S.K. SHAMSUL, Vs. STATE OF BIHAR

JUDGEMENT

(1.) In Sessions Trial No. 30 of 1966 four brothers were tried for various offences under the Penal Code. Appellant Shamsul has been convicted under Sec. 324 of the Penal Code for causing hurt to Safiruddin (P.W. 6) by a pharsa and sentenced to suffer rigorous imprisonment for three years, Appellant Sk. Rafique has been convicted under Sec. 302, Penal Code, for the murder of his brother Yakub and sentenced to undergo rigorous imprisonment for life. He has also been convicted under Sec. 326 for causing grievous hurt to P.W. 6 but no separate sentence was passed under this count, Appellant Sk. Saidul Rahman alias Saidu has been convicted under Sec. 302 of the Penal Code for the murder of Sk. Hafizuddin, his step -brother and sentenced to suffer rigorous imprisonment for lie. The 4th accused Abul Hussain was tried under Sec. 302/34 of the Penal Code and was acquitted. It appears that in village Pokharia, within the jurisdiction of Police Station Azamnagar, in the district of Purnea, Sk. Karamat Ali, father of these appellants, died in 1963. He left behind three sons by his first wife, namely, Tamiruddin, Hafizuddin (deceased) and Safiruddin (P.W. 6); and also two daughters. By his second wife Karamat Ali left five sons, namely, Yakub (deceased), Abul Hussain (since acquitted) and appellants Shamsul, Rafique and Saidul Rahman. The prosecution case is that at about 9 A.M. on the 9th May, 1965, when Hafizuddin, Safiruddin, Yakub and five other members of their family were ploughing the southern portion of plot no. 410, which had fallen to their share by private partition amongst the brothers, Shamsul, armed with a pharsa, and Abul Hussain, Saidul and Rafique, armed with a suli (sharp pointed iron rod fitted to a lathi) went upon the land where Saidul inflicted a suli blow on the chest of Hafizuddin; Abul Hussain inflicted a blow by the lathi portion of the suli on his head as a result of which Hafizuddin fell down and died instantaneously. Rafique is said to have inflicted a suli blow on the chest of Yakub and as the latter was falling down, he inflicted another blow with it near the armpit, while Abul Hussain inflicted a blow by the lathi portion of the suli on Yakub's head, who also died. Shamsul inflicted a pharsa blow on the head of Safiruddin (P.W. 6) and Rafique attempted to inflict a suli blow on him but he warded it off by his left hand and in doing so the suli blow fell on his left hand causing punctured wound and fracture. It is said that while the occurrence was taking place, a co -villager, named, Gayasuddin, ran to the Mukhiya of Ruhia Gram panchayat named Naziruddin (P.W. 4) and gave him the information about the occurrence, P.W. 4 came to the place of occurrence and found the dead bodies of Hafizuddin and Yakub lying in the south eastern corner of the land near a tatti. He found eight ploughs and 2 pitchers of water and also noticed blood -like marks on the earth in the field and on the tatti. He sent a written report to the officer -in -charge of the Police Station Azamnagar through a Chaukidar, Rupan Rai, which was handed over to the Assistant Sub -Inspector of Police (P.W. 11), in absence of the officer -in -charge. P.W. 11 drew up formal first information report and forwarded the information to the officer -in -charge through the said Chaukidar and left for the place of occurrence where he reached at 11.30. A.M. He held inquest over the two dead bodies.

(2.) The officer -in -charge of the Police Station, Brahmdeo Narain Singh (P.W. 14) reached the place the same day at 12.30. He found the place of occurrence to be the southern portion of plot no. 410 (the disputed land), which was situated about 150 yards to the east of the houses of the parties. To the west of the disputed land was a bansbari. The entire plot was the charan of river Kankhan. He found the disputed land ploughed previously and in the northern portion of the plot there were jungles and the land was lying parti. The disputed land appeared to be freshly ploughed. He noticed santhi tattis on the eastern and southern boundaries of the disputed land. He found blood -like marks on the tatti. He found trampling marks on the ground, which was wet. P.W. 14 handed over charge of the investigation on the 7th August, 1965, to his successor Kameshwar Prasad Singh (P.W. 15), who submitted charge sheet against the four accused persons.

(3.) The defence of the accused persons at the trial was that they were in possession of the disputed land and that the manner of occurrence as alleged was false. Their further plea was, as can be gathered from the trend of cross -examination of the prosecution witnesses, that on the day in question the prosecution party came to the place of occurrence to take forcible possession of the land, which was actually in physical possession of the accused persons.