SHABIR @ MD.SHABIR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment of conviction dated 30.6.1998 and order of sentence dated 1.7.1998 passed in Sessions Trial No. 63/93 whereby and whereunder the learned Sessions Judge, Singhbhum East. Jamshedpur held the sole appellant guilty under Section 304, IPC and convicted and sentenced him to undergo RI for five years and to pay a fine of Rs. 5000/ - and in default of payment to further undergo RI for six months.

(2.) THE prosecution case in brief is that Humayu, informant, gave a written report to the Officer Incharge, Mango P.S. to the effect that on 7.11.1988 at about 9.30 in the night he had gone to the shop of Kallu Tirkey situated by the side of his house and at that time appellant Shabir and others were taking liquor from before and he asked the appellant to provide him liquor also, whereupon appellant got angry and assaulted him with brickbats causing injuries on his left cheek, on the upper portion of head, neck and on entire head and he fell down and became unconscious. Thereafter his family members took him to his house, where also he remained unconscious and thereafter he regained consciousness and on 8.11.1988 he has come to P.S. with his wife by Rickshaw and lodged the FIR. It was alleged in the FIR that some days before he had given Rs. 500/ - to Shabir as loan and he had requested several times for refund of loan. It appears that as a result of which appellant has assaulted him with brickbats. Wife of Kallu Tirkey and two other persons have seen the occurrence. On this piece of statement. Mango P.S. Case No. 163/88 under Section 337, IPC was registered and after investigation police submitted chargesheet under Section 304, IPC. The written report was first submitted to Azad Nagar P.S. and thereafter it was sent to Mango P.S. for institution of the case, where case was instituted as aforesaid. After submission of chargesheet cognizance in the case was taken and case was committed to the Court of sessions. The learned Sessions Judge, after recording evidence of witnesses, both oral and documentary, came to a finding, held the appellant guilty and convicted and sentenced him as aforesaid.

(3.) PWS 1 and 2 have fully supported the case of the prosecution. Further with the death of Humayu, the written report given by Humayu became dying declaration because soon after giving the statement he died.