RAGHUBIR TIWARI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and sentence dated 30.11.2000 and 5.12.2000 passed in Sessions Trial No. 162 of 1985, whereby and whereunder the learned 3rd Additional Sessions Judge, Chatra held all the appellants guilty under Sections 395 Indian Penal Code and convicted and sentenced them to undergo RI for four years.

(2.) THE brief facts leading to this appeal are that in the evening at 6 PM on 18th March, 1982 when the informant Prabodh Kumar Pandey was sitting along with his wife and sister 'sson Shyam Sunder Pandey near the Darwaja in village Hurmur, P.S. Simaria, District Hazaribagh, he saw 7 persons coming towards them. It is further stated that when the informant enquired where they were going at this time, they started assaulting him saying that they have come in his search. Acceding to the informant, he saw two others coming towards his house and identified the appellants variously armed with weapons. Apprehending further assault, he started fleeing towards the house of Mangal Tiwari but fell down near the house of Chhedi Bhuiyan. According to him, he was dragged inside the house by females inmates of the house and kept concealed in a room. In the meantime the villagers assembled and he was taken out of the house after one hour. Thereafter the informant asked for his gun from his brother, who brought it and he sat with the gun fearing further attack from the assailants. He even requested the villagers to carry him to police station but was advised not to venture in the dark as the assailants were waiting there. As such, he waited till morning, when Choukidar reported that one bag containing Maflar, Sandals and one country made pistol was left by the assailants near the house. His wife also informed that she saw the assailants, who looted the household articles from her house.

(3.) THIS appeal has been preferred on the ground that the learned lower court has committed mistake of law and facts. According to memo of appeal, the story of dacoity could not be proved even with the evidence of interested witnesses. It is further asserted that the appellants and the informant were at daggers drawn due to land dispute going on between them from 1981. According to this memo of appeal, the prosecution version reeks from falsehood as the informant has named the appellants to have assaulted him with the intention to commit dacoity in his village in the evening itself, which is apparently not probable. It is also asserted that the story of dacoity further could not be believed in absence of the mention of stolen articles in the fard beyan itself, which was later on improved during the examination in chief before the court. The other point raised in this memo of appeal is that though appellants are said to have assaulted with various weapons, the injury report does not support it. It is also submitted that two of the appellants Ajay Tiwary and Bijay Tiwary were admittedly below 16 years of age, when the offence was committed but the trial was conducted along with other appellants, which is apparently illegal and not maintainable.