J.C.S.RAWAT, J. - (1.) THIS appeal by the appellants is against the judgment and order of conviction and sentence dated 12.12.2003 passed by the 6th Additional Sessions Judge, Godda in Sessions Trial No. 28 of 2000 arising out of Mehagama PS Case No. 115 of 1999 ( GR No. 1060 of 1999) whereby and whereunder the appellants have been convicted under section 302 read with section 34 of Indian penal Code and have been sentenced to undergo imprisonment for life with fine of rupees 5000/each and in default of payment of fine, to undergo simple imprisonment for two years further.
(2.) FACTS of the prosecution case, in nutshell is that the deceased Abdul Gafoor was Head Master in a Primary School in village Karhariya and on 21.11.1999 he was going at about 6.00 a.m. on pulse polio duty. Md. Nayeem PW15, son of the deceased also accompanied him to some distance while he was going to ease himself and the deceased was going to attend the pulse polio duty. Both of them i.e. the deceased and his son PW15 who is the informant, went together to some distance and thereafter his son parted with his father to ease himself in the field. His father alone proceeded further towards the place of his duty in the Pulse Polio programme. Md. Nayeem PW15 saw the appellant Mokbil armed with a lathi, appellant Sk. Banni armed with a sabbal, and the appellants Sk Naseem and Sk Chhedi both holding lathis in their hands and going behind the father of the informant Nayeem. After some time, he saw that the appellants had been assaulting his father with the weapons which they were holding in their hands. While he was on way to the place of occurrence, he made a hue and cry and thereafter the appellants fled away from the scene of the occurrence. When he reached the spot, he found that his father had sustained injuries on his persons and he died at the spot. It is also in the prosecution story that there is a land dispute between the parties for which a civil suit is pending before the competent court of 10/5/2014 Page 134 Birendra Kumar Singh Versus State Of Jharkhand law. Apart from this, proceedings under sections 107, 144 and 145 of the Code of Criminal Procedure were initiated in between the parties. Fard beyan of the informant PW15 was recorded by the Police at about 10.30 a.m. on the date of occurrence. The matter was investigated by the Police and after completing the investigation, a charge sheet was submitted before the Chief Judicial Magistrate and the case was committed to the court of sessions and after committal, the charge was framed by the trial court. The appellants denied the charges and claimed to be tried.
(3.) THE prosecution in support of its case examined PW1 Md. Farood, PW3 Sk Zafir, PW4 Maksood, PW6 Md Azhar, PW10 Md Kabil, PW11 Abdul Samad; PW17 Gyas Ali and PW18 Sk Majhar. They are not eye witnesses to the incident. They had reached at the spot after the occurrence and they had seen the dead body of the deceased at the place of occurrence and they have given hearsay evidence that the appellants had assaulted the deceased and consequently he died. PW5 Rafique Sheikh, PW8 Srikant Yadav, PW9 Suresh Sah, PW16 Ganesh Sah were declared hostile by the prosecution. They have not supported the prosecution case. They had stated that they did not see the appellants causing injuries on the deceased and they stated that they had seen the dead body of the deceased at the spot. PW15 Nayeem is the informant who has stated that he had seen the occurrence with his own eyes and his fard beyan was recorded by the Police. PW13 Md. Kalimuddin is also an eye witness who has corroborated the evidence of the informant PW15. PW14 is Dr. Ashok Kumar who had conducted autopsy on the dead body of the deceased Abdul Gafoor and had prepared post mortem report ( Ext.8). PW12 Arun Kumar Singh is the Investigating Officer of the case who had visited the spot and recorded statements of the witnesses and proved the papers produced by the prosecution and he also submitted charge sheet before the court.;