ORDER :

Navneet Kumar, J.

1. This appeal is directed against the judgment of conviction dated 15.07.2003 and order of sentence dated 18.07.2003 passed by the Additional Sessions Judge, Fast Track Court- Vth, Giridih by which the surviving sole appellant- Darbari Yadav is convicted for the offence punishable u/s 304 r\w section 34 of I.P.C. Further the learned trial court awarded sentence to undergo five years rigorous imprisonment to the sole surviving appellant Darbari Yadav u/s 304 r/w section 34 of I.P.C.

2. It is appearing from the record that the appellant no.1 Jodhi yadav had died during pendency of this appeal and no close relative has come forward to make an application to continue with this appeal, and it has been urged on behalf of the deceased appellant no. 1 Jodhi Yadav to get this appeal abated and as such this appeal stood abated with respect to the appellant no.1 Jodhi Yadav and his name has been deleted from the Cause Title of this Appeal. The rest sole surviving appellant is Darbari Yadav whose appeal is being disposed off.

3. The prosecution story arose in the wake of the written report dated 26.03.1995 of Dasrath Yadav (P.W.7) under which it was alleged that on 26.03.1995 at about 7.00 A.M. the above named two accused persons had beaten up his father Bandhan Yadav with tangi and lathi, due to which his left thigh was fractured besides injuries on head. The accused Jodhi Yadav was armed with tangi whereas the accused Darbari Yadav was armed with lathi with which they caused the said injuries. The occurrence is said to be witnessed by Lalo Yadav (P.W.1), Manoj Yadav (P.W.2) and Lutan Yadav of the village who had intervened and rescued the injured. The reason behind the occurrence, as mentioned is that his father Bandhan Yadav had got one bigha land in his share, out of which ten kathas is used as bari and ten kathas as field. It is mentioned that the accused Jodhi Yadav (since deceased) accompanied by his son, accused-appellant Darbari Yadav had started construction of house on the ten kathas bari land of his father, which was objected by his father upon which the accused person assaulted him which caused to him serious injuries. There is also a separate fardbeyan of the informant recorded by ASI Hari Shanker Pandey on 30.03.1995 at Bela Tand hospital which indicated that during the course of treatment the injured Bandhan Yadav died on 29.03.1995.

4. It further appears that on the basis of the written report (Ext. 1), a formal FIR was drawn and subsequently section 302 of I.P.C. was added in the FIR by the order dated 04.04.1995 and after conclusion of the investigation, the charge sheet was submitted and the case was committed to the court of sessions. The learned trial court after concluding the trial convicted the appellant for the offence punishable u/s 304/34 IPC by the impugned judgment of conviction dated 15.07.2003 and order of sentence dated 18.07.2003 which is under challenge.

5. Heard Mr. Pankaj Kumar, learned Amicus Curiae appearing for the appellant and Mrs. Niki Sinha, learned A.P.P. for the State.

Arguments on behalf of the appellants:-

6. Assailing the impugned judgment of conviction and order of sentence the learned counsel appearing on behalf of the appellant submitted that the learned court below without properly considering the evidence of witnesses wrongly held the appellant guilty u/s 304/34 of IPC and the same is contrary to law and against the evidence on record. It has been contended that the learned trial court has not analyzed the evidence brought on record by the prosecution and has come to erroneous finding and thus erred in holding the appellant guilty. It has further been pointed out that the learned trial court has failed to establish the time, place, genesis, FIR and involvement of the appellant beyond all reasonable doubts and thus the charges leveled against the accused appellant is not proved beyond all reasonable doubt. Further, it has been contended that neither the inquest report