AMARESHWAR SAHAY, J. - (1.) THIS appeal is directed against the judgment dated 1.5.2003 and 2.5.2003 passed by the Additional Sessions Judge. Fast Track Court III, Garhwa, in Sessions Trial Case No. 340 of 1992 whereby the learned trial Court convicted the appellants for committing the offences under Sec. 304 -II of the Indian Penal Code and sentenced each of them to undergo RI for a period of 7 years.
(2.) ALL the three appellants were charged for committing the offence under Sections 302/34 of the Indian Penal Code for having intentionally causing the death of Kameshwar Mishtri in furtherance of their common intention on 26th Nov. 1991. The prosecution story, in short, is that on 26.11.1991 at about 6 a.m. while the informant, Bishuni Mishtri (since dead) was in his house, he heard the sound of lathi blows and then he came out and saw that his son Kameshwar Mishtri was being assaulted with lathi by the appellants. Ram Prasad Mishtri, Shambhu Mishtri and Prabhu Mishtri on his head due to which his son had received injuries and then he fell down unconscious. It is said that when the informant tried to pick up his son. Kameshwar, the appellant No. 1, Ram Prasad Mishtri assaulted him with lathi due to which he received injury on his head. On "hullah" being raised, several co -villagers, Kapil Dubey (PW 5) (Hostile), Virendra Mehta (PW 3), Anuj Mishtri (PW 6) (Hostile) assembled there and saw the occurrence. It was said that Kameshwar was assaulted by the appellants with 'lathi with an intention to kill.
(3.) THE prosecution examined altogether 7 witnesses. Out of whom, PW 1, is the doctor, who conducted the post -mortem examination of the dead body of the deceased PW 2 is Malti Devi, has appeared as an eye -witness. PW 3 is Birendra Prasad Mehta. PW 4 is Lalmani Devi, she is widow of the deceased and is said to be an eyewitness. PW 5 is Kapildeo Dubey, and PW 6 have been declared hostile. PW 7 is a formal witness. The informant could not be examined in this case, as during the trial he died then Investigating Officer has not been examined by the prosecution.;