SHIBAL SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Appellant No. 1 (Nage Sah) is the father of appellant no. 2/ Rajesh Kumar Sah @ Rajesh Sah in Cr. Appeal (D.B.) No. 1030 of 2011 and also father of sole appellant/ Shibal Sah [in Cr. Appeal (D.B.) No. 1208 of 2011]. Since appellants of both the Appeals were tried together and convicted and sentenced by the same judgment, both the Appeals were taken up together and are being disposed of by this common judgment.

(2.) All the three appellants by judgment dated: 21-09- 2011 were convicted for the offence under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as the 'I.P.C.') , however, Shibal Sah/ appellant [ in Cr. Appeal (D.B.) No. 1208 of 2011] was further convicted for offence under Section 27 of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act'). By order dated: 24-09-2011 all the three appellants under Section 302 / 34 of the I.P.C. were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each. In default of payment of fine, they were directed to further undergo imprisonment for three months. Shibal Sah [appellant in Cr. Appeal (D.B.) No. 1208 of 2011] under Section 27 of the Arms Act by order dated- 24-09-2011 was sentenced to undergo rigorous imprisonment for three years. All the appellants were tried together in Sessions Trial No. 200 of 2010 by Sri Bashisth Shukla, learned 2nd Additional District and Sessions Judge, Naugachia, Bhagalpur (hereinafter referred to as the "trial judge").

(3.) Short fact of the case is that on 19-02-2009 at 11:30 A.M. Sub Inspector of Police- cum -S.H.O., Gopalpur Police Station, namely: Sri Umesh Lal Rajak (P.W. 10) recorded fardbeyan of Santosh Kumar Sah (P.W. 6). The fardbeyan was recorded at the place of occurrence itself in village - Sindhiya Makandpur under Gopalpur Police Station, District- Bhagalpur. In the fardbeyan the informant stated that on 19-02-2009 at about 10:30 A.M. his brother / Sanjay Sah (deceased) was lonely coming from Makandpur Chowk to his house and while he reached near the house of Gireshwar Sah (not examined), he was met with Nage Sah [appellant no. 1 in Cr. Appeal (D.B.) No. 1030 of 2011], Shibal Sah [sole appellant in Cr. Appeal (D.B.) No. 1208 of 2011] and Rajesh Kumar [appellant no. 2 in Cr. Appeal (D.B.) No. 1030 of 2011]. Thereafter from backside Shibal Sah putting his country made pistol on his head gave shot of firing. His brother fell down and blood started oozing out. As soon he along with his villagers arrived at the place of occurrence his brother had already died at the place of occurrence itself. The main reason for the occurrence was explained by the informant that dispute since last two years was going on regarding partition of land of Ismailpur Diara in between his father- Jagarnath Sah (P.W. 9) and appellant /Nage Sah. In respect of the same dispute in the past Panchayati was also held. It was claimed that this was the reason that his brother Sanjay Sah was killed. The informant claimed that his brother was killed by giving shot of firing from country made pistol by Nage Sah, Shibal Sah and Rajesh Sah. The said fardbeyan was read over to him and after finding it correct he put his signature. The fardbeyan was also got signed by two witnesses as F.I.R. witnesses, namely: Mukesh Kumar and Ravi Bhushan Sah. However, both were not examined by the prosecution during the trial. On the basis of the said fardbeyan on 19-02-2009 at 14:30 Hrs. (2.30 P.M.) a formal F.I.R. vide Gopalpur P.S. Case No. 73 of 2009 was registered under Section 302/34 of the I.P.C. and Section 27 of the Arms Act against all the three appellants. After recording fardbeyan Police investigated the case and finally finding the accusation against appellants true on 31-05-2009 charge-sheet was submitted against all the three appellants. On 11-06-2009 learned Addl. Chief Judicial Magistrate, Naugachia, Bhagalpur took cognizance of offences. After completion of formalities under Section 207 of the Code of Criminal Procedure, 1973 [ hereinafter referred to as the "Cr.P.C."] on 10-02-2010 the case was committed to the court of Sessions and it as numbered as Sessions Trial No. 200 of 2010.