STATE OF BIHAR Vs. MOHAMMAD KHURSHEED

JUDGEMENT

(1.) 1. This is a reference by the. Sessions Judge of Shahabad at Arrah for confirmation of the sentence of death passed on Mohammad Khursheed, who has also preferred two appeals against his conviction under Section 302, Penal Code, one being a presented appeal through, an advocate, which is criminal appeal No. 601 of 1966; and the other being criminal Appeal No. 588 of 1966 preferred from jail. This judgment will govern the reference and the two appeals, as they have been heard together. Hereinafter the-condemned prisoner will be referred to as the appellant.

(2.) The occurrence, which resulted in the death of one Ma. Hafiz a co-villager of the appellant of village Bhariar within police station Brahampur in the district of Shababad, took place at about 1.30 P.M. on the 3rd August, 1965, and reported at the said police station by the deceased at 4.30 P.M., who expired later, the next day (4th August, 1961) at 6.30 A.M.

(3.) It appears from the evidence of the various prosecution witnesses that in village Bhariar there are about 150 to 200 houses. It is inhabited by about 20 families of Muslims. Six or seven years before the occurrence a mosque was built in the village, which is the solitary mosque. There is a village road, which runs from north to south, adjacent west of the mosque. A lane proceeds from this road towards east and passes by the side of the mosque to its south and the door of the said mosque is towards south. There is a Sahan land adjacent south of the mosque, which is about 30' from east to west and 18' north to south. The Sahan land is parti and is used for passage. There is a khandahar, bearing plot No. 223, adjacent south of the Sahan land with boundary wall on the north, south and the west, id being open on the east. The residential house of the appellant is to the east of the khandahar and is adjacent south of the said lane from east to west. The appellant has also another house to the north of the lane, being in front of his other house. It is not in dispute that there was trouble between the appellant and the deceased over the possession of the khandahar, which led to a proceeding under Section 144 of the Criminal P. C, and was subsequently converted into a proceeding under Section 145 of the Code. About three months before the occurrence, the said proceeding under Section 145 of the Code was decided in favour of the deceased. Thereafter, the appellant filed a title suit in the Court of the Munsif at Buxar, which was pending at the time of occurrence, though it appears from the certified copy of the order sheet of the suit (Ext. 10) that the suit was dismissed for default later after the occurrence, namely, on the 12th May, 1966.