NIMAI GHOSH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Challenging the findings recorded by High Court of Jharkhand in judgment dtd. 2/8/2012 passed in Government Appeal (DB) No. 31 of 1998, convicting the appellants for the charges under Sec. 302/34 of Indian Penal Code, 1860 (in short 'IPC') and Sec. 27 of the Arms Act, 1959, by setting-aside the judgment of acquittal dtd. 2/4/1998 of Additional Sessions Judge, Pakur, in Sessions Trial No. 148 of 1990, the present appeal has been preferred by the accused-appellants.

(2.) The necessary facts in brief are, P.S. Case No. 127/89 was registered by Shyama Ram, A.S.I., the Investigating Officer (PW11) on the basis of fardbeyan of Janmejay Ghosh (PW8, informant and son of deceased) on 9/7/1989 at 05.30 a.m. The incident allegedly took place on 8/7/1989 at around 4 p.m., in which one Manmohan Ghosh (father of the informant) was murdered. The P.S. Case was registered against six accused persons namely (i) Nimai Ghosh; (ii) Sonachand Ghosh; (iii) Sambal Ghosh; (iv) Gaya Nath Ghosh; (v) Shridhar Ghosh and (vi) Sachin Ghosh. After investigation, challan was filed against all accused persons. The prosecution was unable to prove the case beyond reasonable doubt leading to acquittal of all the accused persons. On filing appeal by the State, the High Court dismissed the same qua three accused persons sustaining their acquittal, however, by partly allowing the appeal qua other three accused persons namely (i) Nimai Ghosh; (ii) Sonachand Ghosh and (iii) Sambal Ghosh, they have been convicted for the offences as charged, hence, this appeal.

(3.) As per case of prosecution, on 8/7/1989 at about 3 p.m., the deceased Manmohan Ghosh accompanied with his son Janmejay Ghosh (PW8), Megh Nath Ghosh (PW5, nephew of deceased on maternal side) and Shankar Ghosh (PW2, nephew of deceased on paternal side), started on bicycles from village Malaypur to visit Pakur, where the house of the deceased was under construction. Around 4 p.m., when they reached the railway bridge near village Dadpur, Janmejay Ghosh saw Nimai Ghosh and Sonachand Ghosh (appellantsaccused) came from eastern side of the railway under bridge. Co-accused Gaya Nath Ghosh, Shridhar Ghosh, Sachin Ghosh and Sambal Ghosh also came from the western side of the bridge. Accused Nimai Ghosh and Sonachand Ghosh were armed with pistol and they forcibly dragged the deceased under the railway track, where Nimai Ghosh fired on the back of the deceased, as a result of which deceased fell down and started bleeding. Co-accused Sonachand Ghosh shot second fire with intention to kill him. In the meantime, while the deceased was bleeding and withering, Sambal Ghosh assailed him by means of knife, as such the deceased succumbed to the injuries. As further alleged, the entire incident was witnessed by Janmejay Ghosh (PW8), Megh Nath Ghosh (PW5) and Shankar Ghosh (PW2) and when alarm was raised by them, accused persons threatened to kill them. Fearing the same, they could not save the deceased. Thereafter, the accused persons left the place and moved towards Purab Jheel. The motive for the incident attributed in the fardbeyan is of previous enmity and prior litigation of deceased with accused Gaya Nath.