RAJENDRA MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present appeal was preferred by the appellant alongwith his another brother namely - Jitendra Mishra under Section 374(2) of the Code Of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") against judgment of conviction and sentence passed in Sessions Trial No. 730 of 2002. The appeal of appellant no. 2 - Jitendra Mishra stood dismissed since after being released on bail and his bail bond being canceled by the Honb'le Supreme Court he did not surrender. For securing his appearance all processes were exhausted still he neither appeared nor anyone appeared on his behalf. Appellant - Rajendra Mishra along with other three accused persons by judgment dated 05.12.2003 was convicted under Section 148, 302/34, 307/34 of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C.") and Section 27 of the Arms Act, 1959 (hereinafter referred to as the "Arms Act") in Sessions Trial No. 730 of 2002 arising out of Kotwali P.S. Case No. 176 of 2002 and by order dated- 08.12.2003 all the accused persons who were put on trial including the appellant were sentenced to undergo rigorous imprisonment for life under Section 302/34 of the I.PC. Under Section 307/34 of the I.P.C they were sentenced to undergo rigorous imprisonment for ten years. Under Section 148 of the I.P.C. rigorous imprisonment for one year was imposed and under Section 27 of the Arms Act rigorous imprisonment for three years was imposed however all the sentences were directed to run concurrently. In addition to above sentence, Rs. 10,000/- each as fine was imposed which amount was to be distributed amongst the wives of both the deceased. The judgment of conviction and sentence was passed by Sri Ramesh Kumar Rateria, learned 3rd Additional Sessions Judge , Munger ( hereinafter referred to as the "trial judge") in Sessions Trial No. 730 of 2002 ( arising out of Kotwali P.S. Case No. 176 of 2002).

(2.) Short fact of the case is that on 03.05.2002 a written report was submitted to the Officer-in-charge of Kotwali, Munger by Panchanan Mishra (P.W. 4). In the written report of the informant it was disclosed that on 03.05.2002 in his house there was Satyanarayan Katha. Informant's two sons namely- Sunil Kumar Mishra and Chandra Shekhar Mishra ( both deceased) were proceeding to distribute 'prasad' in the village and informant carrying torch in his hand was following his two sons. As soon as his both sons at about 9.30 P.M. reached near the house of Digambar Mishra, Digambar Mishra ordered his three sons that it was a good opportunity and kill both of them. In the meanwhile Nagendra Mishra, Jitendra Mishra, Rajendra Mishra-appellant carrying guns in their hands came out and intercepted both the sons of the informant. Digambar Mishra told his brother -Mahendra Mishra for finishing both sons of Panchanan Mishra (informant). Thereafter Digambar Mishra exhorted as to what they were watching for. Thereafter, Nagendra Mishra through his licensee gun fired on Sunil Kumar Mishra, son of the informant. After receiving gun shot injuriy he fell down and started squirming. Then Mahendra Mishra with intent to kill another son of the informant namely Chandra Shekhar Mishra fired on him. Chandra Shekhar Mishra after receiving fire arm injury fell down. Thereafter, Gopal Mishra, son of Mahendra Mishra with intent to kill the informant gave three shots of firing from his country made pistol, however anyhow the informant saved him and raising arm he ran towards his house. In the meanwhile his other sons namely-Anil Kumar Mishra (P.W. 2) and Manoj Kumar Mishra (P.W. 1) also arrived there and started raising alarm. On the said alarm number of persons assembled there and then accused persons by way of firing fled away in two different areas. The informant with the help of villagers carried both injured sons on thela to Sadar hospital, Munger where doctor noticing the seriousness of the injuries admitted them and immediately declared both sons of informant as dead. The reason for the occurrence was explained by the informant that he earlier had sold his khatiyani land to Ramchandra Yadav and this led to raising grudge in the mind of the accused persons since they were pressurizing to transfer the said land on lesser price and they wanted rangdari. In this context one criminal case was also going against them and this was the reason for the present occurrence. The informant besides requesting for taking legal action against the accused persons also requested for providing proper security to his family. In last it was indicated by the informant in his written report that his son -Anil Mishra had also received pellet injury. The said written report was signed by the informant and as a witness Anil Kumar Mishra (P.W. 2) also put his signature. On the basis of the said written report on the same day i.e. on 03.05.2002 at 11.45 P.M. a formal F.I.R. vide Kotwali P.S. Case No. 176 of 2002 was registered under Section 302 /34 of the I.P.C. and Section 27 of the Arms Act against:

(3.) During the trial to prove its case on behalf of the prosecution altogether eight witnesses were examined. Out of eight witnesses, P.W. 1 (Manoj Kumar Mishra) brother of both the deceased and son of the informant, P.W. 2 (Anil Kumar Mishra) another brother of both the deceased and son of the informant, P.W. 4 (Panchanan Mishra ) informant and father of the deceased and P.W. 5 (Pramod Kumar Mishra) nephew of informant and cousin brother of the deceased were examined as eye witnesses to the occurrence. P.W. 6 (Dr. Arun Kumar Sinha) had conducted post- mortem examination on the dead body of two deceased, P.W. 7 (Mumtaz Ali) was the 1st Investigating Officer against whom the informant during investigation had filed complaint and in evidence it has come that on his complaint investigation of the case was entrusted to P.W. 8 (Binod Prasad Yadav), 2nd Investigating Officer of the case. P.W. 3 (Bhawesh Prasad Singh) who was only independent hearsay witness and whose statement under Section 164 of the Cr.P.C. was recorded during investigation since he did not support the case was declared hostile.