Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.411 of 1990 =========================================================== 1. Bachan Singh, son of Ram Ratan Singh 2. Brijnandan Singh, son of Bachan Singh All residents of village Kataria, P.S. Agiaon Bazar, District Bhojpur .... .... Appellants Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 477 of 1990 =========================================================== Nepali Singh, son of Brij Nandan Singh, resident of village Kataria, P.S. Agiaon Bazar, District Bhojpur .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Mr. Rakesh Kumar Sinha, Adv. For the Respondent/s : Ms. Shashi Bala Verma, 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: 05-10-2012 Both the appeals are directed against the judgment dated 14.9.1990 passed by the 6th Addl. Sessions Judge, Arrah in S.Tr.No. 261/1989, whereby and whereunder all the three appellants, namely, Bachan Singh, Brijnandan Singh and Nepali Singh have been convicted for offence under [STATUTE] and have been sentenced to undergo Rigorous Imprisonment for life. 2. Shorn of all niceties, the prosecution case in brief arising out of Agiaon Bazar P.S.Case No. 35/1988 instituted on the Patna High Court CR. APP (DB) No.411 of 1990 dt.05-10-2012 2 basis of fardbeyan of P.W.7 Dashrath Singh at his village home at 7.30 A.M. on 16.9.1988 is that in the preceding night of 15/16.9.1988 while his father Kapil Singh alongwith his shepherd (Charwaha) Lalmohar Chaudhary were sleeping in Goshala on separate cots he (informant) sleeping in his own Goshala had heard the wailing and crying sound of his father as also of the aforesaid Charwaha and thereafter he holding a torch in his hand had gone to the Goshala where his father was sleeping and in the torch light he had seen that while the appellant Bachan Singh was holding the head of his father, appellant Brijnandan Singh was holding the legs of his father and appellant Nepali Singh was cutting the neck of his father. He has further stated that the two other unknown and un-named persons had caught hold of his Charwaha. namely, Lalmohar Chaudhary and the other two persons were also standing whom he could not identify. The informant has further stated that the three identified persons by him, namely, the appellants were all belonging to village Kataria, the village of the informant and when they had shouted for also catching hold of the informant, he with a view to save himself had ran towards the western side and started raising hulla that his father was being killed on which Suresh Singh (P.W.4), Mahesh Singh (not examined), Dinanath Singh (not examined) and Rajendra Singh (P.W.3) had reached at the place of occurrence and had seen his father dead lying Patna High Court CR. APP (DB) No.411 of 1990 dt.05-10-2012 3 in pool of blood while the aforementioned Charwaha also crying and weeping. According to the informant his uncle Surendar Singh (P.W.5) and Sudarshan Singh (P.W.6) had also seen all the three accused running away while they were on the roof of their residential house situated in west to Goshala in the light of torch held by them. The motive for this occurrence as per the informant given in his fardbeyan is that a litigation of consolidation case was in progress in which an enquiry was to be held by the Deputy Director of Consolidation on 17.9.1988 and the appellants had threatened that on the date of enquiry anyone going on the disputed land will be done to death. 3. It is on the basis of the aforementioned fardbeyan of the informant (P.W.7) that Agiaon Bazar P.S.Case No. 35/1988 was formally registered and recorded at 11 A.M. on 16.9.1988. The Police after investigation had submitted charge sheet against all the appellants whereafter the trial had commenced leading to impugned judgment of conviction and sentence which is the subject matter of these two appeals. 4. Mr. Rakesh Kumar Sinha, learned counsel appearing in these two appeals for all the three appellants, has submitted that the impugned judgment cannot be sustained on account of material discrepancy as with regard to both place of occurrence and the manner Patna High Court CR. APP (DB) No.411 of 1990 dt.05-10-2012 4 of occurrence. In this regard he has submitted that when there is only one eye witness left in this case, namely, P.W.7 the informant, being the son of the deceased and his version has not at all tallied with the medical evidence, inasmuch as the doctor has found as many as eight injuries on the person of the deceased Kapil Singh, whereas only one injury in neck was supposed to have been given by the appellant Nepali Singh, the same in turn would destroy the whole fabric of the prosecution case. Proceeding further Mr. Sinha has submitted that in view of admitted position that the occurrence had taken place in the dead of the night at around 1.30 A.M., there being no means of identification by face of the appellants save and except torch light in the hands of the witnesses including the informant (P.W.7) if such torch was not produced by the witnesses and not seized by the Investigating Officer, the whole story of identification of the appellants would also loose its essence. He has also submitted that the story of hulla of the informant in order to bring other witnesses at the spot is itself falsified, inasmuch as the person sleeping with his father, namely, Lalmohar Chaudhary (P.W.2) has stated in his evidence that he had started making hulla only after the accused persons had fled away well after 10 minutes of the occurrence. In this background he has submitted that the arrival of either P.W.7 to claim himself as an eye witness or P.W

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.