KAPIL YADAV; JAIRAM SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals are against the judgment dated 29th April 2000 of the 2nd Additional Sessions Judge. Aurangabad whereby the appellants have been convicted under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Each of the appellants has been sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code, but no separate sentence has been passed under Section 27 of the Arms Act.

(2.) The fardbeyan (Ext-1) of the informant Sheo Nath Singh (PW 3) was recorded at Haspura PS by SI Ram Lakhan Singh Yadav on 18th April 1993 at 7.45 p.m. The informant stated in his fardbeyan that that day (18.4.1993) he, along with his uncle Lakshman Singh (deceased) had gone to Pachrukhiya Bazar for purchasing clothes etc, for the Roksadi of his (informant's) cousin sister and that after making purchase, he (the informant) and his uncle (the deceased) were retuning on a bicycle to their home at village Rampur. In the way, in village Angrahi, since the road was in bad condition, they got down from the bicycle. The informant was going ahead and the deceased, carrying the bicycle was coming behind the informant. When they reached south of village Angrahi at Taranbir Sthan, the three appellants who were ambushing carrying pistols, stopped them on the way. Appellant Jairam Singh shot pistol on the deceased and appellant Sarju Singh also fired his pistol on the deceased. Receiving the shots, the deceased fell down. Then it is alleged that appellants Jairam Singh and Sarju Singh took out Rs. 1,000/- (One thousand) from the deceased's pocket and then carrying the money, clothes and the bicycle they fled away towards west. The informant raised nulla, whereupon, some villagers are said to have assembled to whom the informant disclosed about the occurrence and the deceased was brought to the Police Station. Old enmity was said to be the cause of occurrence. On the basis of fardbeyan (Ext-1), a formal First Information Report (Ext-1/1) was registered and after completion of investigation, the appellants were put on trial. It appears that the appellants were also charged under Section 379 of the Indian Penal Code but the learned trial Judge did not find this charge proved, hence, the appellants were acquitted of the charge.

(3.) As many as seven witnesses have been examined by the prosecution in this case. PW 3 Sheo Nath Singh is the informant himself who claims to be the eye witness of the occurrence. PW 1 Nandlal Singh is the brother of the deceased, PW 2 Yogendra Singh and PW 4 Suresh Singh are the witnesses who are said to have arrived at the PO on nulla. PW 5 Birjan Singh is a hostile witness and he deposed nothing about the occurrence. On attention being drawn towards his previous Police statement, he denied to have made any such statement supporting the case of prosecution before the Police. PW 6 T.N. Shukla is the Doctor who conducted the P.M. Examination on the dead body of the deceased. He has proved the P.M. Examination report marked Ext-3. PW 7 Mahadeo Singh is a formal witness who proved the writing and signature on the FIR marked Ext-1/1. He also proved the writing of the IO on the case diary marked Ext-3,4/1 and 4/2. This has to be mentioned here that the IO of this case has not been examined by the prosecution and there is no explanation for his non-examination.