NITYA NAND DUBEY Vs. OM PRAKASH CHOUDHARY

JUDGEMENT

(1.) The petitioner has preferred this revision against the judgment and order dated 12th July, 1994, passed by Sri B.K. Thakur, Sessions Judge, Bhagalpur in S.T. No. 591/90, by which he recorded the judgment of acquittal in favour of the accused-persons-opposite parties, (1st Set).

(2.) Briefly stated, the case of the prosecution as made out in the fardbeyan, Ext. 8 is as follows: In the evening at about 6.45 p.m., on 5.10.89, Fudan Dubey (since deceased) was returning to his house from Ghogharailway station through the orchard of his cousin. Sajjan Sah was also following him at some distance. In the orchard, he was intercepted by the seven accused-persons, out of them, four accused, namely, Om Prakash Choudhary, Tuntun Jaiswal, Anil Choudhary and Mahesh Choudhary were armed with pistols while the rest three accused-persons were armed with Farsa, knife and dagger. Accused Om. Prakash Choudhary and Tuntun Jaiswal asked Fudan Dubey to stop and then Tuntun Jaiswal ordered to kill. Thereupon, accused Om Prakash Chaudhary fired from his pistol which hit the victim: on his chest. It is further alleged that accused Tuntun Suresh Jaiswal also fired on him, but it missed the target. Hearing the sound of firing, Sajjan Sah and Tetar Yadav and few others rushed to save the victim, and seeing them, the accused-persons fled away. The reason for the alleged occurrence, as mentioned in the F.I.R. is that Fudan Dubey had objected the accused-persons for playing cards and gambling till midnight in front of his 'Darwaza'. This caused annoyance to them and accused Om Prakash Choudhary and threatened him with dire consequences.

(3.) It is the further case of the prosecution that after receiving firearm injuries, the victim Fudan Dubey was rushed to Jawaharlal Nehru Medical College, Hospital, Bhagalpur for treatment by his brother Nityanand Dubey, (P.W. 1) and others. Fudan Dubey gave his statement before the A.S.I. of police, who visited at the hospital. On the basis of the said statement, case was registered. The victim was admitted in the casuality ward of the hospital where his dying declaration was also recorded by a Magistrate deputed for the purpose. The victim died thereafter in the hospital itself. After investigation, police submitted charge-sheet against all the accused-persons who were put on trial and were charged for the offence under Sections 302, 302/149, INDIAN PENAL CODE, 1860 and 27 of the Amis Act. Accused Om Prakash was separately charged under Section 302, INDIAN PENAL CODE, 1860