BHUKHLAL TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants have filed this appeal being aggrieved by and dissatisfied with the order of conviction and sentence dated 3.6. 1997 and 4.6. 1997 passed by Shri Nirmalendu Kumar Kanth Niraj. 1st AddI. Sessions Judge, Giridih in S.T. No, 227/1979. whereby and whereunder all the four appellants have been convicted for the offences punishable under Sections 148, 302/149, 20 1/149 and 436/ 149. IPC and sentenced to undergo imprisonment for life for the offences punishable under Section 302 read with Section 149, IPC and to undergo R.I. For five years for the offences punishable under Section 436 read with Section 149, IPC and to undergo R.I. for a period of three years under Section 201 read with Section 149. IPC and further sentenced to undergo R.I. for a period of three years: under Section, 148/ IPC, ordering that all the sentences in respect of all the appellants in each count shall run concurrently.

(2.) Briefly stated prosecution case is based on the fardbeyan, Ext. 2, of the informant. PW 2, Prkash Tiwari, of villagePumanagar, P.S. Giridih Mufassil, recorded by the S.I, R.P. Singh on 31.3.1975 at 10.30 p.m. Purnanagar at his house in which he has alleged that he is the cousin brother of Shyam Sundar Tiwari, PW 1. Their houses are adjacent to each other having common courtyard. On Monday 31.3.1975 he had returned from forest at about 12 noon and after taking meal he slept. At about 4 p.m. on the same day, the villager; Balbir Tiwari, went to his courtyard and inquired as to whether DhaneshwarTiwari had concealed himself in his house, or not. He entered into the house of the informant and searched Dhaneshwar Tiwari but he could not find him. Then he went to his house. After 15 minutes,, BalbirTiwari alongwith his three sons, Bhukhlal Tiwary, Lal Mohan Tiwary and Chandrapal Tiwary alongwith labourer, Karu Mallah, having farsa, bhakhua, balam in their hands, again started searching Dhaneshwar Tiwari. First they searched the North facing room and house of Shyam Sundar Tiwari, PW 1 after taking key from his mother, Rajo Devi, PW 4. Then Chandrapal Tiwari entered into the house of Shyam Sundar Tiwari facing towards East and searched Dhaneshwar Tiwari. In that house there was a room in the upper storey in which woods and straw were heaped in abundance. The appellant, Chandrapal Tiwari said that Dhaneshwar Tiwari had concealed himself in the room on the roof. Then all the appellants raised alarm. DhaneshwarTiwari hurled bricks causing injury near the eye of the appellant, Bhukhlal Tiwari and also .injury to the appellant, Chandrapal Tiwari. In the mean time, the informant, who was standing on the courtyard, saw that the smoke was coming out from the house. At that time, DhaneshwarTiwari, Chandrapal Tiwari, Bhukhlal Tiwari were inside the room. He could not see as to who had set fire to the house, but Dhaneshwar Tiwari who was inside the room was saying that he will die alongwith them. When the house was set on fire then Chandrapal Tiwari, Lal Mohan Tiwari and Bhukhlal Tiwari came out from the room. Dhaneshwar Tiwari also came out from the said room in the courtyard. All the appellants, namely, Chandrapal Tiwari, Lal Mohan Tiwary, Bhukhlal Tewari and Karu Mallah assaulted Dhaneshwar Tiwari with farsa, bhakua and balam in the courtyard. On being injured, Dhaneshwar Tewari fell down in the courtyard and died. Then Balbir Tiwari (since dead) ordered to throw the dead body of Dhaneshwar Tiwari into the burning fire. On his order, Lal Mohan Tiwari, Bhukhlal Tiwari, Chandrapal Tiwari and Karu Mallah lifted Dhaneshwar Tiwari and threw the dead body into the burning fire near the door. The dead body started burning. The appellant also threw the burning woods on the dead body of Dhaneshwar Tiwari which was falling from the roof. After the alleged occurrence all the appellants including Balbir Tiwari fled away from the P.O. The informant alongwith his cousin brother, Shyam Sundar Tiwari, and other members of his family tried to extinguish the fire but failed. On the alarm, Jagdish Tiwari, Hail Prasad Tiwari, PW 5, Ganesh Tiwari. TekIal Ram, DW 1 and many others including Jago Tewari went there and saw the alleged occurrence. The informant has stated that the appellant, Lal Mohan Tiwari, was saying that one year prior to the alleged occurrence Dhaneshwar Tiwari (deceased) had murdered his mother. Since then Dhaneshwar Tiwari was absconding. They had uttered that they had taken revenge by causing murder of Dhaneshwar Tiwail. Blood was scattered in the courtyard in abundance. The learned 1st AddI. Sessions Judge, Giridih, framed charges against all the appellants under Sections 302/149, 436 and 148, IPC on 4.8.1981. After examination of nine prosecution witnesses including the informant, charge was amended on the petition filed by the learned APP and accordingly fresh charges under Sections 302/149, 201/149, 436/149 and 148. IPC were framed against all the accused persons on 16.7.1983.

(3.) The prosecution has examined altrether nine witnes lo stantiate the charges levelled against all the accused persons. Before framing charges, Balbir Tiwari died his natural death. Hence he was not charged to face trial in this case. PW 1, Shyam Sundar Tiwari, is the cousin brother of the informant, PW 2, Prakash Tiwari. PW 3, Draupadi Devi, is the wife of the informant who was declared hostile by the prosecution. PW 4, Rajo Devi, is the mother of PW 1 and is the eye-witness. PW 5, Han Prasad Tiwari and PW 6, Jagdish Tiwari who have been mentioned as eye-witnesses of the alleged occurrence in the fardbeyan, Ext. 2, have not supported the prosecution case hence they have been declared hostile by the prosecution. PW 7, Rita Devi, is the wife of PW 1 and is an eyewitness. PW 8, Dr. B.N. Prasad, conducted the post mortem examination on the remains of the dead body of DhaneshwarTiwari and PW 9, Rudra Pratap Singh, is the 1.0. of this case.