Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.302 of 1990 ====================================================== 1. Sunil Kumar Yadav. 2. Pawan Kumar Yadav. Both sons of Nand Kishore Yadav, resident of village-Hamidpur, Bhanpura, P.S.-Bakthiyarpur, District-Saharasa. .... .... Appellants. Versus The State of Bihar .... .... Respondent. ====================================================== Appearance: For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv. Mr. Amar Nath Jha, Adv. For the State : Mr. Shashi Bala Verma, A.P.P. ==================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 8. 02-07-2012 Appellants Sunil Kumar Yadav and Pawan Kumar Yadav who have been found guilty for an offence punishable under [STATUTE] . vide judgment dated 06.07.1990 passed by Sessions Judge, Saharsa in Sessions Trial No.174/87 directing to undergo R.I. for life, have filed instant appeal. Urro Devi, P.W.9 wife of deceased gave her fardbeyan on 02.06.1987 at 04:00 A.M. alleging inter alia that her husband has three brothers, namely, her husband Anil Yadav, Sunil Yadav and Pawan Yadav. About two months ago her father- in-law, Nand Kishore Yadav had separated him while he remained joint with her two brother-in-law, Sunil Kumar Yadav and Pawan Kumar Yadav. Her brother-in-law was not giving the land according to share of her husband and in the aforesaid -2- background, on the preceding night at about 09:30 P.M. her husband Anil Yadav had demanded his share from her father-in- law and brother-in-law which was declined by Sunil Kumar Yadav resulting an altercation amongst them followed with an assault by Sunil Kumar Tadav with iron pipe over head of her husband. Her husband fell down after sustaining injury over his head. Then Pawan Kumar repeatedly assaulted him with lathi over his chest as well as leg. On hue and cry raised by her, Chandeshwari Yadav, Bauku Yadav, Awadh Yadav, Chote Lal Yadav came and witnessed the occurrence. Her husband was lifted to hospital but during midst thereof he succumbed to his injury. Further disclosed that the occurrence was taken place near Darwaja of Chandeshwari Yadav. On the basis of the aforesaid fardbeyan, Bakhtiyarpur P.S. Case No.43 /1987 was registered under [STATUTE] . whereunder charge sheet was also submitted after completion of investigation followed with taking of cognizance. Because of the fact that offence happens to be exclusively triable by the court of Session, hence case was committed and tried which ultimately resulted in conviction of the accused subject to instant appeal. The defence case as is evident from cross- -3- examination as well as statement recorded under Section 313 of the Cr.P.C. is of total denial of occurrence followed with false implication in the background of the family feud persisting amongst the parties. Though not expressly raised but during course of argument it has been submitted that in the background of an affidavit sworn by the informant during course of an investigation suggest the matter having been amicably settled amongst them and further putting stress over the contents of the affidavit it has been submitted that informant did not claim herself to be an eye witness to occurrence. Also exhibited affidavit through D.W.1. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that save and except P.W.9, the informant, none had claimed to be an witness to occurrence. Therefore, in worst case this case happens to be a case of single identification. It has further been submitted that after going through the evidence of P.W.9, it is crystal clear that she had herself erased her status to be an eye witness to occurrence. Further submitted that there happens to be inconsistency over the place of occurrence. With regard to evidence of I.O., it has been submitted that the I.O. had not properly investigated the case nor had taken pain to see the house -4- of the informant which could have divulged the fact that whether informant was in a position to witness the occurrence from her house that too at 09:30 P.M. Furthermore, it has been submitted that there happens to be no source of identification and therefore pointing out these two appellants as an assailant of deceased happens to be nothing more than an illusion. So, the cumulative effect happens to be that virtually instant case happens to be a case of no evidence. At the other hand the learned Additional Public Prosecutor while sticking with the finding recorded by the learned lower court has submitted that as per Section 134 of the Evidence Act the numerical of witnesses is not at all relevant for the purpose of having the fact proved. From the evidence of P.W.9, it is evident that her evidence happens to be credible and inspires confidence not only to the extent of over manner of occurrence, rather over identifying the appellants as an assailant because of the fact that these appellants are none else than her own family members. Not only this, it has further been submitted that the occurrence took place in continuance of an altercation going on in between these appellants with deceased and so there was no question of mistaken identification. With regard to conduct of other witnesses it has been submitted that they happen to be family -5- members and on account thereof they had chosen to remain silent without intending to lean this side or that side as a result of which they were declared hostile. Also pleaded that, postmortem report suggest and supports the manner of occurrence. Before coming to scrutinize the evidence having been adduced during course of trial on behalf of respective parties, it looks better to have a look over those materials. On behalf of prosecution altogether nine P.Ws. have been examined out of whom P.W.1 is Dr. J. Rahman, who ha

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.