MD.IITAF Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) AII the three appellants have preferred this appeal against the judgment and order of conviction and sentence dated 17th December, 1990, passed by the learned 4th Additional Sessions Judge, Giridih, in Sessions Trial No. 49 of 1990, whereby, all of them have been convicted under Section 302/34 of the Indian Penal Code and sentenced 'to undergo rigorous imprisonment for life. Appellant no. 3 Md. Ashique has further been convicted under Section 323 of the Indian Penal Code but no separate sentence has been awarded against him under this count.

(2.) THE prosecution case, as per the Fard -beyan of the informant Md. Dilshad Sheikh (Ext. 5), is that on 4th September, 1989, at about 8.00 A. M. at Village Gadi Shreerampur, Police Station -Mofassil, there was some quarrel in between the children of lltaf and his brother lliyas. Informant's brother Rishad (deceased) had intervened by scolding the children. At about 8.00 p.m. the informant along with Asgar (PW 6), Mansoor, Sahadat and Rishad (deceased) was constructing the staircase of the house by lightening petromax. In the meantime, Ashique Mian, Naseem Mian, Abbas Mian, Iitaf Mian, Nishar Mian, armed with Lathi, Bhala and Ballam reached there, abusing the informant and others. Appellant IItaf ordered Rishad to come out as they will return back after Gommitting his murder. Rishad asked them as to why they have become irritated regarding the quarrel of the children. Then IItaf, who had Lathi in his hand, gave a Lathi blow on the head of Rishad. On being injured, Rishad fell down. When he fell down, then Naseem gave a Bhala blow on the person of Rishad, which caused injury on the finger of his left hand. Thereafter, he (Rishad) was assaulted indiscriminately by Nisar, Ashique and Abbas with Lathi, as a result of which he (Rishad) became unconscious. The informant tried to provide water to his brother. Ashique assaulted him with Lathi, causing injury on his left hand and the water fell down. When Asgar rushed to save him, then he was also assaulted by Naseem with Lathi. On Hulla the neighbours assembled. Then all the assailants fled away towards their homes. Rishad was struggling there in a pool of blood. He was in unconscious condition. He was taken on a Tanga. The Fardbeyan of the informant was recorded by B.P.Mishra, S.I., Mofassil Police Station on the same day at 10.30 p.m. at the Police Station.

(3.) PW 1 Dr. Suresh Brahmchari has examined the informant Md. Dilshad on 5.9.1989 at 11.30 a.m. and found a linear abrasion 1" in length on the dorsum of the left forearm lying in the line of forearm with surrounding swelling 3" x 2", caused within 24 hours of his examination. The injury report is Ext. 1. PW 2 Dr. K.D.P. Mal:1aseth has conducted the post -mortem examination on the dead body of Md. Rishad Seikh on 5.9.1989 at 4.30 a.m. and found the following ante mortem injuries on his person: