- (1.)The name of appellant No. 1, Ram Chandra Pradhan has been expunged by order dated 17.7.2007 recording the fact of death of that appellant during the pendency of this appeal and the consequent abatement of appeal in respect of that appellant.
(2.)By the judgment under appeal dated 16th January, 1988 passed by learned 4th Additional Sessions Judge, Arrah in Sessions Trial No. 170 ofl979, all the five appellants have been convicted for the offence under Section 396 of the Indian Penal Code on a finding that they participated in the offence of committing murder of Hari Prasad Rai and taking away a box containing ornaments and cash. They were acquitted of the charge under Section 302 read with Section 149 of the IPC on a finding that this charge is not proved against the accused persons as they had not come to commit murder of Hari Prasad Rai. The appellants have been awarded life imprisonment for the offence under Section 396 of the IPC.
(3.)The FIR of this case (Simri P.S. Case No. 2 dated 4.7.1976) was lodged for the offence under Sections 147, 148, 149, 307, 326, 302 and 380 of the IPC and Section 27 of the Arms Act on the basis of fardbeyan of Jainath Rai recorded at Simri Hospital at 5.45 a.m. on 4.7.1976. As per fardbeyan the prosecution case, in brief is that in the night of 3-4 July, 1976 at about midnight while the informant was sleeping at his darwqja along with his father Hari Prasad Rai (the deceased), Baijnath Rai Sidhnath Rai (PW 8) Uma Shankar Rai (PW 9) and some others. Suddenly his co-villagers Shestnath Pandey and Ram Nath Pandey along with the appellants and 30 and 40 unknown persons came to his darwqja and they started assault. Shest Nath Pandey and Ram Nath Pandey (both died during trial) had gun in their hands.
Shankar Pradhan had garasa. Shri Krishna Jee Pradhan had bhala. Ram Nath Pandey had farsa and others were armed with lathi. They were identified in the light of lantern and torch. The informant and his men wanted to catch hold of the accused persons but due to assault they could not do so. Hari Prasad Rai was shot by Shest Nath Pandey. As a result he fell down and died instantaneously. Radha Rai (PW 6), Sidh Nath Rai (PW 8), Uma Shankar Rai (PW 9) and Baijnath Rai (PW 11) also received injures and had to go to hospital for treatment. The informant had received a lathi injury on the hand. On hulla Shri Ram Rai (PW 4), Ram Chandra Rai (PW 2), Rajmahi Rai (PW 5) , Rama Shankar Rai (PW 7) and others came and identified some of the accused persons who managed to flee away. The miscreants carried away a box from the house of the informant which contained jewellery, clothes and cash. He claimed that he could identify other miscreants on seeing them. The details of jewellery and clothes were to be supplied after enquiry from members of the family. Allegedly the occurrence had taken place on account of enmity which was detailed in the fardbeyan to the effect that there was litigation between the prosecution party and accused Shest Nath Pandey and Ram Nath Pandey, the co- villagers of the informant which was pending in Court and two days earlier the aforesaid two accused had threatened the informant.