BABULAL MUSAHAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Criminal Appeal No. 679 of 1983 and Criminal Appeal No. 705 of 1983 have been heard together with the consent of the parties since both the appeals arise out of a common judgment. Kusmi Devi is the sole appellant in Criminal Appeal No. 705 of 1983 whereas Babulal Musahar, Ram Deo Musahar, Ramjee Musahar and Aatu Musahar are the appellants in Criminal Appeal No. 679 of 1983. The sole appellant of Criminal Appeal No. 705 of 1983, namely, Kusmi Devi, has been convicted under Section 412 of the Indian Penal Code (hereinafter to be referred to as the Code) and has been sentenced to undergo rigorous imprisonment for seven years. So far as the other four appellants of Criminal Appeal No. 679 of 1983 and concerned, they have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years each.

(2.) At the very out -set it may be pointed out that two session cases, namely Sessions Trial No. 252/51 of 1981 -82 and Sessions Trial No. 368/86 of 1981 -82 were tried analogously by the 7th Additional Sessions judge, Sasaram, which have been disposed of by judgment and orders dated 15th of November, 1983 and this judgment is under challange in both the appeals. In Sessions Trial No. 368/86 of 1981 -82 Kusmi Devi, the sole appellant of Criminal Appeal No. 705 1983 was facing trial where as in sessions trial No. 252/51 of 1981 -82 these were eight accused persons on trial including four appellants of Criminal Appeal No. 679 of 1983

(3.) Prosecution case is that on 12.7.1980 at 8.30 a.m. First Information Report (Ext. 3) was drawn up at Bhabhua police station on the statement of Niranjan Pandey (P.W. 8) and a case under Section 395 of the Code was instituted against Angad Singh, Tribhuvan Chamar, Keshaw Dasadh and Aliyar Chamar of village Kurasan, Tola Sansaripur, P.S. Bhabhua, District Rohtas. The allegation as contained in the first information report is that in. the night between 11th and 12th of July, 1980 when the informant (PW 8) was sleeping on the roof of the room, a torch was also by his side. The father -in -law of his younger brother Ghanshyam Pandey and Ram Janam Pandey were sleeping in a marai. He was aroused alter hearing hall a and heard sound of gun firing. He saw that five to six persons were standing with guns. He flashed his torch on them and identified them as mentioned in the first information report. Thereafter he saw towards his angan and found that 18 to 20 persons had entered into the room and ware taking away the articles from his house. Two to three persons were surrounding his father Ram Murat Pandey (PW 5) while his father was standing in the angan. On the halla raised by Jhulan Tiwary (PW 7) other villagers raised alarm whereupon the dacoits went toward north of the village with the articles. The informant (PW 8) found that his father Ram Murat Pandey (PW 5) and his brother Ghanshyam Pandey (PW 6) had been injured K.M. Lal (PW 10) the Investigating Officer who was then posted as Junior -Sub -Inspector of police at Bhabhua Police Station, who had drawn up first information report, took up investigation, went to the place of occurrence and visited the same. He also prepared injury report with reaped, to the injured persons and sent them to Bhabhua Sub -divisional Hospital for examination. Place of occurrence was visited in presence of Niranjan Pandey (PW 8). It was situated in village Korasan tola Sansaripur. It was the house of the informant which was double storeyed facing north . He found rooms in the angan. He also found a marai made of straw in front of the house. He found the articles scattered in all the rooms. The informant handed over a list of the articles taken away by the docoits at the P.O. On the same day PW 10, the Investigating Officer went to village Dumraitha at 8.30 p.m. in the night and stayed in that village. On the next day, i.e. on 13.7.1980 at 4 a.m. the Investigating Officer (PW 10) saw appellant Kusmi Devi trying to run away after seeing the police. He, therefore, searched the person of appellant Kusmi Devi in presence of the witnesses, namely Charitar Musahar and Bitan Musahar and recovered the following articles from her possession: 1. Cotton Sari printed of green colour, (Material Ext. III). 2. One Sari of rose colour printed. (Material Ext. III/1). 3. One piece of cloth meant for petticoat of orange colour. (Material Ext. IV).