DINANATH GUPTA AND ORS. Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present appeal by the three appellants have been filed upon being convicted for an offence punishable under Section-302/34 of the Indian Penal Code (hereinafter in short IPC) and sentenced to rigorous imprisonment for life in Sessions Trial No.69 of 1989 by the learned Sessions Judge, Muzaffarpur being the judgment of conviction and order of sentence dated 31.08.1992.

(2.) The incidence had taken place on 11.05.1987 at 10 pm outside the village Bakhra, P.S. Saraiya, District Muzaffarpur where Deo Narain Sah, the father of the informant Anil Kumar Sah (P.W.3) is supposed to have been killed by the three appellants while the informant and his father were returning on a TVS moped after attending a marriage ceremony from the near by village. There are two fardbeyans on record. The first was recorded at about 6 am at Sadar Hospital, Muzaffarpur at the behest of the informant Anil Kumar Sah (P.W.3), which was not registered as an F.I.R. but forwarded to Saraiya Police Station for necessary action. The second statement, which has been taken note as a fardbeyan and on basis whereof the case has been registered, was recorded at 9 pm in the house of the deceased at village Bakhra, P.S. Saraiya, District Muzaffarpur. There is not much relevance of the two statements because they are virtually the same and by the same person but we would discuss them at appropriate stage later.

(3.) In the fardbeyan, it is alleged that the informant Anil Kumar Sah (P.W.3) and his father, the deceased Deo Narain Sah had gone to the village of Sheo Chandra Thakur (P.W.1) to attend the marriage ceremony of his daughter in the night on a TVS moped. When they were returning, the deceased was driving the moped and informant was sitting on the back. When they were at the outskirts of their village three persons came from the front and surrounded the moped and started assaulting the informant's father. The informant, who was sitting on the back, managed to escape. When he reached near the temple at the outskirts of the village and called for help many people including Upendra Prasad Sah (P.W.5) and Shatrughan Prasad (P.W.6), who were there at the temple, accompanied the informant back to the place of occurrence. Upon returning to the place of occurrence, allegedly, the informant and others saw the three appellants fatally assaulting the deceased. On seeing these persons coming, the assailants allegedly escaped. After seeing his father grievously hurt and unconscious, the informant loaded him in a jeep and brought him to the Sadar Hospital, Muzaffarpur for treatment where the doctor declared him dead. This statement was first given and recorded at about 6 am at the Sadar Hospital, Muzaffarpur by Sri Birendra Singh Chandel (P.W.13). Accordingly, after recording the statement and sending it to Saraiya Police Station within whose jurisdiction incidence had taken place, the inquest report was prepared clearly mentioning that the dead body was recovered from the jeep which was parked in the Sadar Hospital compound. The body was sent for postmortem which was performed by Dr. Binod Kumar Mehta (P.W.11) at about 10:30 am on 12.05.1987. Thereafter, the second statement was recorded at 9 am in the house of the deceased. This time, it was recorded by Sri A.K. Sinha, the Officer-in-Charge of Saraiya Police Station who has not been examined. Upon this statement being recorded, a formal F.I.R. was then registered at about 9:35 pm against the three appellants for an offence under Section-302/34 IPC. Sri A.K. Sinha, the Officer-in-Charge of Saraiya Police Station, then took up investigation but, after sometime upon his transfer, the investigation was handed over to Shobha Kant Pathak (P.W.12) who took the statement of the last witness to be interrogated being P.W.1-Sheo Chandra Thakur and thereafter submitted the charge-sheet. The Magistrate having taken cognizance of the offence as alleged committed the case to the Court of Sessions against the three appellants who pleaded not guilty, were accordingly tried and convicted as aforesaid. Hence, this appeal.