MITHILESH SINGH @ KARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant in this appeal was put up for trial along with two other accused before the 3rd Addl. Sessions Judge, Nalanda in S.T. No. 161/87, charged of the offence under Section 396, IPC. The trial Court found the three accused including the appellant guilty of the offence under Section 396, IPC, but acquitted Surendra Singh.

(2.) The appellant preferred this appeal, while two separate appeals were preferred by Bipin Paswan and Raja Ram, being Cr. Appeal Nos. 162/88 and 171/88 respectively. Those two appeals were heard by a Division Bench of this Court and the appeals were dismissed by a common judgment and order, dated 13th November, 1992. Unfortunately, it was not brought to the notice of the Court that another appeal arising out of the same judgment and order was pending before this Court and therefore, this appeal could not be heard earlier. This appeal has been preferred from jail and, therefore, Patna High Court Legal Aid Committee appointed Sri Abhay Shankar Singh/Advocate, to argue this appeal on behalf of the sole appellant and the learned counsel has been of good assistance to us.

(3.) The prosecution case is that on 31st October, 1986 at about 7.15 p.m., Shiv Kumar Prasad, the deceased was at his grocery shop along with his son Subodh Kumar, PW 10, the informant and two sales-men, namely, Gopal Prasad, PW 2 and Murari Prasad, PW 3. A customer, Munilal, PW 6 was also present in the shop. The prosecution case is that all the four accused armed with pistol entered his shop and one of them pointed his pistol towards the informant while the other pointed the pistol towards his father. They took away Rs. 12/- from one of the customers and despite search of the informant they could get nothing. One of the miscreants slapped the informant while the another took out Rs. 300-400/- from the pocket of his father and asked him to open the container kept behind him, which his father opened and from the said container also the miscreants took cash. When the miscreants asked the father of the informant to open another container, his father refused and raised hulla. One of the miscreants, who was near the father of the informant fired at his father killing him. The other miscreant also fired causing injury to the informant and one of the customers, Munilal, PW 6. Thereafter, the miscreants fled away.