts. C and C/1.