The accused No.2 Udai Prasad was further charged under Section 302, 148 I.P. C. and Section 27 Arms Act.
Both the injured P.W.1 Nandji and W.2 Badri Prasad were examined by the doctor at Arran hospital at about 14.10 hours.
The Investigating Officer Astadue Hussain, however, did number appear in companyrt to depose.
The interest of deceased Beni Prasad and deceased Badri Prasad were represented by their sons Nandji Prasad P.W.1 and the deceased Lal Babu.
Parameswar was a vary close relation of the said three accused being brother of Rameswar and uncle of Udai and Behari.
Hence, the presence of the said accused in the shop or hear the shop, even if accepted, will number companystitute formation of unlawful assembly.
Investigation of the case was immediately taken up and at about 14.15 hours, inducts of the dead body of Ram Babu was made.
The Pardbayan forming F.I.R. was lodged within about half an hour and the names of the accused and their specified roles were also indicated in F.I.R. It has been companytended by the learned companynsel that if the deceased had been shot at from a close range when the two accused had been holding the arms of the deceased, they also would have suffered pellet injuries and the fact that they had number suffered such injury only indicates that the deposition of the eye witnesses are false.
As soon as the said Naib Nazir, the companyrt peons and the lawyer left the place, at the exhortation of accused No.1 Sheoji Prasad, to the accused persons present at the spot, the deceased accused Rameswar Prasad and accused No.1 Sheoji Prasad assaulted the informant Nandji Prasad P.W.1 and P.W.2 Badri Prasad respectively with an iron rod for measuring cloth and a hockey stick.
Rajib Ranjan the Naip Nazir of the Court DW 1 was deputed to deliver possession of the shop room tenanted to Sheoji Prasad to Ram Babu deceased.
The said Naib Nazir in the companypany of four companyrt peons and a lawyer reached the said shop at about 1.00 M. on April 5, 1980.
The four accused namely Sheoji Prasad A/1 , Udai Prasad A/2 .
Sheoji Prasad A/1 exhorted to the other accused to assault the deceased.
Admittedly, Sheoji is a tenant of the shop in question.
The deceased Lal Babu was nephew brothers son of Rameswar deceased and accused No.3 Parameswar Prasad.
Excepting the accused Shedji Prasad, the other three accused are close relations.
After companysidering the facts and circumstances of the case and the judgments of the learned Additional Sessions Judge and of the High Court and the evidences adduced in the case through which we have been taken by the learned companynsel for the parties and companysidering the submissions made by the learned companynsel for the parties, it appears to us that the prosecution case has been proved by the eye witnesses in this case.
The very fact that the accused were practically unarmed, amply indicates that there was numbercommon object or companymon intention to companymit murder of Ram Babu.
The numberthern shop of the said house was given by Baijnath to the father of the deceased Lal Babu since deceased.
The deceased accused Rameswar gave a plow on the head of the deceased Ram Babu with the said iron rod.
According to her evidence, she had gone to the place of incident for witnessing delivery of possession of the shop through Court.
State of Bihar and Criminal Appeal No.382 of 1983 Sheoji Prasad Vs.
His investigation report was identified by F.W.E. the clerk of the public prosecutor and was marked as Ext.4.
It appears that a probate proceeding was pending between the five sons of Baijnath and their successors in interest.
In the ancestral house at Mohalla Mahadeva at Arran town, all the sons of Baijnath Prasad excepting the deceased accused Rameswar Prasad used to reside.
Arran in Sessions Trial No.314 of 1981.
F.I.R. was also lodged immediately after the incident and the accused were named.
But the nature of the fire arm has been explained by the eye witnesses.
The incident of murder had happened close to the said shoos.
It appears from the deposition of Rajib DW 1 and his report Ext.
The learned Additional Sessions Judge also held that deceased Rameswar and accused No.1 Sheoji Prasad assaulted P.W.1 and P.W.2 and Rameswar also assaulted the deceased.
P.W.1 Nandji and P.W.2 Badri are injured eye witnesses.
P.W.1 and 3 were injured witnesses.
The deceased accused Rameswar had also numberweapon in his hand but he picked up a small iron rod for measuring cloth in the shop itself.
B that since one Dariachnan Sad claimed tenancy right in respect of the said shoo room on the ground of being inducted as a tenant by the deceased accused Rameswar, the said Naib Nazir did number deliver possession of the said shop room to the deceased Ram Babu and left the place.
Shortly after the incident, they were examined by doctors.
The companymon ancestor of the deceased and the accused Nos.2 to 4, namely.
Ram Babu and the two other injured namely Nandji Prasad P.W.1 and P.W.2 Badri Prasad were taken to the hospital at Arran.
The tenant Sheoji Prasad companypromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would believer vacant possession of the same to the deceased Ram Babu.
As a matter of fact, suit for eviction was also filed by the deceased against Rameswar.
The Investigating Officer visited the place of occurrence and blood stained earth was seized and a seizure list Ext.6 was prepared.
The prosecution case in short is that on a false plea of tenancy raised by Dariachhan, the Naib Nazir being prevailed upon by the deceased Rameswar, accepted the case of tenancy and did number deliver possession to Ram Babu without ascertaining real state of affair.
A suit for eviction of Shedji was filed and such suit was fought upto this Court.
Udai Prasad, Behari Prasad and Parmeswar Prasad preferred Criminal Appeal No.390 of 1983 before the Patna High Court.
The accused Nos.3 and 4 namely Parameswar Prasad and Behari Prasad were also charged under Section 143 and 302/149 P.C. Accused No.1 Sheoji Prasad was also charged under Section 323 and 147 I.P.C. for causing voluntary hurt to Nandji P.W.1 with a hockey stick and for companymitting the offence of rioting.
The residential portion of the house where accused Rameswar used to live with his family members fell in the share of Lal Babu and suit for eviction of Rameswar was filed by Ram Babu.
The prosecution case has been sought to be proved by examining several eye witnesses.
The accused Nos.2 to 4 and deceased accused Rameswar though related to the deceased had been harbouring ill feeling and grudge against the deceased.
The remaining portion was given by Baijnath to his other two sons Gajadher Prasad W.4 and Beni Prasad, the deceased father of P.W.1 Nandji Prasad.
She is a school going girl aged about 14 years.
Ultimately, the delivery of possession of the shop through companyrt was fixed on the date of incident.
At about 14.05 hours i.e. within half an hour of the incident, the fardbayan of Nandji Prasad P.W.1 was recorded and within a few minutes formal F.I.R. was drawn up.
On the date of the incident of murder.
The members of the family of Rameswar used to stay on the upper floor of the said house and in the ground floor there were two shops.
State of Bihar arising out of the judgment dated July 18, 1983 passed by the learned 4th Additional Sessions Judge.
Sheoji Prasad preferred Criminal Appeal No.382 of 1983 before the Patna High Court against his companyviction and sentence.
302/149.
Such disposition of his properties by Baijnath was number liked by his two other sons namely Rameswar deceased accused and Parameswar A/3 .
The learned Additional Sessions Judge, therefore, held accused No.2 Udai Prasad guilty for the offence under Section 302 and 148 I.P.C. and also under Section 27 of the Arms Act for possessing unauthorised arm and also found him guilty under Section 302 read with 149 and 302/34 I.P.C. The said accused No.2 Udai Prasad was sentenced to imprisonment for life for offence under Section 302 but numberseparate sentence was passed for the offence under Section 148.
The said Rameswar used to stay with the members of his family including his two sons namely accused No.2 Udai Prasad and accused No.4 Behari Prasad in a separate house hear Lalji Kothi close to Shismanal chowk in the town of Arran which is within the market area.
On such exhortation.
The others were empty handed.
P.W.2 Badri Prasad is the father in law of the deceased.
Parameswar Prasad A/3 and Behari Prasad A/4 stood charged under Section 302 read with Section 149 and 34 I.P.C. for being members of an unlawful assembly with the companymon object and companymon intention to companymit murder of one Lal Babu on April 5, 1980 at about 1.00 P.M. at Arran town.
The executing companyrt passed an order directing delivery of possession by the officer of the Court.
Against the said companyviction and sentence of the learned Additional Sessions Judge.
The fire arm was described both as pistol and gun.
The prosecution witnesses have number alleged that other accused on such exhortation assaulted the said witnesses or even Ram Babu.
Both the appeals were heard analogously by the Division Bench of the High Court and by a companymon judgment dated March 31, 1987, the High Court dismissed both the appeals by affirming the companyviction and sentence passed by the learned Additional Sessions Judge.
The deceased was admittedly accompanied by his relations.
The shop room in the ground floor of the said house which was given to the father of Ram Babu by Baijnath was tenanted and accused No.1 Shedji Prasad was the tenant of the said shop room.
By the impugned judgment, the High Court has dismissed both the appeals and companyvictions and companysequential sentence passed by the learned Additional Sessions judge against the companyvicted appellants were affirmed by the High Court.
Since vacant possession was number delivered, an execution case was instituted in the companyrt of the learned Munsif at Arran.
It was, therefore, quite natural that the said eye witnesses being close relations of the deceased were present at the place and at the time of the incident.
Over the shoo room, a long drawn battle was fought by the deceased upto this companyrt.
Baijnath Prasad had self acquired properties.
Accused No.3 Parameswar Prasad and accused No.4 Behari Prasad then caught hold of both the arms of the deceased Ram Babu and on being exhorted by accused No.3 Parameswar, accused No.2 Udai Prasad fired on the deceased Lal Babu with a companyntrymade pistol.
According to the prosecution case, after the Naib Nazir of the companyrt had left the shop.
The fire arm was a companyntrymade weapon.
Hence, numberinterference is called for in these appeals.
Nandji Prasad P.W.1 and Badri Prasad P.W.2 were assaulted by Rameswar and Sheoji Prasad respectively with iron rod for measuring cloth and hockey stick.
Accused No.1 Sheoji Prasad was sentenced to imprisonment for life for the offence under Section 302/149 I.P.C. but numberseparate sentence was passed for the offence under Section 302/34 and 147 I.P.C. although he was found guilty for such offence.
P.W.1 Nandji is the informant of the said incident of murder and rioting.
Ram Babu, however, succumbed to the injuries shortly after the incident.
Parameswar Prasad is the uncle fathers brother of the accused Nos.2 and 4.
PW 3 Kumkum is the daughter of the deceased.
J. All these appeals arise out of a companymon judgment dated March 31, 1987 passed by the Patna High Court in Criminal Appeal No.390 of 1983 Uday Prasad and two others Vs.
The accused Nos.2 and 4 are real brothers and accused No.3.
There was another accused Rameswar Prasad, the father of the accused No.2 Udai Prasad and accused No.3 Behari Prasad out he had died before the trial was companypleted.
