BARMESHWAR PANDEY & ORS. Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal arises out of the judgment dated 23rd/30th January, 1993 passed by Sri Murari Lal Kejriwal, 3rd Additional Sessions Judge, Ara in Sessions Trial No. 319 of 1986. The trial arises out of the Bihiya P.S. Case No. 36 of 1985. By virtue of the judgment and order appellant no. 1, namely, Barmeshwar Pandey has been convicted and sentenced to undergo rigorous imprisonment of ten years under Section 307 of the Penal Code and appellant no. 2, namely Sudarsan Pandey has been convicted and sentenced to undergo rigorous imprisonment for one year and pay a fine of Rupees 500/ - and in default further rigorous imprisonment for six months under Section 323 of the Penal Code. It is not in dispute that the appellants in the present appeal and the informant are brothers and belong to the same family. P.W. 4 in the present case is the father, namely, Sri Ram Niwas Pandey. It is also not in dispute that out of the same incident there is a case and counter case. Bihiya P.S. Case No. 35 of 1985 was filed by Barmeshwar Pandey, appellant no. 1 against the informant and others in various sections of the Penal Code and Bihiya P.S. Case No. 36 of 1985 has been registered by the informant. The incident had taken place on 14.3.1985. It emerges from the record that in Bihiya P.S. Case No. 35 of 1985 a compromise was reached between trte parties and matter came to rest but somehow for the reason not totally explained despite the compromise having been reached between the parties trial in Bihiya P.S. Case No. 36 of 1985 came to be held. The order of punishment and conviction is the result of the said trial.

(2.) BASED on the fardbeyan made by one Umesh Pandey at Bihiya Police Station on 14.3.1985 at about 6.45 P.M. Bihiya P.S. Case No. 36 of 1985 came to be registered. As per the F.I.R. at about 3.00 P.M. son of the informant was found plucking Sehajan from the tree located within the house of the parties. This was protested to by appellant no. 1 which led a heated argument. The son of the appellant fled away but the informant was confronted by appellant no. 1 and it is said that appellant no. 1 gave a bhala blow to the informant. Appellant No. 2 assaulted the informant with lathi and he was injured due to the said assault. The informant further stated that commotion created due to the said occurrence attracted the attention of large number of villagers and they intervened in the matter. Thereafter the informant came to the Thana, gave his fardbeyan, F.I.R. was duly recorded which he read and put his signature. The F.I.R. is Exhibit -4 and it only shows a thumb impression that too faint and without any attestation instead of signature as stated in fardbeyan and has significance in the matter.

(3.) TWELVE witnesses were produced on behalf of the prosecution and three witnesses were produced on behalf of the defence. In addition to the above injury reports and register showing admission of the informant in the hospital were exhibited as evidence.