D.N. Patel, A.C.J. - (1.) This Criminal Appeal has been preferred by the four appellants, who are convicted and sentenced by 3rd Additional Sessions Judge, Deoghar, in Sessions Case No.99 of 2007 vide judgment of conviction and order of sentence dated 25th September, 2008 and 27th September, 2008, respectively. These appellants are mainly punished for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 149 thereof, for life imprisonment for causing murder of the deceased Chirauddin Mian. These appellants have also been punished to undergo rigorous imprisonment for five years for the offence punishable under Section 325 of the Indian Penal Code to be read with Section 149 thereof. Both the sentences have been ordered to run concurrently. Separate sentences for the offences punishable under Sections 147, 148 and 448 of the Indian Penal Code have not been imposed.
(2.) Prosecution case, in brief, is that on 26.11.2006 at 06.00 a.m., informant Pairu Ansari (PW.8) gave fardbeyan to the police that on 25.11.2006 at 03.30 p.m., his maternal grandfather, namely, Chirauddin Mian, had gone to attend nature's call towards Northern Hill, where Samshul Mian, Sabbir Mian, Jagdul Mian, Salim Mian, wife of Samshul Mian, Maniruddin Mian and Fulwa Mian @ Jalal Mian, after forming an unlawful assembly, having Lathi and rod in their hands, surrounded his maternal grandfather and gave brutal assault on him. Thereafter, all of them entered into the house of the informant (PW.8) and gave assault to him with Lathi and Rod with an intention to kill him and when alarm was raised, the villagers came to rescue. The accused persons had also taken away silver ornaments, cash of Rs.1600/- and bicycle. It is further alleged that the accused persons also entered into the house of his maternal grandfather and gave assault to Shakina Bibi (PW.6). Later on, the villagers brought all the injured persons to Sadar Hospital, Deoghar for treatment, but on the way, informant's maternal grandfather, namely Chirauddin Mian, succumbed to his injuries. According to the informant (PW.8), the cause of occurrence is the previous land dispute between the parties.
(3.) It is submitted by the counsel for the appellants that the prosecution has failed to prove the case beyond reasonable doubts. There are major omission and contradiction in the depositions of the prosecution witnesses, which have not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the trial Court deserve to be quashed and set aside. It is further submitted by the counsel for the appellants that the so-called eyewitnesses i.e. PW.6 and PW.8, are not, in fact, the eyewitnesses at all. These aspects of the matter have not been properly appreciated by the learned trial Court. Moreover, as per the evidence given by PW.6, there was a witness to the occurrence namely Wajir Mian, but the said witness has not been examined by the prosecution. This aspect of the matter has also not been properly appreciated by the learned trial Court. It is further submitted by the counsel for the appellants that though the charge was framed also under Section 307 of the Indian Penal Code, but, the conviction is under Section 325 of the Indian Penal Code. Thus, there is too much exaggerated version given by the prosecution witnesses, which make them unreliable, especially, for PW.6 and PW.8. It is further submitted by the counsel for the appellants that there was no intention on the part of the appellants to cause murder of the deceased. In fact, there was a land dispute as alleged by prosecution witnesses and looking to the nature of injuries, there is no injury at vital part of the body of the deceased. These aspects of the matter have not been properly appreciated by the learned Single Judge and, hence, the judgment of conviction and order of sentence passed by the trial Court deserve to be quashed and set aside. These appellants have undergone the sentence of 10 years and 05 months and, hence, let the sentences be converted into a sentence for the offence punishable under Section 304 Part I and Part III of the Indian Penal Code and whatever sentences undergone may kindly be imposed, so that purpose of the prosecution may be achieved and these appellants may be enlarged from judicial custody by modifying the order passed by the trial Court on the quantum of punishment, by altering the Sections under Indian Penal Code of conviction.;