JUDGMENT :

KAILASH PRASAD DEO, J.

1. Heard learned counsel for the appellant Mr. A.K.Chaturvedi assisted by learned counsel Mr. Hadish Ansari and learned counsel for the State Mr. Azeemuddin, Additional Public Prosecutor.

2. The instant criminal appeal has been preferred against the judgment of conviction dated 06.09.1996 and order of sentence dated 10.09.1996 passed by learned Sessions Judge, Palamau at Daltonganj in S.T. Case No. 352 of 1992 whereby the accused / appellants Bijay Mahto and Amardeo Mahto have been held guilty for the offence committed and punishable under Section 302 I.P.C and sentenced to undergo R.I. for life. During pendency of the appeal, appellant Amardeo Mahto has died and his criminal appeal has abated vide order dated 24.04.2019 passed by this Court.

3. The prosecution case is based upon the written report submitted by Ram Bilash Mahto before the Officer-In-Charge of Mohammadganj Police Station on 13.05.1992 alleging inter alia as follows:-

Informant has stated that today i.e., 13.05.1992 (Wednesday) in the morning at around 10.00 A.M. he went to his paddy filed known as Jirwatar. As soon as he reached his field, he saw the Babul tree in his share of land (after partition of land in the family) being removed by Bijay Mahto and Amardeo Mahto. Informant asked them not to do so, upon which an altercation took place. In the meantime son of informant Arjun Mahto also came there. After his arrival the altercation took a serious turn and both side started hurling abusive language. It is alleged that in the meantime Bijay Mahto has assaulted the informant by means of lathi on the middle part of the head causing bleeding injury and also assaulted the informant on his left elbow by means of lathi. Informant was also assaulted twice by lathi on his buttock. Informant has further alleged that his son Arjun Mahto was also assaulted by Amardeo Mahto (appellant-abated) by means of lathi on the back side of his head; on the right temple region; on the forehead and buttock. Because of assault made by the accused persons both father Ram Bilash Mahto and son Arjun Mahto fell down on the ground. The occurrence has been witnessed by witness Jago Mahto (P.W.2) and Jugari Mahto (P.W.3) and others.

4. On the basis of the written report of the informant Ram Bilash Mahto, Police has registered Mohammadganj P.S. Case No. 13 of 1992 dated 13.05.1992 under Section 323/ 325 I.P.C. Subsequently, after the death of Ram Bilash Mahto, Section 302 I.P.C has been added vide order dated 15.05.1992 Thereafter, during investigation, son of the informant Arjun Mahto also died during treatment at Ranchi.

5. On completion of investigation police has submitted charge-sheet vide number 17 of 1992 dated 31.08.1992 under Section 302/34 of the I.P.C against both the accused persons. Thereafter, cognizance of the offence has taken vide order dated 14.09.1992 and the case has committed to the Court of Sessions vide order dated 19.11.1992.

6. The charge has been framed against both the accused persons under Section 302/34 of the I.P.C vide order dated 06.07.1993. The content of charge has been read over and explained to the accused in Hindi to which they have pleaded not guilty and claimed to be tried. Thus, they were put under trial.

6. In order to prove the case, prosecution has examined altogether 12 prosecution witnesses and also exhibited a number of document up to Ext. 7.

I. Mahesh Mahto, nephew of the informant and a hearsay witness has been examined as P.W.1.

II. Jago Mahto has been examined as P.W.2. He has been named in the F.I.R as a witness to the occurrence.

III. Jugari Mahto has been examined as P.W.3. he is also named in the F.I.R as a witness to the occurrence.

IV. Brij Bihari Mahto has been examined as P.W.4.

V. Langtu Mahto has been examined as P.W.5.

VI. Dr. Mithilesh Prasad Singh, Medical Officer, has been examined as P.W.6. He has conducted the autopsy on the dead body of Ram Bilash Mahto and found a stitched wound 4” in length on mid parietal