RAJENDRA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) All the aforesaid three Appeals arise out of the same occurrence pertaining to an F.I.R. vide Barh P.S. Case No. 338 of 2009 however accused persons were put on two trial and judgment of conviction has been passed in two different trials in the same occurrence. Six appellants in Cr. Appeal (D.B. ) No. 167 of 2013 were tried in Sessions Trial No. 1149 of 2010 whereas appellant of remaining aforesaid two appeals i.e. Rajendra Rai in Cr. Appeal (D.B.) No. 371 of 2013 and Santosh Rai in Cr. Appeal (D.B. ) No. 209 of 2013 were tried in Sessions Trial No. 350 of 2011 however judgment of conviction and sentence was passed by the same trial judge i.e. Sri Deo Nandan Prasad Singh, learned Ad-hoc Additional District And Sessions Judge -I, Barh, Patna. Accordingly all aforesaid three appeals were taken up together and are being disposed of by this common judgment.

(2.) Short fact of the case is that on 09.11.2009 SubInspector of Police Sri Mubarak Hussain (P.W. 8) of Barh PoliceStation recorded fardbyan of Karu Rai ( P.W. 7). The said fardbyan was recorded on 09.11.2009 at 6.30 Hours in the emergency ward of Sub Divisional Hospital, Barh. In the fardbyan the informant disclosed that on the same day i.e. 09.11.2009 at about 4.30 in the morning Rajendra Rai [sole appellant in Cr. Appeal (D.B. ) No. 371 of 2013 ] , Nanoo Rai, Jitendra Rai, Gore Rai, Gariban Rai, Rabbi Rai, Sena Rai [all six appellants in Cr. Appeal ( D.B. ) No. 167 of 2013] and Santosh Rai [ appellant in Cr. Appeal ( D.B. ) No. 209 of 2013 ] variously armed i.e. carrying lathi, danda arrived at the house of Pappu Yadav and started to demolish his house and they also started looting articles. All the accused persons were resident of village - Sikandra, P.S. -Barh, DistrictPatna. On hearing sound of noise the informant and his brother Hira Rai [deceased] and others rushed to the place of occurrence. Rajendra Rai was aggravated and from his rifle he gave shot of firing on informant's brother namely: Hira Rai. After receiving injury he fell down on the Earth. The injury was caused on the upper side of left thigh and lower portion of the abdomen and blood started oozing out. For the purposes of his treatment when the informant tried to carry the injured to hospital on a motorcycle with one Santosh Rai thereafter all the accused persons surrounded them. Anyhow after saving their life they carried the injured for his treatment to Sub Divisional Hospital, Barh and in emergency ward his treatment was going on. The injured was not in a position to speak. The reason for dispute was explained by the informant that there was land dispute in between Pappu Yadav and Rajendra Rai [ appellant in Cr. Appeal (D.B. ) No. 371 of 2013 ] and case was going on in court. The said fardbyan was read over to him and after finding it correct he put his signature on the bottom of the fardbyan. As a witness to the fardbyan one Biru Rai (P.W. 2) also put his signature. On the basis of the said fardbyan on 09.11.2009 at 7.30 A.M. a formal F.I.R. vide Barh P.S. Case No. 338 of 2009 was registered for the offence under Sections 307/34 of the Indian Penal Code, 1860 [ hereinafter referred to as the "I.P.C."] and Section 27 of the Arms Act, 1959 [ hereinafter referred to as the "Arms Act"] . Subsequently after death of the injured on 12.11.2009 Section 302 of the I.P.C. was added in the F.I.R. The F.I.R. was lodged against eight accused persons who are appellants in the aforesaid three appeals.

(3.) During investigation accusation was found true and thereafter on 30.04.2010 charge sheet was submitted against all the eight accused persons showing six accused persons as absconder whereas Santosh Rai [ sole appellant in Cr. Appeal ( D.B. ) No. 209 of 2013 ] and appellant no. 4 / Gariban Rai in Cr. Appeal ( D.B. ) No. 167 of 2013 were charge-sheeted under Sections 147/148/149/302 of the I.P.C. and Section 27 of the Arms Act. After submission of charge sheet learned Additional Chief Judicial Magistrate, Barh, Patna took cognizance of the offences. Thereafter on 09.07.2010 case of six accused persons was committed to the court of Sessions and as such it was numbered as Sessions Trial No. 1149 of 2010. Subsequently on 09.08.2010 charge was jointly framed against six appellants in Cr. Appeal (D.B. ) No. 167 of 2013 under Sections 147, 148, 302/149, 427 of the I.P.C.