BHOLA TIWARY SON OF SHRI GOPAL TIWARY, RESIDENT OF VILLAGE MADHOPUR FULWARIA, P.S. RAJPUR, DISTRICT EAST CHAMPARAN Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Sole appellant Bhola Tiwary has filed this appeal against the judgment dated 29th August, 1989 passed by 3rd Additional Sessions Judge, East Champaran Motihari in Sessions Trial No. 172 of 1981/240 of 1987 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him there under to undergo rigorous imprisonment for life and acquitting one another accused Ram Bharosh Pandey Of the charge.

(2.) The occurrence of the night of 2/3.05.1979 was reported to Police by one Chaukidar Sarju Raut (P.W.7) and his statement was recorded by Assistant Sub-Inspector of Police, Kesaria Police Station (not examined) wherein he has named this appellant, Ram Bharosh Pandey and one unknown. According to F.I.R., when the informant returned his home after performing his duty on 03.05.1979 at 9.00 A.M. the Bhagina (not examined) of Ramrup Choudhary informed him that somebody has killed his Mama by cutting his neck while he was sleeping. According to informant (Chaukidar P.W.7), he went to the house of Ramrup Choudhary and found him dead in the verandah. His neck was cut and blood scattered near him. The mother of the deceased Jhalo Kuwar (P.W.3) and his sister (not examined) were weeping and on query from deceased's mother (P.W.3) as to how Ramrup Choudhary died, then she replied that the appellant Bhola Tiwary who was her son-in-law and co-accused Ram Bharosh Pandey who was her Bhagin Damad have killed him. She also named one another unknown person but she claimed to identify him on being shown. The motive behind the occurrence was of litigation between the deceased and co-accused Ram Bharosh Pandey (since acquitted) as later had instituted a suit against the deceased claiming share in the land in village Jasauli but the suit was dismissed. The appellant Bhola Tiwary wanted to take forceful possession of his share in the land. Both the named accused threatened Ramrup Choudhary of dire consequences. The mother of the deceased Jhalo Kuwar (P.W.3) narrated the occurrence as an eye witness and also alleged that the Ramrup Choudhary was killed by aforesaid two persons. P.W.7 Sarju Raut asked P.W.3 Jhalo Kuwar to come to police station to inform the police but she expressed her inability on account of grief which she was facing at that time. P.W.7 came to the police station and reported the matter. His fardbeyan (Ext.3) resulted in Kesaria P.S. Case No. 5 of 1979 under Section 302 of the Indian Penal Code. The allegation was investigated into and after completion of investigation, charge sheet was submitted against appellant Bhola Tiwary and one Ram Bharosh Pandey. Cognizance was taken and the case was committed to the court of sessions where charges were framed and explained to the accused persons. They pleaded innocence and preferred to face trial.

(3.) The defense of the accused persons was of false implication on account of enmity which was going on for land dispute.