Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.55 of 1990 =========================================================== 1. Parichan Bin, son of Jageshwar Bin 2. Asarfi Bin, son of Rabi Bin, both resident of village Sasemusa, P.S. Kuchai Kote, District Gopalganj .... .... Appellants Versus The State of Bihar .... .... Respondents =========================================================== Appearance : For the Appellant/s : Ms. Priya Gupta, Amicus Curiae For the Respondent/s : Mr. Shiwesh Chandra Mishra, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Date: 02-08-2012 The two appellants, Parichan Bin and Asarfi Bin, have been convicted for offence under [STATUTE] and sentenced to undergo Rigorous Imprisonment for life in the impugned judgment dated 24th January, 1990 passed by the Sessions Judge, Gopalganj in S.Tr.No. 248/1986 arising out of Kuchai Kote P.S.Case No. 138/1985. 2. The prosecution case, in brief, as set out by the informant Birendra Narain Singh @ Bir Bahadur Singh (P.W.10) in the Fard Beyan (Ext.5) is that on 19.11.1985 at about 2.30 P.M. a dispute with regard to a piece of land in Sasamusa Bazar was sought to be resolved by his brother Hari Shankar Singh @ Daroga Singh (deceased) and his brother had asked the appellants and others Patna High Court CR. APP (DB) No.55 of 1990 dt.02-08-2012 2 including his father not to raise further construction over the land till Panchayati was completed. It is alleged that on this the appellants and his father became agitated and his father armed with Farsa had hit his brother Daroga Singh and had given two Farsa blows on account of which his brother fell down on the ground. The informant claims that he had reached near his injured brother and seeing them the accused persons including the appellants armed with Bhala had fled away. 3. The informant has further claimed that while P.W.1 Surendra Mishra, P.W.2 Dhrub Kumar Singh, P.W.4 Rambali Singh and P.W.6 Devendra Pandey had carried his injured brother to the hospital, he (informant) alongwith P.W.6 Devendra Pandey and P.W.1 Surendra Mishra had chased the fleeing accused persons and after chasing them they could apprehend the father of the appellants, the main assailant Ravi Bin, near Sirisiya road whereafter Ravi Bin had also received certain injuries in course of being chased. The informant has stated that thereafter they had taken Ravi Bin on foot to Gopalganj Police Station where they could learn that his brother Daroga Singh, who had been earlier taken to hospital, had succumbed to his injuries. The informant has claimed that while Ravi Bin could be apprehended by him the other two persons namely the appellants were able to run away and thus could not be apprehended. On the said Fard Beyan Ram Janam Dwivedi and Mithilesh Rai were the two attesting Patna High Court CR. APP (DB) No.55 of 1990 dt.02-08-2012 3 witnesses, who have not been examined but then from the evidence of the Investigating Officer it is clear that the substantive case, on account of its being situated in the jurisdiction of Kuchai Kote Police Station being Fard Beyan of the informant was sent to Kuchai Kote Police Station where Kuchai Kote P.S.Case No. 138/1985 was lodged against these two appellants as also Ravi Bin. The police after investigation had submitted charge sheet against these two appellants as also Ravi Bin but Ravi Bin is said to have died during trial and as such, these two appellants having been put on trial were convicted in the manner indicated above. 4. The defence case from the trend of cross- examination as also the statement of the accused persons under section 313 Cr.P.C. appears to be one of complete denial of occurrence in the manner alleged as also there has been suggestion that the land in question on which the construction was being made by the accused persons belonged to them and the prosecution party had unnecessarily tried to obstruct the ongoing construction on their land. It has also been sought to be suggested to the witnesses that the manner of occurrence was altogether different and these appellants had a right of private defence to safeguard their property. It has to be noted that though no specific document has been brought in support of such defence either with regard to the ownership and possession of Patna High Court CR. APP (DB) No.55 of 1990 dt.02-08-2012 4 land or the shop but a suggestion has been given to the witnesses particularly the informant (P.W.10) as with regard to the land belonging to the accused persons and hence, they had a right of private defence. 5. The prosecution in order to prove its charge has examined in all 12 witnesses out of whom P.W.5 Kamal Prasad and P.W.9 Chhathu Singh are the formal witnesses who have proved the F.I.R. and/or the inquest report. P.W.8 Awadhesh Tiwari on his own showing is a hearsay witness who had arrived at the place of occurrence after the assault and he is said to have participated only in chasing of Ravi Bin and these two appelants. P.W.1 Surendra Mishra, P.W2. Dhrub Kumar Singh, P.W.4 Rambali Singh, P.W.6 Devendra Pandey, P.W7. Shyam Bahadur Singh and P.W.10 Birendra Narain Singh, however, have come out to support the prosecution case as eye witnesses to the entire occurrence PW3 Dr. B.K. Agrawal is the doctor who had conducted postmortem over the dead body of the deceased while P.W.11 Shyam Nandan Prasad is the Investigating Officer and P.W.12, another Police Officer, namely, Sukhlal Dubey is the person who is said to have recorded the Fard Beyan of the informant at Gopalganj Police Station. The prosecution has also exhibited six documents, namely, Ext.1 seizure list proven by P.W.1, Ext.2 postmortem report proven by P.W.3, Ext.3 formal F.I.R. proven Patna High Court CR. APP (DB) No.55 of 1990 dt.02-08-2012 5 b

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.