(1.) Six appellants have challenged order of conviction and sentence dated 25th May,1988 passed by Additional Sessions Judge 13, Munger in Sessions Case No.271 of I986 whereby and whereunder all the appellants have been found guilty under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo life imprisonment and fine of Rs.100/- each, in default of payment of fine they are supposed to undergo one month rigorous imprisonment. Appellant No.1 Bhojal Mandal is further convicted under Section 148 of the Indian Penal Code whereas rest five appellants are convicted under Section 147 of the Indian Penal Code but no separate sentence has been awarded for the conviction under Sections 148 and 147 of the Indian Penal Code. All the appellants are also convicted under Section 342 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for one month each. All the sentences are directed to run concurrently.
(2.) The prosecution case starts with the fardbeyan of Shamshul Mian (P.W.4), son of the deceased Wali Mohammad Mian recorded on 10.10.1984 at 4.00 A.M. at Jhajha Police Station by Officer-in-charge Jhajha in presence of Kashi Mandal (P.W.2) and Tajjamul Mian (not examined) to the effect that at 10.00 P.M. on 9.10.1984, the informant's father Wali Mohammad Mian was making rope out of jute fibre near jackfruit tree east to his house. Suddenly, the informant heard the sound of " Maro Maro" near his door, when he came out from his house along with nephew Israel (not examined) and saw Bhojal Mandal appellant no.1, armed with axe, Kadam Rasool Mian appellant no.2, Jakir Mian appellant no.3, Muneshwar alias Munelal Mandal and Kanhai Mandal with lathi whereas Chando Mandal appellant no.5 alleged to be armed with spear (Bhala). In the meantime, Kadam Rasul Mian appellant no.2 ordered not to watch and finish, upon which Bhojal Mandal assaulted on the head of the informant's father with blunt part of axe and then gave second blow with sharp edge part of the axe on the head itself, as a result of which the axe pierced into the head and father of the informant died at the spot. On the alarm of assault being raised, informant's co-villagers Kashi Mandal (P.W.2), Sahdeo Mandal (P.W.3), Md.Safir Ansari (P.W.1) came but they did not do anything due to apprehension of their life. The informant claimed to have seen the occurrence in the moon-lit light. After the death of father of the informant, the accused persons fled away. It is alleged that the litigation with regard to the land dispute was going on between the father of the informant and appellant no.1 Bhojal Mandal since last seven years. Due to enmity continuing since last 20 years father of the informant was killed. The delay in reaching the police station is explained by the informant by stating that since there was night and the area is hilly one, he could not reach to the police station earlier. The informant claims to hear the statement recorded in the fardbeyan in presence of Tajjamul Mian (not examined) and Kashi Mandal (P.W.2). Tajammul Mian has also been made attesting witness of the first information report but has not been examined. On the basis of the aforesaid allegation Jhajha P.S.Case No. 146 of 1984 was registered for offences under Sections 147,148,149,342 and 302 of the Indian Penal Code.
(3.) On submission of chargesheet and cognizance being taken, the case was committed to the court of sessions where charges against all the six accused persons under Section 302/149 of the Indian Penal Code and 342 of the Indian Penal Code were framed whereas against appellant no.1 Bhojal Mandal charge under Section 148 of the Indian Penal was also framed and the rest five accused persons were also charged under Section 147 of the Indian Penal Code. They pleaded innocence and preferred to face the trial.