JUDGMENT :

Shree Chandrashekhar, J.

Hirodih PS Case No. 49 of 1993 was lodged on the basis of the fardbeyan of Basudeo Yadav which was recorded at about 8:15 AM on 18.06.1993 against the accused persons, namely, Triloki Mahato, Hukum Mahto, Rama ‘Mahato, Tribhuan Mahto, Ahmad Mian and Khalil Mian. After the investigation a charge-sheet was submitted against Triloki Mahato, Hukum Mahto, Rama Mahato and Tribhuan Mahto and charges under section 302/34 of the Indian Penal Code for causing death of Jhari Mahto and section 307/34 of the Indian Penal Code for attempt to cause death of Jagdish Mahto were framed against them on 10.11.1997. Hukum Mahto and Tribhuan Mahto have been separately charged under section 302 of the Indian Penal Code for causing death of Jhari Mahto and Hukum Mahto has been charged separately under section 307 of the Indian Penal Code for attempt to cause death of Jagdish Mahto. About ten years thereafter, a charge under section 302/34 of the Indian Penal Code was also framed against them for causing death of Jagdish Mahto, vide order dated 25.10.2007.

2. During the trial, the prosecution has examined nineteen witnesses; Ladho Devi and Gorwa Devi who were declared hostile have been examined again after an additional charge under section 302/34 of the Indian Penal Code was framed.

3. Dr. B.P. Singh has conducted the post-mortem examination and found injuries caused to Jhari Mahto by sharp-cutting weapon as well as hard and blunt substance. He has also found injuries to Jagdish Mahto caused by hard and blunt substance. He has observed that some of the injuries to Jhari Mahto and Jagdish Mahto were caused on vital parts of the body. Dr. Kaushlendra Kumar has examined Meena Devi and found three lacerated wounds on her person which were simple in nature.

4. On the basis of the materials laid before him, the learned District & Sessions Judge-I, Giridih Jias held that the occurrence has taken place due to a land dispute; both parties were claiming ownership over the same piece of land and; a major part of the land in question in Plot No. 1812 was in possession of the prosecution party. He has further held that PW-1, PW-5, PW-11 and PW-12 are not eye-witnesses, however, PW-8, PW-10, PW-18 and PW-19 are reliable and trustworthy witnesses. The prosecution has proved the place of occurrence, the time of occurrence and motive behind the occurrence and, accordingly, Hukum Mahto, Rama Mahato and Tribhuan Mahto were held guilty under section 148 and section 302/34 of the Indian Penal Code.

5. Mr. Arwind Kumar, the learned counsel for the appellants submits that in view of the injuries caused to three appellants on admitted facts the appellants can at best be convicted and sentenced under section 304 Part II of the Indian Penal Code.

6. To fortify his submission, the learned counsel has relied upon the judgment in "Darshan Singh v. State of Punjab" reported in (2010) 2 SCC 333.

7. Per contra, Mr. Vineet Kumar Vashistha, the learned APP has submitted that intention of the appellants to cause death of Jhari Mahto and Jagdish Mahto can be gathered from observations of the doctor who has conducted post-mortem examination that some of the injuries to the victims were found on vital parts of the body.

8. The case of the prosecution is that on 18.06.1993, in the early morning Triloki Mahato was ploughing the field and his sons armed with deadly weapon along with two other persons, namely, Ahmad Mian and Khalil Mian were guarding the field. When Jhari Mahto who was passing through the field objected the accused persons started assaulting him. On his raising cries his family members rushed there and they were also assaulted by the accused persons.

9. PW-9, Dr. B.P. Singh has conducted post-mortem examination on 18.06.1993 and found the following injuries on Jhari Mahto:

"I. Incised wound on mid of scalp 2 ½" x ½ " x scalp deep;

II. Lacerated wound on frontal region of scalp 2"x ¼" x skin deep;

III. Lacerated wound on back right side 2 ¾ " x ¼" x mus