YOGENDRA PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) Eleven [11] appellants in Cr. Appeal (D.B.) No. 910 of 2017 and the sole appellant in Cr. Appeal (D.B.) No. 771 of 2017 were tried together and convicted and sentenced by the common judgment of the trial court, and as such, both the appeals were taken up together under the heading "For Hearing" and are being disposed by this common judgment.

(2.) This is second round of appeal filed by the appellants in Sessions Trial No. 281 of 1982. The present appeal under Section 374 (2) of the Code Of Criminal Procedure, 1973 [hereinafter referred to as the "Cr.P.C."] has been field against the judgment of conviction dated 8th June , 2017 passed by Shri Om Prakash Rai, learned Sessions Judge, Siwan [hereinafter referred to as "trial judge"] in Sessions Trial No. 281 of 1982 [ arising out of Andar P.S. Case No. 64 of 1982]. By judgment date 8th June, 2017 all the twelve appellants in both the appeals were convicted for the offence under Section 302/149 of the Indian Penal Code, 1860 [ hereinafter referred to as "I.P.C."]. Tarkeshwar Pathak ( A3), Harendra Pathak (A5) and Pauhari Pathak [A9] in Cr. Appeal (D.B.) No. 910 of 2017 were further convicted under Section 323 of the I.P.C. All the appellants under Section 302/ 149 of the I.P.C. by order dated 13.06.2017 were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each. In case of default of payment of fine, they have further been sentenced to undergo simple imprisonment for two months. By the same judgment of conviction, Vyas Pathak ( A 6) in Cr. Appeal (D.B.) No. 910 of 2017 has been convicted for offence under Section 324 of the I.P.C. and by order dated 13.06.2017 has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 2000/- each. In case of default in payment of fine he has further been directed to undergo simple imprisonment for one month. Appellant / Tarkeshwar Pathak @ Timal Pathak in Cr. Appeal (D.B.) No. 910 of 2017 by the same judgment of conviction and sentence has been directed to undergo simple imprisonment for one year under Section 323 of the I.P.C. and imposed fine of Rs. 1000/- . In case of default in payment of fine he has been directed to further undergo simple imprisonment for one month. Yogendra Pathak [ A1], Bachcha Pathak [A4], Vyas Pathak [A6], Radhey Shyam Pathak [A11] in Cr. Apeal (D.B.) No. 910 of 2017 and Ram Vilas Pathak @ Sudama Pathak @ Ram Velas Pathak [sole appellant in Cr. Appeal (D.B.) No. 771 of 2017] by the same judgment of conviction and sentence under Section 148 of the I.P.C. were directed to undergo rigorous imprisonment for three years. Ram Suresh Pathak [A2], Tarkeshwar Pathak @ Timal Pathak [A3], Harendra Pathak [A5], Prabhunath Pathak [A7], Umanath Pathak [A8], Pauhari Pathak [A9] and Amarnath Pathak [A10] were convicted under section 147 of the I.P.C. and sentenced to undergo simple imprisonment for one year. Appellant no. 1 in Cr. Appeal (D.B.) No. 910 of 2017 by the same judgment i.e. judgment of conviction and sentence dated 8th June 2017 and 13th June, 2017 respectively was under Section 27 (1) of the Arms Act, 1959 [hereinafter referred to as the "Arms Act"] was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-. In case of default in payment of fine he has further been directed to undergo one month simple imprisonment. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed in Sessions Trial No. 281 of 1982 { arising out of Andar P.S. Case No. 64 of 1982} by Shri Om Prakash Rai, learned Sessions Judge, Siwan.

(3.) The case has got a chequered history. In the case occurrence had taken place long back on 29.05.1982 in which three persons from prosecution side were done to death and number of others received injuries. Initially 19 accused persons were put on trial and by judgment dated- 31.03.1992 learned Special Judge -cum -Additional Sessions Judge, Siwan acquitted all the 19 convicts and discharged them from charge under Section 302 read with 149 of the I.P.C. and also under Section 302/34 of the I.P.C. and instead the learned Special Judge -cum- Additional Sessions Judge, Siwan by judgment dated 31.03.1992 in Sessions Trial No. 281 of 1982 convicted some of the accused persons under Section 304 read with Section 114 of the I.P.C. and other Sections of the I.P.C. and also acquitted /discharged the accused persons from offence under Section 27 of the Arms Act. After the judgment of conviction and sentence dated 31st March, 1992 and 28.04.1992 respectively passed by Shri Jhauri Prasad Paul, learned Special Judge - cum- Additional Sessions Judge, Siwan, the said judgment of conviction and sentence was assailed by all the 19 convicts before this court by filing five different appeals i.e. Cr. Appeal (D.B.) No. 36 of 1992, Cr. Appeal (D.B.) No. 37 of 1992 , Cr. Appeal (D.B.) No. 38 of 1992, Cr. Appeal (D.B.) No. 44 of 1992 and Cr. Appeal (D.B.) No. 98 of 1992. The said appeals were finally taken up by a Division Bench of this court and on considering the fact that conviction order was under Section 304 of the I.P.C. and there were some discrepancies, by judgment dated 23.07.2015 the co-ordinate bench allowed all the appeals and set aside the judgment of conviction and order of sentence and remitted back the matter with a direction for re- trial from the stage of hearing arguments of both the sides. It is apt to incorporate the relevant concluding paragraphs of the judgment of Co- ordinate Bench of this Court passed in earlier appeals, which are as follows:-