DILIP KUMAR SINHA, J. - (1.) THE appellants have preferred this appeal against the judgment of their conviction dated 16.7.1999 and order of sentence dated 19.7.1999 passed by Shri R.K. Dubey, 8th Additional Judicial Commissioner, Ranchi in Sessions trial No. 119/1990 whereby and whereunder the appellant No. 1 Zeyaul Haque was convicted under Part II of Sec. 304, IPC and was sentenced to undergo rigorous imprisonment for 7 years whereas the appellant No. 2 Mobarak Hussain was convicted under Sec. 304{2)/34, IPC and was sentenced to undergo imprisonment for four years. Mobarak Hussain appellant No. 2 was further convicted for the offence under Sec. 323, IPC.and was sentenced to undergo imprisonment for three months. Both the sentences against Mobarak Hussain were directed to run concurrently.
(2.) THE brief fact of the case is that the appellants were prosecuted on the statement of the informant Habib Ansari, recorded in the night of 13.4.1989 at the Kanke Hospital with respect to the occurrence which took place on the same day at about 6 p.m. It was narrated therein that when the informant was washing his face at his door the son of the appellant No. 2 namely Mahmood aged about 8 years pelted stone over the younger sister of the informant Laila Khatoon aged about 5 years which enraged the father of the informant Imamuddin Ansari (since deceased) who chastised the boy Mahmood as to why he had pelted stone and the matter was intervened by the appellant No. 2 Mobarak Hussain which resultant into hot altercation. In the same sequence the other relatives of both the sides assembled and when the informant intervened, it is alleged that one Qamruddin inflicted blow over the head of the informant with Badhana (a metal pot). It is further alleged that Qumruddin abetted the other accused persons Zeyaul Haque (appellant No. 2) and Mobarak Hussain (appellant No. 2) and pursuant to that, it is alleged that the appellants Mobarak Hussain and Zeyaul Haque brought sticks from their house and it is specifically alleged that the appellant No. 1 Zeyaul Haque inflicted lathi blow over the head of Imamuddin who, after sustaining injury fell down and became senseless. When the mother of the informant Raimun -nisha arrived at the scene to rescue her husband on hearing "hallo." it is alleged that appellant No. 2 Mobarak Hussain inflicted lathi blow causing injury on her arm. The occurrence was witnessed by the inmates of the house of the informant. The co -villagers also assembled at the scene. Subsequently the accused Qumruddin including the appellants escaped. Imamuddin (since deceased) was brought to Kanke Hospital and from there he was referred to R.M.C.H., Ranchi where he succumbed his injuries on the next day morning. The informant and Quamruddin were examined by the Doctor at Kanke Hospital and the police case was registered on the statement of the informant and after investigation charge -sheet was submitted by police under Sec. 304/34, IPC against the appellants and one Qamruddin Ansari. The trial Court framed charge against all the three accused under Sec. 302/34, IPC with separate charge under Section 323 against the appellant No. 2 Mobarak Hussain. The accused Qamruddin Ansari died during the pendency of trial and therefore, trial proceeded only against the appellants. As many as 11 witnesses were produced and examined on behalf of the prosecution and DW 1 Awal Ansari as well as DW 2 Bijay Oraon were produced as defence witnesses.
(3.) THE judgment passed in this case has been assailed on the ground that the appellants were convicted solely on the testimony of the partisan and interested witnesses who were the near relatives of the informant 'sfamily viz. PWs 7, PW 8 and 9. No specific question was put to the appellants while recording their statement under Sec. 313, CrPC as to the manner of assault and the weapon of assault alleged to have been used in inflicting injury which highly prejudiced the defence in material particulars, otherwise the appellants would have adduced the evidence in support of their defence. The occurrence took place on certain provocation without any motive or prior intention and hence there was no occasion to share common intention by the appellant No. 2 with the appellant No. 1 in the commission of the alleged offence and in this manner the trial Court has given a wrong conclusion by convicting the appellant No. 2 Mobarak Hussain for the offence under part II of Sec. 304, IPC and for such reason judgment impugned suffers from the vice of non - application of judicial mind by the trial Court in convicting the appellant No. 2 in the aforesaid section. Similarly, there was no direct evidence against the appellant No. 1 Zeyaul Haque of causing culpably homicide to Imarnud -din Ansari which was not amounting to murder. As a matter of fact the occurrence did not take place in the manner presented by the prosecution, which can be evident from the evidence of PW 11 as contained in para 17 that he had found injuries on the person of the accused Qamruddin Ansari but there was no explanation on behalf of the prosecution about such injury. The appellants as well as the members of the prosecution party are the descendants of common ancestor having land dispute and this fact was ignored by the trial Court as to the false implication of the appellants.;