SURYA DEO YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Three appellants, who are full brothers, after being convicted and sentenced, have approached this Court by filing the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). All the appellants by judgment dated 21-08-2013 were convicted for offence under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') and Section 27 of the Arms Act, 1959 (hereinafter referred to as 'Arms Act'). By order dated 22-08-2013, all the appellants under Section 302/34 of the I.P.C. were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- (five thousand) each. In default of payment of fine, they were directed to further undergo simple imprisonment for six months. Under Section 27 of the Arms Act, all the three appellants by the same order i.e. order dated 22-08-2013 were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- (three thousand) each. In case of default in payment of fine, they were directed to further undergo simple imprisonment for three months. The appellants were convicted and sentenced in Sessions Trial No. 29 of 2002/190 of 2010 (arising out of Obra P.S. Case No. 13 of 2001) by the learned Adhoc Additional Sessions Judge- IV, Aurangabad (hereinafter referred to as the 'Trial Judge').

(2.) Short fact of the case is that on 27-01-2001 at 20:00 hrs (8:00 P.M.), Sub-Inspector of Police Ajay Kumar Singh (P.W.7) officer incharge of Obra Police Station recorded fardbeyan of Sita Baitha (P.W.4), aged about 70 years, resident of village Luka, P.S. Pauthu, District- Aurangabad. Sita Baitha (P.W.4) gave his fardbeyan at Kojahri Pind in Soharasi Badhar near the dead body of his son Ashok Baitha, aged about 26 years. In the fardbeyan, he stated that on the same date at about 15.45 hrs (3:45 PM) with his son Ashok Baitha, he was thrashing paddy. Suryadev Yadav (appellant no. 1), Surayanath Yadav (appellant no. 2) and Akshay Yadav (appellant no. 3), all sons of late Sukhlal Yadav, resident of village Luka, P.S. Pauthu, DistrictAurangabad carrying gun in their right hand along with two unknown accused persons arrived in the khalihan and caught hold of his son Ashok Baitha and thereafter, carried him for about half km. to the western side of Soharasi Badhar and behind Konahri on the western side, they killed his son by giving shot of firing and thereafter, all of them fled away towards village Rajubigha. Thereafter, the informant climbed on Luka fall and raised alarm, however; none came. Thereafter, on hearing sound of firing, number of villagers of nearby villages i.e. Sidui, Dingraha, Ghurdaur and Luka assembled there and they saw and identified accused persons while fleeing away and on being asked, they would explain. The informant further stated that he heard two shots of firing on the date of occurrence at 4:00 PM. After the said occurrence, the informant from Luka fall, instead of going nearer to his deceased son, he went to Police Station, Pauthu. The informant gave the reasons for the occurrence that in relation to murder of one of the villager namely Kamlesh Yadav, name of his deceased son was given by the accused persons of the case and from the said date, the aforesaid accused persons were after his son. In the fardbeyan, it was further stated that police officer of Pauthu Police Station had brought the informant to Obra Police Station, where the informant gave his fardbeyan before the officer incharge. The said fardbeyan was read over to him and after finding it correct, he put his L.T.I. (Left Thumb Impression).

(3.) On the basis of said fardbeyan, on the same date i.e. on 27-01-2001 at 23:00 hrs (11:00 P.M.), a formal F.I.R., vide Obra P.S. Case No. 13 of 2001, was registered for the offence under Section 302/34 of the I.P.C. and Section 27 of the Arms Act against all the three appellants and two unknown accused persons. After investigation, on 05-05-2001, chargesheet was submitted against all the appellants and the learned Chief Judicial Magistrate, Aurangabad on 30-06-2001 took cognizance of the offence. The case was committed to the court of sessions on 19-01-2002 and it was numbered as Sessions Trial No. 29 of 2002. Thereafter, on 22-06-2002 charge under Section 302/34 of the I.P.C. and Section 27 of the Arms Act was jointly framed against all the three accused persons (appellants), which was denied by them and they claimed to be tried.