STATE OF BIHAR Vs. MOHAN MISKAR

JUDGEMENT

(1.) The Death Reference along with two Cr. Appeals preferred by the appellants arise out of the judgment and order of the 2nd Addl. District and Sessions Judge, Chapra in S.T.No. 312 of 1996/10 of 1997, dated 27th February, 1998. In Criminal Appeal 131/98, the appellants are Mohan Miskar and Raju Miskar, who have been sentenced to death under Section 302, read with Section 148, IPC. They have also been directed to pay a fine of Rs. 1000/- and in default, to undergo six months rigorous imprisonment. They have further been found guilty and sentenced to four years rigorous imprisonment under Section 27 of the Arms Act. Though they have also been found guilty under Section 148, IPC, but no separate sentence has been passed on this count.In Criminal Appeal 155/98, there are three appellants, namely, Munna Miskar, Baldeo Miskar and Babulal Miskar. They have been found guilty under Section 302/149, IPC and sentenced to undergo rigorous imprisonment for life and have also been directed to pay a fine of Rs. 1000/- each and in default, to undergo six months rigorous imprisonment. There is no finding recorded by the trial Court against them under Section 148, IPC, but the judgment mentions that no separate sentence was passed under Section 148, IPC.Appellant Baldeo Miskar is the father of the remaining four appellants.Apart from the two appeals before us there is also a Death Reference which has been made by the 2nd Addl. District and Sessions Judge, Chapra for confirmation of the sentence of death passed against Appellants Mohan Miskar and Raju Miskar.

(2.) The occurrence giving rise to these appeals and the death reference is said to have taken place at about 7 a.m. on 17th February, 1996. The place of occurrence is Masumganj Korar situated at a distance of about 21/2 kms. from the Police Station Bhagwan Bazar. The Ferdbeyan was lodged at about 8.30 a.m. on the same day by Lal Bahadur Rai, brother of the deceased Ram Rai, in which it was alleged that appellants Mohan Miskar and Raju Miskar armed with pistols, appellant Munna Miskar and Babulal Miskar armed with Chhura and Gupti respectively committed the murder of Ramu Rai, the deceased on the orders of Baldeo Miskar. Seven witnesses have been examined in this case, out of whom four have been examined as eye-witnesses.P.W. 1 Rajdeo Rai, P.W. 2, Dhurandhar Rai, P.W. 3 Bheem Rai and P.W. 4 Lal Bahadur Rai (informant) have been examined as the eye-witnesses. P.W. 5, Dr. Deepak Kumar is the Civil Assistant Surgeon, who performed autopsy on the dead body of the deceased Ramu Rai. P.W.6 Khalik Ahmad and P.W. 7 Deepak Kumar are the formal witnesses, who have proved the case diary and the Ferdbeyan recorded in the pen of the Investigating Officer, namely, Awadesh Prasad Singh, Sub-Inspector of Police.Unfortunately the Investigating Officer was not examined as a witness in this case. It appears from the order sheet of the trial court that efforts were made to secure the presence of the Investigating Officer for giving evidence, and at one stage Dasti summons were issued and handed over to the Public Prosecutor for service upon the Investigating Officer. It appears that despite efforts made by the trial Court, the Investigating Officer was not available for his deposition in this case. In view of the direction of this Court that the trial be concluded expeditiously, the trial Court proceeded with the trial even in absence of the Investigating Officer.

(3.) The Ferdbeyan of Lal Bahadur Rai. P.W. 4 was recorded at the place of occurrence itself by the Sub-Inspector, Awadesh Prasad Singh of Bhawgan Bazar, Police Station, on the date of occurrence, about 11/2 hours later, at 8.30 a.m. In his statement to the police, the informant, in presence of Bheem Rai, P.W. 3, Rajdeo Rai, P.W. 1 and others stated that about 7'O clock in the morning, the informant and his brother Ramu Rai were plucking Brinjals from the Brinjal field situated in Masumganj Korar. In the meantime, Mohan Miskar and Raju Miskar armed with pistols, Munna Miskar armed with knife and Baldeo Miskar armed with Lathi and Babulal Miskar armed with gupti came there raising a cry to kill. Seeing them, the informant and his brother attempted to flee but in that process Mohan Miskar and Raju Miskar fired from their pistols causing injuries to Ramu Rai, who fell down in the field of Jawahar Koiri in which wheat crop was standing. After he fell down, Munna Miskar and Babulal Miskar inflicted injuries on his person with knife and Gupti respectively, while their father, appellant Baldeo Miskar ordered them not to leave Ramu Rai alive. His brother died immediately thereafter since he had received severe injuries on his head, neck, chest, ribs, left side of the back, right arm and above navel causing the intestines to come out. Several persons witnessed the occurrence including Rajdeo Rai, P.W. 1, who had gone to attend the call of nature and Bheem Rai, P.W. 3, who was returning after selling milk. In the Ferdbeyan, it is stated that the cause of the murder was that on the earlier night i.e. on 16-2-96, a Barat party had come to the house of Ram Parwesh Choudhary at Masumganj and in that party, the deceased Ramu Rai was dancing. The appellants had abused Ramu Rai and forbade him to dance and also slapped him. This was the reason why they attacked Ramu Rai and killed him.