- (1.) BY Court. These two connected appeals arise out of the decision dated 08.5.2002 passed in Sessions Case No. 55 of 1985 by which the Additional Sessions Judge, Pakur has convicted and sentenced the accused Appellants in Appeal No. 289/2002 namely, Abu Bakkar Seikh, Hussain Seikh, Mirzafar Seikh, Umar Seikh and Azeed Seikh under Section 302/34 I.P.C. to life imprisonment and under Section 148 I.P.C. to six months imprisonment. Accused Appellants of Appeal No. 295/2002 namely, Mozibur Seikh and Saidul Seikh have been sentenced under Section 323/34 I.P.C. to nine months imprisonment, and under Section 148 I.P.C. to six months imprisonment.
(2.) . The trial court by the said decision has sentenced only 07 (seven) accused out of the total 14 (fourteen accused who had been put up for trial. According to the prosecution story, at about 11 p.m. on the night between 27 -28 November, 1984 while the informant Nasir Seikh was lying and talking with ins brother -in -law Nizamuddin Seikh after dinner and the other family members were sleeping in the house, about 5 -6 people climbed into the roof of the informants' house and with a ladder descended entered into the court -yard of the house and opened the main door of the house. From the main door, 10 -12 more people entered into the house. All these persons were armed with Bomb, Chisel, Axe, Bicycle Chain and Iron -rod etc. The informant recognized all the 14 (fourteen) persons who were tried in the Sessions Trial and all of them are named in the F.I.R. allegedly in the light of a lantern. The informant alleges that he raised an alarm upon which he and his brother -in -law were assaulted with bicycle chains and iron rods because of which the informant was injured on the fore -head, arms, thigh and back. Azeed Seikh (who has been acquitted) is alleged to have enquired the whereabouts of Koyesh Biswas and alleged to have exhorted the others to kill Koyesh Biswas and to loot the property. According to the F.I.R., Koyesh Biswas i.e. father of the informant was sleeping in a Kothriin the centre of the house. Out of the 14 accused, Abu Bakkar, Hussain Seikh, Mirzafar Seikh, Umar Seikh and Azeed Seikh entered that Kothri. Abu Bakkar with the Axe in his hand and Umar Seikh with Chisel assaulted the Kayesh Biswas and killed him. When the assault was taking place Mirzafar Seikh, Hussain Seikh and Azeed Seikh were holding down the deceased Koyesh Biswas. Further according to the F.I.R. after murdering Koyesh Biswas, accused Abu Bakkar said to his co -accused that let us go, our work has been done and all the accused went out of the house towards north exploding bombs. After the incident, the informant was told by his wife that accused had snatched away and looted certain ornaments of the said wife and sister and some house hold goods, namely, five plates (Thalis) and a sheet etc. According to the F.I.R. the motive for murder and loot was old enmity between the accused and the family of the informant. It is also alleged in the sequence of the enmity that there is a case pending and in the month of July prior to the incident i.e. July, 1984 the accused had implicated the informant and his family members in a murder case and had them jailed.
(3.) THE F.I.R. of the incident was allegedly lodged at 8.30 a.m. on the next day i.e. 28.11.1984. In all 11 witnesses have been examined by the prosecution. The informant has been examined as P.W.6, he claims to be an injured witness but the kind of injuries which he alleges in the F.I.R., in the light of the weapons alleged to be used namely. Iron rods and bicycle chain do not find very accurate support from the medical report as testified by P.W.5 Dr. S.N.P. Sinha. These injuries were examined the next day i.e. 28.11.1984 and on the informant one skin deep lacerated wound has been found on the scalp and all remaining injuries are mere bruises with swelling and tenderness. More importantly, the same doctor finds only bruises on the body of the informant's brother -in -law namely, Nizamuddin. The assault by iron rod and bicycle chain on two un -armed persons by a large number of people would normally have resulted in greater and deeper injuries.;