KAPIL THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants, three in numbers, have been found guilty for offences under Section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- by the 5th Additional Sessions Judge, Bhojpur in Sessions Trial No. 474 of 1991.

(2.) The First Information Report was instituted on the basis of the fardbayan of Arun Kumar Thakur (PW 5). According to the case as made out in the First Information Report, it is said that Arun Kumar Thakur along with his uncle Bhola Thakur (PW 4) and his father Ramadhar Thakur (PW 1) were sitting near their door. In the mean time, it is said that the accused persons came to the door of the informant and asked them to partition the orchard and asked them to remove their pilani from the orchard.

(3.) The defence of the appellants is that no such occurrence took place and the entire case is false. It was stated that the appellants have been named in the occurrence as an afterthought due to partition of property. Counsel for the appellants has argued that no case is made out under Section 307 of the Indian Penal Code as there was no intention on behalf of the appellants to inflict fatal blows and there were no intervening circumstances to deter the appellants. Besides which, it is submitted that they are closely related and because of the dispute of partition of orchard, the present case has been instituted. It is also contended that the First Information Report has been received in the Court of the Chief Judicial Magistrate on 11.12.1990, whereas it was instituted on 06.12.1990, and the delay has not been explained, especially in view of the fact that the Investigating Officer of the case has not been examined, which raises a doubt with respect to the manner in which the First Information Report has been instituted.