Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.344 of 2005 [Against the judgment of conviction 30.4.2005 and order of sentence dated 3.5.3005 passed by Sri Kameshwar Nath Roy, learned Additional Sessions Judge, F. T. C. III, Rohtas at Sasaram in Sessions Trial No. 375 of 2003, Trial No. 31 of 2003] =========================================================== 1. Madan Sharma, son of Late Muni Sharma 2. Rajesh Sharma, son of Madan Sharma Resident of village Kawai, P.S. Dawath, resident of village Kawai, P.S. Dawath, District Rohtas at Sasaram. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Vikram Deo Singh, Adv. Mr. Dharmendra Kumar Singh, Adv. 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. JUDGEMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Date: 21 -09-2012 This appeal has been preferred against the judgment of conviction dated 30.4.2005 and order of sentence dated 3.5.2005 passed by the learned Additional Sessions Judge, F. T. C. III, Rohtas at Sasaram in Sessions Trial No. 375 of 2003, Trial No. 31 of 2003 by which the appellants Budhu Sharma (since dead), Madan Sharma and Rajesh Sharma were convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs.1000/- each under [STATUTE] and in default of payment of fine further sentence Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 2 for three months each. The appellant Rajesh Sharma has further been convicted and sentenced to rigorous imprisonment for three years under Section 27 of the Arms Act. Both the sentences are directed to run concurrently. 2. During pendency of this appeal, original appellant no. 1 Budhu Sharma died on 27.7.2005. Accordingly, this appeal against him has been abated vide order dated 2.9.2005. 3. The prosecution case, in brief, is that Raj Kumar Sharma (P.W. 6-informant) is one of the three brothers. The elder brother is Shree Bhagwan Sharma (deceased). The second is Madan Sharma (accused) and the informant Raj Kumar Sharma (P.W. 6) is the youngest. All the brothers are living separately. Tara Muni Devi (P.W. 5), wife of eldest brother Shri Bhagwan Sharma (deceased) has been ill for about a year. Her husband has been getting her treatment by Ojhaguni and whenever she recovers his second brother Madan Sharma (appellant) and his uncle Budhu Sharma accused got her ill by playing witch craft. The informant was talking with both of them by sitting on the surface of Mathiya (temple) which infuriated Madan Sharma and Budhu Sharma. Both of them thrashed the informant and in consequence informant also thrashed Madan Sharma. After hearing the noise the eldest brother Bhagwan Sharma (deceased) came there and chid both of them and asked to move but Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 3 Madan Sharma and Budhu Sharma did not abide by the deceased and abused Bhagwan Sharma alleging that every thing is being done at his instance and he has been making the allegation of Bhutpichas. In the meantime, Rajesh Sharma (appellant) son of Madan Sharma (appellant) came there and he was instigated and directed to kill Shri Bhagwan Sharma by gun. Thereafter, Rajesh Sharma brought the firearm and searched the informant and Shree Bhagwan Sharma. By that time informant and Shri Bhagwan entered into their house and closed the door. Rajesh Sharma began to break open the door and shot a fire with intention to cause terror. Both the appellants again instigated, thereafter, Rajesh Sharma climbed on the roof of the house and shot one fire which did not hit any one. Thereafter, Shri Bhagwan (deceased) opened the door to pecify the matter. He was followed by the informant. As soon as Sri Bhagwan came near the tree of Shreephal Madan and Budhu Sharma again instigated Rajesh Sharma to kill. Thereafter, Rajesh Sharma came to Shree Bhagwan Sharma and shot fire at him which proved fatal. He fell down and became senseless. The villagers came there, thereafter all the appellants escaped. This occurrence took place at 8.30 pm on 10.5.2003. The injured was taken to clinic of Dr. Birendra Singh in Maliya Bag where he succumbed to his injury during treatment. The fard beyan (Ext. 1) was recorded by S. I. Yogesh Chandra in the Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 4 clinic of Dr. Birendra Singh on 10.5.2003 at 21 hours. 4. On the basis of said Fard Beyan Dawath P. S. Case No.33 of 2003 dated 11.5.2003 was instituted for the offence punishable under [STATUTE] and 27 of the Arms Act against all the three appellants. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of session. All the appellants were charged for the offence punishable under [STATUTE] and the appellant Rajesh Sharma was further charged for the offence punishable under [STATUTE] and 27 of the Arms Act to which they denied and claimed to be tried. After the trial all the appellants have been convicted and sentenced as aforesaid 5. The defence of the accused is that they are innocent. 6. This Court is required to reappraise the evidence as to whether the prosecution has been able to substantiate its charge against the appellant beyond reasonable doubt. 7. The prosecution has examined the following witnesses:- P. W. 1 Shiv Shankar Sah @ Shankar Sah, P. W. 2 Bharat Sharma, P. W. 3. Nand Kumar Sah, P. W. 4. Parmila Devi, P. W. 5. Taramuni Devi, P. W. 6 Raj Kumar Sharma (informant), P. W. 7 Dr. Anukaran Purti and P. W. 8 Ganesh Hembram Investigating Officer. Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 5 8. The defence has not adduced any witness only documentary evidence has been adduced, Ext. A is the order-sheet dated 28.6.1

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.