MOHD YUNUS Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals have been heard together and are being disposed of by this common judgment because both these appeals arise out of the common judgment passed by Sessions Judge, Madhepura in Sessions Cases No. 3 of 1994 and 164 of 1994 convicting and sentencing Md. Ismail, the sole appellant in Cr. Appeal No. 119/96 to undergo life imprisonment under Section 302/34, I.P.C., Md. Yunus and Md. Manzoor, who are appellants in Cr. Appeal No. 100/96 to undergo life imprisonment under Section 302/34 each and Kapileshwar Das, who is also an appellant in Cr. Appeal No. 100/96 to undergo life imprisonment under Section 302/34/114, I.P.C.

(2.) The case of prosecution in short is that in the night of 27 -11 -1992 informant Arjun Das (P.W. 7) and his father after taking meal went to bed. The father of informant slept in a 'gohal' (cow -shed) whereas the informant slept in his house situate adjacent to 'gohal'. At about 11.30 p.m. the informant woke up and after urinating he again went back to his bed. Half an hour thereafter, he heard sound of presence of some persons in 'gohal'. He came in courtyard and hiding there he saw that all the four appellants had entered his 'gohal' and they were whispering with each other and all were armed with weapons. He identified all the appellants in the light of lantern which was burning in the 'gohal'. Appellant Kapileshwar Das asked to go fast on which appellant Md. Ismail shot at the father of informant and thereafter, the appellants fled away towards west. The informant could not raise alarm when the appellants were in 'gohal' because the passage for going outside from his house in situate adjacent to 'gohal'. When the appellants fled away, the informant went near his father and found that he had received injuries near his ear and the blood was dropping from that injury. At that time, his father was breathing his last. Informant raised hulla on which Suresh Das (P.W. 5), Sideshwar Das (D.W. 2), Prasadi Das (D.W. 1) and others came and saw his father, who by that time had already died. On the next day i.e., 28 -11 -1992 the informant along with Raj Kishore Das (not examined), Bindeshwari Das (P.W. 2), Jhawar Das (not examined) went to Murliganj P.S. where his fardbeyan (Ext. 2) was recorded by the Police at 8.30 a.m. About the motive of occurrence the informant in the fardbeyan stated that there was a land dispute between the deceased and the appellants and 10 days prior to the occurrence, an altercation had taken place between the deceased and appellants and the appellants had given threatenings to kill the deceased and an application giving the details of incident was also filed before the Sub -Divisional Magistrate, Madhepura. A case against the appellants under Sections 302/34, I.P.C. was instituted and after investigation the police submitted charge -sheet against them under Sections 302/34, I.P.C. in parts. It appears that first charge -sheet against Md. Ismail, Md. Manzoor and Md. Yunus was submitted showing appellate Kapileshwar Das absconder. After taking cognizance the case of these appellants was committed to the Court of Session where it was numbered as Sessions Case No. 3/94. Thereafter, when the appellant Kapileshwar Das was arrested by the police supplementary charge -sheet under Sections 302/34, I.P.C. was submitted and his case was also committed to the Court of Session where it was numbered as Sessions Case No. 164/94. Later on both the Sessions cases were tried together and disposed of by the common judgment by Sessions Judge, Madhepura.

(3.) The defence of the appellants before the Court below as it appears from the witnesses examined on behalf of the appellants and from the trend of cross -examination of prosecution witnesses was that on the night when the murder of father of informant was committed informant was not present in his house and nobody had seen the occurrence and the informant and his brother Bhumi Das, themselves committed the murder of their father somewhere else so that Bhumi Das, the brother of informant, may get employment on compassionate ground and they brought the dead body of their father of 'gohal' and have falsely implicated the appellants in this case.