STATE OF BIHAR Vs. SATYA NARAYAN MISHRA

JUDGEMENT

(1.) This common judgment shall govern the disposal of all these three appeals which have been heard together as they arise out of the same judgment dated 4-2-1998 and order dated 5-2-1998 passed in Sessions Trial No. 178 of 1995 by 2nd Additional Sessions Judge, Darbhanga.

(2.) The State, the appellant in Govt.Appeal No. 22 of 1998, Satya Narain Mishra, Umesh Mishra, Pappu Mishra and Dipu Mishra, appellants in Cr. Appeal No. 107 of 1998, and Jaishankar Mishra, Nageshwar Mishra and Kuseshwar Mishra, appellants in Cr. Appeal No. 125 of 1998, are aggrieved by the aforesaid judgment and order of 2nd Additional Sessions Judge, Darbhanga. The State, for the reason that the appellants have been acquitted of the charge under Section 396 of the Indian Penal Code and the appellants, for the reason that they all have been wrongly convicted under Sections 395 and 397 of the Indian Penal Code and each one of them has been sentenced to undergo R. I. for 10 years under Section 395 of the Indian Penal Code although no separate sentence under Section 397 of the Indian Penal Code has been passed against them.

(3.) The brief facts giving rise to these appeals are that on the night of 16-2-95 the informant Thakur Chandeshwar Singh (PW 1) was sleeping in the southern room of the house and his daughter Mamta Kumari aged about 17 years was sleeping alone in the northern room. At that time his wife Ram Kumari Devi (PW 4) along with her son Vivek Kumar (not examined) was at her 'Naihar' at village Ratwara. At about 3 O'clock the informant went to latrine situate about 20-25 yards from his house. While he was easing out he saw 7-8 persons entering his 'Angan' from south. Two out of them were carrying guns and remaining were armed with 'pharsa' and 'bhala'. They all entered the southern room. Informant out of fear remained sitting in the latrine. Thereafter the informant saw that the door of northern room in which his daughter Mamta Kumari was sleeping was opened because both the rooms are inter- connected. 2-3 persons came out from the room and remaining remained inside the room. One of the miscreants asked Mamta Kumari to tell where the money was kept and demanded keys from her. Thereafter a big wooden box was got opened from which the miscreants took out a cash amount of Rs. 51,000/- and ornaments worth Rs. 80,000/-. The informant came out of the latrine and raised hulla. Villagers assembled. Some of the miscreants had muffled their faces while faces of remaining miscreants were not covered. The informant identified six appellants namely, Satya Narain Mishra, Umesh Mishra, Kuseshwar Mishra, Nageshwar Mishra, Jaishankar Mishra andd Dipu Mishra, who all are his neighbours. The appellants fled away towards south. After taking out the money and ornaments the appellants had assaulted Mamta Kumari because she had identified them but informant could not see with which weapon she was assaulted, but he found bleeding injuries on her face, chest and abdomen. Neighbours of informant went to local hospital where they were advised to go police station for lodging information but two compounders from hospital came and they advised for taking Mamta Kumari to DMCH (Darbhanga Medical College and Hospital). In the meantime, police patrolling party came to the house of the informant where his Fardbeyan (Ext. 4) was recorded by SI Shri Niwas Prasad (PW 10). The injury report of Mamta Kumari was prepared and she was sent to DMCH for treatment. About the genesis of occurrence informant in his fardbeyan has stated that he was having litigation from before with the appellants. On the basis of fardbeyan (Ext. 4) a case under Sections 395 and 397 of the Indian Penal Code was registered against the appellants except appellant Pappu Mishra and 1-2 unknown. During the course of investigation Mamta Kumari daughter of informant died and Section 396 of the Indian Penal Code was added in the FIR. Before death of Mamta Kumari her dying declaration (Ext. 2) was recorded by Awani Ranjan Kumar Sinha (PW 5), the then Judicial Magistrate, 1st Class, Darbhanga. After completing investigation the police submitted chargesheet in two phases under Sections 452 and 302/34 of the Indian Penal Code against the appellants. Cognizance of the case was taken and the case was committed to the Court of Session where charge under Section 396 of the Indian Penal Code against all the appellants was framed and the appellants were put on trial.