- (1.) PETITIONERS have been jointly convicted under S.323 and S.379 of the Indian Penal Code with their father Israil Mian (Since dead) whereas the petitioner Nayeemuddin Mian has been separately convicted for the offence under S.326 of the Indian Penal Code by the Court of Sri Ram Siya Singh, Judicial Magistrate Ist Class, Deoghar in Complaint Case No. 449 of 1989 corresponding to T.R. No. 661 of 1993.
(2.) AGAINST the order of conviction and substantive sentence passed therein, the petitioners herein preferred Cr. App. No. 48 of 2003, which is presently pending in the Court of 1st Additional Sessions Judge, Deoghar. They have challenged the order impugned dated 13-2-2006 whereby and whereunder the petitions dated 17-1-2006 and 23-1-2006 was rejected by the learned Additional Sessions Judge to call for Ext. 2 and Ext. 3 which were the entries made in the station diary and proved by PW 6, Chandra Bhushan Prasad Singh. By bringing about the present application under S.482 of the Code of Criminal Procedure, prayer has been made for quashing the order impugned dated 13-2-2006 passed by 1st Additional Sessions Judge, Deogarh in the criminal appeal aforesaid. Annexure A which is the Xerox copy of the statement of PW 6 Chandra Bhushan Prasad Singh in the trial Court indicates that he proved the entry made in station diary, vide entry No. 84 dated 5-11-1989 drawn by the Munshi Ramjee Singh of Jasidih Police Station with the signature of Birendra Mohan, Officer in Charge of the police station thereon and it was marked Ext. 2. Similarly, another station diary entry No. 91 was proved and marked Ext. 3 which was under the signature of Officer in Charge Birendra Mohan. In the cross examination PW 6 Chandra Bhushan Prasad Singh Constable No. 306 stated that at the time of occurrence he was posted at Jasidih police outpost and that entries in the station diary were not made in his presence. He had no personal knowledge about such entries. He further deposed the Ramjee Singh was alive but was transferred to another place and that Birendra Mohan was still under employment.
(3.) BRIEFLY stated opposite party No. 2 Jhagru Mian filed a Complaint Petition No. 449 of 1989 against the petitioners and their father Nashir Mian for the alleged occurrence dated 5-11-1989 stating, inter alia, that while the petitioners were cutting Babul tree standing over plot No. 876, Mauza Tabhaghat, it was opposed by the complainant as it was in his peaceful possession, whereupon, it is alleged that father of the petitioners Nashir Mian commanded the petitioners to kill the complainant and pursuant to that, petitioner No. 1, Nayeemuddin Mian inflicted axe blow on the head of the complainant causing injury and the petitioner No. 2, Israil Mian assaulted the complainant with the iron rod, as a result of which the complainant fell down and thereafter it is alleged that Nashir Mian also assaulted him. He was removed to Jasidih Police Station where statement of the complainant was recorded and he was medically treated by Jasidih Hospital but the police did not institute any case. Injuries were grievous in nature, by sharp cutting weapon and it was alleged that the petitioners removed branches of Babul tree worth Rs. 200/- which was in possession of the complainant. The complainant proposed the offence against the petitioners and their father under S.323/379/326 of the Indian Penal Code. The complaint petition was fixed on 21-11-1989 as against the date of occurrence on 5-11-1989. After the trial, the three including the petitioners were convicted in the manner stated above.;