MAHADEO SAHNI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals are being disposed of by this common judgment because they arise out of same judgment and order dated 12th January, 1987 passed by lst Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 181 of 1984/63 of 1984 convicting and sentencing all the appellants to undergo life imprisonment under tion 302 read with section 149 . Appellant Gagandeo Sahni, Sham Nandan Sahni and Naga Sahni have further been convicted and sentenced to undergo R.I. for three years under 148 IPC and the remaining appellants have further been convicted and sentenced to undergo R.I. for two years under tion 147 IPC. The sentences passed against them have been ordered to run concurrently.

(2.) THE case of the prosecution as disclosed in the Fardbeyan is that on 8.5.84 at about 11.30 P.M. informant Munar Mahto (PW 8) (Munar Sahni, at one place in Fardbeyan) went to Tariyani Chowk Police Station within the district of Sitamarhi and lodged an FIR (Ext.3) stating therein that on the same day at about 3 P.M. he along with his father Gajar Mahto, uncle Bitin Mahto, Ram Bilas Mahto (PW 4) and Ram Chandra Mahto (PW 2) had gone to Turki Bazar. Appellants Jiya Lal Sah and Gagandeo Sah had also gone to Turki Bazar and in the market where ever the informant and his men went they both kept watch on them after staying at some distance. After marketing when the informant and his men started for their house, appellants Jiya Lal Sah and Gagandeo Sah proceeded ahead of them. When the informant and his men reached a village footpath, going towards Ladaura Mahinwara near the field of one Bharat Singh in Nandna Sareh situated at Village Kumhrar, all of a sudden all the appellants came from a maize crop field and started assaulting the father of the informant who was going ahead of the informant and his remaining companion Appellant Gagandeo Sah and Mahadeo Sahni ordered their companions to kill all even if their lands were sold and on this instigation appellant Rajendra Sahni started assaulting the father of the informant with a lathi and appellant Naga Sahni with a Dabiya (a sharp cutting weapon). When Bitin Mahto, uncle of the informant, tried to rescue the father of the informant he was assaulted by appellant Gagandeo Sahni with a Garasa and he, after receiving injuries, fell down. Appellant Bachu Sahni thereupon started assaulting the father and uncle of informant with a 'Phatha ' (bamboo stick) and appellant Shyam Nandan Sahni started assaulting the uncle of the informant with a dagger. Appellant Rajan Sahni and Binod Sahni of the father of the informant pressed their lathis and remaining appellants started indiscriminately assaulting the father and uncle of informant with lathis saying that when they had identified them they would finish them. Informant, Ram Chandra Mahto (PW 2) and Ram Bilas Mahto (PW 4) out of fear were watching the occurrence from some distance. It was a moonlit night. When the informant raised hulla villagers namely, Mitan Mahto, Phul Shankar Mahto (none of them examined), Ram Ekbal Mahto (PW 6) and Mohan Mahto (PW 5) replied that they were coming and after hearing their replies, the appellants fled away but appellant Musafir Sahni was caught and he was assaulted by the mob who had caught him. The informant found that his father and uncle had died. About the motive of occurrence the informant stated that in the last month of 'Magh ' Ganeshi Sahni, father of appellants No. 1, 2 and 3 of both the appeal, after constructing a house by encroaching a road near his house had closed the passage and the villagers of Mahto community had asked Ganesh Mahto to remove the house from the road and a complaint was lodged with the Anchaladhikari and since then tension between Mahto (Kurmi) and Sahni communities cropped up and thereafter Ganesh Sahni got a case of assault lodged against the informant and others by appellant Jiya Lal Sahni. On last Saturday when there was drizzling, appellant Mangal Sahni entered the house of Shambhu Mahto for committing theft and when he flashed a torch he was seen by Shambhu Mahto who raised alarm on which appellant Mangal Sahni tried to run away but he was caught by father and uncle of informant. As nothing was stolen Mangal Sahni was let off after some as his village where all members of Sahni community assembled and gave out that they would finish the existence of kurmis and since then they were always accusing the informant and his party as thieves and were making attempts to get them arrested by police. S.I. of Police Bhagirath Mishra (PW 9) after lodging the FIR took up the investigation of the case and proceeded to the place of occurrence where he reached at 3.30 P.M. on 9.5.84. He prepared inquest report (Exts. 4 and 4/1) of the dead bodies of Gajar Mahto and Bitin Mahto, sent the dead bodies for post mortem examination, collected blood stained soil from the place of occurrence and prepared seizure list (Ext.5). During the course of investigation appellant Naga Sahni confessed his guilt and produced a blood stained 'dabiya ' before the I.O. and in house search a blood stained Garasa from the house of. Gagandeo Sahni and a blood stained lathi from the house of Rajendra Sahni were recovered. Production list (Ext.6) and seizure lists (Exts, 6/1 and 6/2) were prepared. The l.O. sent the blood staned dabia, grasa and lathi to Forensic Science Laboratory and after recording statements of witnesses and completing the investigation submitted chargesheet against all the appellants under sections 147, 148, 149 and 302 IPC.

(3.) ALTOGETHER 9 witnesses have been examined on behalf of the pro ution. Informant Munar Mahto (PW 8), Ram Chandra Mahto (PW 2) and Ram Bilas Mahto (PW 4) are said to be eye witnesses to the occurrence. Phul Shankar Mahto (PW 6) and Ram Ekbal Mahto (PW 7) are witnesses who after hearing hulla raised by the informant had reached the place of occurrence and along with others had caught appellant Musafir Sahni after chase and had seen the dead bodies of both the deceased and were told about the occurrence by the informant. Mohan Mahto (PW 5) although declared hostile by the prosecution is a witness who had reached the place of occurence on hearing hulla raised by informant and had seen the appellant Musafir Sahni being caught after chase and had seen the dead bodies of father and uncle of informant and had put his signature on inquest report. Inderdeo Mahto (PW 1) is a witness on seizure list prepared by the I. O. after collecting blood stained earth from the place of occurrence and is also a witness in whose presence blood stained grasa from the house of appellant Gagandeo Sahni, a blood stained lathi from the house of Rajendra Sahni and a blood stained dabiya from the house of appellant Naga Sahni were recovered. Bishwanath Bijoria (PW 3) is the doctor who had conducted autopsy on the dead bodies of father and uncle of informant. Bhagirath Mishra (PW 9) is the I.O.