Lakshman Uraon, J. - (1.) THE appellants have preferred this appeal against the judgment and order of conviction and sentence dated 23.2.1994, passed by Sri Alakh Kumar Dubey, learned 1st Additional Sessions Judge, Deoghar, in Sessions Trial No. 79 of 1992/54 of 1992, whereby and whereunder, appellants Bhangi Prasad Rai, Manohar Prasad Rai and Bharat Prasad Rai have been convicted under Section 302/34 of the Indian Penal Code and 307 of the Indian Penal Code whereas' appellants Mukti Prasad Rai and Parmeshwar Prasad Rai have been convicted under Section 302/114 of the Indian Penal Code and all of them have been sentenced to undergo imprisonment for life thereunder. Appellant Shakti Prasad Rai has died during the pendency of this appeal.
(2.) THE prosecution case has arisen on the basis of the First Information Report (Ext. 1/1), lodged by the informant Sikandar Prasad Rai (PW 6) on 13.11.1989 at 20.15 hours, alleging therein, that on the same day at about 3.00 to 4.00 p.m. pumpkin (Kaddu) of Ram Prasad Rai was plucked off by Rambha Kumari, daughter of appellant No. 1 Shakti Prasad Rai, which was seen by the wife of the informant. When the owner tried to enquire as to who plucked the pumpkin, wife of the informant revealed that it was Rambha Kumari, daughter of appellant Shakti Prasad Rai, who had plucked the pumpkin and took away the same. Being aggrieved, wife of Shakti Prasad Rai and Bhangi Prasad Rai abused the wife of the informant, using filthy languages. On the protest made by informant and his father Kartik Prasad Rai, all the appellants, namely, Mukti Prasad Rai, Parmeshwar Prasad Rai and Bhangi Prasad Rai, all sons of Nathu Prasad Rai, Manohar alias Manu Prasad Rai and Bharat Prasad Rai along with Shakti Prasad Rai (since dead) forming an unlawful assembly entered into the courtyard of the informant. Appellant Bhangi Prasad Rai was having iron rod in his hand and the others had lathi in their hands. All of them surrounded the informant and his father. Appellants Mukti Prasad Rai and Parmeshwar Prasad Rai, besides Shakti Prasad Rai aforesaid, instigated and threatened both the informant and his son to be killed. On their instigation, appellant Bhangi Prasad Rai assaulted with iron rod on the head of Kartik Prasad Rai, causing bleeding injury. Appellant Mahohar alias Manu Prasad Rai and Bharat Prasad Rai assaulted him with lathi, as a result of which Kartik Prasad Rai fell down. The informant when went to rescue his father, appellant Bhangi Prasad Rai and Bharat Prasad Rai assaulted him with iron rod and lathi respectively. He also fell down. On their alarms. Tiro Prasad Rai (PW 3), Saligram Rai (PW 1) and Bishun Rai, including others rushed there and saw the alleged occurrence. Father of the informant became unconscious. Thereafter the assailants fled away. The villagers took the injured informant and his unconscious father to the police station where First Information Report of the informant was recorded, on which he signed. PW 2 Dhananjay Prasad Rai also signed (Ext. 1) on it. The injured Kartik Prasad Rai was taken to Deoghar for treatment where he succumbed to his injures and hence Section 302, IPC was added in the First Information Report. Appellant Bhangi Prasad Rai, Manohar Prasad Rai and Bharat Prasad Rai were charged under Sections 302/34 and 307, IPC and have been convicted under both the Sections but it appears that the learned 1st Additional Sessions Judge, Deoghar, is silent about the sentence, passed against them under Section 307, IPC whereas they have been convicted and sentenced to undergo imprisonment for life. Appellants Mukti Prasad Rai and Parmeshwar Prasad Rai, including Shakti Prasad Rai aforesaid, have been charged under Section 302/114, IPC for abetting the commission of murder in whose presence the other three co -accused assaulted Kartik Prasad Rai, resulting his death, who were convicted and sentenced to undergo imprisonment for life. During pendency of this appeal, Shakti Prasad Rai had died regarding which an affidavit has been sworn by Mahavir Prasad son of late Chanarik Sao, and, as such, the appeal against him stands abated and his name is expunged from the title page of this appeal.
(3.) THE learned 1st Additional Sessions Judge recorded the evidence of altogether eight witnesses. PW 1 Salo alias Saligram Rai, PW 3 Tiro Prasad Rai and PW 6 informant Sikandar Prasad Rai are the eye -witnesses of the alleged occurrence. They have informed Dhananjay Prasad Rai (PW 2) and Kailash Rai (PW 4), who also saw injured Kartik Rai fallen down in unconscious condition and also saw the informant Sikandar Prasad Rai in injured condition, due to assault by the appellants. PW 5 A.K. Chatterjee has conducted the post mortem examination on the dead body of Kartik Rai. Post mortem report is Ext. 1 in his pen and signature. PW 7 Randhir Singh is the Investigating Officer and PW 8 is Dr. Rajendra Prasad Singh, who examined the injured informant Sikandar Prasad Rai, who examined the injured informant Sikandar Prasad Rai and issued injury report (Ext. 3).;