GAHAR SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by two persons Gahar Sheikh and Jabed Ali who have been convicted and sentenced by the learned Sessions Judge of the Assam Valley Districts.

(2.) There was one charge only against the two appellants Gahar Sheikh and Jabed Ali alias Saharer Bap that on 28-9-1944 at Bhatiakhali under police station Rupalihat they committed murder by killing one Hussain Prodhani having caused injuries on his person in furtherance of the common intention of both of them and thereby they committed an offence under Section 302/34, Indian Penal Code. The prosecution case was: there was a quarrel between the deceased Hussain Prodhani and his co-villagers on the one hand who had set up a fishing bund in a water channel in Bhatiakhali and the accused persons Jabed Ali, Gahar Sheikh and others of their side who had been erecting another fishing bund above that erected by the complainants on the other hand. One day Hussain Prodhani broke the bund erected by the accused persons and carried it away which resulted in a complaint being lodged by Jabed Ali and Gahar Sheikh to Abdul Gaffur Munshi. On 28-9-194.4 Hussain Prodhani along with his brother Nawab Ali and some others was returning in a cart from the Ambagan market at about 9 or 10 at night. When the cart approached the bund upstream the party saw the appellant Jabed Ali. Jabed Ali enquired whether Hussain Prodhani was in the cart and was told that he was. He then asked that Hussain Prodhani should settle the dispute between them over the fishing bund. Hussain Prodhani said that he would do so on the next day. Jabed Ali then invited Hussain Prodhani to accompany them upstream for a smoke. Hussain Prodhani agreed thereto and left the cart. Nawab Ali went on with the cart to the village and waited for his brother, but his brother never came back. When Hussain Prodhani acceded to Jabed Ali's invitation he went with him a little distance and the party sat down and began to smoke. The topic of the proposed settlement of the dispute was raised and while the talk was in progress the appellant Gahar suddenly got up, went behind Hussain Prodhani and gave him a heavy cut on the back of his head with a dao. Jabed Ali alias Saharer Bap also gave him a cut and a third person who is not before the Court inflicted a further injury. The eye-witnesses who were present were terrorised by Gahar Sheikh who threatened that they would meet with the same fate if they disclosed what had happened. When Hussain Prodhani never returned home his brother Nawab Ali waited for some time and then went back to see what had happened. He found some traces of blood on the spot where the party sat down to smoke and then suspecting foul play went to the police station and lodged an information.

(3.) As a result of the police investigation the two appellants Gahar Sheikh and Jabed Ali were sent up on a charge under Section 302/34, Indian Penal Code. The jury returned a unanimous verdict finding Gahar Sheikh guilty under Section 802, and Jabed Ali guilty under Section 304, part II, Indian Penal Code.