Per: ASHWANI KUMAR SINGH, J.:–In Cr. Appeal (DB) No. 418 of 1989, the appellant is Suresh Yadav whereas in Cr. Appeal (DB) No. 359 of 1989, the appellants are Paro Yadav, Baso Yadav and Jawahar Yadav. Both these appeals have been heard together as they arise from the same Sessions Trial.

2. By judgment and order dated 27 July, 1989 passed in Sessions Trial No. 23/1987 / 101/1980 the learned 3rd Additional Sessions Judge, Nawada, convicted appellant Suresh Yadav under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. The appellant Suresh Yadav has also been held guilty for the offence under Section 148 of the IPC and has been sentenced to undergo R.I. for two years. By the same judgment appellants Paro Yadav, Baso Yadav and Jawahar Yadav have been convicted for the offence under Sections 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life. The appellant Jawahar Yadav has further been held guilty of the charge under Section 148 of the Indian Penal Code and has been sentenced to undergo R.I. for two years. Similarly, appellant Baso Yadav has been held guilty of the charge under Section 323 IPC and has been sentenced to suffer R.I. for six months thereunder. However, all the sentences have been ordered to run concurrently.

3. The prosecution case in short is that on 29.5.1979 at about 6:30 p.m. when Faudi Yadav (deceased) on return from Nawada came on the road facing his house, Paro Yadav, Bhajju Yadav, Adhin Yadav, Baso Yadav, Suresh Yadav holding Garasa and Dev Yadav holding Bhala collectively came and assaulted him indiscriminately. In the meantime, Jawahar Yadav also arrived, being armed with Garasa and he inflicted a Garasa blow on his armpit. Being injured by indiscriminate assault, Faudi Yadav fell on the ground. On alarm being raised by the victim, Janak Yadav, Tulsi Yadav, Mahtab Devi, Sukhdeo Yadav and Teju Yadav arrived at the place of occurrence to rescue him from further assault. The motive behind the occurrence is assigned to be land dispute pending between Bharat Yadav and Latan Yadav and it was Latan Yadav who instigated the accused persons to commit the offence.

4. On the basis of oral statement of victim Faudi Yadav recorded by Sub-Inspector of Police, Ram Sagar Prasad of Warisaliganj police station at Warisaliganj Hospital on 29.5.1979 at 8:00 p.m., initially, a case was registered at Warisaliganj police station on 29.5.1979 at 9:10 p.m., under sections 148, 149, 324, 307 and 109 of the Indian Penal Code, against accused persons, namely, (i) Paro Yadav, (ii) Bhaju Yadav, (iii) Adhin Yadav, (iv) Baso Yadav, (v) Suresh Yadav, (vi) Dev Yadav, (vii) Jawahar Yadav & (viii) Latan Yadav and investigation was taken up.

5. In course of treatment, the victim died in Nawada hospital on 29.5.1979 itself as would appear from exhibit-7, a petition written by the Officer-in-Charge of Warisaliganj police station to the learned Chief Judicial Magistrate, Nawada, on 29.5.1979 itself, informing him that the victim died in Nawada hospital due to injury on his stomach and therefore, a prayer was made to add Section 302 IPC in the F.I.R. of the case.

6. On conclusion of investigation, chargesheet was submitted against the accused persons. The learned Magistrate took cognizance of the offence. Since the offence alleged was exclusively triable by the court of sessions, the case was committed to the court of sessions. The charges were framed against the accused persons to which, they pleaded not guilty and claimed to be tried. The accused persons denied the entire allegation and claimed that they were falsely implicated due to previous enmity. The accused Yugal Yadav, Adhin Yadav and Dev Yadav died during the pendency of trial and the trial proceeded against rest of the accused persons.

7. The prosecution in order to prove its charges examined altogether 15 witnesses in course of trial. They are K.K. Jha (PW-1), Kapildeo Singh (PW-2), Janki Yadav (PW-3), Subhash Yadav (PW-4), Sukhdeo Yadav (

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