ARJUN CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arising out of judgment of conviction and sentence dated 11th February, 1986, passed by the IIIrd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 168 of 1984, are being disposed of by this common judgment. Appellant Ganauri Sah of Criminal Appeal No. 120 of 1986 and appellant Ganapati Sah of Criminal Appeal No. 154 of 1986 have died during the pendency of the appeal and, as such, their appeals stand abated. All the appellants have been convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default to undergo rigorous imprisonment for further period of one year. All the appellants were further convicted under Section 307/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years with a direction that both the sentences will run concurrently. One Naseer Ansari was acquitted by the Trial Court and accused Sameer Bokhali had died during the pendency of the trial.

(2.) The brief history of the case is that the Informant, Radha Devi (PW 12), who happens to be daughter of Raghubeer Sah (PW 3) after she became widow, re-married a person of village Harpur. After purchasing three and half decimals of land in village Jhitkiyan, in the village of her father, she constructed a house there, which was by the side of the road intervened by gairmazrua' land measuring three decimals through which alone her house was accessable. Radha Devi was using that 'gairmazrua' land for her passage and also for keeping cattle over it and she had filed an application for settlement of that 'gairmazrua' land. The case of prosecution is that accused Chhedi Sah and his brother, Medi Sah had got their land adjacent east of that 'gairmazrua' land and they were also claimant of that land and proceedings under Sections 107 and 144 of the Criminal Procedure Code were started between the parties. Bhola Sah (deceased), the brother of Radha Devi used to run a shop at Amarpur, six miles away. It is alleged that one day prior to the occurrence, that is, on 10. 08, 83, appellants Chhedi Sah, Medi Sah, Jogendra Sah, Fekan Sah, Ganauri Sah and Shadeo Sah and others stated digging foundation in the 'gairmazrua' land for erecting a wall in the front of the house of Radha Devi, which was objected to by Radha Devi and her father, Raghubeer Sah and brother, Gopal Prasad Sah (PW 10), but the appellants did not pay any heed to it and then Radha Devi sent her son, Subodh (PW 18) to call her brother. Bhola Sah, from Amarpur and on the date of occurrence, Bhola Sah, along with Subodh and Shivnandan Sharma (PW 1), arrived there and asked the appellants not to construct the wall and when they did not listen Bhola Sah, along with Shivnandan Sharma, went to Shahkund Police Station and reported the matter to the Officer-in-Charge, Shahkund Police Station, Ram Parvesh Singh (PW 24), who visited the place of occurrence village Jhitkiyan at 10.00 a.m. and asked the appellants not to proceed with the construction of the wall and he also deputed village chowkidar, Fuleshwar Paswan (PW 20) for maintaining peace there. It was further alleged that after departure of the Sub- Inspector of Police and after taking meal, Bhola Sah, Shivnandan Sharma and Chowkidar, Fuleshwar Paswar departed from the house of Raghubeer Sah and Raghubeer Sah (PW 3), his wife Domini (deceased), Radha Devi (PW 12), her brother, Gopal Prasad Sah (PW 10) also went ahead with them to see them off but when they reached near the mosque in Bokhali Tola, a mob consisting of 18 to 20 persons, including these appellants and others, variously armed with lathi, bhala, garasa, dagger, khanti, kulhari, etc. ran towards Bhola Sah and Bhola Sah in order to save himself entered the house of Mustafa Ansari (PW 22) and took shelter inside one of the rooms of his house. The case of prosecution is that all the appellants entered inside the house of Mustafa Ansari and, meanwhile. Raghubeer Sah, Domini Devi, Radha Devi, Gopal and others also followed them inside the court-yard (Aangan) of the house. Meanwhile, appellants Sahdeo Sah, Arjun Sah, Shyam Sundar Sah, Prakash Sah, Bedi Sah, Medi Sah and Jogindra Sah entered the room in which Bhola Sah had taken shelter and started assaulting him by means of axe, dagger etc. as a result of which he sustained serious injuries and his father, Raghubeer Sah, mother, Domini Devi, sister Radha Devi, and other, Gopal was begged for his life were also assaulted and it was alleged that Shivnandan Sharma (PW 1), Fuleshwar Paswan, chowkidar (PW 20) also witnessed the occurrence and that Gopal Sah, along with chowkidar, went to Sajour Outpost to inform about the incident. The Informant, in her fardbeyan (Exhibit 10) alleged that her mother was inflicted bhala injury by Arjun Sah and was assaulted by Prakash Sah and that all the injured were brought to Government Hospital at Sajour, where they were given first aid and Domini succumbed to her injuries there.

(3.) The fardbeyan of Radha Devi (Informant) was recorded by the Sub-Inspector of Police, Janki Das (PW 27) at Sajour and the same was sent to Shahkund Police Station for instituting a case. On the basis of that fardbeyan, Shahkund P.S. Case No. 72, dated 11.8.1983, was registered under Sections 147, 148, 149, 323, 324, 342, 325, 307 and 302/34 of the Indian Penal Code. At Sajour Dispensary, the injured were given only first aid by Dr. Satyapad Chakravarti (PW 5) the retired medical officer with the help of Compunder, Kishore Prasad Ram (PW 4) and from there, injured Bhola Sah, who was unconscious and injured, Raghubeer Sah (PW 3) and the Informant (PW 12) were sent to Bhagalpur Medical College Hospital for treatment on a Tamtam and dead-body of Domini was also sent to Bhagalpur for post-mortem examination. At Bhagalpur Medical College Hospital, injuries of Bhola Sah, Raghubeer Sah and Radha Devi were examined and injury reports (Exhibits 2 to 2/2) were issued. Bhola Sah, who was still unconscious and serious was forwarded to Patna Medical College Hospital for treatment where on 15th August, 1983, he succumbed to his injuries. His inquest report (Exhibit 8) was prepared there and his post-mortem examination was conducted there by Dr. P.R. Srivastava (PW 28) and his post-mortem report is Exhibit 4/1. The Police, after due investigation, submitted charge-sheet and appellants and others, who after cognizance and commitment, were put on trial and were convicted, as aforesaid.