The prosecution must prove the case beyond reasonable doubt, and consistent and reliable witness testimonies are crucial in establishing the guilt of the accused.

P.K.Sinha, J.

1. This appeal is directed against the judgment of conviction of the appellants recorded by the learned 2nd Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 171/216 of 1982/87 wherein finding the prosecution case to have been proved beyond reasonable doubts, the learned Court convicted the accused under second part of Sec. 304 read with Sec. 34 of the Indian Penal Code and after hearing on sentence, sentenced them to undergo 10 years of rigorous imprisonment, each.

2. My attention has been drawn towards order dated 10.7.2000 by which it was reported to the Court that appellant No. 5 Nand Kishore Sahni had died at which this Court had called for a report from the concerned Superintendent of Police. That report is at Flag A, As per this report which is dated 13.9.2000 this appellant had died about 8 years back. Therefore, the appeal so far this appellant is concerned, has stated.

3. The prosecution case, briefly stated, and as coming out from the First Information Report lodged by the brother of the deceased Makhan Rai was that on 28.1.1981 at about 7 a.m. when the deceased was sitting at his Darwaja all the accused-persons reached there and started abusing the deceased and, on protest, appellant Kishun Sahni gave one Lathi blow on his head and then the deceased having fallen down, he was assaulted by all the four accused-persons by Lathis. On Hulla, Yugul Rai (since deceased) and Bholi Rai (PW-2) came there and thereafter victim Makhan Rai was taken to the hospital wherein the wee hours of the next day he died of his injuries.

4. The learned trial Court framed charges under Sec. 302 of the Indian Penal Code, and after recording evidence of witnesses found the offence to have been proved as against the appellants as mentioned earlier and convicted and sentenced them as aforesaid.

5. The defence taken by the appellants at the trial stage was that the informant at the time of occurrence had started uprooting Nad and Khunta of appellant Sitaram Sahni and when he with appellant Kishun Sahni opposed that the deceased and one other assaulted both of them by lathis and while running away, the deceased fell down on bricks as a result of which he sustained injury on his head which might have resulted in his death. In that regard, a formal defence witness was examined and police station Sanaha diary Entry No. 399 dated 28.1.1981 was proved as Ext. A. The point for consideration is whether the prosecution, by the evidence is had adduced, had proved its case beyond reasonable doubts?

6. In so far as the prosecution is concerned, it has examined only four witnesses including the informant and Bholi Rai, who were eye-witnesses. PW-1 is a formal witness and PW No. 4 is Dr. H.N. Gupta who had conducted post-mortem on the dead-body of the deceased.

7. The learned Counsel for the appellants in course of arguments pointed out that in the first information report the allegation was that when the informant was sitting with his brother Makhan Rai, the accused persons came and thereafter they assaulted his brother, but in his evidence, he said that he came there having heard hulla and saw his brother having fallen down. Learned Counsel also submitted that in the postmortem report only one injury on the head was found whereas the allegation was that after Makhan Rai fell down having received lathi blow on his head from appellant Kishun Sahni, all the four accused had assaulted him with lathis which they had in their hands.

8. Learned Additional Public Prosecutor submitted that since two witnesses had supported the prosecution case, the accused were rightly convicted.

9. Material witnesses so far the actual occurrence is concerned are PW-2 Bholi Rai and PW-3 Rajendra Rai. PW-1 had said that when he reached at the Darwaja of Makhan Rai he saw the accused persons there quarrelling with him and thereafter they assaulted Makhan Rai with their lathis at which he fell down. He also said that Mauji Lal Rai also