MAZISTER RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH these appeals have been heard together and are being disposed, of by this common judgment as they arise out of the same judgment dated 4.9.1995 and order dated 6.9.1995 passed in Sessions Trial No. 222/1992 convicting and sentencing the appellants Awadhesh Rai and Rohit Rai to undergo life imprisonment under Section 302 IPC and remaining appellants to undergo life imprisonment under section 302 read with section 149 IPC. Appellants Awadhesh Rai and Rohit Rai have further been found guilty and have been convicted under section 148 IPC as well as under section 27 of the Arms Act and the remaining appellants have further been found guilty and have been convicted under section 147 IPC but no separate sentences have been passed for these charges against the appellants.

(2.) BRIEFLY stated the case of the prosecution is that on 12.9.92 informant Shaligram Rai (PW 8) along with his elder brother Bishnu Prasad Rai and his nephew Vijay Kumar Rai (PW 7) had, from his village Basbariya, gone to village Bhurkunda to see the ailing grandson of his elder brother Bishnu Prasad Rai. They ali had gone to Bhurkunda on their respective bicycles. They stayed for the night at Bhurkunda. On the next day i.e. on 13.9.92 in the morning at about 7.15 P.M. they all three on their bicycles started for their village Basbariya. After passing village Katbadia they were crossing Jagatpur field and were proceeding towards west. After Jagatpur field there is forest and the road goes through this forest. When they were still about 100 yards from the forest, all the appellants came out from the forest. Appellants Awadhesh Rai and Rohit Rai were armed with pistols. Appellant Abhimanyu Rai was carrying a bag. Other appellants were armed with lathis. All the appellants ran towards the informant, his elder brother and his nephew. The informant raised alarm saying that enemies had reached and asked his eider brother to run. Bishnu Prasad Rai leaving the road started running towards south. Informant and his nephew Vijay Kumar Rai (PW 7) started running towards east. After going for about 100 yards when the informant turned back he saw that all the appellants were chasing Bishnu Prasad Rai who after leaving his bicycle was running. Informant and his nephew started raising hulla in the meantime, appellants Suchit, Mazister Rai, Mritunjay Rai and Kailu Rai stopped Bishnu Prasad Rai from front and started assaulting him by brickbats. Other appellants also surrounded him. Appellant Akhileshwar Rai gave order for killing Bishnu Prasad Rai. On this order, appellant Awadhesh Rai fired two shots and appellant Rohit Rai fired one shot at Bishnu Prasad Rai who fell down. All the appellants thereafter fled away towards forest. The informant and his nephew went running near to Bishnu Prasad Rai and found that he had died and had injuries on his chin and on left side of abdomen and lacerated injuries on different parts of body and one of his tooth was broken. About the genesis of occurrence it is said that there was long standing enmity between prosecution party and the appellants and several criminal cases were pending between them. Sheo Mangal Singh (PW 10), the I.O. of this case, at the relevant time was posted at Madhupur Police Station where on 13.9.92 at about 12.35 P.M. an information was received that near the village Kanbadia an untoward incident had taken place. This information was recorded in the Station Diary and Officer Incharge of Madhupur Police Station deputed Sheo Mangal Singh (PW 10) for verification of the matter and then he (PW 10) along with ASI, Arvind Kumar Singh and Constable no. 274 (none of them examined) proceeded for the place of occurrence and reached there and recorded the Fardbeyan of informant (Ext. 2) at 2 P.M. The I.O. prepared inquest report (Ext. 5) of the dead body and seized blood stained soil, a plastic shoe, a bicycle and a small bottle containing kerosene oil, together with a ball of twine (Sutll), small iron pieces wrapped in small piece of cloth and orange coloured powder wrapped in a tinsel, all kept in a white bag and prepared seizure list (Ext.3). The I. O. sent the dead body for post mortem examination and came to the Police Station where a case was registered after drawing formal FIR. After investigation chargesheet against alt the appellants under section 302/34 IPC was submitted. After commitment of the case to the court of Sessions charges under sections 147, 148 and 302/149 IPC against all the appellants and additional charges under sections 302/34 IPC and 27 of the Arms Act against appellants Rohit Rai and Awadhesh Rai were framed and ait the appellants were put on trial.

(3.) THE prosecution has examined 10 witnesses in this case. Shaligram Rai (PW 8) is informant and is said to be eye witness to the occurrence. Vijay Kumar Rai (PW 7) is the son of the deceased and is also said to be eye witness to the occurrence. Sudama Pandey (PW 5) has been tendered. Ganesh Choudhary (PW 4) and Kodd Mahra (PW 6) had reached the place of occurrence after hearing 'hulla ' and were told by the informant that appellants had committed the murder of his elder brother. Sanjay Kumar Rai (PW 2) is a witness who after hearing about the murder had gone to the place of occurrence and had seen the dead body of the deceased and in his presence the I.O. seized a pair of shoes, a bicycle, small iron pieces wrapped in a piece of cloth, orange coloured powder in a tinsei, a ball of twine etc. and had put the signature on the seizure list prepared by the I.O. Rama Nand Singh (PW 3) after hearing about the occurrence had gone to place of occurrence where he had seen the dead body of the deceased and the informant told him about the appellants. He also put his signature (Ext. 1/4) on the fardbeyan of informant. Dr. Anand Kumar Jain (PW 9) is the doctor who had held autopsy on the dead body of the deceased. Sheo Mangal Singh (PW 10) is the I.O.