STATE OF BIHAR Vs. DHARAMJAY PRASAD

JUDGEMENT

(1.) DEATH Reference No. 5 of 2004 (State of Bihar vs. Dharamjay Prasad) and three criminal appeals bearing Criminal Appeal No. 284 (D.B.) (Dharamjay Prasad alias Dharamjay Mahto) as well as Criminal No. 286 of 2004 (D.B.) (Karu Mahto vs. The State of Bihar) and Criminal Appeal No. 335 of 2004 (D.B.)(Binda Mahto vs. The State of Bihar) arise out of one and the same judgment dated 2nd day of March, 2004 passed in Sessions Trial No. 686 of 1995 by 4th Additional District & Sessions Judge, Barn whereby and whereunder all the three appellants alongwith three other accused, who are absconders, were convicted for the offence under Section 302/34 of the Indian Penal Code. Besides that, appellants Karu Mahto and Binda Mahto were also convicted for the offence under Section 27 of the Arms Act. For the offence under Section 302/34 of the I.P.C, appellant Dharamjay Prasad Mukhiya was sentenced to death and ordered to be hanged by neck till his death. The other two appellants, namely, Karu Mahto and Binda Mahto, were sentenced to imprisonment for life under Section 302/34 of the Indian Penal Code and further sentenced for seven years rigorous imprisonment for the offence under Section 27 of the Arms Act. The learned Additional Sessions Judge observed with direction that both the sentences shall run concurrently. For confirmation of death sentence awarded to appellant Dharamjay Prasad Mukhiya, the learned Additional Sessions Judge made reference to this Court whereas three appellants filed separate three criminal appeals and thus, the abovementioned death reference alongwith three criminal appeals are before us. The prosecution case, as per Exhibit 5, the fardbeyan of informant Harif Nonia (P.W. 5) son of Keshav Nonia of Village -Shaidpur, P.S. -Barh, District -Patna recorded by S.I., Peyush Kant of Barn P.S. on 12.7.94 at 22 hours at Village -Saidpur, in brief, is that on the same day at about 4 P.M. while he alongwith his brother Ram Swarath Chauhan, his nephew Pramod Chauhan, Manish Nonia, his uncle Shiv Balak Chauhan along his father Keshav Nonia were sitting together at the outer portion of his house (Dalan), they saw co -villagers Bhonu Mahto armed with rifle and Karu Mahto armed with pistol; Bablu Mahto, Binda Mahto of Village Sarkatti armed with rifle, Surjan Mahto, Lalmuni Chauhan alias Chunnu Chauhan of Village -Chakjalal, P.S. -Bhadaur armed with gun alongwith appellant Dharamjay Prasad Mukhiya coming to his Dalan. As soon as they reached at his Dalan, Dharamjay Prasad Mukhiya shouted and ordered Ram Swarath and Pramod (both deceased) to remain sitting otherwise they would be shot at. Being afraid, the informant alongwith Ram Swarath and Pramod and others tried to flee away whereupon appellant Dharamjay Prasad Mukhiya gave order to his associates to shoot both the deceased. On getting order from the appellant Dharamjay Prasad, all other accused persons entered into Dalan of the informant and accused Bablu Mahto opened fire from his rifle upon Pramod which caused injury on his chest. Thereafter accused Bhonu Mahto opened fire from his rifle causing injury to Pramod on his back just above his waist. After that, accused Surjan Mahto (absconding accused who did not face trial) opened fire from his gun at Ram Swarath which hit on his head who fell down and immediately thereafter accused Lalmuni Chauhan alias Chunnu Chauhan opened fire from his gun which punctured into the abdomen of Ram Swarath and appellant Binda Mahto opened fire from his rifle causing injury to Ram Swarath on his back. On receiving firearm injuries, Pramod Chauhan and Ram Swarath both fell down and died on the spot. It is further stated that appellant Karu Mahto also opened fire from his pistol aiming at the informant but the informant escaped unhurt. It is stated that after the occurrence all the accused persons raising slogans ran towards Village Sarkatti. The motive behind the murder was that deceased Ram Swarath and his son Pramod used to supply labourers to work in the brick -kiln at Patna and appellant Dharamjay Prasad Mukhiya was demanding Rs. 10/ - per labourer as his commission to which deceased Ram Swarath did not agree and due to that, all the accused persons under the leadership of Dharamjay Prasad Mukhiya committed murder of Ram Swarath and his son Pramod Chauhan. After the occurrence the informant Harif Nonia asked Shiv Balak Nonia (C.W. 2) to inform the local Chawkidar, namely, Baleshwar Paswan (C.W. 3) for giving information of the occurrence to the concerned Police Station whereupon Chawkidar Baleswhar Paswan went to Barh Police Station alongwith the informant and thereafter Sub -Inspector Peyush Kant (C.W. 4) rushed to the place of occurrence and reached at the place of occurrence at about 10.00 P.M. on the same day where he recorded the fardbeyan of informant Harif Nonia (P.W. 5). After recording the fardbeyan he sent the same to Barh P.S. where on receipt of the same, Inspector of Police -cum -Officer Incharge Bigul Gari registered a case bearing Barh P.S. Case No. 261 dated 13.7.1994 for the offence under Sections 147, 148, 149, 302 of the Indian Penal Code and on that basis, he drew up a formal F.I.R. (Ext. 1). After registering the case at 4.00 P.M., the said Officer Incharge Bigul Gari (C.W. 1) rushed to the place of occurrence at about 6 P.M. on 13.7.1994 to Village -Shaidpur and on reaching at the place of occurrence, he got the inquest reports prepared vide Exts. 3 and 3/1 and sent the dead bodies of the deceased for post mortem. The post mortem was conducted by Dr. Nagina Paswan of Sadar Hospital, Barn as per Exts. 2 and 2/1. During investigation, C.W. 1 Bigul Gari seized the blood stained earth and other materials from the place of occurrence and prepared seizure list, recorded the statements of the witnesses, inspected the place of occurrence, obtained post mortem reports and thereafter submitted separate charge -sheet in all three appeals against the appellants and others accused persons showing Surjan Mahto as absconder.

(2.) ON submission of the charge -sheet, the learned Additional Chief Judicial Magistrate, Barh took cognizance of the offence against accused persons under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act. Thereafter on 13.8.1995 he committed the case to the Court of Session. Thereafter the appellants alongwith others were tried and convicted and sentenced, as stated above. Appellant Dharamjay Prasad Mukhiya was sentenced to death for the offence under Section 302/34 of the Indian Penal Code by the learned Additional Sessions who made reference for confirmation of death sentence.

(3.) IN order to prove the case, the prosecution has examined seven witnesses in this case, namely, Ram Sagar Prasad (P.W. 1), Nagina Paswan (P.W. 2), Chandrika Prasad (P.W. 3), Dulari Devi @ Sundari Devi (P.W. 4), Harif Nonia @ Chauhan (P.W. 5), Chhattu Prasad (P.W. 6) and Rajendra Prasad Yadav (P.W. 7). Out of the aforesaid witnesses, P.Ws. 1 and 7 are the formal witnesses. They have proved the formal F.I.R, and fardbeyan of the informant besides the entire case diary which are Exts. 1, 5 and 6, respectively. Out of the remaining witnesses, P.W. 2 is the doctor, who had conducted post mortem examination on the dead body of both the deceased. P.W. 4 Dulari Devi @ Sundari Devi, who is said to be the mother of the informant and deceased Ram Swarath and grandmother of deceased Pramod Chauhan, has been tendered for cross -examination. P.W. 6 Chhattu Prasad is a witness of the inquest reports which are Exts, 3 and 3/1. P.W. 3 is an independent witness whereas P.W. 5 is the informant of this case.