BHIKHARI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Appellants in both the appeals were tried together and convicted & sentenced on 01-04-2016 by learned 1st Additional District & Sessions Judge, Jamui (hereinafter referred to as 'Trial Judge) in Sessions Trial No. 58 of 2010 and as such, both appeals were taken-up together and are being disposed of by this common judgment.

(2.) Both the appellants were put on trial in Sessions Trial No. 58 of 2010 (arising out of Jhajha P.S. Case No. 34 of 2009) on an accusation of killing one Kesho Yadav, brother of the informant, and finally, both the appellants were tried together with one Geeta Devi, wife of the appellant Bhikhari Yadav (in Cr.Appeal DB No. 357/16). However, after conclusion of the trial, the learned Trial Judge acquitted Geeta Devi, wife of appellant Bhikhari Yadav and both the appellants i.e. Bhikhari Yadav (in Cr.Appeal DB No. 357/16) and Nandlal Yadav (in Cr.Appeal DB No. 594/16) were held guilty and convicted for commission of offence under Sections 341/149 & 302/149 of the Indian Penal Code (for short "I.P.C."). They were sentenced to undergo rigorous imprisonment for life under Section 302/149 of the I.P.C. alongwith fine of Rs. 10,000/- each and in default of payment of fine, they were further directed to undergo imprisonment for six months. Both appellants were also convicted under Section 341/149 of the I.P.C. and were sentenced to undergo imprisonment for one month. All the sentences were directed to run concurrently.

(3.) Short fact of the case is that on 07-03-2009 at 9.00 hrs. (9:00 AM), Sub-Inspector of Police Mukeshwar Prasad (P.W.12) recorded fardbeyan of Longi Yadav (P.W.8). The fardbeyan was recorded in the village Dhamana. In the fardbeyan, informant disclosed that in the preceding night i.e. 06-03-2009 in Kali Mandir of the village, nine days Hkkxor dFkk (Bhagwat Katha) was going on and on 06-03-2009, it was date of conclusion of the katha. The informant with his brother Kesho Yadav (deceased), Tipani Yadav, wife of his elder brother Kesho Yadav (P.W.7), his wife Markha Devi (P.W.6), niece Hema Kumari (P.W.1), nephew Sanjay Yadav (P.W.2), Pawan Kumar (P.W.3), cousin nephew Balram Yadav (not examined), Ramswarup Yadav (not examined), Kaleshwar Yadav (not examined), daughter-in-law of his brother Karuna Devi (P.W.10) who was wife of Sanjay Yadav (P.W.2) were listening Bhagwat Katha in Kali Mandir. In the said katha, there were altogether 300 persons. At about 10:30 in the night, after conclusion of Bhagwat Katha, his brother and others came out from Kali Mandir and started to move to their house. The informant further stated that his elder brother Kesho Yadav (deceased) was moving ahead and the informant, his nephew, niece, bhabhi and others were following him from behind. While his brother reached near the field of his brother Teko Yadav (not examined), Kesho Yadav (deceased) was surrounded by his cousin nephew Dinesh Yadav, Chatanki Yadav and Pappu Yadav, all sons of appellant Bhikhari Yadav (appellant in Cr.Appeal DB No. 357/16), Nandlal Yadav (appellant in Cr.Appeal DB No. 594/16), Dampha Yadav and two other unknown persons. Thereafter, Dinesh Yadav gave one shot of fire from his pistol and Bhikhari Yadav (appellant in Cr.Appeal DB No. 357/16) and Chatanki Yadav carrying sword and dqYgkM+h (axe) respectively in their hand injured his brother Kesho Yadav (deceased). Nandlal Yadav (appellant in Cr.Appeal DB No. 594/16) and Dampha Yadav also fired from their pistol on his brother Kesho Yadav (deceased). The injured fell down. The informant disclosed that it was moonlight night. After alarm was raised the accused persons fled to their own houses. Thereafter, the informant and his other family members raising alarm returned back to Kali Mandap, where loudspeaker was on, which was stopped. The people were given information regarding the occurrence. Thereafter, many person ran to the place of occurrence and saw the injured Kesho Yadav, who had already died. The informant further stated in his fardbeyan that his mother Phulia Devi (P.W.13) had said that Geeta Devi, wife of appellant Bhikhari Yadav, taking out a pistol from her house had handed over to her husband and son Dinesh Yadav and told that Kesho Yadav (deceased) had gone to listen katha in Kali Mandir and he must be done to death while returning. The informant claimed that the occurrence was seen by his niece, wife, wife of his elder brother and nephew and they identified the accused in the moonlight. The reason for the occurrence was explained regarding land dispute and partition with informant and Bhikhari Yadav, which was going on since long. The fardbeyan was signed by the informant and as a witness, Shivendra Yadav, brother of the deceased (P.W.11) and Pramod Yadav (not examined) put their signature as witness to the fardbeyan.