OM PRAKASH PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant is aggrieved by the judgment and order dated 25th March, 1995 passed by Additional Sessions Judge-XIIth, Patna in Sessions Trial No. 478/1992 whereby he has been convicted for offence under Section 302 of the Indian Penal Code and also under Section 27 of the 'Arms Act. For the offence under Section 302 of the Indian Penal Code he has been awarded life imprisonment and for offence under the Arms Act three years RI. Both the sentences are to run concurrently.

(2.) The prosecution case is based upon fardbeyan of informant Dipu Kumar, PW-5 recorded on 5.7.1991 at 8:45 p.m. at the emergency ward of Patna Medical College Hospital. In brief it is to the effect that informant's brother, Santosh Kumar, the deceased, was a student of B.A. at Tata and due to strike in the college, since last one month he was staying at home. On 4.7.1991 during day time Santosh came back to his home and disclosed to the informant that he had verbal altercation with Om Prakash Paswan, the appellant and he had received threats. The reason for the altercation was said to be criminal nature of Om Prakash and that the deceased used to dissuade him from indulging in criminal activities. On 5.7.1991 at 6:00 p.m. accused Birendra Yadav came and called Santosh who went with him towards Ramnagar road. At about 6:45 p.m. sound of fire arm shots were heard on which the informant went running and saw that in front of one Dayal Bhawan towards north and on the turning of road going towards north his brother, Santosh had fallen flat in a pool of blood and the appellant, Om Prakash and another accused Birendra Yadav (since acquitted by the trial court) were running away towards west with revolvers in their hands. The informant raised hulla on which people assembled. Out of them Lal Das Paswan, PW-3, Rekha Kumari, PW-1 and Poonam Kumari, PW 2 disclosed that they were near the place of occurrence and according to them Om Prakash Paswan and Birendra Yadav had run away towards west after assaulting the deceased with revolver. He saw that Santosh had sustained bleeding injuries on head and abdomen and since some part of intestine had come out, he guessed that besides fire arm Santosh had been assaulted with Chhura also. At that time Santosh stated to the informant to take him quickly to the hospital and that Om Prakash and Birendra Yadav had assaulted him. The informant brought a tempo and took Santosh to hospital on the same. Santosh became unconscious in the way and died at PMCH in course of treatment.

(3.) The fardbeyan was recorded by Sub Inspector of Police, Ram Sahay Roy and he only prepared the inquest report at the PMCH and thereafter investigation was taken over by PW-8, Sub Inspector, Janardan Prasad Singh. He was a member of the patrolling party which reached the place of occurrence on hearing rumours of the occurrence at 7:15 p.m. After taking charge of investigation the PW-8 made formal inspection of the place of occurrence, recorded statement of witnesses including further statement of the informant, sent dead body for post mortem examination and after finding the case to be true against the two named accused including appellant, submitted charge sheet. After cognizance by the learned Magistrate, the case was committed to the court of Sessions where the accused persons pleaded not guilty to the charges and after trial one of the accused, namely, Birendra Yadav was acquitted on being extended the benefit of doubt and the appellant was convicted and sentenced as already noticed.