EKBAL HAIDER Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS criminal appeal is directed against judgment and order dated 13.3.2002 passed by Sri Chandra Shekhar Sharma, Additional Fast Track Court No. 1, Patna, whereby and where - under learned trial court held sole appellant Ekbal Haider guilty under section 304 I.P.C. instead of under Section 302 I.P.C. for which the appellant was initially charged and tried and, accordingly, convicted the sole appellant under Section 304I.P.C. and sentenced him to undergo rigorous imprisonment for ten years under Section 304 I.P.C. Prosecution case relates to an occurrence which, as per fard beyan (Ext. 2) of informant Lakshmi Devi (P.W.4), took place on 11.10.1991 at noon. As stated by P.W. 4 Lakshmi Devi (informant) when at noon she was going to bring/purchase sugar she saw Durga (deceased) fallen down on road in front west of gali (lane) of High School and she further saw Hemu Haider, Khurshid Haider, Shahabuddin Haider and Ekbal Haider (appellant) assaulting the deceased indiscriminately with iron rod, Hockey stick and lathis respectively. P.W. 4 (informant) shouted on which mohalla people collected to rescue deceased. As per P.W. 4 Sriram Rai, his family members and one Chaitu were among those who had collected there. P.W. 4 (informant) also stated that two another unknown was also among those who had assaulted Durga (deceased) whom the informant could not identify. Head and other portion of the body of Durga (deceased) had broken and it was bleeding and his entire body was damaged and he was in senselessness. Deceased was asking the informant to take him immediately as he had no hope of living. Thereafter the informant took the deceased in injured condition to Patna Medical College and Hospital. As per informant (P.W. 4) seeing mohalla people running, Ekbal Haider (appellant), Khurshid, their father Shahabuddin Haider and both unknown persons fled away. Durga (deceased) died in course of his treatment in P.M.C.H. The informant (P.W. 4) further stated that son of Durga and son of his brother and others were still in the hospital.

(2.) IT further appears from the statement of P.W. 4 that she also appears to have narrated the incident which had taken place prior to the alleged occurrence. As stated by the informant Durga Yadav (deceased) had placed kalas in the night of 10.10.91 by the side of road of the lane of Chirayantanr High School which was objected to by Ekbal Haider (appellant), Hemu Haider, Khurshid Haider and their father Shahabuddin Haider. On previous night Khurshid Haider alongwith his sons variously armed with lathi had entered into the house of informant in search of Durga (deceased) who was not present at that time and so they assaulted Dipak, son of informant, with fists and slaps. Neighbours intervened and then they went away saying that they would not leave Durga alive. Durga was dewar of informant (P.W. 4). On the basis of fard beyan (Ext. 2) of informant (P.W. 4) a case under Sections 147, 148, 149, 323, 324and 302 I.P.C. was registered, formal F.I.R. drawn and the investigation of the case was taken up by Sri R.K. Lal, Additional Officer -in -charge (P.W. 5) who after completion of investigation submitted charge -sheet under Section 304 I.P.C. only against accused Ekbal Haider (appellant) and Hisamuddin. Thereafter cognizance of the offences under Section 304 I.P.C. was taken against both the accused Ekbal Haider (appellant) and Hisamuddin and the case was also committed to the court of sessions. Learned trial court framed charge under Section 302 / 34 I.P.C. against both the accused Ekbal Haider (appellant) and Hisamuddin but as co -accused Hisamuddin died in course of trial the case against co -accused Hisamuddin was dropped and the trial of sole appellant continued. Learned trial court after trial held sole appellant guilty for the offence under Section 304 I.P.C. and convicted and sentenced him as indicated in paragraph 1 of the judgment.

(3.) ONLY point for consideration is whether the prosecution has been able to prove and establish charge under Section 304I.P.C. against the sole appellant beyond all reasonable doubts and in the manner as alleged.