UPENDRA SINGH ALIAS DHURIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appal is directed against the judgment and order dated 13.12.1988 passed by Shri R.D.Roy, 7th Addl. Sessions Judge, Patna in S.T.No.760/86 by which all the four appellants were convicted under sections 307/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 10 years each. Appellant Upendra Singh was further convicted under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years. He was also convicted under section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for 7 years. Appellant, Ajay alias Gayadin, was further convicted under section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. The sentences passed against appellants, Upendra Singh and Ajay alias Gayadin, were ordered to run concurrently.

(2.) THE prosecution case, in short, is that at about 5 A.M. on 14.5.1982 the informant, Ram Narayan Din (P.W.1), who happened to be a teacher in Kalyanpur Middle School was going to the school. When he reached near Balahia Coal Bagicha, appellants came to him and started abusing him. Appellant, Ajay, wielded his lathi on the head of P.W.1. Appellant, Upendra Singh, fired at him from his pistol causing injuries on the chest of P.W.1 and also on his right hand. On Hullah, Uma Chandra Din (P.W.2) the son of P.W.1 came there. Several persons including the Chaukidar, Chandrika Paswan (P.W.3) also assembled. The S.I. of Police, Ram Chandra Sharma (P.W.6) recorded the fardbeyan (Ext.1) of P.W.1 on the basis of which formal F.I.R. (Ext.2) was drawn up and Punpoon P.S. Case No. 61/82 under sections 341/307/323 of the Indian Penal Code was instituted against the appellants. After completing the investigations the police submitted charge sheet.

(3.) THE appellants have further contended that in the fardbeyan a motive was alleged for assault on P.W.1 according to which prior to the alleged occurrence an altercation between the parties had taken place over grazing of cattle in the field of the appellants. However, during trial this motive as alleged by the prosecution appears to have been changed and it was contended that the alleged occurrence had taken place since P.W.1 had protested against the abuses hurled towards his daughter a few days ago by the appellants. This change in the motive makes the prosecution case doubtful.