Case Facts:
Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA -------- Criminal Appeal (DB) No.439 of 1989 ----- Against the judgment of conviction and order of sentence dated 29.08.1989 passed by Sri Shashi Kumar Choudhary,3rd Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 172 of 1981/240 of 1987 =============================================== Bhola Tiwary son of Shri Gopal Tiwary, resident of village Madhopur Fulwaria,P.S.Rajpur, District East Champaran --- --- Appellant Versus The State of Bihar --- --- Respondent =============================================== Appearance : For the Appellant : Mr. Shailendra Kumar Jha (Amicus Curiae) For the Respondent : Mr. S.C.Mishra, Addl.P.P. =============================================== CORAM:HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per:HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) Date: 22-02-2012 --------- Sole appellant Bhola Tiwary has filed this appeal against the judgment dated 29th August, 1989 passed by 3rd Additional Sessions Judge, East Champaran Motihari in Sessions Trial No. 172 of 1981/240 of 1987 convicting the appellant under Section 302 of Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 2 the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for life and acquitting one another accused Ram Bharosh Pandey Of the charge. 2. The occurrence of the night of 2/3.05.1979 was reported to Police by one Chaukidar Sarju Raut (P.W.7) and his statement was recorded by Assistant Sub-Inspector of Police, Kesaria Police Station (not examined) wherein he has named this appellant, Ram Bharosh Pandey and one unknown. According to F.I.R., when the informant returned his home after performing his duty on 03.05.1979 at 9.00 A.M. the Bhagina (not examined) of Ramrup Choudhary informed him that somebody has killed his Mama by cutting his neck while he was sleeping. According to informant (Chaukidar P.W.7), he went to the house of Ramrup Choudhary and found him dead in the verandah. His neck was cut and blood scattered near him. The mother of the deceased Jhalo Kuwar (P.W.3) and his sister (not examined) were weeping and on query from Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 3 deceased’s mother (P.W.3) as to how Ramrup Choudhary died, then she replied that the appellant Bhola Tiwary who was her son-in-law and co-accused Ram Bharosh Pandey who was her Bhagin Damad have killed him. She also named one another unknown person but she claimed to identify him on being shown. The motive behind the occurrence was of litigation between the deceased and co-accused Ram Bharosh Pandey (since acquitted) as later had instituted a suit against the deceased claiming share in the land in village Jasauli but the suit was dismissed. The appellant Bhola Tiwary wanted to take forceful possession of his share in the land. Both the named accused threatened Ramrup Choudhary of dire consequences. The mother of the deceased Jhalo Kuwar (P.W.3) narrated the occurrence as an eye witness and also alleged that the Ramrup Choudhary was killed by aforesaid two persons. P.W.7 Sarju Raut asked P.W.3 Jhalo Kuwar to come to police station to inform the police but she expressed her Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 4 inability on account of grief which she was facing at that time. P.W.7 came to the police station and reported the matter. His fardbeyan (Ext.3) resulted in Kesaria P.S.Case No.5 of 1979 under [STATUTE] . The allegation was investigated into and after completion of investigation, chargesheet was submitted against appellant Bhola Tiwary and one Ram Bharosh Pandey. Cognizance was taken and the case was committed to the court of sessions where charges were framed and explained to the accused persons. They pleaded innocence and preferred to face trial. 3. The defence of the accused persons was of false implication on account of enmity which was going on for land dispute. 4. On behalf of the prosecution, eight witnesses were examined. No defence witness was examined. The prosecution witnesses are : P.W.1 Sukhdeo Prasad Singh, P.W.2 Ganesh Singh, P.W.3 Jhalo Kuwar, P.W.4 Raja Singh, P.W.5 Dr.H.K.P.Verma, P.W.6 Bishwanath Singh, Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 5 P.W.7 Sarju Raut and P.W.8 Dharam Nath Tiwary. 5. P.W.3 Jhalo Kuwar is the mother of the deceased and is only eye witness. P.W.7 is village Chaukidar who had informed the police about the occurrence. P.W.5 has held post mortem over the dead body of the deceased. P.W.8 is a formal witness and has proved the inquest report as Ext.4. P.Ws. 1, 2, 4 and 6 are not eye witnesses of the occurrence, rather they have arrived at the place of occurrence on cry of Jhalo Kuwar after occurrence. 6. The trial court after considering the evidences on record and after hearing learned counsel for the parties came to the conclusion that the prosecution has been able to prove the charge against the appellant only beyond the shadow of all reasonable doubts and hence passed the judgment, as mentioned above. 7. This Court is required to reappraise the evidences on record and to see whether the materials available on record are Patna High Court CR. APP (DB) No.439 of 1989 dt.22-02-2012 6 enough to justify the conviction and sentence of the appellant or not. 8. P.W.3 Jhalo Kuwar is the only eye witness. According to her evidence, she had two sons namely, Anirudh Choudhary and the deceased Ramrup Choudhary. At the time of occurrence she was living with her younger son Ramrup Choudhary who was separate from his brother Anirudh Choudhary and at the time of occurrence he was unmarried. Ram Singari, daughter of this witness P.W.3 was married to appellant Bhola Tiwary. Janak Ojha was brother of this witness P.W.3 who has given land to his sister in village Jasauli. The appellant and Ram Bharosh Chou

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.