RANCHI, India, Oct. 16 -- Jharkhand High Court issued the following order on Sept. 15:

1. Heard Mr. Anil Kumar Jha, learned counsel appearing for the appellants and Mr. Manoj Kumar Mishra, learned A.P.P. appearing for the State.

2. The instant appeal has been preferred by above named appellants against the judgment of conviction dated 10.01.2003 and order of sentence dated 16.01.2003 passed by learned 3rd Additional Sessions Judge, Deoghar in S.T. No.391 of 2001, whereby and whereunder the appellants have been held guilty for the offence under sections 302/34 of Indian Penal Code and sentenced to imprisonment of life.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that since 2-3 days prior to occurrence, some quarrel ensued between Rafique Ansari, Maternal grandfather of the informant, Fatima Khatoon and the accused persons for resisting the drainage of the court yard of Md. Rafique Ansari (since deceased). It is further alleged that on 07.02.2001 at about 8:00 AM, when Ushman was blocking the flow of drain water, Rafique Ansari protested, suddenly Ainul Hoda caught hold of Rafique and dragged towards the court yard of Ushman Mian and laid down him on earth and gave several bhujali blows on him. It is further alleged that Jamila Khatun gave a spade to Ainul and asked him to kill Rafique. It is further alleged that Ushman, Israfil and Nijam having sabbaal, tangi respectively also assaulted to Rafique. Nijam and Jamila had assaulted with stone. It is further alleged that due to severe injuries sustained by Rafique, he died. The informant was also assaulted by Israfil by fists and slaps and indecently assaulted on her chest making her naked. It is alleged that Israfil had committed theft of some articles like radio, watch, bicycle, utensils, pass-books and other households articles and cash of Rs.7,000/-. In course of treatment, Rafique Ansari died.

On the basis of above information, Karon P.S. Case No.12 of 2001 was registered for the offences under sections 341, 323, 448, 379, 376, 511, 504, 302, 120B/34 of Indian Penal Code. After completion of investigation, charge-sheet was submitted against all the accused persons. The appellants have faced trial for charges under sections 448, 302/34, 379/34, 376/511 of Indian Penal Code but they were held guilty and sentenced only for the offence under section 302/34 of Indian Penal Code and acquitted from the rest of charges.

Submission of learned counsel for the appellants.

4. Learned counsel for the appellants assailing the impugned judgment and order has submitted that there is only one eyewitness of the occurrence, namely Fatima Khatoon, who was examined as P.W.11 but her testimony suffers from materials contradictions and discrepancies as regards the role and participation of each appellant in the alleged offence of murder. She has been disbelieved as regards commission of theft and attempt to commit rape upon her by the learned trial court.

5. The genesis of the occurrence is dispute between the parties about drainage of water. The doctor, who conducted autopsy on the dead body as well as the Investigating Officer has not been examined in this case, therefore, the defence has seriously been prejudiced in their defence. The exact cause of death has not been brought on record. No seized materials were proved by the prosecution to connect the same with the alleged occurrence. It is further submitted that specific allegations are against Ainul Hoda @ Ainul Mian alone and no specific overt act has been attributed against the rest of appellants. The prosecution has also failed to prove the ingredients of section 34 of Indian Penal Code, which is not applicable in this case and the learned trial court has also not touched the above issue.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=WSRFLpK7bpll%2Fzvq9H5YQr3osNr3yT39uprzhfR9a9NpLSFfiX4JxlDMNrsFjYHe&caseno=Cr.A(DB)/285/2003&cCode=1&cino=JHHC010127792003&state_code=7&appFlag=)

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