Prashant Kumar, J. - (1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 28.09.2002 passed by the Additional Sessions Judge, F.T.C. -III, Chatra, whereby and whereunder, appellant has been convicted under Section 304 Part -II of the Indian Penal Code and sentenced to undergo R.I. for seven years and pay fine of Rs. 10,000/ -.
(2.) THE case of the prosecution, in short, as per the fardbeyan of Jahiwoon Khatoon (P.W. -8) is that on 02.06.1992, at about 6 P.M. a quarrel took place between informant and appellant and his brother Maksud Mian for fencing wood. It is further alleged that informant's husband (deceased) also arrived at the place of occurrence and took part in the said quarrel. It is further alleged that on the instigation of Maksud Mian, Ramjan Mian brought a lathi from the house. Thereafter, Maksud Mian caught hold informant's husband (Kurban Mian) and then Ramjan Mian gave a lathi blow on his head, due to that, he become injured and fell on the ground. It is then alleged that thereafter the appellant and his brother assaulted Abdul Subhan(brother -in -law of informant) with lathi. It is stated that in the afternoon of 03.06.1992, informant's husband died. On the basis of aforesaid information, Tandwa P.S. Case No. 37 of 1992, under Section 302/323/34 IPC instituted and police took up investigation. After completing investigation, police submitted charge -sheet against the appellant Ramjan Mian and his brother Maksud Mian under Sections 302/323/34 IPC. Cognizance of the offence wad taken and then the case committed to the court of Sessions, as the offence under Section 302 IPC is exclusively triable by the court of sessions.
(3.) THEREAFTER learned Additional Sessions Judge, Chatra framed charges against the accused person under Sections 302/34 & 323/34 IPC and same was explained to them, to which they pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether 11 witnesses in support of its case. After the close of the case of prosecution, statement of appellant and co -accused Maksud Mian have been recorded under Section 313 Cr. P.C. in which their defence is of total denial. It appears that after considering the evidence available on record, learned court below convicted the appellant under Section 304 Part -II IPC and sentenced him as stated above. It further appears that by the same judgment and considering the same evidence available on record learned court below acquitted co -accused Maksud Mian. Against aforesaid judgment of conviction, and order of sentence, present appeal filed by the appellant.;