STATE OF BIHAR Vs. RAMASHANKAR TIWARI

JUDGEMENT

(1.) This appeal has been preferred against the judgment of acquittal dated 10.7.1987 passed by the then 4th additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 567 of 1978.

(2.) In total, ten accused-persons were made to face trial under the charges under Sections 302/307/149/379 of the Indian Penal Cod read with Section 27 of the Arms Act. Accused-respondents Rama Shankar Tiwary, Sidharth Tiwari, Rameshwar Chamar (Ram), Kailash Ram, Kanta Chaudhary, Ram Nath Singh, Kashi Ram, Jagarnath Tiwari, Kedar Tiwari and Sarju Tiwary were charged under Sections 302/149 of the Indian Penal Code for forming an unlawful assembly having a common object to commit murder of Kedar Roy, Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1). Kedar Tiwary was separately charged under Section 302 of the Indian Penal Code, 1860 for committing murder of Kedar Roy. Again all the accused-persons have been charged under Sections 307/149 of the Indian Penal Code, 1860 for attempting to cause death of Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1). They were also charged under Section 27 of the Arms Act. Accused Sarju Tiwary was further charged under Section 379 of the Indian Penal Code, 1860 for commission of theft of a rifle from the possession of deceased Kedar Roy.

(3.) Prosecution case in brief is that both the parties were in inimical terms since before for which the deceased Kedar Roy being apprehensive of his life made application before the police and he was provided with an armed bodyguard in the name and style of Ashok Kumar Ghosh. On the fateful day, i.e., on 6.4.1978 between 7 a.m. to 7.30 a.m. Kedar Roy the deceased, cousin brother of informant Bramhanand Roy along with maternal uncle Tarkeshwar Pandey (P.W. 2) and his body-guard Ashok Kumar Ghosh (P.W. 1) went to watch the maize field belonging to the deceased wherein several persons named in the F.I.R. were busy in reaping crops for and on behalf of the deceased. Before leaving for the field, the deceased asked his causing, the informant, Bramhanand Roy, to keep watch over them for which when they started for the maize field the informant went upstairs on the roof of his house. According to the informant, when Kedar Roy along with Tarkeshwar and Ashok Kumar Ghosh reached near the ridge of grass field, the informant heard sound of three or four firing from the western side and the informant could guess and understood that his brother Kedar Roy fell down because of firing in the maize field. Then the informant saw of the coming of the accused-persons and surrounding Kedar Roy armed with rifle and guns and then accused Kedar Tiwary shot at Kedar Rai from his gun and the informant could further guess and understand that Kedar Roy fell down on receipt of gun-shot injury and died at the spot, and accused Sarju Tiwary took away rifle of Kedar Roy and then the accused-persons fled away towards south. The companions of the deceased Kedar Rai, namely, Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1) were also injured in the same incident and same running towards the house of the informant and then they were sent to nearby village Keerya and then they proceeded towards Dihara Police Station on a tractor. It was further mentioned in the F.I.R. lodged by Bramhanand Roy (P.W. 9) to the effect that the deceased Kedar Roy by having 12 Big or has of land in the village Monihari and harvesting of the wheat in the land was going on since early morning, i.e., 5 a.m. on 6.4.1978. Several persons of Mistri caste along with their family members were engaged for harvesting the field who had also witnessed the occurrence. The motive behind the incident was stated to the effect that about two years prior to the occurrence the father of the informant was killed by some Tiwary persons of village Jogyan and since then there was enmity between the parties and only to take grudge the accused-persons by forming an unlawful assembly had caused the occurrence. Formal F.I.R. was registered on the basis of the Fardbeyan made by P.W. 9 Bramhanand Roy on 6.4.1978 at about 12-15 p.m. and such Fardbeyan was recorded at village Manihari itself when Sub-Inspector of Dinara Police Station Sheo Ballabh Singh (P.W. 11) came there on the basis of an information received by him from the Chowkidar of the village to the effect that two persons have been killed in the village Manihari in the same transactions of occurrence at the same time and place. Such information given by the Chowkidar was recorded in the form of a Sarha report in the police station itself much prior to the alleged Fardbeyan being given by P.W. 9 Bramhanand Roy. It further appears that two case were registered out of the same incident one the present case against the accused-respondents and the other for the murder of Jagarnath Chamar against the prosecution party wherein the deceased Kedar Roy, informant Bramhanand Roy, the star witness of the prosecution P.W. 1 AShok Kumar Ghosh and P.W. 2 Tarkeshwar Pandey along with others have been made accused. In the present case also the deceased Jagarnath Chamar in the other case was made accused along with one Kesho Nonia but no charge-sheet was submitted against them as Jagarnath Chamar was dead and against Kesho Nonia no material was found. The same investigating officer (P.W. 11) had investigated both the cases. In the present case charge-sheet has been submitted as mentioned above but in the cross-case final form was submitted on the plea that the case was lodged on mistaken facts. It appears that the acceptance of the final form was not proper as no notice was given to the informant in the cross case but then a protest petition was filed but the same was also dismissed for non-prosecution. As such, it appears that the cross case of the same occurrence did not and could not see the stage of the trial.