STATE OF BIHAR Vs. BASAWAN RAI

JUDGEMENT

(1.) All the three appeals arise out of the same judgment and order dated 18-9-1986 passed by 8th Additional SessionsJudge, Patna, in Sessions Trial No. 680 of 1985 whereby the accused appellants of Criminal Appeals No. 485 of 1986 and 508 of 1986 have been convicted under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the Code) and have been awarded life imprisonment. They have also been convicted under Section 148 of the Code but no separate sentence has been imposed for the said offence. The said accused appellants have been acquitted of the charge under Section 27 of the Arms Act for want of sanction. Feeling aggrieved by the order of acquittal of the accused under Section 27 of the Arms Act the State has filed Government Appeal No. 30 of 1986 while the Criminal Appeal No. 485 of 1986 has been filed by four accused and Criminal Appeal No. 508 of 1986 has been filed by two accused against their conviction and sentence. All the three appeals have been heard together and are being disposed of by this common judgment.

(2.) On 11-6-1985 at about 9.25 p.m. Sri Sia Saran Prasad (CW-1) gave his fardbayan at State Dispensary Bakhtiyarpur before Sheo Chandra Prasad, a Sub-Inspector of Police of Police Station Bakhtiyarpur. In that Fardbayan (Exhibit-5) Sia Saran Prasad stated that he, Raj Kishore Prasad, Ram Sagar Rai, Darogi Rai, Sitaram Rai, Devendra Rai and Raj Kishore Rai had proceeded together for participating in a "barat" and when they reached the river bed three-four miscreants came from the side of Chiraiya and asked as to who they were whereupon Raj Kishore told his name. It was further stated that as Raj Kishore Prasad was telling his name one of the miscreants fired a shot which hit him (Sia Saran Prasad) and he (Sia Saran Prasad) began to flee away towards east and he heard four-five more shots having been fired. It was stated that Sia Saran Prasad went to his village and told about the incident at the door of Ram Nandan Rai and villagers ran towards river Ganges. Sia Saran Prasad stated in the fardbayan that due to darkness he could not identify any miscreant. Sia Saran Prasad was taken to the Government Dispensary, Bakhtiyarpur for treatment and at that place fardbayan was recorded and on the basis of this fardbayan a formal first information report (Exhibit-6) was registered at Bakhtiyarpur P.S. Case No. 152 of 1985.

(3.) It appears that subsequently at about 2.00 a.m. in the intervening night of 11/12-6-1985 Ramdeo Prasad Singh (PW-12) gave a written report (Exhibit-C) to Sri Laxman Prasad (PW-13), Officer-in-charge of Bakhtiyarpur Police Station, who was investigating the case. In the said written report Ramdeo Prasad Singh gave a different version which is as follows:On 11-6-1985 in the evening Raj Kishore Prasad (deceased) along with Ramdeo Prasad Singh (PW-12), Devendra Rai (PW-1), Ramsagar Rai (PW-2), Daroga Rai (PW-10) and Sitaram Rai (PW-4) was proceeding to village Chiraiya to participate in a Barat and when they reached the river bed of Ganga river at about 7.30 p.m. all the accused persons (appellants of Criminal Appeals No. 485 of 1986 and No. 508 of 1986) intercepted them. Ramdeo Prasad Singh, who had torch with him, flashed the torch light and all the accused were identified in that torch light. Accused Biraj Rai, appellant No. 2, of Criminal Appeal No. 508 of 1986 was armed with Chhewani and the remaining accused appellants were armed with fire-arms. The accused Jadu Rai (appellant No. 1 of Criminal Appeal No. 485 of 1985) exclaimed that he would teach a lesson to Raj Kishore Prasad for bidding higher price for the land and he ordered accused Rajo Rai (appellant No. 1 of Criminal Appeal No. 508 of 1986) to shoot him whereupon accused Raho Rai shot at Raj Kishore Rai. The shot hit Raj Kishore Prasad and he fell down on the ground. Thereafter accused are also said to have opened fire with their fire-arms. the accused Jadu Rai asked the accused Biraj Rai to cut the neck of Raj Kishore Prasad after he had fallen. Accused Biraj Rai started cutting the neck of Raj Kishore Prasad by his Chhewani. On hearing alarm the villagers started coming there whereupon the accused persons fled away opening fire with their fire-arms. Sia Saran Rai, who was coming behind is said to have been injured by the shots fired by the accused.