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2019 Supreme(Pat) 1777
IN THE HIGH COURT OF PATNA
Rakesh Kumar, J.
YOGENDRA PATHAK - Appellant
Vs.
STATE OF BIHAR - Respondent
Criminal Appeal No. 910 of 2017, 771 of 2017
Decided On : 20-08-2019
Ramakant Sharma, Adv., Rajesh Kumar, Adv., Prem Sheela Pandey, Adv., Ajay Mishra, Adv., Soni Shrivastava, Adv., Rachana Saraswati, Adv., Madhuri Kumari, Adv., Kanhaiya Prasad Singh, Adv., Pratik Mishra, Adv., Birendra Kumar Singh, Adv.
Headnote:
Indian Penal Code, 1860 – Sections 302/149, 323, 147 and 148 – Arms Act, 1959 – Section 27(1) – Murder, hurt and rioting – Common object – Conviction and sentence – Occurrence has categorically been established by prosecution – It is established from materials on record beyond doubt that occurrence as alleged by prosecution took place on alleged date, time and place – Genesis of occurrence has also been established beyond all reasonable doubts – Genesis of occurrence is land dispute relating to orchard – Manner of occurrence has fully been established – There are some inconsistency in evidence of informant in between his earlier version and evidence during trial, but same are not so serious, rather it appears to be natural – Evidence of injured witnesses entirely depicts prosecution case as to what role was played by accused persons in occurrence – It reflects that accused persons right from very beginning had formed an unlawful assembly with unlawful object and it has come that with a common object accused persons had assaulted prosecution side by lethal weapons which were sufficient for causing death – Appeals dismissed. (Paras 17, 18, 20 and 31)
Indian Penal Code, 1860 – Sections 302/149 – In a case of application of offence under Section 149 of I.P.C., act of one accused becomes act of other – As such, in a situation like this, one may not claim that he was only an order giver and one has only assaulted prosecution by means of lathi or slapped – If object of causing death is evident which can be achieved even in spur of moment, in such situation none of accused persons can be absolved from offence under Section 302 read with Section 149 of I.P.C. (Para 21)
JUDGMENT/ORDER :
Rakesh Kumar, J.
Eleven [11] appellants in Cr. Appeal (D.B.) No. 910 of 2017 and the sole appellant in Cr. Appeal (D.B.) No. 771 of 2017 were tried together and convicted and sentenced by the common judgment of the trial court, and as such, both the appeals were taken up together under the heading "For Hearing" and are being disposed by this common judgment.
2. This is second round of appeal filed by the appellants in Sessions Trial No. 281 of 1982. The present appeal under Section 374 (2) of the Code Of Criminal Procedure, 1973 [hereinafter referred to as the "Cr.P.C."] has been field against the judgment of conviction dated 8th June , 2017 passed by Shri Om Prakash Rai, learned Sessions Judge, Siwan [hereinafter referred to as "trial judge"] in Sessions Trial No. 281 of 1982 [ arising out of Andar P.S. Case No. 64 of 1982]. By judgment date 8th June, 2017 all the twelve appellants in both the appeals were convicted for the offence under Section 302/149 of the Indian Penal Code, 1860 [ hereinafter referred to as "I.P.C."]. Tarkeshwar Pathak ( A3), Harendra Pathak (A5) and Pauhari Pathak [A9] in Cr. Appeal (D.B.) No. 910 of 2017 were further convicted under Section 323 of the I.P.C. All the appellants under Section 302/ 149 of the I.P.C. by order dated 13.06.2017 were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each. In case of default of payment of fine, they have further been sentenced to undergo simple imprisonment for two months. By the same judgment of conviction, Vyas Pathak (A 6) in Cr. Appeal (D.B.) No. 910 of 2017 has been convicted for offence under Section 324 of the I.P.C. and by order dated 13.06.2017 has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 2000/- each. In case of default in payment of fine he has further been directed to undergo simple imprisonment for one month. Appellant / Tarkeshwar Pathak @ Timal Pathak in Cr. Appeal (D.B.) No. 910 of 2017 by the same judgment of conviction and sentence has been directed to undergo simple imprisonment for one year under Section 323 of the I.P.C. and imposed fine of Rs. 1000/- . In case of default in payment of fine he has been directed to further undergo simple imprisonment for one month. Yogendra Pathak [ A1], Bachcha Pathak [A4], Vyas Pathak [A6], Radhey Shyam Pathak [A11] in Cr. Apeal (D.B.) No. 910 of 2017 and Ram Vilas Pathak @ Sudama Pathak @ Ram Velas Pathak [sole appellant in Cr. Appeal (D.B.) No. 771 of 2017] by the same judgment of conviction and sentence under Section 148 of the I.P.C. were directed to undergo rigorous imprisonment for three years. Ram Suresh Pathak [A2], Tarkeshwar Pathak @ Timal Pathak [A3], Harendra Pathak [A5], Prabhunath Pathak [A7], Umanath Pathak [A8], Pauhari Pathak [A9] and Amarnath Pathak [A10] were convicted under section 147 of the I.P.C. and sentenced to undergo simple imprisonment for one year. Appellant no. 1 in Cr. Appeal (D.B.) No. 910 of 2017 by the same judgment i.e. judgment of conviction and sentence dated 8th June 2017 and 13th June, 2017 respectively was under Section 27 (1) of the Arms Act, 1959 [hereinafter referred to as the "Arms Act"] was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-. In case of default in payment of fine he has further been directed to undergo one month simple imprisonment. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed in Sessions Trial No. 281 of 1982 { arising out of Andar P.S. Case No. 64 of 1982} by Shri Om Prakash Rai, learned Sessions Judge, Siwan.
3. The case has got a chequered history. In the case occurrence had taken place long back on 29.05.1982 in which three persons from prosecution side were done to death and number of others received injuries. Initially 19 accused persons were put on
