Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.422 of 1990 =========================================================== Jhabar Mian, son of Late As Mohammad, resident of Manopur, P.S.-Dighwara, District-Saran, Chapra. .... .... Appellant. Versus The State of Bihar. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curie. For the Respondent/s : M/s Shashi Bala Verma, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 09-08-2012 1. The sole appellant, Jhabar Mian convicted for offences under [STATUTE] as well as 27 of the Arms Act vide judgment dated 31.08.1990 passed by learned Sessions Judge, Saran at Chapra in Sessions Trial No.99 of 1989 and sentenced to undergo R.I. for life for an offence punishable under [STATUTE] . as also, R.I. for three years for an offence punishable under Section 27 of the Arms Act while, directing the aforesaid sentences to run concurrently vide judgment dated 03-09-1990 has preferred instant appeal. 2. The prosecution case in brief is that on 17.11.1988 at about 06:15 P.M. Vijay Kumar Singh (P.W.3) had given his fardbeyan (Exhibit -3) before Officer-in-charge, Dighwara at Dighwara Police - -2- Station disclosing therein that on the same day at about 07:00 A.M. when his brother Upendra Singh had gone to Nanhki Mian for getting irrigation for his potato field which was near the house and boring of Nanhki Mian, the latter agreed to irrigate his field but there was an altercation in between Nanhki Mian and Upendra Singh on the issue of settlement and adjustment of previous dues of Rs.25/-. The informant had stated that thereafter they returned back to their house and when both of them had again gone to their potato field for irrigation, he remained in his field while his brother Upendra Singh was called by Jhabar Mian. It has been alleged that at that very time Nanhki and Mustafa, brothers of Jhabar Mian were also present and Jhabar Mian began to abuse his brother Upendra for realization of earlier dues of Rs.25/- and became adamant to quarrel. On hearing sound of an altercation the informant claimed that he had rushed and arrived at the Darwaja of Jhabar Mian and had seen all of them to have gone inside their house and Jhabar Mian coming out with a gun in his hand, Nanhki Mian with a farsa and Mustafa Mian with Bhala. 3. The further case of the prosecution is that on the order of Nanhki Mian, Jhabar Mian had fired from his gun which had hit on left side of chest of his brother Upendra Singh who had fallen down after raising an alarm. The informant had stated that he was also chased by Nanhki Mian as well as Mustafa Mian. As a result whereof he ran - -3- away from thereafter raising an alarm to save his life. The informant claimed that on hearing his alarm, his uncle Sheoji Singh, Murli Kumar Singh, co-villagers Hari Narayan Singh, Chandeshwar Singh and others came and joined him and thereafter they had gone to the place of occurrence but the accused persons on the threat of weapons had tried to restrain them from lifting the injured but they somehow had succeeded in taking away his injured brother to Dighwara Hospital where he was given first aid and was further advised to take him to PMCH for his treatment. As per informant he with others had immediately moved with his brother but in midst of way to PMCH his brother succumbed to his injury. The informant had disclosed that thereafter, he had gone to Dighwara Police Station along with dead body of his brother and had got his fardbeyan recorded where in the time of occurrence had been shown as 01:30 P.M. on the same day i.e. 17.11.1988. 4. On the basis of aforesaid fardbeyan Dighwara P.S. Case No.162 of 1988 was registered under [STATUTE] , 27 of the Arms Act and accordingly investigation was taken up by the police which led to submission of charge sheet against the appellant and Nanhki Mian as well as Mustafa Mina whereupon the cognizance was taken and in view of the offence being exclusively triable by the court of Session, the case was committed to the court of Session, which - -4- ultimately had led to the impugned judgment of conviction and sentence against the appellant while two other co-accused namely Nanhki Mian and Mustafa Mian have been acquitted on the ground that they did not actually participated in the killing of the deceased nor there was any evidence against them of abatement. 5. The defence case, as is evident from mode of cross- examination as well as from statement of the appellant / accused under Section 313 Cr.P.C., is that they had pleaded not guilty to the charge and further they had also denied the occurrence. It had further been submitted that one of the brother of appellant, namely, Mustafa had executed sale deed in favour of prosecution party but they were not given possession over the land and thus after finding Upendra Singh murdered at some other place in an altogether different manner they had got the appellant and his other family members (since acquitted) falsely implicated in this case. 6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that in spite of having ample material available on the record suggesting the manner of occurrence as well as genesis of occurrence to be wholly improbable, the learned lower court had ignored the same. It has been also submitted that from the fardbeyan of informant P.W.3 itself, it is evident that none of other cited witnesses could be an eye witness to occurrence because - -5- of the fact that they had joined the informant only when he was chased by accused persons after the occurrence. In this regard their status as an eye witness to occurrence as project

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.