ISMILE Vs. STATE

JUDGEMENT

(1.) This appeal under Section 374 of the Code of Criminal Procedure has been filed by accused-appellant Ismile against the judgement of Additional District and Sessions Judge (Fast Track), Laxmangarh, District Alwar whereby he was convicted for offence under Section 302 of IPC and sentenced to life imprisonment with a fine of Rs.500/-, in default whereof, he was to further undergo rigorous imprisonment of one month. He was also convicted for offence u/s.323/34 of IPC and sentenced to undergo three months rigorous imprisonment. Both the sentenced were ordered to run concurrently.

(2.) The facts giving rise to this appeal are that a written report (Ex.P-5) was submitted by one Aas Mohammad to the SHO Police Station, Govindgarh, District Alwar on 17.6.1994, inter alia, alleging that on 14.6.1994 at 6.00 AM when Ishaq, who was husband of informant's sister, was digging foundation for construction of his house, the accused appellant Ismile S/o Sugra, Sardar S/o Ismile, Mst. Kariman W/o Ismile, who were armed with farsies and Ramjan, Fatti, Nuru S/o Imam Khan and Jamalu, Abdul, Syabu S/o Suban Khan, Suban Khan and Imam Khan, who were having lathis in their hands, suddenly reached there and demanded explanation from him as to why he was digging foundation. Ishaq thereupon stated that since partition had taken place amongst the brothers and this land fell in his share, therefore, he was raising the construction within his right. Imam Khan and Subhan Khan then told to other accused that let a lesson be taught to Ishaq and his family members. All the accused suddenly attacked Ishaq Khan and his family members by lathi and farsi blows. As a result thereof, Ishaq fell down in pit dug for the foundation. The informant-Aas Mohammad and Azad who had come there to meet their sister, who was wife of Ishaq, were present at the seen of the incident and they and their sister tried to save Ishaq, but they were also pushed aside and as a result thereof, they too fell on the ground. Ishaq was immediately taken to hospital at Govindgarh. The Doctors however referred him to the Government Hospital, Alwar wherefrom due to critical condition, he was referred to SMS Hospital, Jaipur. He was admitted in SMS Hospital, however he died and his dead body was brought at 2.00 AM on 16.6.1964 at Village Harsoli. Imam Khan and Subhan Khan have forceably buried his dead body. Ishaq was a poor man and the accused were dangerous people, who have murdered him, therefore, action be taken against them.

(3.) On receipt of the written report, a regular first information report was chalked out for offence u/s.147, 148, 149, 323, 324 and 302 of IPC against 11 persons referred to above. However, the police after completion of the trial, filed challan only against Ismile and his son Sirdar and wife Mst. Kariman. Sirdar died during trial and therefore the proceedings against him were dropped. So far as Mst. Kariman is concerned, she was convicted only for offence under Section 323/34 IPC and was released on admoniation. The prosecution examined as many as 17 witnesses and exhibited 15 documents, whereas the defence examined only one witness and did not produce any document. The accused in his statement under Section 313 Cr.P.C. denied all the charges and stated that he has been falsely implicated.