SUDHIR KUMAR KATRIAR and MADHAVENDRA SARAN JJ.

1. The sole appellant is aggrieved by the judgment dated 29.4.88, passed by the learned 3rd Additional District & Sessions Judge, Gopalganj, in Sessions Trial No. 116 of 1987/13 of 1987 (State of Bihar Vs. Bishwa Nath Singh & two others), whereby he has been convicted under Section 302 of the Indian Penal Code. The other two accused persons, namely, Janki Devi (wife of the appellant), and Malti Devi (wife of Ram Autar Singh, the other brother), have been acquitted of the charges under Section 302 read with Section 34 of the Indian Penal Code. The cases of Janki Devi and Malti Devi, therefore, do not arise for our consideration. The convicted accused hereinafter will be described as the appellant.

2. According to the Fardbeyan (Ext.1), of Girija Devi, recorded on 14.11.86, at 9 AM, at Rajiv Hospital Barauli, her husband, Maheshwar Singh deceased was in the services of the Indian Railways at Alipur Dwar, West Bengal, and was visiting his family at village Barauli. About four days ago, he had cut woods from his own tree located nearby, had prepared bundles of the same for the purpose of jalawan, and had kept the same at their darwaja. The previous day, on 13.11.86, at 9 PM, their agnate Bishwa Nath Singh (the appellant herein), Janki Devi, and Malti Devi came upon their darwaja and wanted to take away the bundle of fire woods which was objected to by Maheshwar Singh. This was followed by exchange of hot words, the three persons went away and returned with Mushal and Danda and had struck Maheshwar Singh with the same. She and her elder daughter Manju, (PW 4), raised halia as a result of which co-villagers, Thag Ram, Ramashray Singh, and Udai Singh came there and separated them. Her husband was severely injured. Bishwa Nath Singh also ran after Manju but could not locate her whereafter he returned for the second time and struck her husband with Mushal on his head and went away. On halla, the co-vvillagers came and her husband was taken to Dr. A.K. Thakur, at Barauli Bazar, for treatment. He said in the morning that Maheshwar Singh should be taken to the Govt. Hospital, Barauli, who was already dead. The Fardbeyan goes on that Bishwa Nath Singh, Janki Devi and Malti Devi had hit her husband with the intention to injure him and cause his death. It is further stated that Bishwa Nath Singh was wielding Mushal, his wife Janki Devi was also wielding Mushal, and Malti Devi was holding a Danda. Fardbeyan was recorded in the handwriting of Amamath Tiwary (PW 5), the Incharge of Barauli Police Station. The same was registered as Barauli P S Case No. 190 of 1986, dated 14.11.86, under Section 302 read with Section 34, IPC.

3. On hearing rumour at Barauli Chowk, the I.O. had rushed to the hospital and investigation commenced. He recorded the Fardbeyan of PW 6, prepared the inquest report, and had referred the dead body for post mortem. This was followed by formal First Information Report (FIR) dated 14.11.86. On conclusion of the investigation, charge-sheet was submitted against the appellant and two others. By order dated 5.8.87, charge under Section 302 IPC was framed against the appellant. Charges were also framed against the said Janki Devi and Malti Devi under Section 302 read with Section 34 IPC.

4. The accused persons claimed innocence and wanted to be tried.

5. The prosecution examined seven witnesses in support of its case. PW1 is Bichari Singh, who is a co-villager and cultivator and declared hostile. PW 2 Mangal Singh is also a co-villager and agriculturist and declared hostile. PW 3 Vinay Kumar Singh was minor son of the deceased. PW 4 Manju Kumari is minor daughter of the deceased. PW 5 Amarnath Tiwary is the I.O. of the case. PW 6 Girija Devi is the informant and the widow of the deceased and PW 7 is Dr. B.K. Agrawal, Civil Surgeon of Sadar Hospital, Gopalganj, who held post mortem examination on the dead body.

6. The prosecution proved the following documents:

(i) Ext 1-Fard