MOHAMMAD MASOOD AKHTAR AND Vs. STATE OF BIHAR

JUDGEMENT

(1.) These five appeals by five appellants, each filing separate appeal, on his behalf, have been heard together and are being disposed of by this common judgment as all these appeals arise out of same judgment dated 30-8-1996 and order dated 31-8-1996 passed by the 2nd Addl;. Sessions Judge, Bhagalpur in Sessions Trial No. 423/93 convicting and sentencing appellant Lallua alias Lallua Mian to life imprisonment under Section 302, IPC and remaining four appellants, namely, Piyaru alias Piyarua Mian, Lallu alias Masood Akhtar, Md. Chand and Md. Quaisar to life imprisonment under Section 302/34, IPC. All the five appellants have further been convicted and sentenced to RI for five years each under Section 3 and Section 4 of the Explosive Substances Act and R.I. for two years under Section 27 of Arms Act. Besides this, appellants Lallua alias Lallua Mian and Piyaru alias Piyaraua Mian have been further convicted and sentenced to undergo RI for five years each under Section 307, IPC. The appellant Piyaru alias Piyarua Mian. Md. Quaisar, Lallua alias Masood Akhtar and Md. Chand have been convicted under Section 436, IPC also but no separate sentence under this count has been passed. All the sentences passed against the appellants have, however, been ordered to run concurrently.

(2.) The case of prosecution, as disclosed in the fardbeyan of informant Kumari Shabnam (PW 8) recorded by S.I., Sita Ram Singh (P.W. 13) on 14-5-1990 at 11.30 a.m. at Tatarpur Chowk P.S. Kotwali, District Bhagalpur, in short is that on 14-5-1990 informant along with her mother Bunni Begam (PW 5) and her younger sister Gudiya (PW 7) was sitting in her house situate on the south side of a road near Tatarpur Chowk. Her younger brother Jawed (deceased) aged about 15-16 years at that time was in his betel shop situate on the north side of road in front of the house of informant. At about 11.00 a.m. 10-12 miscreants came from the east of market to the shop of Jawed. Out of them informant identified the appellants and co-accused Sallan Mian, Nisam Kana and Mahtab (all three declared absconders). Appellant Lallua (in his examination under Section 313, Cr.P.C. as Lallua alias Lallua Mian and in the Fardbeyan and evidence ofprosecution witnesses described as Lallua son of Md. Kallu or Lallua of Habibpurwala but hereinafter referred to as Lallua) was carrying a pistol in one hand and a bomb in other hand, appellant Piyaru alias Piyarua Mian was carrying a pistol in one hand and a bag of bombs in his other hand, appellant Lallu (in chargesheet Lallua, alias Maksood Akhatar and in Fardbeyan and evidence of prosecution witnesses described as Lallu son of Jahir or Lallu of Tatarpurwala but hereinafter referred to as Lallu) was carrying pistol in both the hands, appellant Md. Quaisar was carrying a bag containing bombs and appellant Md. Chand were carrying a pistol in one hand and a bomb in other hand. Co-accused Nasim was carrying a bag containing bombs, co-accused Mahatab was carrying a pistol in one hand and a bag of bombs in other hand and co-accused Sallan was carrying pistol in his both hands. The moment the miscreants reached the shop of Jawed appellant Lallua assaulted Jawed by butt of pistol on his head. Jawed cried and the informant along with her mother (P.W. 5) and her younger sister Gudiya (P.W. 4) went to his shop to rescue him. In the meantime Jawed went running on the roof of the house of Dr. K. Rehman (PW 1). Appellant Lallua and co-accused Sallan Mian chased him and caught hold of him on the roof of the house of Dr. K. Rehman and they brought Jawed down from the roof by dragging him. The informant, her mother, and sister requested the appellants and their companies to spare Jawed but they did not listen to them. Jawed clung to his mother. Appellant Piyaru alias Piyarua Mian hurled a bomb on Jawed but the bomb did not explode. In the meantime appellant Lallua Mian hurled a bomb on Jawed which exploded causing injuries to Jawed and Bunni Begaum (PW 5), who both, after receiving injuries fell down on the side of he road. Thereafter the appellants and their companions set the shop of informant on fire and also hurled bomb on the shop. Co-accused Sallan Mian by abusing said that he would finish the entire family of informant by throwing bombs and thereafter all the appellants and their companions fled away to south towards Habibpur. The informant found that Jawed had already died and her mother had received serious injuries. The occurrences was witnessed by number of persons who had assembled there on hearing "hulla" and the sound of explosion of bomb. About the motive of occurrence the informant in her fardbeyan stated that in the same year on the 10th day of 'Ramjan' her elder brother Md. Ekbal was murdered by the appellants and 22 days thereafter the appellants had also shot at his younger brother Md. Harul, who at that time was under treatment. Giving the reason of rivalry she stated that there are two groups in her mohalla - one led by co-accused Sallan Mian and another by Ansari Mian and her elder brother Zinna Mian was in Ansari group. She further stated that in the same year one Ismail Vakil of her Mohalla was a candidate in an election who was supported by the group of Sallan Mian but her brother did not support Ismail Vakil which had caused annoyance to him and he had given threats that he would finish the entire family of informant. According to informant Ismail Vakil was instrumental for the occurrence who had instigated co-accused Sallan Mian to commit the occurrence. On the basis of the fardbeyan of informant a case under Sections 148, 149, 302, 435, 427, 342, 302 and 109 of IPC, under Sections 3, 4 and 5 of Explosive Substances Act and under Section 27 of Arms Act was registered against the appellants as well as against co-accused Sallan Mian, Nasim Kana and Mahatab. Sita Ram Singh (PW 13) after recording the fardbeyan (Ext. 5) and registration of a case by drawing a formal F.I.R. (Ext. 9) took up the investigation of the case, inspected the place of occurrence, prepared inquest report (Ext. 6) of deceased Jawad, seized burnt ashes of bamboo, a burnt piece of tarpol, a burnt packet of inscence from the shop of deceased and prepared seizure list (Ext. 7) and also seized remains of exploded bombs near the place where the dead body was lying and prepared another seizure list (Ext. 8) and also seized a live bomb and prepared separate seizure list (Ext. 8/1) and after investigation submitted charge sheet against the appellants as well as against co-accused Sallan Mian, Nasim Kana and Mahatab, who could not be apprehended and were declared absconder by the committing Court and the case of appellants only was committed to the Court of Sessions where charges under Section 302 read with Sections 34 and 436, IPC under Sections 3, and 4 of Explosive Substances Act and Section 27 of Arms Act were framed against all the five appellants. Besides this, a separate charge under Section 397, IPC against appellant Piyaru alias Piyarua Mian andcharges under Sections 302 and 307, IPC were framed against appellant Lallu. The appellants denied the charges against them and they pleaded not guilty. Their defence, as it appears from the witnesses examined on their behalf as well as from the trend of cross-examination of prosecution witnesses is that on the date of alleged occurrence appellant Lallu was posted at A.N. College, Dumka and at the time of the alleged occurrence he was there and the appellants have been falsely implicated in this case on account of their enmity with the informant's party.

(3.) In order to prove its case the prosecution examined 13 witnesses, Dr. Kalimur Rahman (PW 1) has been declared hostile by the prosecution. Sajid Ali (PW 2), Dr. Md. Ataur Rahman (P.W. 3) and Md. Woli (P.W. 4) are formal witneses, who have proved signatures on inquest report (Exhs. 1 and 1/1) and signatures on seizure list (Exts. 1/2 and 1/5), Md. Hassan Uddin Khan (P.W. 12) is also a formal witness who has proved sanction for prosecution (Ext. 4) for offences under Explosive Substances Act. Shabnam (P.W. 8) is the informant, Bunni Begum (P.W. 5) is the mother of informant, Zeenat Parwin (P.W.6), minor sister of informant, Gudiya (P.W. 7) another sister of informant and Bibi Nanhi (P.W. 11) elder sister of informant are eye-witnesses to the occurrence and out of these witnesses Bunni Begum (P.W. 5) is also said to have received injuries at the time of occurrence. Dr. Kailash Jha (P.W. 9) is the doctor who had conducted the autopsy on the deadbody of deceased Jawed. Dr. M. Izhar (PW 10) is the doctor who had examined the injured Bunni Begum (P.W. 5). Sita Ram Singh (P.W. 13 ) is the I.O.