MD MOJIM AND ORS Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE aforesaid four appellants are aggrieved with the judgment of conviction and order of sentence dated 17th September, 1990 passed by learned Sessions Judge, Darbhanga in Sessions Trial No. 77 of 1989 convicting the appellants under Sections 302/34 and 201 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and five years rigorous imprisonment under Section 201 of the Indian Penal Code. The sentences were ordered to run concurrently.

(2.) MD .Kalam (P.W.10) gave his fardbeyan (Ext.3) before the Officer -in -charge, Sadar Police Station on 08.8.1988 at 11.15 P.M. alleging, inter alia, that while he was sitting with his villager Md.Atibul (P.W.7) at the shop of Md. Mokim (P.W.3)in the evening of 04.08.1988, his younger brother Md.Salam (deceased) and all the four appellants named above came and proceeded towards northern side through the ridge going towards village Sonaki. The deceased did not return even after two hours, then the informant along with his mother Salima Khatoon (P.W.6) made query from the accused persons who told that the deceased Md. Salam had gone to ease. It was also told by the villagers namely, Md.Suleman (P.W.2), Md.Kasim (P.W.5), Md.Idris @ Faudar (not examined) that they have seen Md.Salam going with the accused persons. When Md.Salam did not return in the night then in the next morning, further query was made from the accused persons who told that Md.Salam had gone to Calcutta. While the informant suspected foul, he started search of his brother. At about 3.00 P.M. on 08.08.1988 the informant came to know regarding lying of a corpse in the ditch of Mohania Chaur whose hands are visible. It was the informant and many villagers including Md. Yunus (P.W.4), Md.Suleman (P.W.2) and Md.Hussain (not examined) were there. The informant suspected that the dead body might be of his brother, he entered inside the ditch and took out the corpse which was tied with a fixed bamboo pole by means of ropes. The ropes were untied and mutilated dead body came out. As the skin had peeled off, he was identified with the assistance of the clothes which he was wearing on the date of his vanishing i.e. 04.08.1988. The motive of the occurrence as detailed in the fardbeyan was that one year ago accused Md.Mofid, Sharfuddin and Abdul Razzak had tried to outrage the modesty of his bhagini Rahmat Khatoon. It was complained which resulted into village Panchayati in which they were imposed fine. Since then the accused persons were threatening the informant and his family members. Another motive was that 20 days prior to the occurrence, women of informant's side and that of the accused persons had quarreled between them. Therefore, it was suspected that Md.Salam was killed by the accused persons. The fardbeyan was recorded on 08.08.1988 at 11.15 P.M. at the Chakki Mill of Md.Hussain (not examined) of his village by Sri D.N.Singh (P.W.11), Officer -incharge, Sadar Police Station, Darbhanga. Md.Nemattullah (not examined) was the attesting witness of the fardbeyan. The fardbeyan resulted into the formal F.I.R. (Ext.5) of Sadar P.S.Case No. 84 of 1988 dated 09.08.1988 for offences under Sections 302 and 201 of the Indian Penal Code. The matter was investigated into and after completion of same, chargesheet was submitted. Cognizance was taken and police papers were supplied to the accused persons. Thereafter the case was committed to the court of session where charges under Sections 302/34 and 201 of the Indian Penal Code were framed and explained to the accused persons. They pleaded innocence. So the trial proceeded.

(3.) THE defence of the accused persons was of false implication on account of pervious enmity.