A.K.SIKRI,J. - (1.) The case of the prosecution, which has been successfully established before the trial court as well as the High Court, is as follows: On 27.06.1983, a fardbayan was given by the informant Yogendra Narayan Sah alleging that three days ago, the cattle of Ram Chandra Sah, accused No. 5 herein (sole accused in Criminal Appeal No. 285 of 1988 before the High Court) grazed the paddy field of the informant, which incident was brought to the knowledge of the villagers by the informant. It was further alleged that on 27.06.1983, at about 9 am, he showed grazed field to the Panches in the presence of accused No. 5 Ram Chandra Sah. The Panches advised them not to get involved in an altercation. It was further alleged that while the Panches were busy inspecting the field, accused No. 2 Sita Ram Sah inflicted lathi blow on the left leg and thigh of the informant's brother, Bauku Sah. The Panches intervened and assured that the matter will be resolved shortly.
(2.) Further case of the prosecution is that the informant and his brother returned to their house, whereas Ram Chandra Sah and Sita Ram Sah rushed to their house. However, no sooner did the informant reached his house and was standing south-west of it, all the accused persons as well as one Sukhdeo Sah (since deceased), father of accused Nos.4 and 5, variously armed arrived there. It was further alleged by the informant that accused No.5 was armed with gun and others were armed with lathi. Soon thereafter, Sukhdeo Sah and accused No.1 exhorted other accused to assault, whereupon accused No.5 fired two gunshots hitting informant's brother Ram Udgar Sah just at his darwaja (door of the house), thereby causing his death instantaneously on the spot. The informant alleged that his brother Ram Udgar Sah sustained pellet wounds in his chest, neck and mouth. The other accused assaulted the informant with lathi as a result of which the informant sustained injuries on the right side of the head and right hand. The accused persons also assaulted the brother of the informant, Uday Chandra Sah with lathi, on account of which he too sustained injuries on his head and fell on the ground. Uday Chandra Sah was then taken to the hospital for treatment. It was further alleged that the accused persons fled away when the informant raised alarm and witnesses Ram Swaroop Yadav, Kapu Yadav, Sadhu Sah (PW-6), Dhodhai Sah (PW-7), Bauku Sah (PW-2) and others reached the place of occurrence. The informant alleged that the accused persons herein committed the offence because the informant had chastised them for damaging his crops. On the basis of the aforesaid fardbayan, a formal FIR was drawn for offences under Sections 147 , 148 , 149 , 307 , 302 , 325 , 332 of the Indian Penal Code, 1860 (for short the ' IPC ') and Sections 25A / 26 of Arms Act, 1959 being Mahishi P.S. Case No. 33 of 1983 on 27.06.1983 at 6 pm. On 28.06.1983, Dr. J. Lal (PW-13) held postmortem on the body of the deceased. It was recorded in the postmortem report that on opening the chest, the upper lobes of both the lungs were found torn with free blood in both sides of the chest cavity. The injury was anti mortem, fatal and caused by gun shot.
(3.) After investigation, the police submitted final chargesheet implicating all five persons named in the FIR, as accused. The trial court framed the charges against them under the aforesaid provisions. To prove these charges, the prosecution examined 15 witnesses altogether. Out of the aforesaid 15 witnesses, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Anar Devi (PW-3), wife of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother of the deceased, Ful Kumari (PW-8) and the informant Yogendra Narayan Sah (PW- 10) were eye-witnesses of the occurrence. One of the injured, Sabo Devi (PW-9) did not support the prosecution case and was declared hostile. Sadhu Sah (PW-6) and Dhodhai Sah (PW-7), both village Panches have not supported the occurrence. They denied to have seen the actual commission of occurrence and were declared hostile. Dr. P.K. Jha (PW-11) examined the injured persons, namely, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Ful Kumari (PW-8), Sabo Devi (PW-9) at Maheshi Hospital on the day of occurrence. Jugeshwar Singh (PW-12) is the Investigating Officer of this case. Dr. J. Lal (PW-13), Civil Assistant Surgeon, Sadar Hospital, Supaul held postmortem on the dead body of the deceased. J.K. Mishra (PW- 14) and Chotelal Yadav (PW-15) are formal witnesses.;