BRIJ BEHARI PANDEY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) By order dated 23.11.2017 of the Division Bench, these two appeals were referred to the Single Bench for consideration.

(2.) Both these appeals are directed against the judgment of conviction and order of sentence dated 04.06.1992 passed by the learned 4th Additional Sessions Judge, Santhal Parganas at Dumka in Sessions Case No. 136 of 1986 whereby and whereunder the appellants have been convicted for the offence under section 148 of the IPC and each of them has been sentenced to undergo R.I. for two years.

(3.) The prosecution case, in brief, as per the Fardbeyan of the informant Brindawan Pandey, P.W. 3 is that on 22.11.1984 at about 8 a.m. the informant Brindawan Pandey and his elder brother Sarla Pandey alias Hirday Narayan Pandey (deceased) proceeded for looking after their Kalai-crops in Makhmalpur Diara. The informant's brother was going ahead and the informant (P.W. 3) was following him. At about 8.00 a.m. while they reached near margang of Nadhi Diara then from the northern side behind the behaya plant bushes the accused including these appellants i.e. Brij Behari Pandey, Nagendra Pandey, Jay Narayan Pandey, Tribhuwan Pandey, Ramanand Pandey, Shri Pandey, Ram Jatan Pandey, Ram Sevak Pandey, Yamuna Pandey, Saryu Pandey, Mani Pandey, all of village Nadhi Diara and Parmanand Singh, Randhir Singh and Ashok Singh of Village Bari Kudarjanna and Satya Narayan Tiwari of Village Kamal Ghorai as named in the fardbeyan armed with three nut country made pistol in their hands, suddenly appeared. Seeing them the informant and his brother due to fear started running away. The informant's brother, namely, Sarla Pandey after crossing the margang started running away towards west and the informant started running away towards the east of the said margang. All the accused persons with a view to catch the informant's brother Sarla Pandey started chasing him. The informant also after turning and concealing himself proceeded to see his brother. Up to the bathan of Makhmalpur the accused persons followed the brother of the informant, namely, Sarla Pandey and there surrounded his brother from all the sides. Appellant No. 1 Brij Behari Pandey is alleged to have fired at Sarla Pandey with the pistol, as a result of which he fell down. Thereafter, brother of the informant, namely, Sarla Pandey was shot dead by firing by Jai Narayan Pandey (deceased), Tribhuwan Pandey (acquitted) and Parmanand Singh (deceased). The informant witnessed the said occurrence keeping himself concealed in the kalai-Crops field. According to the further fardbeyan of the informant , when his brother Sarla Pandey stopped crying then the accused persons fled away towards west of the Diara. Thereafter, the informant went near his brother Sarla Pandey and found him lying dead in pool of blood having received fire-arm injuries on his stomach, neck & head. Near the alleged place of occurrence Kishun Mandal (P.W. 5), Bhagwan Mandal( P.W. 1) and Shankar Mandal ( P.W. 2) were working in their fields and they are alleged to have witnessed the said occurrence. Thereafter, the informant went to his house and narrated about the incident of murder of his brother Sarla Pandey to his family members. The motive for the occurrence, as alleged by the informant was that there was old enmity with the accused persons and in the murder case of Rasbihari Pandey the brother of Brij Behari Pandey (appellant no. 1) the deceased brother of the informant, namely, Sarla Pandey was named accused for which case was going on and for that old enmity with a view to take revenge the aforesaid accused persons committed the murder of his brother Sarla Pandey.