PRASHANT KUMAR, J. - (1.) IN these appeals i.e. Cr. A. (DB) No. 144 of 2002 filed by Azad Ansari, Rajjak Ansari and Tamizuddin Ansari and Cr. A. (DB) No. 80 of 2002 filed by Indra Prasad Sah, Jalo Mian, Musu Mian, Botha Mian and Samsuddin Mian, the appellants have challenged the judgment of conviction and order of sentence dated 18.2.2002 passed by 1st Additional Sessions Judge, Godda in S.T. No. 56 of 1998/59 of 2001 whereby and whereunder they had been convicted under Sections 302/149 of the IPC and sentenced to undergo imprisonment for life. They were also ordered to pay fine of Rs. 10,000/ - each and in default of payment of fine, sentenced to undergo R.I. for five years.
(2.) SINCE the aforesaid two appeals arise out of the common judgment of learned Court below, both the appeals are heard together and are being disposed of by this common judgment. The case of prosecution in short as per the fardbeyan of Gol Nisha Bibi is that on 24.7.1998 her husband Sobrati Mian along with his son Manir Ansari and a ploughman went to Hira Bahiar for ploughing the land. At that time informant was also present.at that place. The elder brother of her husband, namely, Ashif Mian, his wife and daughter, namely, Mariyam Bibi and Asiran Khatoon respectively were there in their own land situated by the side of the land of the informant. It is stated that while her husband was getting the said land ploughed through the ploughman, at about 7 a.m. appellants along with three female accused persons i.e. wife and mother -in - law of Azad Ansari and wife of appellant Jalo Mian variously armed, arrived at the place of occurrence. Appellant Samsuddin Mian exhorted Azad Ansari to kill informant's husband in order to finish the land dispute, whereupon all the accused persons proceeded to surround the informant's husband, however, he escaped and fled away towards South Dumri Tola. It is alleged that in the meanwhile, appellant Azad Ansari assaulted the ploughman with butt of his pistol, due to that the ploughman received injury on his head. Thereafter on being again exhorted by Samsuddin, all the accused persons rushed to chase Sobrati Mian (deceased). The informant, her son, daughter and her brother -in -law Ashif Ansari, his wife Mariyam Bibi and daughter Asiran Khatoon followed the accused persons. It is alleged that the accused persons overtook and surrounded her husband near Dumri Tola. Azad Ansari and Rajjak Ansari assaulted him by butt of musket (gun) and sword respectively. Other accused persons also repeatedly assaulted him with lathi and bhala. When her husband fell on the ground the informant and her relatives begged Rajjak Ansari and Azad Ansari to spare her husband but Rajjak Ansari and Azad Ansari asked the informants and her relatives to go away or otherwise face the consequence. The wife and mother -in -law of Azad Ansari and wife of Jalo Mian then dragged her injured husband, by holding his leg and hand, up to the Tanr and thereafter Azad Ansari and Rajjak Ansari dragged her husband up to western bank of Samar Pokhar and again all the accused persons mercilessly assaulted him there. When the informant and her relatives raised alarm and some villagers rushed, the accused persons fled away. Thereafter, the informant and her relatives went near Sobrati (deceased). They found injuries on different parts of his body. When her husband was in jail, Azad Ansari and Rajjak, by playing fraud, got a transfer deed executed in their favour in respect of 4 kathas of land of her husband. The informant's husband was not accepting the said deed executed in favour of Azad Ansari and Rajjak Ansari and was ploughing the said land. That was the reason for the occurrence and finishing Sobrati.
(3.) ON the basis of aforesaid fardbeyan police instituted Godda (T) P.S. Case No. 218 of 1998 dated 24.7.1998 under Sections 147, 148, 149, 323 and 302 of the IPC and took up investigation. After completing the investigation, police submitted charge - sheet against appellant Azad Ansari, Rajjak Ansari, Tamizuddin Ansari, Jalo Mian, Noor Nisha Bibi, Khatoon Bibi and Koili Bibi under Sections 147, 148, 149, 323 and 302 of the IPC. After the cognizance, the case was committed to the Court of Sessions, as the offence under Section 302 of the IPC is exclusively triable by the Court of Sessions. Initially, vide order dated 3.12.1999 the charges were framed against the aforesaid seven charge -sheeted accused persons under Sections 302/149 and 323 of the IPC. The said charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined witnesses in support of its case. In the Court, witnesses taken the name of Samsuddin Mian, Indra Prasad Sah, Botha Mian and Musu Mian, therefore, learned Court below summoned them for facing the trial as per the provisions contained in Section 319 of the Code of Criminal Procedure. It then appears that after appearance of aforesaid four appellants, learned Court below vide order dated 1.2.2001 framed charge against them under Sections 302/ 149 and 323 of the IPC and explained the same to aforesaid accused persons to which they pleaded not guilty and claimed to be tried. It further appears that thereafter on the request of aforesaid accused persons; PW 9, PW 11, PW 12, PW 13 and PW 14 were recalled for cross -examination. It appears that thereafter PW 15 doctor and PW 16 I.O. have been examined. Thereafter statements of accused persons including the appellants was recorded under Section 313, Cr PC in which their defence was of total denial and false implications. Learned Court below after considering the evidence available or record, convicted the appellant under Sections 302/149 of the IPC and sentenced them to undergo imprisonment for life and also to pay fine of Rs. 10,000/ - each and in default of payment of fine they have been sentenced to undergo R.I. for five years. By the said judgment, learned Court below acquitted the female accused persons, namely, Khatoon Bibi, Noor Nisha and Koili Bibi for the offence under Sections 302/149 of the IPC but, they were convicted for the offence under Section 323 of the IPC and directed to execute bond of Rs. 2000/ - for the period of one year, for keeping peace and good behaviour.;