GHUTUR DAS Vs. STATE OF BIHAR

JUDGEMENT

(1.) This criminal appeal has been filed by the sole appellant who has been convicted under Section-302/149 of the Indian Penal Code and sentenced to imprisonment for life by the learned 5th Additional Sessions Judge, Begusarai by his judgment of conviction dated 06.09.1991 and order of sentence dated 09.09.1991 passed in Sessions Trial No.47 of 1989.

(2.) The prosecution case is based upon the fardbeyan of one Laddu Lal Jha (P.W.4), the father of the deceased Nand Kishore Jha, as recorded on 31.01.1986 at about 8:15 am at the residence of the informant. It is alleged that at about 9 pm on 30.01.1986, when the informant had gone to relieve himself in the field, he heard a loud gun shot and then he heard the screams of his son Nand Kishore Jha "Bachao-Bachao" he rushed to the spot and with the help of the torch light he saw that his son was crying. He saw one Bishwanath Singh (still absconder) holding pistol in his hand and the appellant-Ghutur Das with his son Birju Das (still absconding) were dragging his son. There were two or three other unknown persons there as well. On hearing the gun shot and the screams for help, other villagers also assembled. Mahesh Chandra Mahto (P.W.1), Dund Singh (P.W.2) and Ganga Rai (P.W.3) also saw this happening. Once the miscreants left the body in the wheat field and fled away, they went there. His son was just able to say that Bishwanath Singh had shot him and died. He was then carried in the house and in the morning when the police came, the fardbeyan was recorded, which he signed and was signed by others as well. The motive, as ascribed in the fardbeyan, was that his son, Nand Kishore Jha was the Mukhiya of the village and had been instrumental in getting the appellant-Ghutur Das arrested by the police. Ghutur Das was recently released from judicial custody and had been speaking in the village that he would take revenge from the son of the informant. The police, upon registering the F.I.R., sent the dead body for postmortem and after investigation submitted a charge-sheet against the three accused persons and other unknown persons showing all of them absconder. It is after a long time that the appellant was arrested and remanded in this case. Pursuant to a supplementary charge-sheet filed, the cognizance having been taken, the case was committed to the Court of Sessions for trial where the appellant pleaded innocence and was tried and sentenced, as stated above. Hence, this appeal.

(3.) The prosecution has examined seven witnesses in order to prove its case. It has exhibited various documents, which we would properly deal at relevant stage. The defence has examined three witnesses. From the suggestions given and the witnesses as examined and the documents as examined on behalf of the defence, it appears that the defence of the appellant was that the Nand Kishore Jha was a member of the Communist Party and with criminal antecedents. He was prosecuted in a case under Section-364 of the Indian Penal Code and for embezzlement of public money as a Mukhiya but, beyond this, the defence makes no suggestion. It may be noted that even though all the prosecution witnesses have been extensively questioned, the fact that the appellant had earlier been arrested with the help of the deceased Nand Kishore Jha and had been released recently from judicial custody has not been challenged at all. The prosecution has brought on record the remand order and the release order from the judicial custody. The later being dated 08.01.1986 i.e. just about three weeks prior to the occurrence.