- (1.) The sole appellant Shamim Mian has preferred this appeal against the judgement and order of conviction dated 25-4-2001 and sentence dated 30.4.2001 passed by 1st Additional Sessions Judge, Dumka in Sessions Case No. 52 of 1991 whereby and whereunder the appellant has been held guilty for the offence under section 304, Part-II of the Indian Penal Code and has been sentenced to undergo R.I. for four years and a fine of Rs. 500/-, in default of which further period of six months' R.I.
(2.) Brief facts leading to this appeal are that in the night of 29/30-11-1989 the informant Charku Mian along with his two grandsons was sleeping inside a hut situated in the fields of Mauza Champapur looking after the paddy crop. Further stated, in between 1-2 a.m. he felt someone was assaulting him with sharp weapon on the leg. According to the informant when he woke up, he found the appellant along with his father Ishaque Mian inside the hut. Thereafter he was given two blows with dagger on the right leg. The informant raised alarm on which the minor grandsons of the informant awoke and saw the appellants assaulting him. In the meantime other witnesses also assembled there. Thereafter the appellant and his father fled away. According to the informant, the appellant Shamim Mian was married with his daughter Phalwano and who due to torture and ill-treatment has left the house of the appellant for which a panchayati was held. Phalwano did not agree to return to the house of the appellant which was resented and he was threatened by the appellant.
(3.) The informant was taken to Narayanpur Police Station where his statement was recorded by police on 30-11 -1989 and Narayanpur P.S. Case No. 88 of 1989 under Section 307, 324, 341 of the Indian Penal Code was registered against both of them. The police investigated the case and finally submitted charge-sheet against the appellant and his father under section 302 of the Indian Penal Code as the informant died during his treatment after three weeks. The learned CJM took cognizance in this case and committed it for trial by the Court of Session. During the pendency of the trial, father of the appellant, Ishaque Mian died and his case was dropped on 17.8.1994. The appellant was thereafter charged under section 302/323 of the Indian Penal Code in the year 1994 to which he pleaded not guilty and claimed false prosecution. The learned trial court after examining the witnesses finally came to conclude that the appellant has assaulted the informant resulting in his death for which he was held guilty under Section 304, Part-II of the Indian Penal Code.;