Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.245 of 1989 [Against the judgment of conviction and sentence dated 2.6.1989 passed by Sri Budhadeo Narain Sinha, learned 3rd Additional Sessions Judge, Gopalganj in Session Trial No. 327 of 1982/ 4 of 1989] =========================================================== 1. Md. Mustafa @ Mustafa Mian S/o Nek Mohammad, 2. Syed Faiyaz Ahmed @ Faiyaz Ahmed S/o Md. Mustafa. Both resident of village Saraiya Pahar, P. S. Sidhwalia District Gopalganj. 3. Idris Mian @ Idris s/o Chulahi Mian, resident of village Darahima, P. S. Sidhwalia, District Gopalganj. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Nitya Nand Niraj, Amicus Curiae For the Respondent/s : Mrs. Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Date: 27-04-2012 This appeal has been preferred against the judgment of conviction and sentence dated 2.6.1989 passed by the learned 3rd Additional Sessions Judge, Gopalganj in Session Trial No. 327 of 1982/ 4 of 1989 by which the appellant No. 1 has been convicted under [STATUTE] and appellant Nos. 2 and 3 have been convicted under [STATUTE] and they have been Patna High Court CR. APP (DB) No.245 of 1989 dt.27-04-2012 2 sentenced to rigorous imprisonment for life. 2. According to Fard Beyan (Ext. 5) of Mangal Chaubey (P. W. 4), son of Ramswaroop Chaubey, village Saraiya Pahar, P. S. Barauli district Gopalganj recorded by S. I. Y. Ram of Gopalganj Police Station on 11.12.1980 at 8 a.m. in Sadar Hospital Gopalganj, the prosecution case is that in the night of 10.12.1980 the informant was sleeping in his Bathan and at about 12 p.m. his Bhaujai, Darpatia (P.W. 2) got him awaken and told that Mustafa and his son (appellants) were assaulting her husband. The informant went to the Palani with P. W. 2 and saw that his co-villagers Mustafa Mian, his son Faiyaz Mian and Idris Dhobi (appellants) were scuffling with his brother Jagarnath Chaubey (deceased). Mustafa was armed with a countrymade gun, Faiyaz was having a torch and Idrish Dhobi was armed with Lathi. After seeing the informant and his Bhaujai (P.W. 2), Mustafa shot fire at Jagarnath Chaubey. After pushing the informant and his Bhaujai (P.Ws. 4 and 2) they fled away. On raising alarm, co-villagers Ramayan Sonar, Ramayan Pandey and Ram Narayan Sah came there and witnessed the occurrence. Since the condition of Jagarnath Chaubey was serious, as Patna High Court CR. APP (DB) No.245 of 1989 dt.27-04-2012 3 such he was taken to Gopalganj Sadar Hospital by jeep where his treatment was made. The reason for the occurrence is that Jagarnath Chaubey transferred the land in favour of one Ajay Kumar and Vijay Kumar but Mustafa Mian was wanting to purchase that land as the land was adjacent to his house. Due to this enmity the occurrence has taken place. 3. On the basis of said fard beyan Barauli P. S. Case No. 5 dated 12.12.1980 was registered for the offence punishable under [STATUTE] and 27 of the Arms Act. After investigation charge-sheet was submitted, the case was committed to the court of sessions. The appellant Mustafa Mian was charged for the offence punishable under [STATUTE] and 27 of the Arms Act and Fariad Mian and Idrish Dhobi were charged under [STATUTE] . They denied the charge and claimed to be tried. Since the charges were denied, the trial proceeded. After the trial, all the appellants have been convicted and sentenced as aforesaid. 4. The defence of the appellant is that they have been falsely implicated in this case due to enmity. Appellant no. 1 Mustafa has claimed alibi that on the date of occurrence he Patna High Court CR. APP (DB) No.245 of 1989 dt.27-04-2012 4 was in the hospital at Tamkuhi road where he had undergone a hydrocele operation on 8.12.80 and was discharged from there on 21.12.80. Faiyaz Mian claimed that he was attending his father at that time and appellant no. 3 Idris Main has stated that he has been implicated in this case at instance of Nageshwar Pathak. 5. This Court is required to reappraise the evidence to see as to whether the prosecution has been able to substantiate its charge against the appellants beyond reasonable doubt or not. 6. The prosecution has examined the following witnesses to prove its case: - P. W. 1 Datatrey Nath Chaubey, P. W. 2 Draupadi Devi, P. W. 3 Patora Devi, P. W. 4 Mangal Chaubey, P. W. 5 Ramayan Sah, P. W. 6 Ramayan Sah, P. W. 7 Dr. Vinod Kumar Bihari, P. W. 8 Jai Prakash Sinha, P. W. 9 Hari Prasad and P. W. 10 Vishwanath Singh. The following documents have been produced on behalf of the prosecution:- Ext. 1 series are the signature of Mangal Chaubey, Nagendra Pandey and Bharat Dubey on the fard beyan, Ext. 1/3 is the signature of judicial magistrate on the requisition to keep the dying declaration in safe custody, Ext. 2 is Patna High Court CR. APP (DB) No.245 of 1989 dt.27-04-2012 5 the certificate of doctor on the dying declaration, Ext. 3 is the post-mortem report, Ext. 4 is the dying declaration, Ext. 5 is the fard Beyan, Ext. 6 is the formal FIR, Ext. 7 is the production list, Ext. 8 is the seizure list and Ext. 9 is the Inquest Report. 7. The defence has also examined following witnesses: D. W. 1 Dr. B. N. Tiwari and D. W. 2 Md. Neyaz Ahmad. The following documents have been adducted on behalf of the appellants:- Ext. A certificate dated 21.12.1980 issued by the Medical Officer, C. D. Block Dhakaraha, Ext. B is list of medicine, Ext. C is report dated 5.8.1988 regarding destruction of informatory petition, Ext. D is the certified copy of informatory petition, in the Court of Sub-division Judicial Magistrate, Gopalganj by Mustafa against Ramnarayan Sah & Ors, Ext.

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.