JUDGMENT
Amareshwar Sahay, J.
1. The above named two appellants were tried along with three other persons for the charges under Sections 148, 302 and 307 of the Indian Penal Code in Sessions Case No. 150 of 1998. Learned trial Court by the impugned judgment dated 16.7.2002 convicted the appellant Mustafa Mian for committing the offence under Sections 148 and 302 of the Indian Penal Code whereas, the appellant No. 2 Kalu Mian has been found guilty for the offence under Sections 148 and 307 of the Indian Penal Code. Accordingly, the appellant No. 1 was sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code and he, was further sentenced to undergo rigorous imprisonment for one year for the offence under Section 148 of the Indian Penal Code. So far the appellant Kalu Mian is concerned, he was sentenced to undergo rigorous imprisonment for ten years for the offence under Section 307 of the Indian Penal Code and rigorous imprisonment for one year for the offence under Section 148 of the Indian Penal Code. The three other accused persons namely Asgar Mian, Manik Mian and Kauser Mian were however acquitted from the charges levelled against them by the said impugned judgment.
2. As it appears prosecution case is that there was a dispute over a pond between the informant Md. Hussain Mian (PW 6) and Gulabjan Bibi and as such, proceeding under Section 144 as well as under Section 107 of the Cr PC were pending between them. The proceedings under Section 144, Cr PC however ended in favour of the informant and this irritated the sons and the son-in-law of Gulabjan Bibi. Hence, on 20th August, 1996 at about 4.00 p.m. the informant and his brother Abdul Hamid and Abdul Majid went to the field near that pond. The accused persons Mustafa Mian and Kalu Mian carrying swords in their respective hands and other accused persons having lathi in their hands suddenly came out of the Maize field and came to the informant and his brother. Thereafter, Mustafa Mian attacked with his sword at the back side of Abdul Hamid due to which, his neck was cut-off and he died on the spot. Accused Kalu Mian also attacked Abdul Mazid with his sword. The informant raised alarm which attracted the villagers namely Anwar Mian (PW 3), Chhota Nasir Mian (PW 4), Abid Mian and Sekhabat Mian (PW 1), Zakir Mian (PW 2), Khudush Mian (PW 8) who came running and saved the informant and his brother Abdul Mazid. The accused persons on arrival of these persons, fled away.
3. In order to establish the charges altogether 11 (eleven) witnesses were examined on behalf of the prosecution. On behalf of the defence also three witnesses were examined. Learned trial Court, on the basis of the evidence and materials on record, convicted and sentenced the appellants as already stated hereinabove.
4. PW 3, PW 4, PW 5, PW 6 and PW 8 are the eye-witnesses to the occurrence. PW 7 Dr. Sushil Marandi is the doctor who has proved the post-mortem report (Ext. 2). PW 9 is Dr. Suban Murmu who held postmortem examination on the dead body of Abdul Hamid. PW 10 is another doctor namely Dr. Ajay Sen who examined the injuries of Abdul Mazid and PW 11 Sonelal Paswan is the Investigating Officer of the case.
5. PW 1 Md. Shekhawat Hussain in his evidence has stated that on the date and time of occurrence, he heard hulla coming out from the field which was in the West of his house. Then he and his elder brother Zakir Hussain (PW 2) rushed there and when they reached there, they saw that the accused Mustafa Mian (Appellant No. 1) and Kalu Mian (Appellant No. 2) were armed with swords whereas the other accused Manik, Kausar and Asgar were armed with lathi and all the five accused persons were running away. This witness further stated that his father Md. Hussain (PW 6) i.e. the informant, who was also running away, told him that it was the accused Mustafa Mian (Appellant No. 1) who assaulted Abdul Hamid on his head with’ his sword and the accused .Kalu Mian (Appellant No. 2) assaulted Abdul Majid with his sword. Thereafter, PW 1 along with others went to the place of occurrence and found Abdul Hamid dead and Abdul Majid was senseless. This witness also stated that they left the dead body of Abdul Hamid at the place of occurrence and took the injured Abdul Mazid to Raneshwar Hospital.
PW 2 Md. Zakir Hussain is son of the injured Md. Mazid (PW 5). This witness has stated that he, OR hearing hulla coming from his field, rushed with PW 1 Shekhawat and saw the accused persons i.e. Mustafa carrying sword, accused Kalu carrying sword, accused Manik, Kausar and Asgar carrying lahti and all the five accused persons were running away from the place of occurrence. This witness also stated that his uncle Md. Hussain (PW 6) told him that accused Mustafa attacked Abdul Hamid with sword on his head from back side and accused Kalu gave sword blow on the back of Abdul Mazid. Therefore, these two witnesses said to have reached the place of occurrence just after the assault and both of them came to know about the assault made on Abdul Hamid and Abdul Mazid from the mouth of the informant (PW 6).
PW 3 is another eye-witness of the occurrence and he has stated that on the date and time nf occurrence, he was working in the field of Adul Mazid with Chhota Nasir Mian (PW 4). At that time, Abdul Mazid, Abdul Hamid and Md. Hussain all the three brothers came together in the field where the labourers were working and then suddenly accused persons namely Kausar Mian, Kalu Mian, Mustafa Mian, Asgar Mian and Manik Mian came out of the maize field and thereafter, accused Mustafa Mian (Appellant No. 1) assaulted Abdul Hamid by means of sword on the back of his head due to which, Abdul Hamid fell down and died on the spot. He further stated that accused Kalu Mian (Appellant No. 2) also gave sword blow on the head of Abdul Mazid who also fell down and became senseless. He further stated that all the accused persons chased Md. Hussain to kill but Md. Hussain started running away raising hulla ‘Bachao-Bachao over which witnesses Zakir, Khudush, Shekhawat came there and then accused persons fled away.
PW 4 Chhota Nasir Mian has fully corroborated the statements of PW 3 and has stated in the same line to that of PW 3.
PW 5 Mazid Mian is the injured of this case as well as the eye-witness to the occurrence. He has clearly stated in his evidence that on the date and time of occurrence, he and his brother Md. Hussain and Abdul Hamid had gone to the field then all the accused persons namely Mustafa Mian, Kalu Mian, Asgar Mian. Manik Mian and Kausar Mian came out of the maize crop and accused Kausar ordered to kill and then accused Mustafa Mian (Appellant No. 4) gave sword blow on the neck of Abdul Hamid who fell down and died on the spot. He further stated that the accused Kalu Mian (Appellant No. 2) gave sword blow on the neck of Mazid Mian due to which he fell down and became senseless and thereafter, he was taken to the Hospital for treatment.
PW 6 Md. Hussain Mian is the informant of the case and he has fully supported his fardbeyand.
PW 8 Md. Khudus Ansari is the son of the informant. He stated that when he was tending buffalo at some distance from the place of occurrence, at that time PW 3 Anwar Main and PW 4 Chhota Nasir Mian were also working in the field. At that time, accused persons came out of the maize crop and attacked his uncle Abdul Hamid and Abdul Mazid on their neck. On alarm being raised by his father, the witnesses came to the occurrence then the accused persons fled away.
6. The evidence of these eye-witnesses PWs 3, 4, 5 and 6 are consistent and no vital contradiction has been pointed out in their evidence so as to make their evidence unreliable or unbelievable.
7. Mr. Jai Prakash Jha, learned senior counsel appearing for the appellants, by referring evidence of the prosecution witnesses, submitted that the evidence available on the records adduced by the prosecution, do not warrant conviction of the appellant No. 1 for the offence under Section 302 of the Indian Penal Code rather he can at best be held guilty for committing offence under Section 304 Part-II because of the fact that the quarrel started suddenly and even according to the prosecution, the appellant No. 1 gave only a single blow on the deceased and he did not repeat the blow, but unfortunately the deceased died after having received a single blow. It is submitted that the intention of the appellant No. 1 was not to commit the murder of the deceased. It is further submitted that the appellant No. 1 has already remained in custody for about 12 years and therefore, the conviction of the appellant No. 1 deserves to be altered to the offence 304 Part-II and considering his long detention in jail, the sentence be also suitably modified.
So far the appellant No. 2, it is submitted that he has remained in custody for more than eight years out of the sentence awarded to him of ten years rigorous imprisonment for the offence under Section 307 of the Indian Penal Code therefore, he has sufficiently been punished. Accordingly, his sentence be also modified suitably.
8. from the evidence of the prosecution witnesses which have already been noticed above, there is no doubt about it that the deceased Abdul Hamid died due to the assault made by the appellant No. 1 on his neck by a sword. The evidence on record further clearly speaks that it was the appellant No. 2 who attempted to kill Abdul Mazid by giving a sword blow on his person. The evidence of the doctor i.e. PW 9 who held the post-mortem examination on the dead body of the deceased and the evidence of PW 10 who examined the injuries on the person of Abdul Mazid clearly supports the testimony of the eye-witnesses.
9. Considering the evidence of the prosecution witnesses submissions made on behalf of the appellants, we, on the basis’ of evidence, are inclined to accept the submissions of the learned Counsel for the appellants. Considering the fact that admittedly there was land disputes between both the parties and the occurrence took place due to sudden provocation and in a spur of the moment, the appellant No. 1 assaulted the deceased by means of sword on his neck without repeating the blow but unfortunately Abdul Hamid died due to the said assault and therefore, the present case falls under the purview of Section 304 Part-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code.
10. Accordingly, the conviction and sentence of the appellant No. 1 for the offence under Section 302 of the Indian Penal Code is hereby set aside but he is convicted for the offence under Section 304 Part-II of the Indian Penal Code. The conviction under Section 148 of the Indian Penal Code against him is affirmed. So far as the sentence is concerned, it appears that he has already remained in custody for more than 11 years and therefore, in our view, the sentence of period already undergone by him in custody would meet the ends of justice. Accordingly, the appellant No. 1 is sentenced to the period already undergone by him.
11. So far as the appellant No. 2 is concerned, from the evidence of the prosecution witnesses, we find that the learned trial Court has rightly convicted the appellant No. 2 for the offence under Sections 307 and 148 of the Indian Penal Code. His conviction under Sections 148 and 307 of the Indian Penal Code is hereby confirmed. So far as the sentence of rigorous imprisonment for a period of 10 years awarded by the trial Court is concerned, in our view, since he has already remained in custody for about eight years and therefore, we reduce the sentence of rigorous imprisonment for a period of ten years awarded by the trial Court to the period already undergone by him.
12. Accordingly, the appellant No. 2 who is now on bail, is discharged from the liability of his bail bonds. Whereas the appellant No. 1 who is in custody, is directed to be released forthwith if not wanted in any other case.
The appeal is thus disposed of accordingly.
D.P. Singh, J.
13. I agree.