D.K.SINHA, J. - (1.) THIS Criminal appeal is directed against the judgment of conviction dated 11-12-2002 and order of sentence dated 12-12-2002 passed by Sri. Udai Narayan Mishra, 4th Additional Sessions Judge, Jamtara in S.C. Case No. 232 of 2001/77 of 2002 arising out of Jamtara P.S. Case No. 144 of 1997.
(2.) BY the aforesaid judgment and order both the appellants were held guilty for the charge under Section 304, Part-II of the Indian Penal Code. The appellant Sabur Mian was sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 3000/- considering his old age with default stipulation whereas the appellant Ibrahim Mian was sentenced to undergo rigorous imprisonment for nine years and fine of Rs. 5,000/- with default stipulation. The criminal law was set on motion on the fardbeyan of P.W.1 Sahadat Mian (Informant) recorded on 4-11-1997 before Jamtara police station who narrated inter alia that on previous Sunday the appellant Sabur Mian had stolen fishes from their common ancestral pond without knowledge of the informant and others to which on the date of reporting he asked the co-villagers to assemble under a Jack fruit tree to discuss about the conduct of Sabur Mian. The latter was called for in the assembly and when he did not appear there then the members of Panchayati asked the cousin (brother) of the informant namely Neyaz Ali, (since deceased) to call for Sabur Mian at about 9 Oclock. Neyaz Ali followed their instruction but when he did not return back for a considerable time, then the informant together with Illias Mian went to the house of the appellants where they witnessed that the appellants Sabur Mian, Ibrahim Mian with one Baigni Bibi had been assaulting Neyaz Ali by fists. The informant then raised alarm and approached them but he could not rescue and Neyaz Ali fell down on the ground but even then he was not spared and the assailants continued assaulting him. In the meantime, Baigni Bibi brought an iron rod(Sabble) from her house probably to be used as the weapon but on the arrival of the villagers on alarm the assailants escaped. The informant found Neyaz Ali dead on the spot. The deceased was removed to his house with the help of the witnesses. Neyaz Ali was very weak and old man and that since he was the head of the family and the eldest, he was asked by the members of Panchayati to call for the appellant Sabur Mian, the informant added. The occurrence was witnessed as also by Illias Mian and other villagers. On the statement of the informant Jamtara P.S. case No 144 of 1997 was registered for the offence under Sections 302/34 of the Indian Penal Code against the appellants herein and one Baigni Bibi. The Investigating Officer submitted charge sheet against all the three named accused persons for the said offence, accordingly they were put on trial by the Additional Sessions Judge, Dumka after framing of charge under Sections 302/34 Indian Penal Code. After creation of separate sessions Court at Jamtara, the appellants were tried by the Additional Sessions Judge, Jamtara.
(3.) ALTOGETHER six witnesses were produced and examined on behalf of the prosecution. Amongst them P.W.2 Ilias Mian was unfavourable to the prosecution as such he was declared hostile. P.W.5 Sirajuddin Mian also did not support the prosecution case. The Investigating Officer could not be examined during trial. P.W.6 Dr. Sri. Nath Mishra had held post mortem examination on the body of the deceased who deposed and proved the post mortem report. P.W.3 Enamul Ansari happened to be the son of the deceased, was admittedly not the eye- witness of the occurrence but testified by giving an account of the circumstances leading to death of his father though based upon the information derived from the informant P.W.1.;