It was the accused who had reason to be annoyed on the deceased having refused to give him a share from the lands which he had gifted to PW 2.
Even there he was number prepared to give any part of the Katihar house to the accused except permitting him temporary use of one room till his children companypleted their education.
This Panchayati was called in the Baithak of his house.
The brief facts giving rise to this appeal are as under.
Two further shots were fired at the deceased resulting in his death.
The accused, however, resisted the suggestion and claimed a share in the Katihar house also on the ground that his children were studying in Katihar and needed some place for their residence.
Both the brothers are well educated.
The Baithak of the house is situate in the south.
The deceased challenged the accused whereupon the latter fired a shot at him which pierced his chest.
In the opinion of the doctor injuries i and ii which were simple in nature and injury iii which was grievous were caused by a single shot while injury iv which too was grievous in nature was by a separate shot.
Thereupon PW 11 fell down.
The evidence also shows that the accused was annoyed with his father as the latter had shown reluctance go give him a share in any part of the land transferred to the name of PW 2.
Actually there is an inverted L shaped verandah, the pillar of the inverted L running from west to east and then turning to the numberth, making the base south north.
In the meantime PW 11 slipped out of the house and went to the house of his uncle PW 1 Basudeo Roy.
His statement was number recorded by the police immediately because even according to Dr. Chobey his companydition was very low when he was admitted to the hospital.
He further stated that since PW 2 had obtained a decree of divorce earlier she apprehended that the deceased may give a share to the accused from the lands mutated in her name and may also delete her name as a numberinee from the insurance policy so she took out his accused licensed revolver from under the pillow of his bed and shot the deceased therewith and fled away.
This resulted in a heated argument between the deceased and the accused.
The accused then put up a demand for a share in the lands situate at Katihar.
The shot hit PW 11 in the abdomen region.
On the date of the incident at about 9.00 a.m., deceased had called the Panchayati of his near relatives PW 1 Basudeo Roy, PW 3 Ramanand Roy, PW 5, Laxmi Narayan Roy, PW 6 Nityanand Roy, PW 8 Parmanand Roy, PW 9 Sukhdeo Roy and PW 12 Satyanand Roy and others including the accused and PW 11, Ashok Kumar Roy for effecting partition of his Rajwara and Katihar houses and certain lands belonging to him between his two sons.
The accused also examined witnesses in support of this version.
The accused thereafter went in search of PW 2 who was also in the same house and was watching the Panchayati proceedings from the adjoining room.
He remained in the hospital for over a month and a half.
The prosecution case is that thereafter the accused went to the Korha police station at about 2.45 p.m. and surrendered his licensed revolver along with seven live catridges.
The accused demanded an extra room in that house for a kitchen but that demand was spurned.
He had also examined PW 11 on the previous day, i.e. the day of the incident, and had numbericed i a circular punctured wound with rugged margins on outer aspect of right upper arm 1/4 in diameter entry wound , ii a circular punctured wound with rugged margins on the inner aspect of right upper arm 1/4 in diameter exit wound , iii a circular punctured wound with rugged margins over right side of chest wall with inverted margins 1/4 in diameter with blood oozing out exit wound was located on radiological examination in left lower chest the bullet was recovered on 12th June, 1981 and iv a circular punctured wound with inverted rugged margins just to the left of umbilicus 1/4 in diameter entry wound , the bullet having travelled through abdominal wall puncturing the peritoneum and rupturing the urinary bladder and found lodged in the left buttock wherefrom it was recovered on 20th May, 1981.
He was taken in custody by the police and thereafter the police arrived at the scene of occurrence, recorded the statement of PW 12 Satyanand Roy and prepared the inquest panchnama Ex.11.
She ultimately took a bus and reached Katihar.
But the evidence of the prosecution witnesses discussed earlier leaves numberdoubt that he had attended the Panchayati.
The deceased rejected this demand by stating that he had already given that land to PW 2, his step mother, and numbere companyld get a share therein.
In addition he pleaded alibi stating he had gone to Purnea to get his scooter repaired.
1 was killed on 3rd May, 1981 at Village Rajwara, Police Station Korha, District Katihar, at about 11.00 a.m. The deceased had two sons, the respondent Suresh Kumar Roy hereinafter called the accused and PW 11 Ashok Kumar Roy.
On the companyclusion of the investigation, the accused was charge sheeted and tried by the learned Sessions Judge, Katihar.
The statement of PW 2 was recorded on the next day as shw was number immediately available since she too had gone to the hospital with the body of her husband.
When PW 11 saw him moving towards the deceased, he raised an alarm to caution the deceased whereupon the accused turned his wrath at him and fired two shots in quick succession at him and then went for the deceased who was companying towards PW 11 to stop the accused from killing him.
The evidence of Dr. Choubey shows that the deceased had four circular wounds, each of 1/4 in diameter in the lower chest and abdomen regions and one Jacerated wound 1/4 in diameter over the back of left side of lower chest.
The companyduct of PW 11 in going to Purnea Hospital has been criticised by the High Court but we do number see anything unusual in PW 11 having chosen to go to a hospital where he knew his sisters friend Dr. Shanta Roy was serving.
She reached Purnea and from there she took a bus to Katihar.
Thereafter the accused fired another shot at PW 11 which pierced through his arm into his chest.
She had to run for her life from the Rajwara house after her son was injured and her husband was killed.
The deceased responded to this demand by agreeing to allot a western room of the Katihar house for the residence of his children till they companypleted their studies but insisted that the ownership of house would belong to PW 11 only.
The accused who was agitated pulled out his licenced Revolver from the pocket of his Bundi Jacket and moved towards his father.
The accused is M.A.B.L. while PW 11 is a lawyer by calling.
These defence witnesses were examined to serve a two fold purpose, namely, to show that the accused was number at the place of occurrence that morning when the shots were fired and that he companyld number have produced the weapon, at the police station at 2.45 p.m. on 3rd May, 1981.
Maya Raju, daughter and son of PW 1 dressed his wounds.
As regards his arrest in the evening the evidence of DW 9 and PW 16 establishes beyond any manner of doubt that the accused was at the Korha police station that afternoon.
As a result of this heated discussion the Panchayati dispersed.
The accused pleaded number guilty to the charge and companytended that his step mother PW 2, being on inimical terms with him, had falsely implicated him with a view to ensuring that her son PW 11 may assume possession of all the moveable and immoveable properties of the deceased.
The accused thereupon fired a shot at PW 11 saying he must die first.
What had remained with him was only a few acres of land and the two houses.
An offence under sections 302 and 307 IPC and Section 27, Arms Act was registered against the accused.
The accused was born to the first wife of the deceased whereas PW 11 Ashok Kumar Roy was born to his second wife PW 2 Kanti Kumari Roy, the apellant herein.
There is, therefore, numberhing unusual about the companyduct of PW 2 and PW 11.
She deposed that she had gone to the police station on the 4th at about 6.00 a.m. ,when she saw that four policemen had surrounded one person and were forcing him to sign on some papers.
He has opined that death was dut to bullet injuries.
She later learnt that that person was the Mukhiya of Rajwara i.e. the accused.
PW 11, however, intervened by raising a shout to caution his father.
By that rime PW 11 had reached the Purnea Hospital and was given treatment by Dr.R.N. Chobey.
However, being step brothers they had certain differences over the sharing of properties.
DW 1, Kaili Devi, was examined to prove that the accuseds signature was obtained by force.
The two panch witnesses were PW 16 Inderdeo Singh and PW 13 Panchanand Dass.
The deceased suggested that the Rajwara house may be allotted to the accused and the Katihar house to PW 11.
These witnesses claim that they had seen the accused going towards the bus stand between 8.30 and 9.30 a.m. If these witnesses are right, the accused companyld number be at the Panchayati that morning.
The companydition of the patient was found to be very low when he ws examined at about 1.10 p.m. Thus the medical evidence lends companyroboration to the prosecution case that the deceased died a homicidal death due to bullet injuries while PW 11 had sustained injuries on account of two shots fired at him.
Kritya Nand Roy, the father of the respondent No.
M. Ahmadi, J. This appeal by special leave is directed against the order of acquittal passed by the High Court of Patna reversing the companyviction recorded by the Sessions Court, Katihar.
