- (1.) APPELLANTS Sukruddin Mian Shamim Mian and Tahid Mian were arrayed as A1 to A3 before the Additional Sessions Judge, Pakur in Sessions Case No. 244 of 1985/140 of 1989. They were charged under Sections 302/304/ 307/34 of the Indian Penal Code. 2nd and the 3rd appellants were charged also under Section 325 for causing injuries to Abdul Hamid, son of Samsul Mian, during the course of the same transaction. The 1st appellant above named was charged also under Section 324, IPC for causing injuries to Nurul (PW 2) during the course of the said transaction. Charge was also framed against the appellants under Section 307, but the Sessions Judge did not say as to the person (s) whom the accused attempted to commit murder. The learned trial Judge finding the appellants guilty under Section 302/34 of the Indian Penal Code sentenced each of them to rigorous imprisonment for life. He also found them guilty under Sections 304/34 and sentenced each of them to life imprisonment. It is pertinent to note at this stage that the learned trial Judge nowhere in the judgment said whether the charge against the appellant was under Part I or Part II of Section 304, IPC. On being found guilty under Section 324, IPC, the 1st appellant was sentenced to one year imprisonment and 2nd and 3rd appellants on being found guilty under Section 325, IPC, were each sentenced to two years rigorous imprisonment. He did not award separate sentence on the accused under Section 307/34, IPC. The present appeal is against the said conviction and sentence imposed upon the appellant by the trial Court.
(2.) THE facts are as follows : On 17.12.1983, Abdul Hamid, son of Samsul Mian was attacked by appellants 2 and 3 as a result of which his teeth were broken. This fact was brought to the knowledge of the villagers and a panchayat was convened on 18.12.1983. Members of the panchayat were present at the panchayat which was convened at 7.00 a.m. The members, among others, included PW 4 Md. Sultan and PW 15 Salimuddin. The appellants, though sent for to attend the panchayat refused to oblige the panchayat. The panchayat therefore dispersed. It is the case of the prosecution that after the panchayat was dispersed, Samsul Mian and his brother Nurul Islam (PW 2) along with Md. Hannan, the deceased, the brother in law of Nurul Islam were returning home at 8.00 a.m. When they were proceeding in front of the house of the first appellant Sukruddin. all the appellants appeared before him. Appellant No. 2 Samim who was armed with a sword pierced it in the left rib of the deceased Md. Hannan while the first appellant, Sukruddin Mian caught him by hand and Appellant No. 3 Tahid Mian inflicted three bhala blows on the right ribs. Samsul Mian ran towards a pond to save his life but fell down. Appellants No. 2 and 3 assaulted him with their sword and bhala respectively. He suffered injuries on his ribs and head. Md. Hannan, the deceased, ran towards the house of Samsul and fell down. When PW 2, Nurul Islam intervened, he was attacked by the 1st appellant with the sword, as a result of which he suffered bleeding injuries on his left wrist. The occurrence was witnessed by PW1 Makfudan Bibi, PW2 Nurul Islam, PW4 Mohammad Sultan. PW 5 Rahman Mian, PW 7 Jan Mohammad, PW 8 Md. Sultan and PW 15 Md. Salimuddin. Thereafter complaint (fardbeyan) was given at the Police Station, which was recorded and investigation was taken up. In the meantime, the injured Abdul Hamid whose teeth were broken on the previous day as well as Nurul Islam (PW 2) went to the hospital. They were examined by the doctor. The doctor, on examining them, found injuries on Nurul Islam as well as Abdul Hamid. Injuries Report are Exts. 1/2 and 1/1). On examination of Samsul Mian, he found injuries. The injury report is Ext. 1/3. After investigation was taken up, inquest was conducted and inquest report was prepared. The dead body of Md. Hannan was sent to the hospital for autopsy.
(3.) ON receipt of the requisition, PW 16 Dr. M.M.P Sinha, CAS attached to the Sadar Hospital, conducted autopsy on the dead body of the deceased and he found the following injuries : (i) "One sharp cut penetrating wound in the 7th enter costal space mid axillary region of left side chest 2" x 1 /2" x deep to chest cavity; (ii) One incised wound in the lateral aspect of proximal phalanx forefinger right side 1/2" x 1/4" x 1/2." ;