AS MOHAMMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant, Jhabar Mian convicted for offences under Section 302 of the IPC as well as 27 of the Arms Act vide judgment dated 31.08.1990 passed by learned Sessions Judge, Saran at Chapra in Sessions Trial No.99 of 1989 and sentenced to undergo R.I. for life for an offence punishable under Section 302 of the I.P.C. as also, R.I. for three years for an offence punishable under Section 27 of the Arms Act while, directing the aforesaid sentences to run concurrently vide judgment dated 03-09-1990 has preferred instant appeal.

(2.) THE prosecution case in brief is that on 17.11.1988 at about 06:15 P.M. Vijay Kumar Singh (P.W.3) had given his fardbeyan (Exhibit -3) before Officer-in-charge, Dighwara at Dighwara Police -2- Station disclosing therein that on the same day at about 07:00 A.M. when his brother Upendra Singh had gone to Nanhki Mian for getting irrigation for his potato field which was near the house and boring of Nanhki Mian, the latter agreed to irrigate his field but there was an altercation in between Nanhki Mian and Upendra Singh on the issue of settlement and adjustment of previous dues of Rs.25/-. The informant had stated that thereafter they returned back to their house and when both of them had again gone to their potato field for irrigation, he remained in his field while his brother Upendra Singh was called by Jhabar Mian. It has been alleged that at that very time Nanhki and Mustafa, brothers of Jhabar Mian were also present and Jhabar Mian began to abuse his brother Upendra for realization of earlier dues of Rs.25/- and became adamant to quarrel. On hearing sound of an altercation the informant claimed that he had rushed and arrived at the Darwaja of Jhabar Mian and had seen all of them to have gone inside their house and Jhabar Mian coming out with a gun in his hand, Nanhki Mian with a farsa and Mustafa Mian with Bhala.

(3.) IT has also been argued that the informant himself was not and could not be an eye witness to occurrence because of the fact that even taking into account his presence in the potato field would not have given opportunity to him to come at the Darwaja of accused persons specially when he had failed to disclose in the fardbeyan as well as in his deposition as to whether irrigation to his field had really commenced or not. In this regard learned counsel has referred to the objective finding of the I.O. that potato field so claimed by the informant, was found to be only half irrigated which in turn would falsify the prosecution case as there could be no justification for the accused to call the Upendra (deceased) at their place for chastising him as that was not right moment because the charges for irrigation was not being paid at the relevant time. Learned counsel had also submitted that the objective finding of the I.O. is also of no help to the prosecution.