ARSHAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) APPELLANT Md. Afsar stands convicted under Section 302 of the Indian Penal Code (the Code in short) and sentenced to undergo imprisonment for life as also to pay fine of Rs. 2,000/ -(Rupees two thousand) or to undergo rigorous imprisonment for six months, in default. All the three appellants have been convicted under Section 302 read with Section 34 of the Code, as well under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonments for life, and for three years respectively, as also to pay fines.

(2.) INFORMANT Md. Sabih Ahmad (PW 7) gave his fardbeyan, on 18.10.1995 at 6.00 p.m. in his house stating therein that on that day on the second floor of the house when he was with his mother and other members of the family, at about 5.15 p.m. the three appellants, who were their ex -tenants, came there and they fired, one shot each from the revolvers that were in their hands out of which the shot fired by Md. Afsar hit on the forehead of his mother (Neshat Ara) who fell down. The appellants when fled were chased by the informant but they made good their escape along with four or five unknown persons, firing. Amongst the witnesses to the occurrence were his sisters, Raffat Jabeen @ Ruby (PW 2), Musarat Jabeen @ Dazy (PW 3), Nuzhat Jabeen @ Lucy (PW 4), Farhat Jabeen @ Rozy, (PW 1) and Nusrat Jabeen @ Gracy (PW 5), who all were inside the same room. The informant claimed that the appellants were tenants in their house since last five to six years who were being forced to vacate the same which they had resisted but when after great efforts they vacated the house about four to five months back they had hurled threats and, subsequently, also had issued threatenings through the phone.

(3.) BEFORE proceeding to examine the evidence of the witnesses, particularly eyewitnesses, first a glance over evidence of PW 10. The evidence on record supporting the prosecution case revealed that though all three appellants had fired but the first shot fired by the appellant Md. Afsar had hit the forehead of the deceased whereas two other shots had missed her. PW 10 had conducted autopsy on 19.10.1995 at 10.45 p.m. and following were his findings as per his evidence : "(1) One penetrating injury seen in front of head and face covering an area of 3" x 1 -1/2" extending from right tip of nose to bridge of nose, inner corner of eye -mid -frotal portion of head, margin blacken, ragged septum, nasal bone and frontal bone fractured in pieces (wound of entry). (ii) On dissection; on opening of scalp haemortoma seen underneath, both occipital and parietal bone found fractured, a metallic object like bullet was recovered from fractured bone site near mid -occipital area. A track was seen from injury No. 1 to the bullet site passing through brain. Brain was lacerated clot seen all over. All the viscera in general were pale, heard empty, stomach contains yellow fluid. Opinion : On the basis of these findings : (i) Time elapsed since death between 6 (six) to 24 (twenty four) hours approx. (ii) Cause of death haemorrhage and shock. (iii) Nature of weapon firearm such as revolver. These injuries were sufficient to cause death in the ordinary course of nature."