BAIDHYANATH MUKHIYA Vs. STATE OF BIHAR
HIGH COURT OF PATNA
STATE OF BIHAR
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(1.) Criminal Appeal (DB) No.483 of 2014 has been filed by appellant/convicted accused Baidhyanath Mukhiya whereas Criminal Appeal (DB) No.526 of 2014 has been filed by appellant/convicted accused Basu Yadav. Both of them are convicted on 28/4/2014 by the learned Adhoc Sessions Judge-IV, West Champaran, Bettiah, in Sessions Trial No.407 of 2009 for the offence punishable under Sec. 302 read with 34 and under Sec. 201 read with 34 of the Indian Penal Code. On 30/4/2014, they came to be sentenced to suffer imprisonment for life and fine of Rs.20000.00 each as well as rigorous imprisonment for three years and fine of Rs.5000.00 each on each count respectively. In addition, appellant/convicted accused Basu Yadav is also convicted of the offence punishable under Sec. 27 of the Arms Act and is sentenced to suffer rigorous imprisonment for three years apart from fine of Rs.5000.00. Substantive sentences are directed to run concurrently by the learned trial court. For the sake of convenience, appellants/convicted accused shall be referred to in their original capacity as 'accused'.
(2.) Facts in brief leading to the prosecution of the accused can be summarized thus:
(a). It is alleged by the prosecution that the accused persons, in furtherance of their common intention, had committed murder of Gulli Mukhiya on 16/7/1996 and caused disappearance of evidence of the offence by letting the dead body to flow in the flood water. It is averred by the prosecution that accused Basu Yadav used gun in contravention of the provisions of the Arms Act for committing this offence.
(b). Janki Devi is widow of deceased Gulli Mukhiya. She lodged the F.I.R. of the incident on 17/7/1996. According to the prosecution case, Janki Devi who happens to be resident of village-Dehi Madarpur under the Police Station-Jogapatti, District-West Champaran, was doing agricultural operations near her house at about 05.00 P.M. of 16/7/1996. At that time, her daughter P.W.3 Dhanraji Devi came to her and disclosed her that Shankar Yadav, Ashraf, accused Basu Yadav and two others abducted Gulli Yadav on the point of guns and had taken him away. First Informant/P.W.6 Janki Devi also came to know about this fact from a lady named Gujri Devi, who in addition also disclosed name of accused Baidhyanath Mukhiya as one of the abductors. Hence, P.W.6 Janki Devi along with her nephews P.W.4 Dinesh Mukhiya and P.W.5 Dular Mukhiya went in search of her husband Gulli Yadav. They saw that at the field of sugarcane in between Madarpur Mallah Tola and Chaumukha village, accused Basu Yadav along with Shankar Yadav and Ashraf fired the bullets from the guns and murdered Gulli Mukhiya. When P.W.4 Dinesh Mukhiya and P.W.5 Dular Mukhiya tried to reach to victim Gulli Mukhiya, they were shooed away on the point of guns. At that time, there was flood on the spot of the incident and the flood water was increasing continuously. Therefore, P.W.4 Dinesh Mukhiya, P.W.5 Dular Mukhiya and P.W.6 Janki Devi could not reach up-to the dead body of Gulli Mukhiya. They returned to their house and on the very next day, P.W.6 Janki Devi lodged report of the incident which came to be recorded by P.W.7 Shivjee Singh the Investigating Officer at the house of P.W.6 Janki Devi. Accordingly, the subject crime came to be registered. The wheels of investigation were then set in motion.
(c). During the course of investigation, the Investigating Officer visited the spot of the incident in order to trace out the dead body. However, because of flood, the dead body was found to be flown away and it could not be recovered.
(d). Statements of the witnesses came to be recorded.
Accused persons were arrested and on completion of investigation, they came to be chargesheeted. However, accused Shankar Yadav was reportedly dead by that time.
(e). Charge for the offences punishable under Ss. 302, 201 read with 34 of the Indian Penal Code came to be framed against both the accused persons and in addition, accused Basu Yadav had been charged for the offence punishable under Sec. 27 of the Arms Act. They pleaded not guilty and claimed to be tried.
(f). In order to bring home the guilt to the accused persons, the prosecution has examined in all seven witnesses. Their description is thus:
(A). P.W.1 Sat Mukhiya-Hostile.
(B). P.W.2 Ram Babu Rai-Hostile.
(C). P.W.3 Dhanraji Devi-daughter of the deceased, who witnessed the abduction of her father Gulli Mukhiya.
(D). P.W.4 Dinesh Mukhiya-nephew of deceased Gulli Mukhiya, who claims to be an eye witness.
(E). P.W.5 Dular Mukhiya-son of sister of the deceased-who also claims to be an eye witness.
(F). P.W.6 Janki Devi-widow of deceased Gulli Mukhiya, who claims to be an eye witness.
(G). P.W.7 Shivjee Singh-the Investigating Officer.
(g). Defence of the accused persons was that of total denial. They claimed that they are falsely implicated in the subject crime. According to them as the family of the prosecuting party lost the litigation, the first informant has falsely implicated them in the subject crime. However, they did not enter in the defence.
(h). After hearing the parties, the learned trial court was pleased to convict the appellants/convicted accused as indicated in the opening paragraphs of this Judgment and they are sentenced accordingly.
(3.) We heard the learned counsel appearing for both the appellants. It is argued on behalf of the appellants that as P.W.6 Janki Devi has heard about the incident from P.W.3 Dhanraji Devi, P.W.6 Janki Devi is not an eye witness to the incident. She has claimed that the incident took place at Chaumukha. The prosecution has not examined any independent witnesses to corroborate version of P.W.6 Janki Devi and other witnesses have turned hostile. It is further argued that dead body of Gulli Mukhiya was not found and because of land dispute, the prosecuting party has concocted the case. The Investigating Officer had not found any marks on the place of the occurrence. It is further argued that even P.W.4 Dinesh Mukhiya and P.W.5 Dular Mukhiya are not an eye witnesses to the subject crime as they all are stating different place as the spot of the occurrence.;
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