ASGAR SHEIKH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the appellant and learned counsel for the State.

(2.) The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 16.12003 passed by the Additional Sessions Judge-Ill, Raj Mahal in Sessions Case No. 207 of 1993/Sessions Trial No. 234 of 2002 whereby the Original Appellant No. 1 Asgar Sheikh has been convicted for offence committed under Sec. 324 of the Indian Penal Code and Appellant No. 2, Moti Sheikh has been convicted for offence committed under Sec. 324/34 of the Indian Penal Code, but no finding has been given with respect to Sec. 109 of the Indian Penal Code and both the appellants Asgar Sheikh who has been held guilty for offence under Sec. 324 and Moti Sheikh who has been held guilty for offence under Sec. 324/34 of the Penal Code have been awarded rigorous imprisonment for two years.

(3.) The prosecution case is based upon the fardbeyan of informant Kherul Mirza recorded by S.I., Md. Shibhi of Rajmahal P.S. on 30th April, 1988 at Barharwa Hospital at 10.30 a.m. where the informant Kherul Mirza, PW 6 has state that house of Moti Sheikh is situated besides his house and yesterday Friday (29.4.1988) at around 6.30 p.m., Moti Sheikh and Asgar Sheikh, appellant No. 2 and No. 1 respectively were sitting in their house with some outsider and were taking toddy. Yesterday Moti Sheikh and Asgar Sheikh were taking liquor with some outsider in his house and started abusing the informant upon which he objected to Moti Sheikh and Asgar Sheikh as their family members including daughter and the wife are residing so they may not take toddy here. Upon this both the accused persons abused the informant and Asgar Sheikh went into his house and came with a hasua (sharp cut weapon) and stabbed on the left abdomen of the informant. Moti Sheikh, appellant No. 2 was instigating by saying 'kill him. The informant fell on the ground in the injured condition. On raising alarm, the brother of the informant, Temur Mirza came for rescue, who was also assaulted by hasua on his left hand and said Temur Mirza is under treatment at Gwalkhor hospital. On raising alarm covillagers Hanif Khan, Sochna Turi, Sudhan Mian and others came there. Because of late night and due to non-availability of conveyance came to Barharwa for treatment. Fardbeyan was signed by Khan Mirza and Imam Hussain. That after investigation, the police submitted charge-sheet vide Charge Sheet No. 11 of 1988 dated 7.5.1988 against both the accused person under Sections 324 and 307/34 of the IPC. That learned Judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions. That the charges has been framed against both the appellants on 17.1.1996. Asgar Sheikh and Moti Sheikh both have been jointly charged under Sec. 307/34 and Asgar Sheikh has been separately charged under Sec. 34 of the Penal Code and Moti Sheikh has been separately charged under Sec. 109 of the IPC. Both the appellants were pleaded not guilty and thus they were put under trial.