MANINDRA TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The aforesaid appeals have been filed under Sec. 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C. ') against the same judgment of conviction and order of sentence dtd. 29/11/1994 and 30/11/1994 respectively, passed in Sessions Trial No. 618 of 1992 / 37 of 1994 (arising out of Govindganj (Malahi) Police Station Case No. 18 of 1992) by the learned Court of 1st Additional Sessions Judge, Motihari (hereinafter referred to as the 'Trial Judge '), hence the same are being disposed off by the present common judgment and order. By the said judgment dtd. 29/11/1994, the appellants of the aforesaid two appeals have been convicted under Ss. 302/34 of the Indian Penal Code and as far as the appellants of the second case are concerned, they have also been convicted under Sec. 27 of the Arms Act. By the order of sentence dtd. 30/11/1994, the appellants of the aforesaid two appeals have been sentenced to undergo imprisonment for life under Ss. 302/34 of the IPC and as far as the appellants of the second case are concerned, they have been further sentenced to undergo rigorous imprisonment for two years under Sec. 27 of the Arms Act. All the sentences have been directed to run concurrently.

(2.) The short facts of the case as per the fardbeyan of the informant Jaikant Mani Tripathi (PW-12), recorded by the SubInspector of Police, namely M. S. Khan (PW-13), Officer-inCharge, Malahi Police Station on 4/2/1992 at 00:30 a.m. at the bathan of Ambika Sah of village Nagdaha is that in the night at about 09:00 p.m. he along with his deceased brother Deo Saran Mani Tripathi were going for irrigating their field towards the eastern-southern side of their house and when they reached south of Harijan Toli, situated near Primary School, Nagdaha some people had surrounded them, whereupon his deceased brother, in the light of the torch, which he was holding in his hand, had recognized the co-villagers, namely Satyendra Mani Tripathi, Kamendra Mani Tripathi and Manoj Tiwary, who were holding rifle and double barrel gun respectively in their hands, whereupon the deceased brother of the informant asked them as to why they have surrounded them, upon which Satyendra Mani Tripathi (appellant no.1 of the second case) said that he is the person who had accumulated co-villagers, got their signatures and had got them to depose against them, hence they would kill him. Thereafter, both the brothers had ran towards the northern side near Nagdaha Giri tola but the said accused persons had fired from their rifle/gun indiscriminately resulting in the brother of the informant falling on the road on the southern side of Nagdaha Giri tola on account of being hit by gun shots, whereafter the informant while raising hulla had ran towards Giri tola and on hearing his hulla (alarm) as also upon hearing the sound of gunshot firing, Bhibhikhan Giri (P.W. 3), Ram Dekhan Giri (P.W. 5), Vijay Kant Giri (P.W. 7) and Ramraj Giri (P.W. 4) as also many other persons had arrived there, who had seen the accused persons running away, whereupon they had chased them but they managed to flee away towards the village. The informant had then gone near his brother Deo Saran Mani Tripathi, who had fallen on the ground and had found him to be dead as also he was smeared with blood. He had been hit by gun shots on his head, back, neck and chest. The informant has further stated that the reason for the said occurrence is that Satyendra Mani Tripathi (appellant no.1 of the second case) is Chairman of Nagdaha Cooperative Society and he has withdrawn Rs.4.005 lacs belonging to him and other villagers, which was being opposed to by his brother, who had also got a representation filed on behalf of the villagers as also had got the villagers to depose against him. The fardbeyan of the informant was signed by Bachandeo Giri and Bipin Giri (P.W. 10) as witnesses to the same.

(3.) On the basis of the said fardbeyan of the informant, a formal FIR bearing Govindganj (Malahi) P.S. Case No. 18 of 1992. was registered on 4/2/1992 at 07:00 a.m. under Sec. 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act against the appellants of the second case and one Kamendra Mani Tripathi. The police had then conducted investigation and finding the case to be true had filed charge sheet on 16/5/1992 against the appellants under Sec. 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act. Thereafter, the learned Trial Judge, upon considering the materials on record and the charge sheet filed by the police had taken cognizance vide order dtd. 27/5/1992, qua the appellants of the aforesaid two cases and one Kamendra Mani Tripathi. The said case was committed to the Court of Sessions vide order dtd. 31/7/1992 showing Kamendra Mani Tripathi to be an absconder. The learned Trial Judge had then framed charges against the aforesaid appellants of both the appeals vide order dtd. 2/2/1993 under Sec. 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act.