D.K.SINHA, J. - (1.) BOTH the appeals are directed against the common judgment of conviction recorded by the 2nd Additional Sessions Judge, Giridih in Sessions Trial No. 81/1997 and order of sentence whereby the appellants of Cr. Appeal No. 207/ 1998(R) were convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months and fine of Rs. 200/ - each with stipulation. The appellants of Cr. Appeal No. 213/1998(R) by the common judgment were convicted under part I of Section 304 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for seven years. It is relevant to mention at the outset that the appellant Giri Rabidas of Cr. Appeal No. 213/1998(R), convicted under part I of Section 304 I.P.C. died during the pendency of appeal and his death certificate has been filed with the supplementary affidavit. Similarly the appellant Kailash Rabidas of Cr. Appeal No. 207/1998(R) also died and his death certificate has also been filed as Annexure -A with the supplementary affidavit. In view of the above fact and the death certificates, their appeal stands abated.
(2.) THE prosecution story in brief is that (one Bishundeo Hazara (since deceased) had been to the house of the appellant Giri Rabidas on 21.10.1996 at about 6 P.M., and demanded his money, which he had lent to him. While both were settling the account of the loan amount, altercation arose and the other accused persons Ramdeo Rabidas, Manik Rabidas, Mohan Rabidas, Kailash Rabidas & Bahadur Rabidas started assaulting Bishundeo Hazara. On hearing the cry of Bishundeo Hazara when the informant rushed there to rescue his brother, he witnessed that his brother Bishundeo Hazara was lying on the earth and the appellant Giri Rabidas was pressing his neck by sitting on his chest. The informant further witnessed the other appellants assaulting his brother with sticks, fists and kicks. On the intervention of the villagers the appellants escaped. The victim was treated in the village, then taken to Jamua and from there he was removed to Sadar Hospital, Giridih in precarious condition where in course of treatment Bishundeo Hazara succumbed to his injuries on 23.10.96. The Fard Bayan of the informant Janki Hazara was recorded at the Sadar Hospital, Giridih on 23.10.96, which was inferred to Jamua police on the basis of which Jamua P.S. Case No. 184/96 was instituted against the appellants under Sections 341,323,302/34 t.P.C. In his Fard Bayan the informant disclosed the names of the witnesses who assembled at the place of occurrence on the cry of Bishundeo Hazara and witnessed the occurrence. The informant further narrated therein that his brother Bishundeo Hazara, prior to his death had disclosed the names of the appellants being the assailants. The police after investigation submitted charge -sheet in the said Sections of I.P.C. against all the six appellants. Accordingly charge was framed by the trial court. As many as 10 witnesses were produced and examined on behalf of the prosecution. On the other hand appellant Manik Rabidas of Cr. Appeal No. 213/ 1998(R) produced himself as the defence witness and the another witness, who was produced on behalf of the defence was D.W. 2 Hulas Mandal.
(3.) THE prosecution proved the postmortem report Ext. 1, Fard Bayan of the informant Ext. 2 signature of the informant on his Fard Bayan Ext. 2/1, endorsement of the Jamua police on the Fard Bayan Ext. 2/2, inquest report Ext. 3, signature on the inquest report Ext. 3/1 and the formal F.I.R. Ext. 4.;