NOOR MOHAMMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants aforesaid stand convicted under section 302 read with Section 34 of the Indian Penal Code ("the Code", in short) and sentenced to imprisonment for life plus a fine of rupees five thousand or to undergo rigorous imprisonment for five years, in default. They have further been convicted under section 307 read with section 34 of the Code, and sentenced to rigorous imprisonment for ten years with fine of rupees two thousand, to undergo rigorous imprisonment for two years, in default. They also have been convicted under section 323 of the Code and sentenced to rigorous imprisonment for one year, all the sentences to run concurrently. The fine, if deposited has been ordered to be paid to the wife of the deceased.

(2.) THE facts, as coming out of the fardbayan of Ramzan Ali, P.W. 5, brother of the deceased Sharfuddin is that on 21.5.1995 while at about 5.30 A.M. he was coming from the field after easing himself, he heard bulla. He rushed to his house and found his brothers, namely, Sharfuddin and Ali Ahmad lying down and appellants Noor Mohammad there with spade, Safi Ahmad with bhala and Ahmad Mian with lathi. Maiman Nissa, P.W. 2, wife of the deceased, told that Noor Mohammad had called Panchayat to show them the filled up soil whereafter verbal dual took place between the two parties and then Noor Mohammad assaulted on the head of Sharfuddin with spade, who fell down. Ali Ahmad when wanted to rescue him he also was assaulted with spade and Safi Ahmad and Ahmad Mian who had rushed with bhala and lathi, respectively, assaulted both the injured. They also assaulted Hanufa, mother of the deceased. This statement was given at Sathi hospital on the same day at about 9.15 P.M.

(3.) EVIDENCE of eye -witnesses about the real assault as well the medical evidence on record would clarify to a great extent the success of the prosecution in establishing the charges. Besides Maimun Nissa, other eye -witnesses are Gafoor Mian (P.W. 1), All Ahmad (P.W. 3) and Mohammad Arif (P.W.), son of the deceased. The evidence of these witnesses may first be seen as to what they have said about the actual assault. RW. 1 is a neighbour living near the house of the informant, who said that in that morning Noor Mohammad had heated discussion with the deceased, the deceased questioning as to why he had gone for Panchayati. Sharfuddin then handed over spade to Noor Mohammad to demarcate the land belonging to the deceased. Noor Mohammad then hit the head of Sharfuddin with the back of the spade who fell down unconscious. Safi Ahmad assaulted Sharfuddin on his arms with bhala whereas Ahmad Mian assaulted the deceased with lathi When Ali Ahmad came to save his brother, Noor Mohammad assaulted him on head with the Pasa of spade and when he fell down Ahmad Mian assaulted him with lathi. When mother of Sharfuddin Mian tried to save them, Noor Mohammad assaulted her with lathi.