ADITYA KUMAR TRIVEDI, J.:–Appellants, Chanda Devi, Dashrath Thakur, Tuil Yadav @ Tuil Kamkar and Virendra Yadav have been found guilty for an offence punishable under Section 308 of the I.P.C. and each one has been directed to undergo R.I. for three years vide judgment of conviction and sentence dated 24.06.2015 passed by the Additional Sessions Judge-4th, West Champaran at Bettiah in Sessions Trial No.527 of 2002.

2. PW-9, Sams Tabrej while was produced at the police station in an injured condition on 26.05.2000 at about 11.00 p.m. gave his fard-bayan disclosing therein that on the same day at about 9.00 p.m. while he was going to keep watch over Litchi Garden belonging to Sita Rajgadhia of which fruits have been purchased by his father as well as Islam Mian, as such had gone to the place of Islam Mian and after staying sometime, son of Islam Mian namely Suba Mian accompanied him. When both two reached near the house of Ramayan Yadav, Vijay Yadav, Yogi Yadav @ Yogendra Yadav, Birendra Yadav, Rajesh Yadav, Dashrath Hazam and brother-in-law (Sala) of Ramayan Yadav namely Tuil Yadav @ Tuil Kamkar pounced upon him, caught hold and dragged him to the house of Ramayan Yadav. Suba Mian escaped during midst thereof. He repeatedly asked from the accused why they caught hold him and where they are taking him away, whereupon accused persons said that just now you will get the answer. As soon as they reached at the house of Ramayan Yadav, at the instant of Yogi Yadav, all the accused persons lifted the weapons having kept at the darwaza of Ramayan Yadav and began to assault repeatedly as a result of which, he sustained injuries over his head as well as at different parts of his body. He beged to spare, but the accused persons did not pay heed to him. Accused Rajesh Yadav was saying to pierce spear. Wife of Ramayan Yadav was saying that he had assaulted her son yesterday on account of plucking of Litchi. She had further disclosed that after murder, police will be reported that as he has come to commit theft on account thereof, has been murdered. It has further been disclosed that the accused Vijay Yadav gagged his mouth with cloth before assault, so that he could not raise alarm. Seeing the condition, the accused persons became very much perplexed whereupon opened his mouth. Thereafter, he raised alarm attracting the villagers, who rescued him and then, took him to police station.

3. After registration of the Bettiah Mufassil (Manuapul) P. S. Case No.102 of 2000, investigation commenced and concluded by way of submission of chargesheet followed with order of cognizance paving way for trial meeting with the ultimate result, the subject matter of instant appeal.

4. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, there happens to be specific plea that on the alleged date and time of occurrence, the informant along with Suba Mian had made house trespass in order to commit theft and was apprehended red-handed during course of lifting box and in order to protect the property, he was assaulted and was produced before the police and for that, on the fard-bayan of appellant/ convict Chanda Devi, Bettiah Mufassil P. S. Case No.107 of 2000 has been registered. In order to substantiate the same, one DW along with the F.I.R., chargesheet of the counter-case has also been exhibited.

5. In order to substantiate its case, prosecution had examined altogether 11 PWs, who are PW-1 Jumman Mian, PW-2 Nurul Hoda, PW-3 Hajrat Mian, PW-4 Nijamuddin Ansari, PW-5 Ibrahim Mian, PW-6 Md. Salim Sah, PW-7 Shaiyad Mian, PW-8 Sahab Jan, PW-9 Sams Tabrej, PW-10 Dr. Ramesh Chand and PW-11 Shamshad Alam Shamsi. Side by side, had also exhibited viz. Exhibit-1 series, signature of informant as well as respective witnesses over the fard-bayan, seizure list, Exhibit-2 injury report, Exhibit-3 (Exhibit-1/3 which ought to have been Exhibit-3), Exhibit-4 seizure list rel

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