VISHNUDEO NARAYAN, J. - (1.) THIS appeal has been preferred by the appellants named above against the judgment dated 27.8.1990 passed in S.T. No. 40/88 by Sri Paras Nath Sinha, 3rd Additional Sessions Judge, Giridih whereby and whereunder all the appellants were found guilty for the offence punishable under Section 302/34, IPC and they were convicted and each sentenced to undergo RI for life. However, the appellants were acquitted of the charges under Section 379/34, IPC.
(2.) THE prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of PW 4, Tulsi Mahto, the informant and the son of Khubi Mahto, the deceased of this case, recorded by ASI, Irsad Ali of Town PS Giridih in the Surgical Ward No. 3 of Sadar Hospital, Giridih on 15.10.1986 at 3.00 hours regarding the occurrence which is said to have taken place on 14.10.1986 at 18.00 hours only under a Banyan tree west of Mahadeo temple at Tetariatand in village Arkhango Tola Taraunia, PS Dhanwar, District Giridih. The prosecution case, in brief, is that PW 4, the informant along with his father Khubi Mahto, the deceased of this case, left his village at about 5.00 Oclock in the evening on 14.10.1986 for boarding a bus at Ghorthamba bus stand for going to Biharsharif for the purchase of potato and his father was carrying Rs. 5,000/ - in his pocket and they waited for a considerable time at the said bus stand and when they did not get a bus bound for Biharsharif, they were returning to their village. It is alleged that at about 6.00 Oclock in he evening they reached near the Banyan tree west of Mahadeo temple at Tetariatand, and the appellants came there running armed with lathi and they had concealed themselves under the said Banyan tree and they started mounting attacks on his father Khubi Mahto, who fell down and they also removed Rs 5,000/ - from his pocket. The prosecution case further is that Hari Dusadh, Prakash Dusadh, Satyariarayan Dusadh, Kuwar Dusadh, Ghuna Dusadh, Bihari Dusadh, Bhimlal Dusadh. Prayag Dusadh, Lalji Dusadh, Munshi Dusadh, Pitambar Dusadh, Babulal Dusadh, Lootan Dusadh, Baleshwar Dusadh, Brinda Dusadh and Deo Dusadh all residents of the village of the informant came from the arhar crop field and ran towards him to assault him and at this he fled away to the village. It is further alleged that after sometime he came to the place of occurrence in the company of his mother, sister and brother and the appellants and the aforesaid other persons had fled away from there by that time and he found his father fallen on the ground unconscious and he brought his injured unconscious father on a cot to his house with the help of his sister and brother. It is also alleged that thereafter his injured father was brought to the Giridih Sadar Hospital on Trekker but he was declared dead there. The prosecution case further is that the appellants aforesaid are criminals and they have the habit of committing robbery and there had been an altercation between him and the appellants regarding grazing of the cattle a month prior to the occurrence and due to this they have committed the offence.
(3.) THE appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case out of enmity which is existing and alive between the parties and appellant Sakti Dusadh had filed a complaint case bearing No. 2/86 before the sarpanch of Arkhango Gram Panchayat on 19.6.1986 against PW 4. the informant and his father Khubi Mahto, the deceased of this case, and several other persons and thereafter the. father of appellant Sakti Dusadh had also filed a Misc. Petition before the Sub -divisional Magistrate, Giridih on 29.7.1986 regarding the occurrence of 18.6.1986 and 26.6.1986 that Khubi Mahto aforesaid and others had abused and assaulted his son and threatened him to implicate in false cases.;