NAWAL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present criminal appeal arises out of the judgment dtd. 10/1/2014 passed by learned Adhoc Additional District and Sessions Judgte-4, Bhagalpur in Sessions Trial No. 1155 of 2010 arising out of Sabour P.S. Case No. 154 of 1995 dtd. 5/7/1995 by which the sole appellant has been convicted for the offences punishable under Ss. 302 and 449 of the Indian Penal Code (in short 'IPC') as also Sec. 27 of the Arms Act. The appellant has also challenged the order dtd. 15/1/2014 by which consequent to the judgment of the conviction the learned trial court has sentenced the appellant to under go rigorous imprisonment for life and fine of Rs.25,000.00 under Sec. 302 IPC and further ordered that in case of non-payment of fine the appellant shall suffer an additional imprisonment of three years, for the offence under Sec. 449 IPC the appellant has been sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.5000.00, in default one year extra imprisonment and further under Sec. 27 of the Arms Act the appellant has been awarded a sentence of three years and fine of Rs.2000.00, in case of default of payment of fine six months extra imprisonment has been imposed. All the sentences are to run concurrently. Prosecution Case

(2.) One Ashish Kumar Singh (PW-2) lodged his fardbeyan on 5/7/1995 at 09:30 A.M. in village Nadiyawa under Sabour Police Station before the Officer-In-charge of the Police Station. He alleged that on 4/7/1995 at about 09:00 P.M., he had been sleeping at the veramda of his house after taking dinner. His father was sleeping in the angan (Courtyard) on the floor. Whereas his mother was sleeping in the western side of the veramda on a 'chowki' with her two little grandsons. At about 12 O'clock in the night, the informant heard a sound as somebody jumped in his angan whereupon he got awaken and found that the co-villager Nawal Singh (the appellant) and Anil Singh (brother of the appellant) both sons of late Jagdish Singh were standing having gun in their hands. Nawal Singh asked "Sale chup chap raho" and Anil Singh opened the eastern side door of the house whereafter co-accused Suresh Mandal, Bulla Mandal, Kapoori Tanti and Rana Singh being the co-villagers of the informant, Jitendra Singh and Surji Singh residents of village 'Chhoti Zameen' under the same police station together with 8-10 other unknown persons entered in the angan of the informant. The informant thereafter taking the opportunity and saving himself from the eyes of the accused persons entered inside the room of the house situated in the middle towards western side and after concealing himself he was watching the occurrence. He alleged that Bulla Mandal (acquitted in Sessions Trial No. 632 of 1996) asked "Dekhte kya ho goli maro", on this the co-accused Suresh Mandal (acquitted in Sessions Trial No. 632 of 1996) fired from his gun on the father of the informant who was lying on the floor of the angan being afraid of the accused persons. The informant further claimed that at this stage when his mother came to save his father, Nawal Singh (the appellant) fired on her by his gun, thereafter co-accused Jitendra Singh fired on the face of the mother of the informant and another co-accused Anil Singh fired on the father of the informant. The accused persons had fired 7-8 bullets at the mother and the father of the informant and fled away from the door of the eastern side. The informant claimed that after the accused persons fled away he and his elder sister Nandini Devi (P.W.-1) wife of late Munna Singh resident of village Budhshan, P.S. Meharma, Dist Godda who was at the residence of P.W. 2 raised hulla shouting and crying whereupon co-villagers assembled there and the members of the force deputed in the village came who were told about the occurrence. The informant alleges that the occurrence had taken place because of the enmity with the family of Nawal Singh (the appellant) as the parties are fighting several litigations in the court. On the basis of fardbeyan of P.W. 2, the FIR was lodged and the investigation was handed over to Shri B.D. Tiwari, Sub-Inspector of Police (not examined). Chargesheet and the Charges Framed

(3.) Upon completion of the investigation, the police submitted chargesheet bearing no. 151/1995 showing co-accused Surji Singh, Bulla Mandal, Suresh Mandal and Rana Singh in judicial custody whereas co-accused Jitendra Prasad Singh, Anil Singh, Karpuri Tanti and this appellant were shown absconding. Cognizance of the offence under Ss. 449, 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act were taken on 7/12/1995. The records of the absconding accused including that of the present appellant were separated. Charges were framed in Sessions Trial No. 632 of 1996 against the co-accused Surji Singh @ Suraj Narayan Singh, Bulla Mandal, Suresh Mandal and Rana Singh for the offences punishable under Ss. 302/34 and 449 of the Indian Penal Code. Accused Suresh Mandal was further charged for the offence under Sec. 302 IPC and Sec. 27 of the Arms Act. In ultimate analysis, all of them were acquitted by the trial court. PW-2 was declared hostile. Evidence Against the Appellant