Kailash Prasad Deo, J. - (1.) Heard learned counsel for the appellant and learned counsel for the State.
(2.) The instant Criminal appeal is directed against the judgment of conviction and order of sentence both dated 21.01.2004, passed in S.T. No.27 of 2001 ((Kasmar P.S. Case No.65 of 2000 corresponding to G.R. No.985 of 2000) passed by the learned 5th Additional Sessions Judge, Bermo at Tenughat, whereby the sole appellant has been convicted by the learned trial court under Sections 307 and 325 of the Indian Penal Code, but acquitted for the charge under Section 452 of the Indian Pending Code. The learned trial court has awarded the appellant, Shafique Ansari rigorous imprisonment for 7 years and a fine of Rs.3,000/- for the charge under Section 307 of the Indian Penal Code and in default of payment of fine, to undergo simple imprisonment for one month and further to undergo rigorous imprisonment for 4 years and fine of Rs.2,000/- for offence punishable under Section 325 of the Indian Penal Code and in default to undergo simple imprisonment for one month. Both the sentences are directed to run concurrently. Being aggrieved by the impugned judgment of conviction and order of sentence, the sole appellant preferred the instant appeal which has been admitted vide order dated 31.03.2004 by this Court and since then, the matter was pending.
(3.) The prosecution case is based upon on the basis of the written report submitted by Naeem Ansari (P.W.2), before the Officer-inCharge, Kasmar Police Station in the District :- Bokaro on 16.12.2000 alleging therein that at around 3.30 p.m., his neighbour, Shafique Ansari (appellant) entered into his house with thick iron rod and was in-search of his father, Habib Ansari, saying that he will kill Habib Mian and finish the litigation going on in between the parties. Upon this, the mother of the informant, Amna Bibi (P.W.5) asked Shafique Mian (appellant) why you have entered into the house as her husband has gone to Tenughat. Upon this, Safique Mian became furious and with intention to kill the mother of the informant tried to assault on head by iron-rod, but mother of the informant anyhow saved herself, by raising her left hand on the head. Informant's mother got fractured of her left hand because of the injury caused by iron rod. When the informant came for rescue of his mother, Shafique Ansari also assaulted him with an intention to kill, on his head, due to which his head got bleeding injury and he became unconscious and fell down in the courtyard. After sometime when he regained his consciousness, then he realized, that considering him to be dead, after neighbourers assembled there, Safique Ansari fled away. The informant has further stated that occurrence took place which was witnessed by his brother, Shabir Ansari (P.W.1), Kalim Ansari (P.W.3) and guest Raja Babu (P.W.4) and one Ainul Haque and others. The informant has alleged that the occurrence took place, as there is long enmity because of the land dispute and prior to that, case has also been instituted with respect to assault. On the basis of the aforesaid written report of the informant, the Police instituted First Information Report being Kasmar P.S. Case No. 65 of 2000 (dated 16.12.2000) corresponding to G.R. No.985 of 2000 under Sections 452, 323, 324, 325 and 307 of the Indian Penal Code against the appellant/accused.;