Raju, J. -
(1.)The above appeal has been filed against the judgment dated 30-7-1999 of a Division Bench of the Patna High Court in Criminal Appeal No. 17 of 1987 confirming the judgment dated 18-12-1986 of the learned 2nd Additional Sessions Judge, Darbhanga, convicting and sentencing the appellants for various offences in Sessions Trial No. 30 of 1983. Of the seven accused, who were charged and stood trial before the Sessions Court, the fifth accused, by name Ram Prasad Yadav, died on 2-7-1994 and during the pendency of the appeal in this Court, the second accused Malhu Yadav died on 5-6-2001.
(2.)The case of the prosecution is that on 1-2-1981 at about 7.30 a.m., Rajendra Yadav, the informant, (PW-10), who is the brother of the deceased Sotilal Yadav, had gone to see the standing Kerao crop on his land and noticed the first accused Lal Bachan Yadav (A-1), son of Shibu Yadav (A-3), stealthily uprooting the crops, resulting in a scuffle between them when he caught hold of A-1. On hearing the hullas raised at that time both by PW-10 and A-1, the deceased, his father Laxmi Yadav (since deceased) and Ram Kishore Yadav (PW-5), as also the accused and some others, arrived at the spot. In the process of exchanging abuses and hot words, when a demand was made by other accused to release A-1, the deceased refused to do so without having a Panchayati in the Village for the incident. The accused were said to have got enraged on this and Ram Prasad Yadav (A-5) was said to have exhorted the other accused stating "Shela badmash hai, use jan se mar do". On this, Jagdish Yadav (A-4), the son of A-5, standing on the bandh was said to have assaulted the deceased with Bhala on the right side of the neck, which caused a punctured wound 1" x 1/4" x 1-1/2" piercing through the sub-interior tissues upto upper hole of right lung. When the deceased fell down, A-3 also assaulted him with a Bhala on his back causing an incised wound 1"x1/2" x 1/4" on left lower part of the back. Malhu Yadav (A-2) was also said to have assaulted him on his head with lathi portion of Bhala causing a lacerated wound 1" x 1-1/2" upto one on right side of head. Brij Kishore Yadav (A-7) was stated to have assaulted him with lathi on his head causing one lacerated wound 1-1/2" x 1/4" upto bone over middle of head and A-5 gave a blow with lathi on back causing bruise 4"x1" on lower part of the back. Sotilal Yadav was said to have died on the spot due to the above injuries. Laxmi Yadav, father of the deceased, and Ram Kishan Yadav (PW-5), father-in-law of the deceased, when tried to lend support by lifting the deceased, Raj Kumar Yadav (A-6) was said to have assaulted Laxmi Yadav with Farsa on his head as well as on his both hands causing incised wound and A-2 also was said to have assaulted him with Bhala on his right eye-brow. A-5 was said to have assaulted PW-5 with lathi on his left hand fingers and right fore-arm causing laceration, bruise and fracture injuries. A-7 was also said to have assaulted him with lathi on his back causing bruise. A-6 was attributed with an act of assaulting PW-10 which made him let loose A-1 held by him and go and stand at a distance of ten laggas from the place of occurrence. In the course of occurrence as well as hullas raised, one Kailu Yadav (since dead), Sukhdev Yadav (said to be gained over) Uttim Yadav (PW-6) and others were said to have arrived on the spot and saw the occurrence. A-1, in spite of all this, was alleged to have taken away the uprooted 'kerao'.
(3.)PW-6 and his mother (wife of Ram Kishan Yadav) were said to have taken Laxmi Yadav and Ram Kishan Yadav to Hospital for the treatment on Tonga and PW-10 along with Awadh Yadav (PW-6) and Kailu Yadav were said to have brought the dead body of Sotilal Yadav to Kilaghat Police Station (Sadar P.S.) at about 3.30 p.m. when PW-12, Shri Bharat Kant Jha, then Station Officer, was present. Fard byan (Ex.1) of the informant was said to have been recorded and the case registered as Sadar P.S. Case No. 23, dated 1-2-1981 under Sections 147, 148, 149, 324 and 302, IPC, against all the seven accused. On taking up further investigation, PW-12 was said to have examined the dead body and prepared an inquest report (Ex.2) and recorded the statement of Kailu Yadav and Awadh Yadav at the Police Station. The dead body was said to have been sent to the Hospital for post-mortem through two Constables and received at the Hospital at about 4.30 p.m. on the same day. The post-mortem was said to have been conducted by the Doctor (PW-11) at about 1.30 p.m. on 2-2-1981, who submitted the post-mortem report (Ex.3) received in the Police Station on 5-2-1981. During the course of investigation on 1-2-1981 PW-12, who visited at 5.20 p.m. the Hospital to record the statements from Laxmi Yadav and Ram Kishan Yadav, could not do so for the reason that they were not in a fit condition but at the same time their bodies were said to have examined and injury Reports (Exs. 4 and 4/1) were said to have been prepared. On the same night when PW_12 went to the place of occurrence, he could not make an inspection for want of light and, therefore, on 2-2-1981 at 6.30 p.m. he made a spot inspection of the place of occurrence and found uprooting of some of the standing crops in the field and marks of trampling, besides blood-stains in the trampled area, but not in that proper condition to be collected. After recording the Statements of PWs-4 and 8, the house of A-5 was said to have been searched and two lathis recovered from which 'Bhala' portion had been removed and one blood-stained in all three articles under Seizure List (Ex.5). Thereupon, he was said to have gone to Hospital and recorded statement from the two injured persons, noticed above. On 4-2-1981, the Superintendent of Police also supervised the investigation and A_5 and A-7 were said to have been arrested on 11-2-1981. The investigation was thereafter handed over to another person, who submitted the charge-sheet before the Chief Judicial Magistrate, who later committed the case to the District and Sessions Judge, which thereafter stood transferred to the Court of 2nd Additional Sessions Judge.