NAVANITI PRASAD SINGH, J.:–This appeal was originally filed by six appellants against the judgment of conviction and sentence passed by the Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No. 256 of 1988 convicting them on 25.02.1991 under section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life.

2. Mr. Barun Kumar Choudhary, learned counsel appearing in support of the appeal, has stated that so far as appellant no. 5 Saryug Sah and appellant no.6 Baldeo Sah are concerned, they have died during the pendency of the appeal and as such the appeal in relation to them has abated. Accordingly, this appeal in relation to appellants no. 5 and 6 is held to have abated.

3. The prosecution case is based on the fardbeyan of P.W.9 Sushila Devi (the young daughter of the deceased Jagtaran Devi). The fardbeyan is Ext.4, which is said to have been recorded at 1A.M. on 30.04.1988 by the Investigating Officer (P.W.12), on the basis whereof the formal first information report was registered allegedly at 3A.M. on the same day. In the fardbeyan, P.W. 9 Sushila Devi states that while she was sleeping in her house in one of the rooms, her younger sister Kaushalya Devi (P.W.6) shouted that their mother had been killed. She got up and came out of the room and allegedly found appellant no.1 Lakshman Sah, who had a knife and appellant no.5 Saryug Sah, who had a dagger, were brutally assaulting her mother. Two others were holding her and the two others were kicking and beating her, in course of which she vomited blood and due to fatal injuries she died. On their shout, neighbours turned up and seeing them the assailants fled away. Village Choukidar then came and was sent to the Police Station, whereafter the Investigating Officer came and the statement was recorded. This statement was witnessed by P.W.7 Ramashish Jha and P.W. 11 the Mukhiya Chandradeo Prasad.

4. The inquest report was then prepared, which is Ext. 2, at about 6.30A.M., which is again witnessed by the Mukhiya Chandradeo Prasad (P.W.11) and one Baijnath Jha, who happens to be son of P.W.7 Ramashish Jha. Thereafter, the dead body was sent for post-mortem and post-mortem was conducted by Dr. B. D. Bhagat (P.W.13) and the post-mortem report is Ext.6. The Police took up investigation and after investigation submitted charge-sheet against the six appellants and the case was, thereafter, committed to the court of session for trial.

5. The prosecution in order to establish the charge of section 302/34 of the Indian Penal Code (for short `I.P.C.’) as framed against the appellants examined thirteen witnesses. The defence examined two witnesses being D.W.1 Suraj Deo Rai (Village Choukidar) and D.W. 2 Kailash Sah, who was the cousin of husband of the deceased. The case of the prosecution was that the incident took place because Saryug Sah, Lakshman Sah and Bhudhu Sah had managed to get a sale-deed executed by Bindeshwar Sah (the husband of the deceased) in relation to certain lands in favour of their mother Janki Devi. There was some dispute. There was Panchayati. In the Panchayati, it was directed that Lakshman Sah would get Janki Devi to transfer 5 dhurs of land in favour of Bindeshwar Sah, which they were not ready to do and it is because of this dispute that this occurrence took place.

6. The defence was that, in fact, no such incident took place. It was not a case of homicide. Jagtaran Devi had died of prolonged illness and taking advantage of the situation, a case had falsely been built up. Apart from other contradictions, learned counsel for the appellants relied upon the evidence of the Doctor and the post-mortem report. What simply he submitted is that there is categorical allegation that two persons with knife and dagger brutally assaulted the deceased lady. Others kicked and slapped her, because of which she died. But when we come to the post-mortem report, it appears that the Doctor clearly finds absolutely no external or internal ante-mor

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