D.N. Patel, J. - (1.) THE present appeal has been preferred by the original accused No. 1 against the judgment and order of conviction and sentence dated 27th July, 2001 and 30th July, 2001 respectively, passed by the Additional Sessions Judge, Pakur in Sessions Trial No. 243 of 1999) 44 of 1999, whereby, the present Appellant -accused has been convicted for the offence punishable under Section 312 to be read with Section 149 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life The present Appellant -accused has further been convicted for the offence under Section 148 IPC and sentenced to undergo rigorous imprisonment for three years. However, both the sentences were directed to run concurrently.
(2.) IF the case of the prosecution is unfolded the same is as under: It is the case of the prosecution that one Saiffuddin Sheikh (P.W.6) has lodged a first information report before Pakur Police Station on 20,h March 1999 at 1.30 a.m. to the effect that on 19th March 1990 at about 8.00 p.m. when the informant was at his house with his brothers at Village Navrottampur, at that time the present Appellant (original accused No. 1), Dendar Sheikh (original accused No. 7), Mehruddin Sheikh (original accused No. 6) and Khushdil Sheikh (original accused No. 5) came at his house and they were addressing the brother of the informant (P.W.6) i.e. Shri Taimuddin Sheikh in high pitch voice that why he was throwing stones at the house of Jallaluddin Sheikh (original accused No. 4). In response to this, the informant (P.W.6) told them that his brother Taimuddin Sheikh was not throwing stones at the house of Jallaluddin Sheikh (original accused No. 4). The informant further told them that even if Taimuddin Sheikh had thrown stones at the house of Jallaluddin Sheikh, they are ready to go for Panchayati, but, accused started beating the brother of the informant. Thereafter Jallaluddin Sheikh (original accused No. 4), Morsalim Sheikh (original accused No. 3) and Amrul Sheikh (original accused No. 2) came there with lathis in their hands and the present Appellant i.e. Sirajul Sheikh, who was having Farsa in his hand caused head injuries to Taimuddin Sheikh, who is the brother of the informant. Thereafter, the accused ran away Taimuddin Sheikh was taken to Pakur Hospital but while going to hospital, he expired. Upon registration of the first information report, investigation was carried out, statements of the witnesses were recorded, charge sheet was filed against the Appellant -accused along with other co -accused and after commitment the case was numbered as Sessions Trial No. 243 of 1999 and after appreciating the evidences on record, the Appellant has been convicted and sentenced for the offence punishable under Section 302 to be read with Section 149 and Section 148 of the Indian Penal Code for committing murder of Taimuddin Sheikh. Against the said judgment and order of conviction and sentence, the present appeal has been preferred by the original accused No. 1.
(3.) WE have heard learned Counsel for both sides at length and perused the records and proceedings of Sessions Trial No. 243 of 1999. It has been mainly submitted by the counsel for the Appellant that there are lot of omissions and contradictions in the deposition of the prosecution witnesses. There was no intention on the part of the present Appellant accused to murder of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence passed by the trial court deserves to be quashed and set aside. It is further submitted by the learned Counsel for the Appellant that the whole incident has taken place out of hot altercation between the informant and his brothers and the accused side persons. In fact, there is only one injury upon the deceased which is fatal in nature as per medical evidence given by P.W.7 Dr. Ram Jeevan Prasad, who has carried out postmortem note of deceased Taimuddin Sheikh and, therefore also there is no intention en the part of the Appellant -accused to cause murder of the deceased. The Appellant -accused is in jail since 1999. More than ten years he has remained in jail and therefore, alternatively, it is submitted by the counsel for the Appellant that at best the Appellant is liable to be punished for the offence of culpable homicide, not amounting to murder for ten years instead of Section 302 I.P.C. because thee is no motive on the part of the Appellant to cause murder of the deceased.;