UPENDRA MUKHIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) UPENDRA Mukhia, Hanuman Rajak, Jagdish Sah, Shibeshwar Rajak, Kuldeep Rajak, Domi Rajak, Kari Rajak, Upendra Sah and Bhukhan Sah have been convicted each under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, they have also been sentenced under Section 201 read with Section 149 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for seven years. They have been further convicted under Section 147 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for a period of two years. The accused namely Hanuman Rajak, Shiveshwar Rajak and Upendra Sah have been further convicted under Section 148 of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for three years. All the sentences were directed to run concurrently vide judgment and order dated 8th of March, 1989 in Sessions Case No. 21 of 1981 passed by the learned Additional Sessions Judge, Madhepura. Six persons namely Umesh Lal Das, Ramkisun Sah, Laxman @ Farenma, Leelanand Sah, Kokai Thakur and Subhak Mukhiya were also put on trial along with the present appellants but they were found not guilty and so they were acquitted.

(2.) NOBODY was present to represent the appellants, therefore, this Court had to appoint Amicus Curiae and with the assistance of learned Amicus Curiae the appeal has been heard and is being disposed of.

(3.) P.W.4 is brother of the deceased and he has supported the informant's version and has claimed to be a witness of the occurrence. Though, this witness has stated that the deceased's brother was not an accused of a case of dacoity in which he was a bailor but he has contradicted the version of the deceased's wife wherein she has stated that her husband was accused in a case of dacoity also. A suggestion was given to him as to whether body was recovered was of his brother or not then he has replied in affirmative. P.W.5 is another witness who has supported the informant's version of assault but he has made departure from his earlier version when he deposed in para-7 of his evidence that he came to know about the occurrence through wife of the informant. Therefore, this witness is not a witness of the occurrence rather he is a hearsay witness. P.W.6 has not identified Upendra Mukhia and Umesh Lal Das in the dock. The evidence of the informant is that the watch of Ganeshi Sah was snatched but in para-22, P.W.6 has denied this version and has stated that Ganeshi Sah was not having a wrist watch at the time of occurrence. He has stated that under duress, he has stated before police as he was assaulted by police. Therefore, P.W.6 does not appear to be a witness who can be relied upon. P.W.7 has supported the deposition of other witness that prior to the occurrence a case was lodged by the accused persons of that case. In that case, this witness, deceased Ganeshi Sah and others were accused. Therefore, this witness is an interested witness and he has to settle his matter regarding conduct of the deceased. In para-24 of his evidence he has stated that the deceased was accused in a case of murder and dacoity. He has denied that Ganeshi Sah was killed in connection with dacoity at Motibari. P.W.8 has stated about the conduct of the deceased's brother who has gone to jail in connection with dacoity. P.W.9 is a witness of recovery of dead body of Ganeshi Sah. P.W.10 is brother of the deceased but he has denied that the deceased Ganeshi Sah was accused in any murder case. Meaning thereby this witness is contradicting other witnesses and has tried to conceal the fact that the deceased himself was a person of chequred history. P.W.11 was at relevant time a Dafadar. The informant in her evidence has stated that P.W. 11 and P.W. 12 have also tried to intervene and they being Chowkidar and Dafadar have requested the accused persons for sparing. Not only P.W.11 but P.W.12 have been declared hostile and these two witnesses have not supported any part of the allegation. P.W.14 is a witness of the recovery of the dead body and according to him the corpse was not of head, hand and foot and it was not worth identifying.