JAGDISH PANDEY Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) THE appellants have preferred this appeal against the judgment and order of conviction and sentence dated 31.3.1994 passed by Shri Ram Kishore Singh, Sessions Judge, Deoghar in Sessions Case No. 37/1987, whereby and whereunder the appellant No. 1, Jagdish Pandey, has been convicted under Sections 302, 452 and 148, IPC and sentenced to go RI for life under Section 302, IPC, RI for 5 years under Section 452, IPC and RI for one year under Section 148, IPC, the other appellants, Basudeo Roy, Laxman Roy and Arjun Mandal have been convicted and sentenced to go RI for life under Section 302/34, IPC, RI for 5 years under Section 452, IPC and RI for one year under Section 148, IPC. The appellant No. 2, Basudeo Roy, was further convicted and sentenced to go RI for one year under Section 323, IPC. The learned Sessions Judge had ordered that the sentences in respect of all the convicts for each count will run concurrently.

(2.) THE prosecution case as per the fardbeyan of the informant, Falguni Mandal, PW 6, is that in the night of 6.9.1983 he along with his father, Lalgovind Mandal, PW 4, and maternal uncle, Budhram Mandal were sleeping in a room on the first floor. A lantern was burning. At about 11.30 p.m. 10 -12 persons skipped upon the roof. They surrounded all of them and tied their hands to kill them. Their intention was not to take any property of the informant. In the light of the burning lantern the informant identified Jagdish Pandey of village Hurla, Basudeo Roy of village Nawadih, Laxman Roy oi village Hurla, Arjuri Mandal of village Hurla and Dhokla Mandal of village Hurla, P.S. Madhupur, District -Deoghar. He could not identify the others. The appellant, Basudeo Roy had chaku, Laxman Roy had farsa, Jagdish Pandey had barchha, Arjun Mandal had balam and Dhokla Mandal had farsa in their respective hands. The appellant, Basudeo Roy asked the informant to go down from the roof. The informant managed to escape but he fell down on the roof itself. He could not see who injured him from behind. He could not see who assaulted his father, Lalgovind Mandal but on being assaulted his father fell down from the roof. The assailants also injured Budhram Mandal with Barchha on his abdomen. The Barchha was thrown from the roof. On his hulla when the villagers assembled then the assailants fled away. The informant has stated that there was some differences with the appellants who had threatened to ruin the entire family of the informant. On 14.8.1983 the informant had informed Madhupur P.S. resulting S.D. entry in the said P.S. It was also the cause of annoyance of these appellants. On hulla of the informant the villagers Lalchand Mandal, Gangu Mandal, PW 3, Bhuneshwar Mandal, Hemlal Mandal, PW 1, Saudagar Mandal and others went to his home and saw the alleged occurrence. The prosecution has examined altogether nine witnesses in order to prove its case. PWs 1, 2 and 3, Hemlal Mandal, Darogi Mandal and Gangu Mandal respectively went to the P.O. on hearing hulla after the alleged occurrence and learnt about the same from the informant, PW 6, Falguni Mandal. PW 4, Lalgovind Mandal, is the father of the informant who claims himself to be an eye witness and as injured by the appellants along with his son, Falguni Mandal, PW 6. PW 5, Fuleshwari Devi, is the mother of the informant who also claims that she saw the appellants through the window while they were fleeing away. PW 7, Dr. S.N. Bhagat, conducted the post mortem examination on the dead body of Budhram Mandal. PW 8, Premchand Mal -viya, S.I. submitted the charge sheet after completion of the investigation and PW 9, Gonda Lal Das, a formal witness, has proved the C.D. as Ext. 6. The learned Sessions Judge has relied on the evidence of the informant, PW 6, his father PW 4, his mother, PW 6 and also the evidence of PWs 1, 2 and 3 before whom the informant has named the assailants, supported by the evidence of Dr. S.N. Bhagat.

(3.) THE alleged occurrence took place at about 11.30 p.m. on 6.9.1983 at village Hurla. The deceased, Budhram Mandal, was sleeping on a khat along with PW 6, Falguni Mandal, the informant and on another khat in the same room PW 4, Lalgovind Mandal, was sleeping. At about II.30 p.m. 10 -12 persons skipped upon the roof. They tied the hands of PW 6, Falguni Mandal and PW 4, Lalgovind Mandal whereas they tied the legs of Budhram Mandal. In the fardbeyan, Ext. 2, the informant has not named any appellant specifically who injured him, his father and Budhram Mandal. However, he has deposed that Basudeo Roy had chaku, Lax -man Roy had farsa, Jagdish Pandey had barchha, Arjun Mandal had balam and Dhokla Mandal had farsa in their respective hands. The informant, PW 6, Falguni Mandal, has stated that the assailants had gone thereto cause murder and not to take any property. In his evidence also he has not named specifically against these appellants who caused injuries to him, his father and Budhram Mandal rather his statement is omnibus as he had identified these appellants who were 10 -12 persons on the roof. When he fell down then the accused assaulted him with Chaku on his right leg and head. His father and maternal uncle were also assaulted. He has admitted that there was enmity in between his family and the appellants prior to the alleged occurrence. When the injured were taken to Madhupur Dutta Hospital his fardbeyan was recorded on which he signed, Ext. 2. He claimed that his maternal uncle, Budhram Mandal died due to barchha blow given on his abdomen. He has also admitted that after institution of this case one co - accused, Dhokla Mandal was murdered. In that murder case the informant and his father have been made accused. When the accused asked the informant, his father and his maternal uncle to step down from the roof then he managed to escape. Hence he could not see as to who assaulted his father and maternal uncle, Budhram Mandal. When he fell down then he was also assaulted from behind. Hence he could not see as to who assaulted him. PW 4, Lal -govind Mandal, father of the informant, has also stated that the criminals skipped upon the roof, entered into their room, they cut the rope of the Khat and they tied their hands by that Khat rope. Thereafter, all three were asked to step down and disclose their properties. In the meantime the informant, PW 6, Falguni Mandal, managed to flee away but he fell down on the roof. This witness has stated that then Basudeo Roy assaulted him with farsa, Budhram Mandal was assaulted with baton on his left abdomen below ribs by Jagdish Pandey and he was assaulted with danda by Basudeo Roy whereas Basudeo Roy has alleged in the fardbeyan, Ext. 4 that he was armed with chaku and there was no lathi in his hand. When Basudeo Roy assaulted him on hi$ leg causing fracture, he fell down from the roof. He claims to have identified all the five named accused only and not others. On hulla Hemlal Mandal, Saudagar Mandal, Shobha, Dhaneshwar Mandal, Gango Mandal, Darogi Mandal and others went to his home, He informed that he had identified the five accused who had assaulted them. He also admits that in the murder of Dhokla Mandal he and his son have been made accused who was the brother of the appellant, Arjun Mandal. There is a long standing land dispute since 30 -40 years in between him and the appellant, Jagdish Pandey, He could not identify the four persons who tied their hands in the room. He also could not say the village of those persons. He has also stated in para 19 that he could not see as to who assaulted his son, Falguni Mandal, when he fell down on the roof. He was also assaulted with lathi. He tried to flee away but he fell down from the roof on the thatch. In para 31 he has deposed that the appellant, Jagdish Pandey, was in inimical term with the appellant, Arjun Mandal. The appellant, Basudeo Roy, was also in inimical term with Arjun Mandal.