Jitendra Kumar, J.—The present appeal has been preferred against the impugned judgment and order of sentence dated 08.09.2017 and 12.09.2017 respectively passed by Ld. 1st Additional Sessions Judge Bagha, West Champaran in Sessions Trial No. 178 of 2015 (C.I.S. No. 2826 of 2015) arising out of Chautarwa P.S. Case No. 275 of 2013, whereby only respondent no. 2 viz., Sheshnath Chaudhary has been found guilty only under Section 304 Part II of the Indian Penal Code and other accused including the respondent no. 3 were acquitted of all the charges. By the impugned order of sentence, the sole convict, who is respondent no.2/Sheshnath Chaudhary, was sentenced to the period undergone during trial and during trial, the respondent no. 2 suffered incarceration for 3 years 7 months and 11 days.

2. The prosecution case as emerging from the written report of the informant (PW-6) is that on 09.11.2013 at 12:30 AM, the informant had come to his village with all the family members on the occasion of chhath puja. As per the allegation, all the accused persons including the respondent nos. 2 and 3 started dismantling the tarpaulin (tat) from the land of the informant. Brahma Prasad Srivastava, father of the informant, ran towards them and protested to the dismantling of the tarpaulin (tat). The accused persons abused him and assaulted him by fists and slaps. The accused respondent no. 2/Sheshnath Chaudhary inflicted lathi blow on his head. On crying of his father, the informant along with his younger brother Rajesh Kumar Shrivastava ran towards the place of occurrence and found that his father was lying on the ground. The accused persons also assaulted the informant by farsa by which, his right thumb was injured. It is also alleged that the accused respondent no. 2/Sheshnath Chaudhary also took away a golden chain and Rs. 2,000/- from the possession of the brother of the informant.

3. On the basis of the written report of the informant, an FIR was lodged against the accused persons including the respondent nos. 2 and 3 under Sections 147, 148, 149, 341, 323, 324, 325, 307, 302 read with Section 34 of the Indian Penal Code.

4. After completion of the investigation, charge-sheet was filed against three accused persons including the respondent nos. 2 and 3. After taking cognizance, the case was committed to the Court of Sessions by learned Magistrate. Charge under Sections 147, 148, 149, 341, 323, 324, 325, 307, 302 read with Section 34 of the Indian Penal Code was framed against respondent nos. 2 and 3 and co-accused Chhathu Chaudhary who was also impleaded as respondent in the appeal but on account of his death during pendency of this appeal, his name has been deleted from the array of the respondents.

5. During trial, the following 10 witnesses were examined on behalf of the prosecution:—

(i) P.W.-1–Jagan Gond

(ii) P.W.-2–Skh. Manjoor

(iii) P.W.-3–Rubi Devi

(iv) P.W.-4–Nitu Devi

(v) P.W.-5–Rajesh Kumar Srivastava

(vi) P.W.-6–Rakesh Kumar Srivastava (informant)

(vii) P.W.-7–Dr. Surendra Prasad Agrawal

(viii) P.W.-8–Dr. Pankaj Kumar

(ix) P.W.-9–Nagendra Singh (retired S.I.)

(x) P.W.-10–Prakash Kumar Srivastava

6. The prosecution has also brought on record the following documentary evidence:—

(i) Ext. 1–Signature of Prakash Kumar Srivastava on the written report.

(ii) Ext. 2–Injury report of Rajesh Kumar Srivastava

(iii) Ext. 3–Injury report of Rakesh Kumar Srivastava

(iv) Ext. 4–Injury report of Brahma Prasad Srivastava

(v) Ext. 4/1–The supplementary injury report

(vi) Ext. 5–Postmortem report of Brahma Prasad Srivastava.

(vii) Ext. 6–Formal FIR

(viii) Ext. 7–Endorsement on the written report

(ix) Ext. 8–Carbon copy of the inquest report

(x) Ext. 8/1–Signature of P.W.-10 on the inquest report.

7. After closure of the prosecution evidence, the accused persons were examined under Section 313 Cr.PC, during which they were confronted with incriminating circumstances which had come in the prosecution evidence, so as to afford them opportunity to explain those circumstances. Dur