- (1.) THIS appeal is directed against the judgment of conviction dated 10.1.2002 and order of sentence dated 15.1.2002 passed by Shri Ramnath Ram Mahto, 1st Additional Sessions Judge, Giridih in Sessions Trial No.25 of 1979 arising out of 1/71 -72 whereby and where under all the appellants have been convicted and sentenced u/s 147 I.P.C. to undergo R.I. for 2 years, u/s 395/148 of the I.P.C to undergo R.I. for 7 years and u/s 307/149 of the I.P.C. for 7 years. Further the appellant no. 7, Tejo Rai, who is stated to have died during the pendency of the appeal, was separately convicted and sentenced u/s 397 of the I.P.C. to undergo R.I. for 7 years. All the sentences were directed to run concurrently.
(2.) THE prosecution case was started on the basis of the F.I.R. lodged by Mathura Rai, brother of the victim, Muni Rai, stating therein that Muni Rai had lands at village Baliari, P.S. Birni, Dist. Giridih under khata no.1which are his ancestral lands, while lands of khata no. 3 and 9 were acquired by purchase from Most. Khagia, w/o Budhan Mahto. He has stated that in khata no.3 he has acquired 7.90 2/3 lands and Tikait Khagendranath Singh has also acquired 7.902/3 lands in the name of Raja Mani Singh. Mani Rai had instituted case no.1/71 -72 under the Land Ceiling Act being the land holder. He has stated that the lands falling in the hands of Muni Rai and the share falling in the hands of Sanichar Mahto, jointly cultivated and used to divide the products. He has also stated that paddy grown on the field had become ripe for harvest, hence on 3.11.1971, Muni Rai had gone to the field with gun for the purpose of engaging some labourers for harvesting the paddy. In the village he contactedBandhua Dhobi, Qadir Mian, Dilo Mahto, who were near the field and they agreed to engage labourer for harvesting the paddy. There after when he was crossing the river and going towards Gordih village, then in the meantime, he saw about 250 -300 persons having Talwar, Barcha, lathi, rod and farsa came towards him. They wanted to surround him and Tikait Khagendranath Singh and Somar Baitha ordered to kill him and looted the gun from him. After surrounding him they started pelting stone upon him. Then he went behind a palash tree and in order to save himself, he made two air fires. He started loading cartridge in his gun, but in the meanwhile, Tikait Khagendranath Singh came from behind and assaulted on his head with farsa causing head injury. There after Tejo Rai(since deceased) assaulted on his right arm with Barcha causing injury while Raghunath Mahto(Gope) assaulted on his hands with farsa. Sanjho Singh(since deceased) assaulted with farsa. Receiving the aforesaid injuries, he fell down, but, while falling trigger was pushed making another blank fire. The further case is that Manjho assaulted him with barcha while Basudeo Pandey assaulted with rod and Badri Singh inflicted injury on his leg by Talwar. Thereafter, Tikait Khagendranath Singh, Tejo and Badri pounced upon his hand and snatched his gun. The further case is that Fago Dhobi, Somar Baitha, Manjho Singh, Sanjho Singh and Baidnath Singh dragged him to the paddy field and Fago and Somar assaulted him with handle of the farsa breaking his teeth. After assaulting him all the accused persons flew away. There after the informant's brother Mathura Rai, Sukhdeo Rai, Dilo Mahto and Qadir Mian came, then the injured Muni Rai disclosed about the occurrence. Then the victim was brought to the Hospital for treatment where he was treated. Thereafter, Mathura Rai gave his written report to the Officer In -charge Birni P.S.; which was registered and after investigation submitted charge sheet against 26 accused persons under various sections including section 307/149,395/149 and 397 of the Indian Penal Code. Cognizance of the offence was taken against all the accused persons and the case was committed to the court of sessions, since the same was exclusively triable by the court of Sessions. It appears that during investigation and trial some of the accused persons died, hence finally only nine accused persons faced the trial and were convicted. It is submitted by learned counsel for the appellants that during the pendency of this appeal, the appellant no.7, Tejo Rai also died and affidavit to this effect has been filed by Debaki Rai S/o Tejo Rai. Hence appeal of Tejo Rai has finally abated as per section 394 of the Cr.P.C.
(3.) LEARNED counsel for the appellants submitted that the conviction of the appellants u/s 307/149 of the I.P.C. is bad in law and fit to be set aside. It is submitted that as per the deposition of P.W.6 , injured and victim of the case, except appellant no.2 Raghunath Mahto, appellant no. 5 Baso Pandey, Appellant no.7 Tejo Rai(since deceased) and Appellant no. 9 Fagu Dhobi, there is no specific allegation against the appellant no.1,3,4,6 and 8 for commission of any overt act. He has not stated that they had come with any arms or weapon and they had any motive behind the alleged occurrence. Learned counsel has relied on various judgment of Hon'ble Supreme Court to show that the aforesaid appellants cannot be convicted with the help of section 149 I.P. C. He has relied upon the judgment reported in "2005(vol -1) Eastern Indian Criminal Cases page 10. He has further argued that appellant no. 2,5 and 9 have not assaulted on any vital part of the body and all the injuries were not grievous in nature and they have also not motive to cummit the murder of the injured, P.W.6. In that view of the matter there conviction u/s 307 I.P.C is also bad in law. He has further contended that the conviction of the appellant u/s 395/149 of the I.P.C is also un -warranted in view of the judgment of Supreme Court since as per the evidence of P.W.6 only Tikait Khagendra Nath Singh(Since deceased), Appellant no.7,Tejo Rai(since deceased) and Badri Singh(Since deceased) had allegedly snatched away the gun and as such there was no motive of snatching the gun against the other accused persons nor they made any attempt to do the said act of snatching the gunr and as such the conviction of the appellant is bad in law and fit to be set aside.;