HARI SHANKAR PRASAD, J. - (1.) BOTH criminal appeals bearing Nos. 74 of 2002 and 101 of 2002 have arisen out of the judgment of conviction and order of sentence dated 21.1.2002 passed in Sessions Trial No. 178 of 1998, whereby and whereunder the learned 1st Additional Sessions Judge, Latehar, held the appellants guilty under Sections 147/148/149/302 of the Indian Penal Code (hereinafter to be referred as 'Code ') and convicted them and sentenced them under Section 149/302 of the Code to undergo R.I. for life together with a fine of Rs. 5000/ - each. No separate sentences were awarded for offences under Sections 147 and 148 of the Code.
(2.) THE prosecution case in brief is that Md. Muslim gave fardbeyan on 20.2.1997 at about 10.00 p. m. before the S.I. of Latehar Police Station on the road south of the village Heth Loto that today at about 5.00 p.m. in the evening, he was returning home from Latehar market and when he reached near more south of Heth Loto village, then he saw near more, a black coloured motorcycle standing near mahua tree. At that place, all the appellants were holding Master Abdul Rashid (deceased) and in the meantime, Hasib Khan and Hasan Khan came there and in order to rescue Master Abdul Rashid, they intervened. Hasib Khan and Hasan Khan were trying to save Master Abdul Rashid and the appellants separated Master Abdul Rashid from these persons and were trying to commit his murder. When both Hasib Khan and Hasan Khan were rescuing Master Abdul Rashid, then Md. Arif @ Kaila Mian, Md. Khalik, Ayub Mian, Reyaz Safdar @ Guddoo, Zakir Mian and Afak Mian fired from their respective pistols and injured them and all of them fell down and died there and all the appellants after committing murder fled towards east. Sasural of the informant is in the house of Master Abdul Rashid in village Chope and there was longstanding enmity between Ayub Mian and Zakir Mian on one side and Master Abdul Rashid on the other side and they were trying to commit murder of Master Abdul Rashid from before. Master Rashid was coming to Latehar for holding examination and in the evening, he used to return home and today also he had come from motorcycle with Littu Uraon and Dev Kumar Bhagat was returning home. After catching Rashid, two other persons namely Littu and Bhagat were driven out but he was watching the occurrence from distance and raised alarm. He did not go near them out Of fear. On the basis of the fardbeyan, Latehar Police Station. Case No. 11 of 1997 dated 20.2.1997 was registered under Sections 147/148/149/302 of the Code and under Section 27 of the Arms Act and police after investigation submitted charge sheet in the case. Cognizance in the case was taken and case was committed to the Court of Sessions and the learned Court of 1st Additional Sessions Judge, Latehar, after recording evidence of the witnesses ''both oral and documentary found the appellants guilty and convicted them and sentenced them as aforesaid. The judgment has been assailed on the ground that PW 9, though he has claimed to be eye - witness but from the contradictory statement, he does not appear to be eye -witness. The judgment has further been assailed on the ground that the statement of informant that he informed police station the very day, has been falsified by the I.O. Both the persons who were returning along with deceased Master Abdul Rashid have not been examined. There is inordinate delay in lodging the FIR and there is no plausible explanation for the same. The judgment has further been assailed on the ground that the learned Court below did not take note of the fact that though the FIR was received in the Court after lapse of 48 hours, although police station is situated at the distance of one kilometer from the Court but in between the time, FIR has been maneuvered. No independent witness has been examined in this case.
(3.) THE prosecution has examined ten witnesses and defence has examined two witnesses. PW 1 is Abdul Rauf. He is cultivator. PW 2 is Md. Sirajuddin. He is also cultivator. PW 3 is Yunus Mian. He is also cultivator. PW 4 is Naimuddin, who is also cultivator. PW 5 is Dr. Surendra Kumar Singh who has conducted postmortem examinations on the dead bodies of deceased. PW 6 is Jamila Khatoon. PW 7 is Sameena Khatoon, she is the housewife. PW 8 is Abdul Gani, he is also cultivator. PW 9 is the informant as well as the eye -witness of the case. PW 10 is Uma Shankar Dubey, he is I.O. of the case.;