Kailash Prasad Deo, J. - (1.) The Criminal Appeal (SJ) No. 152 of 2004 has been preferred against the judgment of conviction dated 18.12.2003 and order of sentence dated 20.12.2003, passed by learned Special Judge-cum- 1st Additional Sessions Judge, Deoghar, in Special Case No. 97 /1997 whereby both the appellants have been convicted for offence committed under Section 304 (II) of the Indian Penal Code and the appellant no. 2 Idrish Ansari @ Idrish Mian has further been convicted under Section 323 of the Indian Penal Code. The learned Trial Court has awarded rigorous imprisonment for seven years for the offence committed under Section 304 (II) of the Indian Penal Code to both the appellants and further Idrish Ansari @ Idrish Mian has been awarded rigorous imprisonment for a period of six months under Section 323 of the Indian Penal Code and both the sentences are directed to run concurrently. By the same impugned judgment the learned Trial Court has also acquitted appellant no. 1 Basiruddin Ansari along with other eight accused persons facing trial from the charge under Sections 147, 504, 452, 380, 323, 307 of the Indian Penal Code and 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Thus, these two appellants, who have been separately charged also under Sections 148 and 302 of the Indian Penal Code have been found guilty under Section 304 (II) of the Indian Penal Code and appellant no. 2, Idrish Ansari @ Idrish Mian has further been convicted under Section 323 of the Indian Penal Code.
(2.) The prosecution case is based upon written report submitted by Pancham Manjhi (P.W. 11), before the Officer-in-Charge, Sarwan Police Station on 7.10.1997 alleging therein, that today in the morning at around 07.00 a.m., his co-villager, Basiruddin Ansari, Sahadat Ansari, Mutar Ansari, Idrish Ansari, Bhado Mian, Rashid Mian, Habub Mian, Saleem Mian, Kadeem Ansari were damaging the bamboo sapling, which was sown by the informant and his uncle Tipan Mian (P.W. 1) in the month of jeth this year. The informant has alleged, that he along with his uncle asked the accused persons not to do so, upon which the accused persons started abusing the informant and with intention to kill, they chased the informant and his uncle. The informant and his uncle, to save their life entered into the house. The accused persons were having weapons in their hands, Basiruddin Ansari was having tangi in his hand, Idrish Ansari was having rod in his hand and the rest of the accused persons named in the First Information Report were having lathi in their hands. The accused persons, entered into the house of his uncle, Tipan Manji, where the informant has also taken shelter and the accused persons abused the informant's wife, who has been blessed with a child recently on 06.07.1997, by pushing her and assaulted her, due to which she fell down and thereafter all the accused persons assaulted Tipan Manji. Basiruddin Ansari assaulted Tetu Manjhi (P.W. 2), on his head by means of tangi with an intention to kill. Idrish Ansari assaulted Tetu Manjhi by means of iron rod, due to which he fell down and became unconscious. It is alleged that, when the wife of Tipan Manjhi namely Dulari Devi, Pancham Mian (informant), Tipan Manjhi, Ado Manjhi went for rescue of Tetu Manjhi, they were also assaulted. Idrish Ansari and Basiruddin Ansari also assaulted Ado Manjhi, with intention to kill, due to which Ado Manjhi fell down and became unconscious and thereafter all the accused persons assaulted Dulari Devi. The accused were also saying that kill all these "harijans". The informant has alleged that, when the victims tried to go to the Police Station, the accused persons warned them, that if they will go to the police station, they will be killed. Thereafter, the accused persons have taken two bronze plates, and one globular water pot worth Rs. 200/- and one hen, which was kept for Dussehera was also taken by Sahadat Ansari.
(3.) On the basis of the fardbeyan, the police registered Sarwan P.S. Case No. 108 of 1997 dated 07.10.1997 under Sections 147, 148, 149, 452, 341, 323, 324, 307, 380, 504 and 427 of the Indian Penal Code and 3 (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. After investigation the police submitted chargesheet against all the named accused persons vide charge Sheet No. 46 of 1997 dated 31.10.1997 under Sections 147, 148, 149, 452, 341, 323, 324, 307, 302, 380, 427 and 504 of the Indian Penal Code and 3 (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.;