VIRENDER SINGH, J. - (1.) VIDE our short order of even date, the instant appeal already stands allowed partly by altering the conviction from 302 IPC to 304 Part II and reducing the sentence of both the accused to the period already undergone by them. We now enter into a detailed discussion.
(2.) APPELLANTS , Binay Mahto and Radhika Mahto, being aggrieved by the impugned judgment of learned Additional Sessions Judge, Palamau, Daltonganj, dated 28/31.01.2004, whereby both of them stand convicted for the offence under Sections 302/34 IPC and 323 IPC, have preferred the instant appeal. The sentence imposed upon both of them under Sections 302/34 IPC is life imprisonment whereas under Section 323 IPC, rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently.
(3.) IT needs to be mentioned here that along with the aforesaid two accused, Aditya Mahto, Sudama Mahto and Durga Mahto had also faced trial for the aforesaid offences, but they have been convicted under Section 323 IPC only as their cases have been segregated from these two accused. They have been released on probation and that appears to be the reason that they have not filed any appeal impugning judgment of the conviction and sentence recorded under Section 323 IPC. Deceased in this case is one Mukesh Mahto. He is son of P.W. Brahmdeo Mahto, who is also the informant of the present case. He approached the concerned police (Patan Police Station) on 05.09.1998 alleging therein that there was a land dispute between him and accused Binay Mahto and in this regard a Civil Suit was pending in the Court. He further alleged that on 03.09.1998 at about 3.00 P.M., he had gone for answer the call of nature and saw the wife of accused Durga Mahto cutting grass on the ridge of the land upon which he told her not to cut the grass. She went back and told about the altercation to her family members upon which Binay Mahto, Radhika Mahto, Sudama Mahto, Aditya Mahto and Durga Mahto came from village side with lathi and started searching for him (informant), who went to the house of his brother Ganesh Mahto and shut the door from inside. It is then alleged that the aforesaid persons cut the door, came inside the house and caught hold of him and started assaulting him with Lathis and thereafter brought him in the courtyard, tied his hands and legs with rope. On hearing his noise, his wife P.W. Pratima Devi and father P.W. Ram Pyare Mahto reached there and they were also assaulted by the aforesaid accused. It is then alleged that when the accused persons were assaulting him (informant), his son Mukesh Mahato (deceased) came there to save him and fell on the body of the informant and at that stage the accused persons injured him also with Lathi. It is further alleged that when the deceased did not move from there, the accused persons assaulted him hitting on his stomach, chest and crushed him with legs. In common parlance, it is said Masal Diya. Many villagers were attracted on the spot. It is then the case of the complainant/informant that the accused persons compelled him not to go to police station, as such he did not approach the police on 04.09.1998. Mukesh Mahto died on the same day and it is, thereafter, on 05.09.1998 the present case came to be registered by him with the concerned police station. After investigation it resulted into filing of challan against the present accused and the aforesaid three co -accused, who, accordingly faced trial.;