JUDGMENT :

SOURENDRA PANDEY, J.

1. Both the accused, namely, Mahabir Manjhi and Gaya Manjhi have preferred this criminal appeal, but appellant no. 1, Mahabir Manjhi died in Central Jail, Gaya on 07.01.2001, hence vide order of this Court dated 01.03.2002, this appeal was directed to abate, so far appellant no. 1 (Mahabir Manjhi) is concerned.

2. Heard the learned counsel for the appellant no.2 and learned A.P.P. for the State of Bihar.

3. The present appeal arises out of the judgment of conviction dated 25.04.1996 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 26.04.1996 (in short referred to as the ‘impugned order’) passed by the learned 1^st Additional Sessions Judge, Nawada in connection with Sessions Trial No. 365/94, 38/94.

4. By the impugned judgment, the appellant no.2 has been convicted for the offences under Sections 302/34 of the I.P.C and has been sentenced to undergo rigorous imprisonment for life for the offence under Sections 302/34 of the I.P.C.

Prosecution Case:

5. That the prosecution case, in brief, is that on 15.07.1994 at about 6.00 P.M., the father of the informant (P.W.- 4), namely Kameshwar Manjhi (since deceased), returned from Nawadah and saw the accused persons putting mud and constructing “OLTI” adjacent to his OLTI. Upon objecting to the same, an altercation ensued between the parties on that very pretext. Thereafter, the informant came out of his house and noticed that the appellants had gone back to their house and returned armed with a sword and garansa. It is alleged that appellant no.1, namely, Mahabir Manjhi inflicted a sword blow on the head of the deceased, as a result of which he fell down. Subsequently, appellant no.2, namely, Gaya Manjhi assaulted the deceased with a garansa on his eye-brow and further dealt two sword blows on the face and neck of the deceased. On alarm being raised, the brother and mother of the informant (P.W.-3) came out of the house, upon which the accused persons fled away from the place of occurrence.

6. On the basis of the aforesaid written application, Akbarpur P.S. Case No. 096 of 1994 dated 16.07.1994 under Sections 302/34 of the I.P.C Act was registered.

7. After completion of investigation, the police submitted charge-sheet against both the accused and the case was committed to the Court of session on 03.10.1994 vide G.R. Case No. 906 of 1994.

8. On the basis of the police report, cognizance was taken against the the appellants on 21.09.1994.

9. Charges were read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried.

10. In course of trial, the prosecution has examined as many as six witnesses and exhibited several documents to prove the prosecution case.

List of prosecution witnesses:

 List of Exhibits on behalf of the Prosecution

Findings of the learned Trial Court

11. The learned trial Court, upon appreciation of the evidence on record has found that the prosecution examined six witnesses, out of whom P.W.1 and P.W.2 were hearsay witnesses and did not materially support the prosecution case. It has been held that the prosecution case mainly rests upon the testimony of P.W.3, the wife of the deceased, who was treated as an eye witness. The trial Court has observed that her presence at the place of occurrence was natural, the occurrence having taken place near her house and her evidence was found to be consistent and reliable. It has further been recorded that the place of occurrence stood established between the adjoining houses of the deceased and the accused, indicating prior