MD. JALIL Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction dated 15.7.2002 and order of sentence dated 16.7.2002 passed by Shri Lakshmi Kant Sharma, Additional Sessions Judge, Fast Track Court No. 1, Deoghar in Sessions Case No. 178/93/6/2002, by which judgment he found the Appellant guilty under Section 304 Part (I) of the Indian Penal Code and sentenced him to undergo R.I. for 10 years.

(2.) IT is submitted by the learned Counsel for the Appellant that although P. Ws. 3, 4, 5 & 6 all have stated that assault was made by the Appellant, Md. Jalil as well as co -accused, Md. Alam, but the said co -accused Md. Alam was given benefit of doubt only on the ground that the independent witness i.e. P.W.1, has not supported the fact that he assaulted the deceased. But, in fact, the cross -examination of the said witness i.e. P.W.1 which shows that the Appellant, Md. Jalil had no lathi in his hand and subsequently when the deceased, Nasarullah assaulted him with lathi on the head of Md. Jalil then by snatching the lathi from another persons he gave him lathi blow on his head and as such there was no intention on the part of the Appellant to assault the deceased and as such the conviction is bad in law and only fit to be set aside. Moreover, learned Counsel further submitted that at least this case will come under Section 304 Part (II) of the Indian Penal Code, because the Appellant had no intention and it was just a spontaneous assault after the deceased assaulted him.

(3.) AFTER hearing both the parties and going through the evidences on record, I find that the prosecution case was started on the basis of a Fardbeyan given by Md. Rezaullah -P.W.6 stating therein that on 14.6.1993 at about 1.30 P.M. his brother went to the house of his married daughter to solve the dispute between his daughter and her husband, Md. Alam. The informant was standing outside his house, then the informant heard a 'Hulla' of his brother then, he ran towards the house of the 'samdhi' of his brother and saw that his brother, Nasrulla is being assaulted by Md. Alam and his father, Md. Jalil with 'Lathi and Tangi', causing bleeding injury on his head, due to which deceased fell down. Thereafter, both the accused persons ran away. Then, the informant brought his brother to the hospital at Madhupur, where during treatment he died.