JUDGMENT :

SONI SHRIVASTAVA, J.

Heard Mr. Pramod Kumar Sinha, learned counsel for the appellants and Mrs. Anita Kumari Singh, learned APP for the State.

2. The present criminal appeal has been preferred against the judgment of conviction and order of sentence dated 19.03.2004 passed by learned Additional District and Sessions Judge (Fast Track Court-III), Nawada in Sessions Trial No.173 of 1995/147 of 2004, (arising out of Warisaliganj P.S. Case No.32 of 1995) whereby and whereunder appellants no.1 and 2, namely Suresh Choudhary and Heera Choudhary have been convicted under Sections 326 and 307/34 of the Indian Penal Code (hereinafter referred to as ‘the I.P.C.’), while appellant no.3, namely Sevalal Choudhary @ Subelal Choudhary along with Late Rameshwar Choudhary (against whom the appeal has abated), has been convicted under Section 307/34 of the I.P.C., however, all of them have been sentenced to rigorous imprisonment for seven years.

3. The case of the prosecution, based upon the fardbeyan of the informant, Kapil Prasad Sardar recorded on 07.05.1995 at 4:00 p.m., is that on the same day at around 2:30 p.m., he was going along with his brother-in-law, namely Yogeshwar Dhanuk towards the toddy shop of accused Rameshwar Choudhary where the said Rameshwar Choudhary along with his three sons, namely Suresh Choudhary, Heera Choudhary and Sevalal Choudhary were also present, while one Gokhul Mahto was also present along with the informant. It has been alleged that the money due on account of milk was demanded by his brother- in-law from Rameshwar Choudhary, on account of which the parties entered into some verbal altercation whereafter, the brother-in-law of the informant was caught hold of and the informant tried to intervene in the matter. It has, however, been stated that on the order of Rameshwar Choudhary, Suresh Choudhary and Heera Choudhary inflicted a Hausli (Pasuli) blow on head, neck, ear, hands and arm of the brother-in-law, Yogeshwar Dhanuk causing him injuries. Rameshwar Choudhary and Sevalal Choudhary have been alleged to have caught hold of informant’s brother-in-law and local people of the vicinity assembled at the place of occurrence subsequently, whereafter accused persons fled away. Informant has stated that since the injured was unconscious, the statement was being given by him.

4. Based on the said fardbeyan, Warisaliganj P.S. Case No.32 of 1995 was instituted and upon completion of investigation, the police submitted charge-sheet on 30.06.1995 , finding the case true against the accused persons including the present appellants under Sections 341, 324, 326, 307 and 34 of the I.P.C., whereafter the learned Magistrate took cognizance of the offence and committed the case to the Court of sessions. The present case, upon being committed, was numbered as Sessions Trial No.173 of 1995/147 of 2004 and charges were framed on 08.04.1996 under Sections 326 and 307/34 of the I.P.C. to which they pleaded not guilty and claimed to be tried.

5. In order to substantiate its case, the prosecution has examined altogether six witnesses out of whom, PW-1, Balmiki Raut happens to be the nephew of the informant and claims to be an eye-witness, PW-2, Yogeshwar Dhanuk, an injured eye-witness also the brother-in-law of the informant, PW-3, Dr. Rajendra Prasad Mishra, the Doctor who examined the injuries of the injured, PW-4, Bhola Raut, who also claims to be an eye-witness, PW-5, Kapil Prasad Sardar, who is the informant himself and also an eye-witness to the occurrence and PW-6, Mahadev Murmu, who is the Investigating Officer of the case.

6. Two witness have also been examined by the defence, DW-1, Gokhul Mahto and DW-2, Ramswaroop Yadav.

7. The statement of the accused persons was also recorded under Section 313 of the Cr.P.C. and the case of the defence is complete denial of the occurrence, claiming themselves to be innocent.

8. The learned Trial Judge upon appreciation, analysis and scrutiny of the evidence adduced during the trial has f