NATHUNI SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 28.11.1987 passed in Sessions Trial No. 527 of 1982 by VIth Additional Sessions Judge, Munger, convicting and sentencing the appellant to undergo life imprisonment under Section 302/34 of the Indian Penal Code (in short, IPC).

(2.) THE case of prosecution as disclosed by fardbayan of informant Sunil Kumar Ram (PW 5), in short, is that on 4.2.1981 at about 7 p.m. informant was in his betel shop engaged in selling betel and cigarette. Deceased Ganesh Yadav along with 2-3 other persons was standing in front of the shop of informant when appellant along with co-accused Mithilesh Tanti, Shyam Tanti, Mahendra Tanti alias Dendha Tanti and Ram Bilas Tanti came there and surrounded deceased Ganesh Yadav, Co-accused Mithilesh Tanti, Shyam Tanti and Ram Bilas Tanti were armed with, pistols. Co-accused Mithilesh Tanti fired from his pistol at deceased Ganesh Yadav who after receiving injuries fell down. Co-accused Shyam Tanti also fired at the deceased. On this incident there was a stampede and appellant along with his companions fled away towards Ashikpur and while running they fired one more shot which hit one Asharfi Singh. After occurrence deceased was taken to Railway Hospital where he died and injured Asharfi Singh was taken to Munger Sadar Hospital. About the motive of the occurrence the informant in his fardbayan has said that a dispute between deceased and appellant and his companions was there and on the day of occurrence in the morning an altercation took place between the parties. On the basis of fardbayan (Ext. 1) of informant formal FIR (Ext. 4) under Section 302/34 IPC was draw against the appellant and four other co-accused persons named above and police after investigation submitted charge-sheet against them. After taking cognizance the case was committed to the Court of Session where charge under Section 302/34 IPC against the appellant and co-accused Mithilesh Tanti, Shyam Tanti, Mahendra Tanti and Ram Bilas Tanti and a further charge under Section 307 IPC against co-accused Shyam Tanti were framed. Since appellant and his companions denied the charges the trial proceeded and during the trial co-accused Mahendra Tanti alias Dhendha and Mithilesh Tanti and trial continued against appellant and co-accused Shyam Tanti and Ram Bilash Tanti. After trial the appellant and co-accused Shyam Tanti and Ram Bilas Tanti were found guilty under Section 302/34 IPC and were convicted and sentenced to undergo imprisonment for life. During the pendency of the appeal co-accused Shyam Tanti and Ram Bilas Tanti also died and only appellant remained to contest the present appeal. THE case of appellant is that he has been falsely implicated in this case on account of enmity.

(3.) CONSIDERING the entire evidence on record we find that only the informant and PW 3 have claimed themselves to be the eye-witnesses to the occurrence but then they have not alleged in their evidence any overt ask against the appellant. They have clearly stated that other co-accused persons named by them fired at the deceased. As stated earlier, there is contradiction in the evidence of both the witnesses on the point of assailants because according to the informant only co-accused Mithilesh Tanti and Shyam Tanti fired at the deceased whereas according to PW 3 besides these who co-accused persons co-accused Ram Bilas Tanti also fired at the deceased. Informant has admitted his enmity with the appellant. The informant in para 5 of his evidence has stated that near his shop other persons namely Jharu Tanti, Batesar Sao, Sushil Tanti, Dilip Tanti and Bhuneshwar Sah have their betel shops and at the time of occurrence their shops were also open but none of these shop keepers has been examined in this case. Besides this Asharfi Sah who according to the case of prosecution was injured by the firing of one of the companions of appellant at the time of occurrence and who would have been most competent witness has not been examined by prosecution and informant in his evidence has said that he has been gained over by the accused-persons.