Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.557 of 2005 [Against judgment of conviction dated 8.7.2005 and order of sentence dated 12.7.2005 passed by Sri Gangotri Ram Tripathi, learned Additional Sessions Judge, F. T. C., III, Jehanabad in Sessions Trial No. 197 of 2004 / 199 of 2004 and split up record 408 of 2004/ 221 of 2004] =========================================================== Bharosha Mistri, son of Doman Mistri, resident of village Ganiari, P.S. Kinjar, District- Jehanabad. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Ms. Jahan Ara, Amicus Curiae For the Respondent/s : Mr. Ashwini Kumar Sinha, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL C. A. V. JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Date: 08 -10-2012 Cr. Appeal No. 557 of 2005 (D.B.) has been preferred by the sole appellant Bharosha Mistri against judgment of conviction dated 8.7.2005 and order of sentence dated 12.7.2005 passed by the learned Additional Sessions Judge, F. T. C., III, Jehanabad in Sessions Trial No. 197 of 2004 / 199 of 2004 and split up record 408 of 2004/ 221 of 2004 by which the appellant has been convicted and Patna High Court CR. APP (DB) No.557 of 2005 dt.08-10-2012 2 sentenced to rigorous imprisonment for life and a fine of Rs.10,000/- under [STATUTE] , 27 of the Arms Act and 17 of Criminal Law (Amendment) Act and in default of payment of fine further rigorous imprisonment for two years. No separate sentence has been passed under [STATUTE] , 27 of the Arms Act and 17 of Criminal Law (Amendment) Act. 2. The prosecution case, in brief, is that on 9.4.2003 at about 8 p.m. the informant Lorik Paswan was gossiping with his brother Bhorik Paswan. Asha Devi (pregnant wife of the informant) slept on the cot, his son Manoj Paswan aged about 10 years and his daughter Leela Kumari aged about 8 years slept on the blanket. In the meantime, a group of 50 persons of Ranbir Sena armed with weapons came towards the north side and surrounded his house. They were flashing torch on each other. In the light of torch the informant identified some of them. They started indiscriminate firing which caused death of his wife Asha, son Manoj Paswan and daughter Leela Kumari by firearms. They succumbed to the injuries on the place of occurrence itself. Informant escaped from there. The informant identified altogether 29 persons including the appellant who was armed with firearms. After Patna High Court CR. APP (DB) No.557 of 2005 dt.08-10-2012 3 making firing and killing wife, son and daughter of the informant, the members of mob went towards Nirakhpur and also made firing there. They were also making slogan “Ranbir Sena Jindabad”. Due to fear he could not go to the police picket to inform about the occurrence. The fard beyan (Ext. 1) of the informant has been recorded by S. I., G. P. Thakur (not examined) of Kinjar Police Station on 10.4.2003 at 5 a.m. at village Azad Nagar at the house of the informant, Police Station Kinjar, district Arwal. 3. On the basis of Fard beyan of the informant Kinjar P. S. Case No. 21 of 2003 dated 10.4.2003 was instituted against 29 persons named therein and 20-25 against unknown persons. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions. The charges were framed against the co-accused Dayanand Sharma, Amit Sharma and Ashok Sharma on 28th July 2004 for the offence punishable under [STATUTE] , 27 of the Arms and 17 Criminal Law (Amendment) Act. The charge against the appellant was framed on 11th December 2004 under the aforesaid sections in Sessions Trial No. 221 of 2004 on 23.12.2004. Sessions Trial No. 221 of 2004 was amalgamated with Sessions Trial Patna High Court CR. APP (DB) No.557 of 2005 dt.08-10-2012 4 No. 199 of 2004 as both the Session Trials arise out of Kinjar P. S. Case No. 21 of 2003; G. R. No. 597 of 2003 and no witness had been examined at that time. Since the accused denied the charge against them, the trial proceeded. After trial other accused Daya Nand Sharma, Amit Sharma and Ashok Sharma ( in Sessions Trial No. 197 of 2004) have been acquitted by giving them the benefit of doubt and the appellant (in Sessions Trial No. 408 of 2004/221 of 2004) has been convicted and sentenced as aforesaid 4. The defence of the accused is that they have been falsely implicated in this case due to group rivalry which was prevailing in the district of Arwal such as P. W. G. (People’s War Group) and Ranbir Sena. It was also their defence that they have no concern either with P. W. G. or Ranbir Sena.. 5. This Court is required to reappraise the prosecution evidence and to consider as to whether the prosecution has been able to substantiate its charge beyond shadow of all reasonable doubts. 6. The prosecution has examined the following witnesses to substantiate its charge:- P.W. 1 Dr. Deepak Kumar who has held autopsy on the dead body of Asha Devi, Patna High Court CR. APP (DB) No.557 of 2005 dt.08-10-2012 5 P.W. 2 Dr. Dhirendra Prasad Singh, who has held the autopsy on the dead boy of Leela Kumari and Manoj Paswan, P. W. 3 Fula Devi is the mother of the informant, P. W. 4 Nathun Paswan is the father of the informant, P.W. 5 Gulab Chand Sah, P. W. 6 Shaligram Paswan, who has not supported the prosecution case and has been declared hostile. P. W. 7 is Manju Devi, the daughter of the informant. P. W. 8 is Budhan Paswan, who has also not supported the prosecution case and has been declared hostile. P. W. 9 is Chandradeo Paswan, who has also not supported the prosecution case and has been declared hostile by the prosecution. C. W. 1 Rajendra Prasad has proved the fard beyan (Ext. C/1). He has not stated anything about the occurrence, C. W. 2

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.