SURESH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Aforesaid three appellants in three Appeals were tried together, convicted and sentenced by a common judgment of the trial court and as such aforesaid three Appeals were heard together and are being disposed of by this common judgment.

(2.) All the three appellants by judgment dated - 07.07.2012 were convicted for commission of offence under Sections 302/307/34 of the Indian Penal Code 1860 [ hereinafter referred to as the " I.P.C. " ] and Section 27 (1)/35 of the Arms Act, 1959 [ hereinafter referred to as the " Arms Act"] and by order dated- 17.07.2012 all the appellants under Section 302/34 of the I.P.C. were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- each. In default in payment of fine they were directed to further undergo rigorous imprisonment for three years. Under Section 27 (1) of the Arms Act all the appellants were sentenced to undergo rigorous imprisonment for three years. No separate sentence was given under Section 307/34 of the I.P.C. All the sentences were directed to run concurrently. The appellants were tried in Sessions Trial No. 41 of 2004 by Dr. Ram Lakhan Yadav, learned Additional Sessions Judge Ist, Madhepura (hereinafter referred to as the "trial judge").

(3.) Short fact of the case is that on 17.08.2001 at 7.30 A.M. Sub Inspector of Police Sri Suresh Chandra Prasad [not examined] of Bihariganj Police Station recorded fardbyan of Sushil Yadav/ P.W. 6. The said fardbyan was recorded in the clinic of Dr. B.K. Singh, Bihariganj. Informant gave his fardbyan in presence of his co- villager: Priyadarshi Nalin / P.W. 4 and his injured son namely: Rajesh Kumar in the clinic of Dr. Veer Kunwar Singh. He disclosed that on the same day in the morning at 7.00 A.M. his son - Rajesh Kumar with his younger brother - Nitish Kumar (P.W. 1) and neighbourer- Dinesh Kumar (not examined) after attending call of nature was returning from Southern side. At that very time the informant opposite to his house near a well was cleaning his face. He saw that his son Rajesh Kumar while reached near the house of Suresh Yadav [appellant in Cr. Appeal ( D.B. ) No. 958 of 2012] on the brick soling road, Suresh Yadav, Bhupendra Yadav and son of Suresh Yadav namely - Barun Kumar @ Mantu Yadav caught hold of his son- Rajesh Kumar and thereafter they started to drag him towards his house whereupon his son -Rajesh Kumar started raising hulla. His younger son- Nitish Kumar and Dinesh Kumar by raising alarm started fleeing away. The informant thereafter by raising alarm ran towards the road. Informant heard that Suresh Yadav loudly using filthy language said that this is the person due to whom he lost Panchayat Election and as such he is to be finished. Thereafter he asked Bindu Devi [appellant in Cr. Appeal (D.B. ) No. 787 of 2012] to bring loaded masket. Bindu Devi brought loaded masket and handed over the same to her husband (Suresh Yadav) and said as to what they were looking, immediately kill him whereupon Suresh Yadav with a view to kill the son of the informant Rajesh Kumar gave shot of firing which hit his son and due to the said injury he fell down. The informant and others tried to prevent them. Then son of Suresh Yadav namely Barun Kumar @ Mantu Yadav fired from his arm which he was carrying in his hand i.e. three-not on the informant and his son- Nitish however the shot did not hit them and passed from their side. After giving shot of firing Barun forcibly took wrist watch of Rajesh Kumar and fled away. On alarm being raised by informant and others number of villagers arrived there. After giving shot of firing all the accused persons fled away. In the meanwhile 3-4 unknown associates of Suresh Yadav were also seen fleeing away however the informant could not identify them. The informant carried his son Rajesh Kumar with the help of his family members, Priyadarshi Nalin/ P.W. 4, Sunil Kumar Yadav - P.W. 5, Rajo Yadav (not examined), Bishundeo Yadav- P.W. 2 firstly near to his house on road. He noticed that his son had received injury on the cheek and profused bleeding had come and his son was in unconscious state of mind. The injured thereafter was carried for his treatment to Bihariganj in the clinic of Dr. Veer Kunwar Singh where treatment was going. The informant claimed that the occurrence was seen by Nitish Kumar / P.W. 1, Dinesh Kumar (not examined ), Priyadarshi Nalin - P.W. 4, Bishundeo Yadav / P.W. 2, Sunil Kumar Yadav / P.W. 5, Rajo Yadav (not examined) and number of other persons who will explain on being asked. The reason for the occurrence that was given by the informant was Panchayat Election. The informant claimed that Suresh Yadav, Barun Kumar @ Mantu Yadav, Bhupendra Yadav, Bindu Devi and 3-4 unknown accused persons with common intention and conspiracy with a view to kill his son had given shot of firing and also abused. The said fardbyan was read over to him in presence of his co-villager: Priyadarshi Nalin and then he put his signature. As a witness to the fardbyan Priyadarshi Nalin / P.W. 4 also put his signature. On the basis of the said fardbyan on the same day i.e. 17.08.2001 at 9.00 A.M. a formal F.I.R. vide Bihariganj P.S. Case No. 37 of 2001 was registered for the offence under Sections 341, 342, 307, 504 , 379 /34 of the I.P.C. and Section 27 of the Arms Act against four named accused persons which includes the three appellants and son of appellant - Suresh Yadav namely - Barun Kumar @ Mantu Yadav and 3-4 unknown accused persons. Since the injured died, in F.I.R. Section 302 of the I.P.C. was added on 23.08.2001.