RAKESH KUMAR, J.:–The present Appeal has been preferred by two appellants against judgment of conviction and sentence dated 19th February, 1994 passed in Sessions Trial No. 325 of 1993 (arising out of Bihar P.S. Case No. 105 of 1993). The learned trial judge by the impugned judgment has convicted both the appellants under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C.”) and sentenced them to undergo rigorous imprisonment for life for offence under section 302/ 34 of the I.P.C.

2. Short fact of the case is that on 8.3.1993 at about 4.00 A.M. Sup Inspector of Police Sri Rabindra Kumar Singh / P.W. 7 recorded fardbyan of Ajay Kumar Chowdhary /P.W. 5. The fardbyan was recorded near the door of the informant. In the fardbyan the informant disclosed that on 7.3.1993 at about 10.00 P.M. (night) after taking dinner he had gone to sleep. At about 11.30 P.M. suddenly he heard the sound of his brother Arvind Kumar Chowdhary, who was raising the alarm as “chor -chor”. After hearing the sound, immediately while the informant came out from his house he heard the sound of firing. Thereafter, he ran outside and noticed that his brother Arvind Kumar Chowdhary had fallen on Earth. Thereafter, while running he reached towards west of the lane and he noticed that three accused persons, which includes the two appellants were fleeing away towards western side. He identified both the appellants and one unknown accused. He stated that while fleeing away accused persons were trying to see the informant and in that view of the matter he identified both the appellants who were co-villagers . He also identified them with their wearings. Thereafter, he returned back and he noticed that his brother Arvind Kumar Chowdhary had already died. He had received fire arm injury on his chest. The informant further disclosed that on ‘hulla’ his brothers namely, Raj Kumar Chowdhary, Bijay Kumar Chowdhary and and other villagers had arrived. He further stated that about four days earlier both appellants i.e. Kaushlendra Kumar Chowdhary and Ram Gulel Chowdhary had asked him to provide his tempo for committing some crime , which was denied by him. The informant stated that this was the reason for committing murder. The informant claimed that his brother was murdered due to aforesaid enmity and in the night of the date of occurrence again the accused persons had came to take away tempo which was protested by his brother and thereafter , he was killed by the accused persons. After recording fardbyan, which was recorded on 8.3.1993 at 4.00 A.M., a formal F.I.R. was drawn on the same day at 9.00 A.M. and as such, an F.I.R. vide Bihar P.S. Case No. 105 of 1993 was registered for offence under section 302 / 34 of the I.P.C. and section 27 of the Arms Act, 1959 (hereinafter referred to as the “Arms Act”) against three accused including the two appellants by name and one unknown. After registering F.I.R., inquest report was prepared and dead body was sent for post- mortem examination. During investigation witnesses were examined and police after investigation submitted charge-sheet against two appellants on 8.5.1993. After submission of charge- sheet the learned Magistrate took cognizance of offence and case was committed to the court of Sessions.

3. After commitment, the case was numbered as Sessions Trial No. 325 of 1993. In the case charges were framed only for offence under Section 302/ 34 of the I.P.C. No charge was framed under Section 27 of the Arms Act. The charge was framed on 2.9.1993. To prove the case prosecution examined altogether seven witnesses. Out of seven witnesses, P.W. 5 /Ajay Kumar Chowdhary was informant of the case, who proved his signature on fardbyan, which was marked as Exhibit -1/3 and he also proved signature of one of the witnesses on fardbyan and same was marked as Exhibit -¼. P.W. 1 / Tippu Chowdhary; P.W. 2/ Pyare Paswan; P.W. 3/ Raj Kumar Chowdhary and P.W. 4 / Bijay Kumar Chowdhary have come f

Click Here to Read the rest of this document