VISHNUDEO NARAIN, J. - (1.) THIS appeal at the instance of the appellants is directed against the impugned judgment and order dated 24.8.1998 passed in Sessions Trial No. 32 of 1986 by Shri Chandra Sen Choubey, 3rd Additional Sessions Judge, Hazaribagh whereby and where under both the appellants were found guilty for the offence punishable under Section 323 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for six months each. However, both the appellants and other six co -accused persons were not found guilty for the offence punishable under Section 304 of the Indian Penal Code and they were accordingly acquitted.
(2.) THE prosecution case has arisen on the basis of the fardbeyan (Ext. 5) of PW 4 Kishori Sao, the informant recorded by S.I. Chulan Singh O/C Bishnugarh Police Station on 1.9.1983 at 11.00 hours in village Mukti Dudhmania, Police Station ''Bishnugarh, District Hazaribagh regarding the occurrence which is said to have taken place on that very day at 10.00 hours at Heslan Jungle Path, Police Station ''Bishnugarh, District -Hazaribagh and a case under Sections 147, 148, 149, 325, 323 and 379 of the Indian Penal Code and under Section 27 of the Arms Act was instituted by drawing of a formal first information report (Ext. 9) on that very day at 11.00 hours and the fardbeyan and formal first information report were received on 3.9.1983 in the Court empowered to take cognizance. In course of investigation Mahendra Singh, who is said to have been assaulted by the appellants and other co -accused persons, has died of tetanus while undergoing treatment in Bokaro Hospital and charge -sheet was submitted against the appellants and others acquitted co - accused persons under Sections 147, 148, 149, 379, 307 and 302 of the Indian Penal Code. The learned Court below had framed charge under Section 304 of the Indian Penal Code against the appellants and other acquitted co -accused persons. The prosecution case, in brief, is that on 1.9.1983 at about 10.00 hours, Mahendra Singh, the deceased of this case and PW 5 Baso Prajapati on one cycle, PW 4 Kishori Sao, the informant and PW 3 Duleshwar Yadav on the other cycle and PW 8 Kishun Thakur and one Laleshwar Yadav (not examined in this case) on the third cycle were going to Hazaribagh to attend the Court in a case which was fixed for that day and when they reached at Heslan Jungle Path, appellants Sudhir Singh and Bateshwar Singh and acquitted co -accused Arun Singh and Shankar Singh came on the said road, all of a sudden, and appellant Bateshwar Singh and acquitted co -accused Arun Singh and Shankar Singh were armed with revolver and they pointed the pistol at them and asked them to stop. It is alleged that appellant Sudhir Singh caught the neck of Mahendra Singh, the deceased of this case and felled him on the ground and both the appellants caused the fracture of his left hand and they also stated that they have no enmity against rests of them except Mahendra Singh aforesaid and thereafter they started assaulting Mahendra Singh and brought him on the road near Mandap and in the meantime acquitted co -accused Jugdish Singh, Rajesh Kumar Singh, Saligram Singh, Bala Singh besides Bansi Singh (who has died during the pendency of this case) came there from the Heslan More and they abused Mahendra Singh and assaulted him by fist and slap. The prosecution case further is that appellant Bateshwar Singh snatched the file of the case from Mahendra Singh aforesaid besides rupees seventy from his pocket. The prosecution case further is that appellant Bateshwar Singh had also removed H.M.T. Nishal wristwatch from the informant and acquitted co -accused Arun Singh had removed Ricko automatic wristwatch of PW 3 Daleshwar Yadav and thereafter they all boarded a bus bound for Hazaribagh.
(3.) THE appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case due to enmity which was existing and alive between them and the deceased much prior to the occurrence in question.;