The court modified the conviction from murder to culpable homicide not amounting to murder, emphasizing the absence of premeditation and the nature of the altercation as a sudden fight.

JUDGMENT :

Sujit Narayan Prasad, J.

1. At the outset it needs to refer herein that the co- accused/appellant namely Tajibul Ansari and Maijul Ansari had died during pendency of the instant criminal appeal, therefore vide order dated 19.02.2025 passed by this Court instant criminal appeal has been abated against the aforesaid accused/appellant.

Prayer

2. The instant appeal is directed against the judgment of conviction dated 19^th May, 1998 and Order of sentence dated 20th May, 1998 passed by learned 1st Additional Judicial Commissioner, Ranchi in Sessions Trial No.83 of 1989 arising out of Kanke P.S. Case No.144 of 1989 corresponding to G.R. No. 3568 of 1988, whereby and whereunder the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life.

Prosecution Case:

3. Prosecution story, as alleged in the first information, recorded on 15.11.1998 at about 19.30. hrs, inter alia, is that while the informant namely Ramjan Ansari alongwith his brother, Shafique Ahmad and Karijan came out of the Masjid after prayer of Namaj. At that time Majibul Ansari (appellant herein) was also standing there. Karijan asked Majibul Ansari to pay the cost for installing a transformer. On that the Majibul Ansari denied to pay the amount and accordingly, Shafique Ahmad said that electric connection will be disconnected for non-payment of the said amount. Owing to this event there had been exchange of hot words between Majibul Ansari and brother of the informant.

4. In the meantime, Hasimuddin Ansari (appellant herein) came alongwith his wife. She abused Shafique to be a notorious person and on that Hasimuddin Ansari started abusing and in the meantime his brothers, Tajibul (since dead) and Maijul, armed with Dabli had come there and all of them dragged Shafique towards northern side of the Masjid. Majibul asked them to assault him and on that the appellant nos. 1 and Tajibul allegedly assaulted the brother of the informant on his head causing serious injury. The appellant Majibul and co-accused Maijul (since dead) also assaulted with their Lathis but on raising alarm so many persons arrived there then the accused persons fled away.

5. In course of investigation and during treatment, Shafique Mohammad died and on the request of the I.O. Section 302 of the I.P.C. was added.

6. After investigation the police submitted charge-sheet under sections 302/34 of the I.P.C. The case was committed to the Court of Sessions where the charge was framed under sections 302/34 of the I.P.C.

7. The prosecution has altogether examined 08 [eight] witnesses out of which, P.W. 1, 2, 3, 4 and 5 is claimed to be eye-witnesses. P.W.6 Wahab Ansari is a witness of search and seizure.P.W.7 is the doctor who had conducted post-mortem on the dead body of the deceased.P.W.8 is the Investigating officer of the case. One defence witness D.W. 1 doctor who had treated the accused/appellants has been examined on behalf of the defence.

8. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution and defence, has found the allegation proved against the appellants and accordingly, passed the judgment of conviction and sentence as referred herein above, which is impugned in the instant appeal.

Argument on behalf of appellants

9. Mr. P.P.N. Roy, learned senior counsel assisted by Mr. A.K. Sahani, learned counsel for the appellants has taken the following grounds, in assailing the impugned judgment of conviction, as under: -

I. The prosecution has miserably failed to establish the charge said to be proved, beyond all reasonable doubt, in establishing the charge said to be committed by the appellant under section 302/34 of the IPC.

II. The specific allegation and the material produced by the prosecution, if any, is at best against Tajibul Ansari, who has died and the appeal stand abated, against him.

III. The argument has also been advanced that the allegation against Md. Majibul Ansari, is that he has only dra