MAGAN SADA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present Appeal has been preferred by three appellants against the judgment of conviction and sentence dated 15.06.2013. All the appellants in Sessions Trial No. 114 of 2012 were held guilty for offence under Section 302/34 of the Indian Penal Code, 1860 [hereinafter referred to as the "I.P.C."]. Appellant no. 1 / Magan Sada was further held guilty for offence under Section 27 of the Arms Act, 1959 [ hereinafter referred to as the "Arms Act "]. Under Section 302/34 of the I.P.C. all the three appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each. In default of payment of fine they were directed to further undergo rigorous imprisonment for three years. Under Section 27 of the Arms Act appellant no. 1 - Magan Sada was further sentenced to undergo rigorous imprisonment for five years and imposed a fine of Rs. 5,000/-. In default of payment of fine he was directed to undergo rigorous imprisonment for one year. All the sentences were directed to run concurrently. They were convicted and sentenced by Sri Krishna Kant Tripathi, learned Sessions Judge, Khagaria (Bihar) [hereinafter referred to as "trial judge"] in Sessions Trial No. 114 of 2012.

(2.) Short fact of the case is that on 16.08.2011 at 01.30 Hours Assistant Sub Inspector of Police Sri Manoranjan Singh [ not examined] of Alouli Police Station recorded fardbyan of Balram Sada / P.W. 4. The said fardbyan was recorded on Sumbha Chauk (within Alouli Police Station). In the fardbyan informant (P.W. 4) stated that on preceding evening i.e. on 15.08.2011 at about 7.00 P.M. [evening] he along with his elder brother namely : Gangaram Sada (deceased) while being pillion rider on a motorcycle was going to his village Manrupa from Sumbha Chauk in evening at 7.15 P.M. while he proceeded ahead of Kehuna and to some extent near Bhamra, accused: 1- Magan Sada ( A-1), 2- Vikram Sada (not sent up for trial), 3 - Kari Sada (died before trial), 4- Moti Sada (appellant no. 2), 5- Bhola Sada (appellant no. 3) and 6- Vijay Sah (not sent up for trial) variously armed with lethal weapons and pistols surrounded informant and his brother and they were exhorting to kill them. The informant from back jumped and tried to flee away. In the meanwhile Magan Sada ( appellant no. 1) and Kari Sada from pistols which they were carrying in their hands started indiscriminate firing on his brother whereby his brother fell down. After firing all the accused persons fled away. On alarm being raised by informant number of other persons assembled. Thereafter he carrying his injured brother on motorcycle proceeded for treatment however near village - Sumbha Chauk while they reached his brother succumbed to his injuries. The reason for the occurrence was given by the informant that appellant no. 1 Magan Sada was unauthorizedly and illegally collecting money from poor villagers on the pretext of providing Indira Aawas which was being opposed by his brother. About 4-5 days prior to the occurrence Magan Sada / appellant no. 1 and Kari Sada had threatened his brother to kill him. The said fardbyan was read over to him and after finding it correct he put his signature. On the basis of the said fardbyan on 16.08.2011 at 10.00 a formal F.I.R. vide Alauli P.S. Case No. 120 of 2011 was registered for offence under Sections 302/ 34 of the I.P.C. and Section 27 of the Arms Act against the following:-

(3.) During investigation accusation against appellant no. 1 Magan Sada was found true and as such on 25.11.2011 charge sheet was submitted against him showing Kari Sada as dead. However, remaining two appellants namely: Moti Sada ( appellant no. 2), Bhola Sada ( appellant no. 3 ), Vijay Sah and Vikram Sada were not sent up for trial. Though charge sheet was submitted only against appellant no. 1, the learned Chief Judicial Magistrate, Khagaria differing with the Police report proceeded against all the accused persons who were even not sent up for trial. Meaning thereby that the learned Magistrate proceeded against all the three appellants. Thereafter the case was committed on 20.03.2012 to the court of Sessions and as such it was numbered as Sessions Trial No. 114 of 2012. After commitment on 07.05.2012 charge under Section 302/34 of the I.P.C. was framed against all the three appellants whereas separate charge under Section 302 of the I.P.C. and Section 27 of the Arms Act was framed against appellant no. 1 - Magan Sada.