CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA)

Date: 07 -12-2017

All the seven appeals arises out of K.Nagar P.S.Case No.132 of 2008. Three Sessions Trials emerged out of the above case being Sessions Trial No.228 of 2010 in which Md. Mazed @ Majid (A/1)) of Cr. Appeal (DB) No.990 of 2013, Md. Mofizul (A/2) of Cr. Appeal No.932 of 2013 were convicted. In second trial being S.T.No.1440 of 2010, Md. Nasim (A/3) of Cr. Appeal No.915 of 2013, Md. Hasim @ Md. Hasib (A/4) of Cr. Appeal (DB) No.945 of 2013 and Md. Nausad @ Md. Naushad (A/5) in Cr. Appeal (D.B.) no.1035 of 2013 were convicted. Third Sessions Trial No.220 of 2009 resulted in conviction of Md. Sabed @ Md. Sawed (A/6) of Cr. Appeal (DB) No.976 of 2013 and Md. Kasim @ Md. Hasim (A/7) of Cr. Appeal (DB) No.1029 of 2017.

2. The judgment of conviction was rendered separately on 18.09.2013 by the learned Adhoc Additional Sessions Judge-III, Purnea.

3. A/1 was held guilty under Section 302 of the Indian Penal Code and Section 27 of the Arms Act whereas A/2 to A/7 were held guilty under Sections 302/120(B) of the Indian Penal Code. They were sentenced to suffer RI for life under Section 302 of the Indian Penal Code or under Section 302/120 of the Indian Penal Code. Separate sentence under Section 27 of the Arms Act was imposed upon A/1. He was directed to suffer R.I. for five years with fine, having default clause. The sentences were directed to run concurrently. These appeals assail those judgments of conviction and sentence.

4. It may be noted at the outset that the counsel for the appellants of these appeals have made submissions from the records of Cr. Appeal (D.B.) No.990 of 2013 and Cr. Appeal (D.B.) No.932 of 2013 (arising out of S.T.No.228 of 2010). It is stated that the witnesses in other trials being S.T. Nos.1440 of 2010 and 220 of 2009 made similar/identical statements. It shall not be necessary, therefore, to refer to the evidence adduced by the prosecution in S.T. Nos.1440 of 2010 and 220 of 2009 except the relevant part wherever it is necessary.

5. Rahila Khatoon (P.W.6) in Criminal Appeal (DB) No.990 of 2013, wife of the deceased lodged the fardbeyan (Ext.2) on 3.6.2008 at the place of occurrence recorded by Mehendra Prasad Singh (P.W.13) alleging that on 03.06.2008 at 09:50 hours in the morning, her husband left home on bicycle to go to the field to oversee the harvesting of the paddy. The informant after some time followed him. As soon as her husband reached near the house of Md. Rashid, she heard sound of gun firing and rushed to the place of occurrence to find that A/1 fired at the deceased, whereafter he fell down, A/7 sat on the chest of the deceased. In the meantime, other appellants also arrived there. She further alleged that while her husband was on the cycle, he was fired at. Her husband made attempt to save his life.

6. However, the other accused persons (appellants) also fired at him and thereafter escaped. Motive for the occurrence was alleged as prior enmity between A/7 and the deceased. She cited in detail the reasons for commission of the offence.

7. A formal FIR (Ext.3) was drawn. Death inquest proceeding was carried out at the site of the occurrence on 3.6.2008 at 08:40 hours, which was witnessed by P.W.2 and P.W.7. The dead body was sent for postmortem examination. P.W.8, while posted at Sadar Hospital, Purnea conducted the autopsy on 03.06.2008 at 01.15 P.M. and submitted the postmortem report (Ext.1). On conclusion of investigation and finding the accusations true against the appellants, the charge sheet was laid in stages, which ultimately gave rise to the three trials and on the file of the learned Trial Judge, where the charges were framed and read over/explained to the appellants to which they pleaded not guilty and claimed to be tried.

5. In order to bring home the charges, the prosecution examined 13 prosecution witnesses in Sessions Trial No.228 of 2010. The court summoned two more witnesses and they were examined as C.W.I and C.