BHUSHAN PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is on behalf of the ten convicted accused in Sessions Trial No. 43 of 1980/41 of 1982 on the file of 1st Additional Sessions Judge, Sitamarhi. As many as 22 persons including the appellants were tried in this case. The judgment was delivered on 1st May, 1985. The learned Additional Sessions Judge convicted twenty accused while two accused, namely, Pawan Kumar Thakur and 9esh Narain Thakur were acquitted for lack of evidence.

(2.) THE appeal preferred by remaining convicted persons has been separated from this case since in one of the appeals i.e. Cr. App. No. 77/85 notice has not been properly served. The trial of the present appellants and the other accused related to an incident which took place on 7.6.1978. The prosecution case has been ecurately narrated by the learned Additional Sessions Judge in para 2 of the judgment extracted; hereunder : - ''The prosecution case, in brief, as gathered from the fardbeyan, is that Ram Bujhawan Yadav (P.W. 2) informant injured came to RS. Nanpur along with injured Rajendra Sahani and Tildhari Sanhi at 8 RM. on 7.6.88 and lodged information to the effect that on that date at 12 A.M. he had gone from Mahisautha to village Samar along with his few associates for convassing for vote. He reached at the darwaja of Bhushan Pathak and requested him -vote. At that time about 25 -30 person. were at the darwaja of Bhushan Pathak.' He names some of them as Ram Singhasan Rai, Anup Lal Rai, Ram Swaroop Rai, Nand Klshore Rai, Rajendra Rai of village Sater, Bhola Rai of village Sagar tola Ranglali, Bhushan Pathak, Rama Kant Pathak, Dhananjay Pathak, Shayama Pathak, Ishwar Chand Pathak, Sudhir Pathak, Prem Chand Pathak, Satto Pathak, Bindeshwar Pathak of village Samar and Dhirendra Thakur, Pitamber Thakur, Amol Thakur, Madhu Thakur of village Jajuar and others. It is indicated that JajuaMs within P.S. Katara within Muzaffarpur district. Village Mahisautha, Samar and Sater are within RS. Nanpur, District Sitamarhi. It is alleged in the fardbeyan that Dhananjay Pathak retorted to the informant that they were gossiping and he should go to other place for asking vote (Hum Guftgu Kar Rahe Hain Aap Dusare Sthan Par Jakar Vote Ka Nivedan Kare.) Thereafter the informant went in the same village via the darwaja of Shivji Rai to the Darwaja of Mangnu Chowdhary. He began to ask for vote. It there is alleged that at about 2 RM. he proceeded from the darawaja of Mangnu Chowdhary for going to Mahisautha. When he reached again near the darwaja of Bhushan Pathak it is alleged that Bhushan Pathak uttered to Ram Sihasan Rai that he has got his gun seized and he has changed the booth from Dasai to Mahabir Sthan and he (informant) was helpless (Apka Banduk Wahi Seej Kara Diya Hain Aur Dasai Par jo Booth Hai Usakao Mahabir Sthan Men Kara Diya inka Kuchh Nahin Chala). On hearing the utterances aforesaid the informant replied that that is Devottar property and not fit for running school and he would get a proceeding u/s144 Cr.P.C. started. On hearing this it was replied to him (informant) Let account be settled today (Aaj hi Aap Pharahha Lijiye). Thereafter the associates of the informant asked the informant to proceed on and said that they (accused persons) are trying to quarrel. Thereafter Rama Pathak alias Ramakant Pathak assured that there will not be any quarrel and also said that all of them will move with you to Mahisautha. Further case is that when they reached near the Khanua Ghat they (accused persons) began to quarrel with the informant and his associates and some of the accused persons loudly called out their other persons who were in south of Khanuaghat. Those peraons had guns and bombs in their hand. Five of them had guns. It is alleged that Ram Sin -ghasan Rai, Anup Lai Rai, Ram Swaroop Rai, Nand Kishore Rai and Dhirendra Thakur took guns from the hands of those persons. Other accused persons took bombs from the hands of those persons. Thereafter Bhushan Pathak and Pitambar Thakur said that that gun has been got seized but how you will get this gun seized (Wah Banduk Seej Kara Diya Yeh Banduk Kaise Seej Kara Doge) and so saying both of them gave further orders to open gun shots and to hurl bombs whereupon Dhirendra Thakur and Ram Singhasan Rai opened gun fire as a result of which Niranjan Sahni and Sakoor Nadaf of village Mahisautha died on the spot. Dhananjay Pathak, Bhushan Pathak and others began to hurl bombs as a result of which Rajendra Sahni, Rajdeo Rai J Vijay Kumar received injuries by bombs. They had also thrown bomb on the deceased persons. It is alleged that the informant himself ran away and entered into the house of Thuldhari Sahni. Dhanjay Pathak asked the miscreants to set fire to the house of Tildhari. He also asked Tildhari to bring out the informant. Tildhari, however, said that he will not take out the informant because he had taken refuge (Sharan) with him. Thereafter Sudhir Pathak pierced bhala in the stomach of Tildhari Sahni. Iswar Chand Pathak also hurled bhala blow. Other accused persons assaulted him by fists and slaps. It is alleged that Tildhari was still senseless at the time of fardbeyan. It is also alleged that Mithlesh Pathak, Rajendra Rai, Bhola Rai, Ramakant Pathak, Premchand Pathak, Amol Thakur and Madhu Thakur were also armed with lathi, bhala and bomb and they were using the same. It is alleged that Anup Lai Rai took out a matches from his pocket and set fire to the faff/' house of Tildhari. It is also alleged that seeing the aforesaid acts, the informant ran away from the place whereupon Ram Singhasan Rai opened gun fire upon him due to the orders given by Satto Pathak, Bindeshwar Pathak for killing the informant soon who was coming out of that house. The gun shot fired by Ram Singhasan Rai caused injury on neck, chest and left arm of the informant who fell down. ''

(3.) RAM Bhujawan, the most important witness of the case, had received fire arm injuries. Sakoor Nadaf one of the persons killed in the occurrence had numbers of injuries on his persons. Blackening and tatooing was found on his body. According to the doctor fire arm was used from a distance of 15 to 20 feet. Similar injuries were found on Niranjan Sahni, the other deceased who also died by gun shot injury.