HARI SHANKAR PRASAD, J. - (1.) BOTH the appeals (Cr. Appeal No. 301 of 1998 and 289 of 1998) are directed against the judgment of conviction and sentence dated 24.9.1998 passed in S.T. No. 122 of 1996 whereby and whereunder the learned Sessions Judge, Palamau at Daltonganj held the appellant, namely, Nazir guilty under Sections 302 and 148 of the Indian Penal Code and sentenced him to undergo R.I. for life under Section 302 of the Indian Penal Code and further sentenced him to undergo R.I. for two years under Sec.148 of the Indian Penal Code, but both the sentences were directed to run concurrently. Other appellant, namely, Anil Kumar @ Pintu, Anand Kumar, Dhiraj Kumar and Niraj Kumar were also found guilty under Sections 302, 147 and 148 of the Indian Penal Code and they were also convicted and sentenced to undergo R.I. for life under Sec.302 of the Indian Penal Code and further convicted and sentenced to undergo R.I. for one year under Section 147 of the Indian Penal Code, but both the sentences were directed to run concurrently.
(2.) CASE of the prosecution in brief is that Dilip Kumar Dubey gave a fardbeyan on 17.10.1995 at 1.20 p.m. in the evening before the S.I. of, Sadar Police Station in Sadar Hospital that on the same day in the evening he along with his brother -in -law Ved Prakash Tiwari (since deceased)l and Sushil Pathak went for stroll and as soon as they reached near Hotel Basant Vihar situated at Daltonganj market, five persons (appellants) who were standing at betel shop, at the sight of these three persons came near them and surrounded them from all sides and Dhiraj Kumar, one out of five appellants caught hold of Ved Prakash Tiwari, then he (informant) along with Sushil Pathak tried to rescue him. In the meantime, Niraj Kumar, Dhiraj Kumar, Anil Kumar and Anand Kumar who were armed with rods challenged to assault them whereupon Nazir took out sword and pierced the sword in the chest of Ved Prakash Tiwari. On this they raised alarm bachao -bachao and when he wanted to take care of Ved Prakash Tiwari, all of them fled away. On the alarm, nearby people assembled there with whose help Ved Prakash Tiwari was taken to the hospital where in course of treatment he died. The cause of occurrence is attributed to the fact that sister of Dilip Kumar Dubey, namely, Pushpa Kumari was appearing in the supplementary matriculation examination on the same day at 10.00 a.m. and she was taken to Ganesh Lal Agrawal High School, Daltonganj where his brother -in -law Ved Prakash Tiwari (since deceased) and his maternal uncle Om Prakash Dubey had gone there and they searched out the seat which sister of the informant was to occupy and at the same time, Niraj Kumar stopped him whereupon this informant asked that he and his other friends be allowed to go out. Thereafter some scuffle in between them took place and on persuasion and mediation of Ved Prakash Tiwari, the matter was settled. But in the second sitting examination, Dhiraj Kumar with other associates came there and assaulted him and his friends with rod and at this time also, his brother -in -law Ved Prakash Tiwari persuaded them and matter was settled. Thereafter he gave information about this incident at the P.S. at 2.00 p.m. and from there police party came but by that time, the accused persons had fled away. Thereafter in the evening when he along with Ved Prakash Tiwari and Sushil Pathak had gone stroll, then this occurrence took place. On this piece of fardbeyan, a case being Sadar P.S. No. 310 of 1995 under Secs. 147, 348 and 302 of the Indian Penal Code was registered and charge - sheet in the case was submitted against all the accused persons -appellants . In course of trial, 13 witnesses were examined, evidence of PWs 1, 2, 3 and 4 is of no help to the prosecution. PW 5 who runs a shop. According to this witness, he was in his shop when he heard noise and he went there and saw Ved Prakash Tiwari (deceased) in injured condition and blood was oozing out from his stomach. Thereafter Ved Prakash Tiwari was taken to the hospital. Later on he came to know that one person namely Nazir was running away with sword in his hand.
(3.) PW 6 is the eye -witness. He supported the prosecution case. Similarly, informant who is also an eye -witness has supported the prosecution case. Besides this, PW 9 is the doctor who conducted post -mortem examination on the dead body of Ved Prakash Tiwari and found ante -mortem injuries on the person of the deceased. Injuries are incised wound 1 x 1/2" x 1/2" with dorsal aspect of right wrist joint and incised wound 1/2" x 1/2" x 1/2" on several right side of the chest wall and he found those injuries caused by sharp cutting weapons. According to him, about injury No. 2 he was definitely of the opinion that such injury can be caused by sword but he at the same time says that both injuries on the person of the deceased would not be possibly by a single blow.;