S.J.MUKHOPADHAYA, J. - (1.) ALL the three appellants, namely, gulam Ali Mian alias Charka Mian, Basiruddin Ansari (Cr. Appeal No. 2 of 1989) and Jamiruddin Ansari (Cr. Appeal No. 58 of 1989) have challenged the common judgment dated 17th December, 1998, passed by learned 2nd Additional Sessions Judge, Giridih, in Session Trial No. 61 of 1987. Appellant Gulam Ali Mian alias Charka Mian has been convicted under Sections 302 and 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life whereas appellants Basiruddin Ansari and Jamiruddin Ansari have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Gulam Ali Mian and Basiruddin Ansari have further been convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. However, the sentences passed against appellants Gulam Ali Mian and Basiruddin Ansari have been directed to run concurrently.
(2.) THE incident, in question, which gave rise to the present case, occurred on 21st July, 1986, at about 7.00 a.m. The informant Jan Mohammad (P.W. 10) alleged that about 4 Acres of lands belonged to his father Nemtul Mian and uncle Gulam Ali Mian alias Charka Mian (one of the appellants), which was acquired by the Irrigation Department and as a compensation of the same, the informant's father Nemtul Mian received a Bank draft of Rs. 12,000/ - and appellant Gulam Ali Mian received another Bank draft of Rs. 4,000/ - The informant Jan Mohammad is five brothers whereas the appellants Basiruddin Ansari and Jamiruddin Ansari themselves are full brothers, being sons of appellant Gulam Ali Mian i.e., cousin of the informant. On receipt of compensation, the informant's brother requested their uncle Gulam Mian (appellant) to devide the entire compensation amount, as received by the informant's father (Nemtul Mian) and uncle Gulam Ali Mian, in two equal shares and to partition the remaining lands in two equal shares. The uncle of the informant Gulam Ali Mian said that his son Jamiruddin Ansari (appellant) was in Bombay, so he will take decision after calling Jamiruddin from Bombay for which he wrote: a letter to Jamiruddin and Jamiruddin came to his house on 20th July, 1986 from Bombay. The deceased Muslim Ansari, one of the brothers of the informant, who was also working at Bombay, at the relevant period, had already come to Village and was to return back to Bombay on 21st July, 1986 in the evening. For the said reason, Muslim Ansari (deceased), in the morning of 21st July, 1986, went to the house of the accused persons for having a talk with them regarding the division of money and lands. But, came to know that all the three accused persons had gone to Dalahi Tand, situated at Village, Barangada, P.S., Dumri, Giridih, for ploughing the lands. Thereafter, the informant and all his brothers including Muslim, went to Dalahi Tand and started talk with the accused persons about partition of compensatior amount and land, on which the appellants became enraged and caught hold of Muslim (deceased). Appellant Gulam Ali Mian ordered his two sons, namely, appellants Basiruddin Ansari and jamiruddin Ansari to finish Muslim (deceased), sayirg that he was the root cause of all dispute. Because of such order, appellant Jamiruddin took out a dagger (Chhura) from his waist and inflicted dagger blow on the chest of Muslim. The other appellant Basiruddian also inflicted a number of dagger (Chhura) blows on the head of Muslim, who fell down on the ground being injured. The informant and his other brothers Sakur Ansari, Fateli Mian and Maksul tried to rescue Muslim, during which appellant Gulam Ali Mian assaulted them with lathi causing injury to all of them. Sakur Mian caught hold of the lathi of appellant Gulam Ali Mian, when appellant Basiruddin gave him a Chhura blow, causing injury on his eye -brow. The informant and his brothers, having managed to snatch lathi from Gulam Ali Mian, they also in their defence used lathi, which caused some injuries to the appellants, who then fled away. Thereafter, Muslim (deceased), who was badly injured, was lifted to shift him to Girdih for treatment, but he died on the way, near Village, Parsabera. The informant's party kept the dead -body of Muslim at a Madarsa and went to Dumri Police Station and lodged First Information Report (Ext. 6). The Police after investigation, submitted charge -sheet under Section 302/34 of the Indian Penal Code, as also under Sections 325 and 323 of the Indian Penal Code against the appellants, cognizance therefore, was taken and thereafter, the case was Committed to.the court of Sessions on 19th March, 1987. Altogether 12 witnesses were examined on behalf of the prosecutjon. Sakur Mian (P.W. 1), Maksul Ansari (P.W. 2), Fateli Mian (P.W. 4) and the informant Jan Mohammad (P.W. 10), all brothers of Muslim (deceased), were the eye -witnesses. Out of the aforesaid four, Maksul Ansari (P.W. 2), Fateli Mian (P.W. 4) and the informant Jan Mohammad (P. W. 10) also sustained injuries.
(3.) MOIUDDIN (P.W. 3), a labourer of the adjacent land, and Sitaram Singh (P.W. 5), the other cultivator of the nearby land, are independent eye -witnesses. On the other hand, Akbar Ansari (P.W. 6), the Mukhiya and Raman Mian (P.W. 7), co -villagers are hearty witnesses. Kauam Ansari (P.W. 12), shepherd by profession, was tendered. Dr. Bisheshwar Jha (P.W. 8) and Dr. Kapil Muni Mishra (P.W. 9) have examined the injured and held post -mortem examination respectively. Kauleshwar Prasad Singh (P.W. 11) was the Investigating Officer, Incharge of Dumri Police Station at that time. Two daggers (Chhuras) were recovered and placed as material evidence and the statements of witnesses and material evidence were taken into consideration by the Court below to convict the appellants.;