STATE OF BIHAR Vs. ASHOK KUMAR GUPTA

JUDGEMENT

(1.) The sole appellant of Cr. Appeal No. 426 of 2002 has been convicted under Section 302/34 of the Indian Penal Code and sentenced to death. He has also been convicted under Sections 323 and 341 of the Penal Code but no sentence has been awarded separately thereunder. The sentence of death has been referred to this Court for confirmation in terms of Section 366 Criminal Procedure Code. Both the Cr. Appeal and Reference were taken up for hearing together.

(2.) On 2-12-97 at 9.15 p.m. Radhey Prasad Gupta of village Kurhwa Ratnapur within Chakmahesi police station of Samastipur district made Fardbayan before officer-in-charge of Chakmahesi P.S., S.I. Akshayabat Chaturvedi, stating therein that in the preceding evening at about 7-7.30 p.m. he closed his cement shop at Kurhwa Bhatti Chowk and left for his house along with his son Shambhu Prasad Gupta. When they reached the toddy shop of Sitaram Mahto, Shambhu Prasad Gupta told him that he wanted to ease himself. He took a pot from Sitaram Mahto and went to answer the call of nature asking him to go ahead. Radhey Shyam Gupta proceeded but stopped near the mosque when he heard sound of 4 to 5 gun shots. On hearing sound he returned. Near the house of Sitaram Mahto he heard groaning sound of his son Shambhu Prasad Gupta and when he went near, he saw one Premlal Rai and Ashok Kumar Gupta, the appellant herein, standing there with country made pistols in their hand uttering that the job was done. They caught hold of Radhey Prasad Gupta and after beating him with slaps at pistol point covered his face by a wrapper with the help of 2-3 unknown persons. They took him to an orchard south of the village on pistol point. There he was threatened not to divulge the incident to anybody lest his entire family would be eliminated. In the next morning, on the pretext of attending the call of nature he fled away from the place, reached his house and narrated the incident to the family members. He stated that 15-20 days prior to the occurrence, hot discussion had taken place between Shambhu Prasad Gupta on the hand and Premlal Rai and Ashok Kumar Gupta on the other in course of which Sambhu Pd. Gupta had been threatened with dire consequences.

(3.) After recording Fardbayan which led to Chakmahesi P.S. Case No. 100/97, S.I. Akshayabat Chaturvedi took up the investigation. He held inquest, sent the body for post mortem, recorded the statements of witnesses and at the end of the investigation, after completing necessary formalities submitted chargesheet against the appellant, showing Premlal Rai and others as absconder, thus putting the appellant on trial.