SUMESHWAR UPADHYAYA @ SADHU Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal arises out of the judgment and order of conviction and sentence dated 25th August, 1999 passed by the 2nd Additional Sessions Judge, Bhojpur at Arrah in Sessions Trial No. 329 of 1998 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and respectively sentenced to undergo R.I. for life and R.I. for two years.

(2.) The prosecution story, as unfolded in the fardbeyan (Ext. 5) of the informant Ruby Kumari (PW 5), the daughter of deceased Satya Narayan Rai as recorded by S.I. Rameshwar, Officer-in-Charge of Tarari Police Station on 21st December, 1997 at 23.15 hrs. at village camp is that on that day (21.12.1997) at about 6.00 p.m., while the informant was in her house, suddenly her father (deceased) raising hulla came from the east side and he fell down outside the house in the north-east area and started crying loudly that Sumeshwar Upadhyaya @ Sadhu son of Janki Upadhyay resident of Mohalla Khurd had shot him near west of the house of Alam Mian son of Dosh Mohammad Mian. There was firearm injury on his (deceased's) back and it was bleeding profusely. The villagers Jokhan Rai, Salim Mian, Mustaki Mian, Radha Yadav and Dina Nath are said to have come there and taken the injured (deceased). The old enmity was stated to be the cause of occurrence. The informant alleged in the fardbeyan that since the year 1982, land dispute had started with the appellant Sumeshwar Upadhyay which dispute had been resolved few days back. The informant claimed that the appellant had shot at and injured her father (the deceased) with intention to kill him.

(3.) As many as eight witnesses were examined by the prosecution in this case. The appellant Sumeshwar Upadhyay had taken the defence of alibi and he had examined one defence witness Dinesh Mauar (DW 1) who had come to say that the appellant by Gurubhai and on the day of occurrence (21.12.1997), the appellant was with this witness at the kutia of Sri Pariharjee at Dharmpur Andhari within Sahar Police Station.