HARI ALIAS HARIHAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH these appeals arise out of the same judgment and order passed by the 7th Addl.Sessions Judge, Bhagalpur in Sessions Trial No. 52/81 / 93/89. By his order dated 30th April, 1991 the learned Addl.Sessions Judge convicted the appellants, Jallu @ Jaldhar Singh, Rajendra Singh, Saso @ Jai Krishna Singh and Futo @ Nand Kishore Singh, under section 302 I.P.C. and the appellant Sadanand Singh under section 302 read with 109 I.P.C. By an order dated 1.5.1991 the appellants were sentenced to undergo R.I. for life. The sole appellant in Cr.Appeal No.146/91 is Hari @ Harihar Singh, who has been convicted under section 302 read with section 109 I.P.C. So far as Cr.Appeal No.213/91 is concerned, the appellants are Saso @ Jay Krishna Singh @ Jai Krishna Pd. Singh, Rajendra Prasad Singh @ Rajendra Singh, Futo @ Nand Kishore Singh and Jallu @ Jaldhar Singh, who have been convicted under section 302 I.P.C. by the learned trial court.

(2.) IT may be noted in this regard that actually altogether eight persons were standing trial in this case. When the charges were framed in the case there were altogether nine accused, but one Govind Singh died during trial and the trial thus proceeded against rest eight persons. Seven of the accused, including the deceased Govind Singh, were charged under section 302 I.P.C. for having committed the murder of Harihar Yadav and they were also charged under section 148 I.P. C. for having joined an unlawful assembly with the common object of causing death of the said Harihar Yadav being armed with deadly weapons. Accused Hari @ Harihar Singh and Sadanand Singh were charged under section 148 I.P.C. for being the members of unlawful assembly and they were also further charged under section 302 read with section 149 I.P.C. for being the members of unlawful assembly as such, in the prosecution of the common object of which the murder of Harihar Yadav was committed by the members of this unlawful assembly. Seven accused persons, including Govind Singh (deceased), were also charged under section 302 read with section 149 I.P.C. for being the members of - unlawful assembly as such, in the prosecution of the common object of which the murder of Harihar Yadav was committed. Jallu @ Jaldhar Singh was charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Further, Futo @ Nand Kishore Singh and Tappo Singh were charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Prasadi Jethi, Jallu @ Jaldhar Singh and the deceased Govind Singh were also charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Accused Sadanand Singh was charged under section 324 I.P.C. for having caused injunies to Bagru with a sharp cutting instrument. Hari @ Harihar Singh was charged under section 302 read with section 109 I.P.C. for having abetted the commission of murder of Harihar Yadav by his companions. However, after recording evidence and hearing arguments of respective parties the learned Addt.Sessions Judge convicted the appellants, as stated above, but all the accused persons were acquitted of the charge under section 148 I.P.C. The accused persons were also acquitted of the charge under section 302 read with section 149 I.P.C. and undersection 307 I.P. C. as also under section 324 I.P.C It was on account of the finding recorded by the learned trial court that so far as unlawful assembly was concerned, the assembly of the accused was not actually unlawful and it was also held by the learned trial court that since the accused persons in the case had acted in exercise of their right of private defence, they could not be held liable for having committed the offences under sections 148, 307 and 324 I.P.C, but, however, the learned trial court after examining the evidence and circumstances appearing in the case and the law applicable in this regard held that four appellants of Cr.Appeal No.213/91 were guilty of having committed the murder of Harihar Yadav as they exceeded exercise of their right of private defence. Similarly, the appellant of Cr. Appeal No. 146/91 was also held liable for having abetted the commission of the offence of murder.

(3.) THE prosecution in this case examined altogether 14 witnesses in support of the charges framed against the accused persons. Out of these 14 witnesses, P.W.10 is the doctor, who had examined the injuries of the injured witnesses and P.W.12 is the doctor, who held the postmortem examination. P.W.6 happens to be a formal witness, Who was present when the gun was seized from the house of accused Jaldhar Singh. According to him, the seizure list was prepared in his presence, P.W.7 Ishar Yadav happens to be a witness on the inquest report. According to him, the inquest report was prepared in his presence on which he signed. His signature is Ext. 1/5. He also proved the signatures of other witnesses on the seizure -list, namely, Rewati Yadav and Kishori Yadav, marked Exts. 1/6 and 1/7. P.W.8 Kishori Prasad Yadav happened to be Mukhiya of the Gram Panchayat under which the P.O. village fell. According to him, Pipra Bandh existed in village Tola Narainpur and the water of this Bandh used to be taken by all concerned living in three different tolas of the village. This witness further stated that in the year 1979, on 22.10.1979 he received information that there was some altercation between some persons regarding taking water of the Bandh for irrigation and then he went to Rajput Tola of the village and came to the Pokhar and as he was apprehensive of some trouble, he went to Jagdishpur Police Station and informed the Block Development Officer in this regard and he also informed the local police. Thereafter he returned to the P.O. alongwith the Police Officer and then he learnt that the murder of Harihar Yadav was committed by the accused persons. He also further stated that the Fardbeyan of the informant was also recorded in his presence and he also signed the same. His signature is Ext. 1/8. He also further stated that some seizures of blood stained earth were made and a seizure list was prepared on which his signature has been marked as Ext. 1/7. He also stated that when he came towards Rajput Tola, he saw the dead body of Harihar. Yadav lying on the road and accordingly the Police Officer prepared he inquest report on which he also signed which is marked Ext. 1/7. P.W.11 is also a formal witness. He is a Police Officer, who has stated that on 22.10.1979, while he was posted at Jagdishpur P.S. as A.S.I., Pradeep Narain Singh was the Officer Incharge, who was now dead. He stated that on 22.10.1979 at 2.30 P.M. he had searched the house of Jallu @ Jaldhar Singh (accused) and he recovered a D.B.B.L.gun from his house and he prepared a seizure list (Ext.3) on which the witnesses also signed. P.W.13 is also a formal witness. He had identified the dead body of Harihar Yadav at the time of Postmortem Examination. P.W.14 Md. Jiyaullah as a formal witness has formally proved the formal F.I.R. (Ext.