NARESH GOPE @ NARESH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) In both the Appeals, since all the appellants were tried together and convicted by a common judgment, both the Appeals were taken -up together for hearing and are being disposed of by this common judgment.

(2.) Naresh Gope @ Naresh Yadav, appellant in CR. APP (DB) No. 185 of 2012 by judgment dated: 17.12011 was held guilty and convicted for commission of offence under Section 302 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") . However, all the appellants in CR. APP (DB) No. 18 of 2012 by the same judgment were convicted for commission of offence under Section 302 / 149 of the I.P.C. By order dated 21.12011 Naresh Gope @ Naresh Yadav in CR. APP (DB) No. 185 of 2012 was directed to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and to pay a fine of Rs. 2,000/-. He was further sentenced to undergo rigorous imprisonment for one year under Section 27 of the Arms Act, however, by the same order i.e. order dated 21.12011 all the eight appellants in CR. APP (DB) No.18 of 2012 were sentenced to undergo rigorous imprisonment for life under Section 302/ 149 of the I.P.C. and to pay a fine of Rs. 2,000/- each. In default of payment of fine they were further directed to undergo rigorous imprisonment for one month. All the appellants were tried vide Sessions Trial No. 461 of 2008 and they have been convicted and sentenced by Sri Ajit Kumar Sinha, learned 5th Additional Sessions Judge, Nalanda at Biharsharif (hereinafter referred to as the "trial judge") .

(3.) The prosecution case in short is that on 27.11.2007 at 15.45 Hour (45 P.M.) Sub Inspector of Police Sri Mundrika Singh ( P.W. 9) of Nalanda Police Station recorded fardbyan of one Raj Kumar Prasad, S/o Sri Fagu Mahto of village:- Ranibigha, District:- Nalanda. The fardbyan was recorded in Ranibigha village. In the fardbyan the informant (P.W. 8) disclosed that on the same day i.e. on 27.11.2007 at about 15.30 hours (30 P.M.) in ( Community Hall ) Circle Officer - cumBlock Development Officer, Silao had arrived in relation to election of Education Committee where members of both the sides were present. Members of village of Ranibigha were saying that election has already been peacefully held, whereas villagers of Kharpar village raised dispute that no election has taken place. Thereafter, altercation took place, however, due to intervention of Circle Officer dispute for the time being was settled and Circle Officer left the place. After Circle Office went from the husband of R.C. Jama (Mukhiya) namely Fakaru Jama instigated villagers of Kharpar to assault the villagers of Ranibigha. Thereafter: Naresh Gope [ appellant in CR. APP (DB) No. 185 of 2012], Suresh Gope (A7) , Bijendra Gope (A1) , Rama Gope (A3) , Suresh Gope (A4) , Karu Gope (A6) , Karu Gope @ Dharmendra Gope (A2) , Kapil Gope (A5) , Krishna Chaudhary (not charge-sheeted) , Rameshwar Paswan (since dead) , Arjun Gope @ Boudhu Gope (A8) [all appellants in CR. APP (DB) No. 18 of 2012] and other 20-25 unknown accused persons unlawfully assembled armed with rifle, pistol, lathi, garasa, sword etc. and they reached village: Ranibigha. Naresh Gope with a view to kill Sheonandan Mahto who was standing near the door of Bindeshwar Mahto (P.W. 7) fired from his rifle which hit Sheonandan Mahto and he fell down. Rama Gope and Kapil Gope also fired, however, villagers thereafter fled away and entered inside their houses. Sheonandan Mahto (injured ) was immediately carried for his treatment by Bindeshwar Mahto (P.W. 7) , Prakash Mahto (not examined) , Madhu Mahto (P.W.1) and Suresh Jamadar. He was carried on a cot. Videshi Mahto [father of deceased (not examined) ], Ram Balak Mahto (brother of deceased, not examined) , Pyari Devi (wife of elder brother of deceased, not examined) , Birendra Prasad (not examined) all carried the injured to Biharsharif Sadar Hospital. The informant stated that in the occurrence from the accused side all were from village- Kharpar. He claimed that all the accused persons had formed unlawful assembly and with an object to kill on the instigation of Fakaru Jawa had fired from rifle, pistol etc. They fired indiscriminately however no other could receive any such injury.