JUDGMENT :

Ratnaker Bhengra, J.

Heard the parties.

2. This criminal appeal is directed against the Judgment of conviction and order of sentence dated 24.09.2002 passed by the learned Additional District and Sessions Judge, Fast Track Court -Vth, Giridih in Sessions Trial No. 63/91, whereby and where under, the learned court below has convicted the appellant No. 2 Tulsi Mahto and appellant No.3 Ruplal Mahto for the offence under Sections 148, 341 and 324 of IPC and sentenced them to undergo RI for one year under Section 148 of IPC, one month under Section 341 of IPC and RI for three years under Section 324 of IPC. Appellant No. 3 Ruplal Mahto was further convicted for the offence under section 325 of IPC and sentenced to undergo RI for three years. Appellant No.1 Kripa Mahto has been convicted under Section 307 and 341 of IPC and sentenced to undergo RI for three years under section 307 of IPC and Appellant No. 4 Pritam Mahto has been convicted under Sections 341 and 323 of IPC and sentenced to undergo RI for one month under Section 341 of IPC and one year under Section 323 IPC. All the sentences were directed to run concurrently.

3. However, as per communication received by letter No. 3586/2019 dated 23.07.2019 from Principal District and Session Judge, Giridih wherein it is stated that Appellant No.1 Kripa Mahto and Appellant No. 4 Pritam Mahto have passed away. Hence, appeal qua Appellant No.1 Kripa Mahto and Appellant No. 4 Pritam Mahto stands abated.

4. The prosecution case, in brief, as per the written report dated 04.10.1990 of the informant of Deo Narayan Prasad Verma PW-3 is that on 04.10.1990 his father Kishun Mahto was ploughing the land situated in village Jamdiha. In the meantime five accused persons 1. Kripa Mahto, 2. Tulsi Mahto, 3. Ruplal Mahto, 4. Pritam Mahto and 5. Murat Mahto armed with lathi and tangi came there and said his father “why are you ploughing this land?” On this his father replied “the field is mine, why I shall not cultivate it”. Thereupon, accused No.2 Tulsi Mahto tried to cut Kishun Mahto’s right leg’s knee with axe, but his father somehow saved himself. In course thereof, he received bleeding injuries on his knee and blood oozed out. Thereafter, accused Ruplal Mahto gave tangi blow on the left forearm of his father as a result his left arm was broken and blood oozed out. The accused Pritam Mahto and Murat Mahto (since died) assaulted informant's father with lathi on his back and other portion of his body causing swelling over the body and his father fell down on the ground. Then, the accused No.1 Kripa Mahto started to strangulate his throat with a gamcha around his neck with intention to kill him. On hulla of informant’s father witnesses, namely, Parmeshwar Mahto, Magister Singh, Babu Singh, Most. Sabo Devi, Most. Chura Devi and Kishun Singh reached there and rescued him.

5. On the basis of written report, Giridih Sadar P.S. case no. 41/ 1990 dated 04.10.1990 under Section 147, 148, 149, 323, 324, 341 and 307 of IPC was registered against the accused persons. After completing the investigation, charge sheet was submitted and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed against all the accused persons under section 148, 341 and 307 of IPC. Accused Tulsi Mahto and Ruplal Mahto were separately charged under section 148 of IPC and accused Ruplal Mahto was also charged under section 325 of IPC. Trial was held and at the conclusion of the trial the accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

6. The prosecution has examined altogether four witnesses in order to prove its case out of whom PW-3 Deo Narayan Prasad Verma is the informant of the case; PW-1 is Babu Singh; PW-2 is Majister Singh; PW-4 is Dr. Suresh Brahmachari who had examined the injured.

7. Defence has produced documentary evidence, which is Certified copy of judgment of the Judicial Magistrate 1st class, Giridih passed