- (1.) This appeal is directed against the impugned judgment of conviction and sentence passed on 25th August, 2005 and 27th August 2005, respectively by the 1st Additional Sessions Judge, Jamtara in Sessions Case No. 476 of 2001/03 of 2003, convicting the appellants for committing the offence under Sections 302/34 of the Indian Penal Code and sentencing them to undergo R.I. for life and to pay fine of Rs. 25,000/- each payable to the wife of the deceased and in default thereof to undergo R.I. for one year. The prosecution case, in short, is that PW-9 Akhtar Hussain lodged fardbeyan on 14/07/2001 at 11 p.m., before police that at about 8.30 p.m., he alongwith his father Md. Anwar Ali (deceased) were returning after closing his shop. The deceased was about 25-30 yeards ahead of the informant. As soon as the deceased reached near the house, the appellants suddenly appeared and apprehended the deceased and said that he should be killed. Appellant no. 1 Jahir Abbas assaulted the deceased on his head with Tangi in his hand due to which, the deceased fell injured then appellant no. 2 Md. Altaf Hussain also assaulted the deceased with Tangi and told that the deceased should be done to death. The occurrence took place within a short span of time, which was witnessed by the informant. The informant shougted then the appellants fled away. The neighbouring persons assembled. The deceased was taken to the hospital where he was declared dead. It is alleged that due to some dispute between the ladies about seven days prior to the occurrence, the alleged occurrence took place.
(2.) The prosecution examined 12 witnesses. PWs- 1, 4 and 5 have seen the appellants fleeing away from the place of occurrence and they saw the deceased lying with injuries. PWs.- 6, 7 and 8 saw the deceased lying dead with the injuries. PW- 10 is the doctor, who conducted Post Mortem of the dead body of the deceased and found three incised wounds on the head of the deceased, caused by sharp cutting weapon, which were the cause of death. PWs.- 11 and 12 are the police personnels, who proved and produced the material exhibit Tangi. PW-9 (the informant), PWs- 2 and 3 are the eyewitnesses. The defence examined DW-1 to show that there was enmity between the parties.
(3.) Learned counsel for the appellants assailed the impugned judgment on various grounds and submitted that the appellants have been falsely implicated due to enmity. It is further submitted that the name of Pws-2 and 3 was not disclosed as eyewitnesses in the FIR. There is no allegation against appellant no. 3 Salma Bibi in the FIR and the story that she exhorted appellant nos. 1 and 2 to kill the deceased, was developed during trial. It is also submitted that there is no allegation against appellant no. 2 that he assaulted the deceased on his head and no second Tangi, with which appellant no. 2 is alleged to have assaulted, has been recovered. Moreover, appellant no. 1 confessed that he is the only person, who committed the crime and not his brother appellant no. 2 and, therefore, appellant no. 2 at least deserves benefit of doubts.;