- (1.) THE present two appeals arise out of the same impugned judgment and as such both the appeals were taken up and heard together and are being disposed of by this common judgment.
(2.) BOTH the appeals are against the impugned judgment of the 2nd Additional Sessions Judge, Durnka in Sessions Case No. 270 of 1984, whereby the appellants of both the appeals have been convicted for the offences under Sections 302/149, 342 IPC and they have been sentenced to undergo R.I. for life for the offences under Section 302/149 I PC and also R.I. for one year under Section 342 IPC. However, both the sentences were directed to run concurrently. The prosecution case, in short, is that on 24.11.1983, the informant had gone to witness a film in Amarchitra Mandir Cinema Hall in the town of Dumka in the first show, i.e. from 6.00 p.m. to 9.00 p.m. He came out of the Cinema Hall during the interval and was standing alone just outside the Cinema Hall premises when the accused and other accused persons alongwith 5 -6 miscreants suddenly appeared and surrounded the informant and started assaulting him by means of Chhura. Consequent to which he fell down. On alarm being raised by him the witnesses arrived there but by that time the miscreants fled away. The genesis of the occurrence is said to be that on the same day in the morning there was a quarrel amongst some boys in Zila School, which was pacified with the intervention of the informant on account of which the accused persons had threatened the informant of dire consequences.
(3.) IMMEDIATELY after the occurrence the informant was rushed to Dumka Sadar Hospital where his Fardbeyan was recorded on 24.11.1983 at 9.30 hours. On the basis of which formal FIR was drawn and investigation was taken up. In the hospital the dying declaration of the informant was recorded, which has been marked as Ext. 5 and, thereafter, the informant succumbed to the injuries. The Post Mortem examination of the deceased was done by Dr. Simal Kumar (PW -9) and the following ante mortem injuries were found on the persons of the deceased: - (i) Stitched wound of 1 -1/2" long over the right hypochadrial region of abdomen near to the midline. (ii) Stitched wound 1" over the right hypochadrial region of the abdomen lateral to the injury no. (i). (iii) Stitched wound 1" long at back of the chest right side of vertebral column at the level of the 9th vertebra. (iv) Operative stitched wound 8" long over right para -median region of the abdomen. (v) One bruise of 1" x W' over the right temporal region. On desection no bone injury was detected. (vi) On desection the injury nos. 1 and 2 were of clear and sharp margin with depth communicating intraperitonealy. (vii) Injury NO.3 was also of clear and sharp cut margin with depth 1 1/2. On further desection of abdominal wound, the following intra abdominal injuries were found: - (a) Stitched wound at two places over the right lower of the liver about 1 W' long and another one medial to it was about 1" long. (b) Stitched wound at the greater curvature of stomach near pylon and was about 2" long. (c) A big haemotoma was found in transverse muscular and retroperitoneal space of right side. ;