JUDGMENT :

This appeal is preferred against the Judgment of Conviction and order of sentence dated 25th July 2003, passed by the learned Additional Sessions Judge, FTC-VIII, Hazaribagh, in S.T. No.315 of 1987, whereby the accused appellants Kalpu Mahto, Premdhari Mahto and Tribhuwan Mahto have been convicted for the offence punishable under Sections 148 and 326 of IPC and sentenced to undergo R.I. for one year u/s 148 of IPC and 2 ½ years u/s 326 of IPC and further the convicts Govind Mahto, Jugan Mahto (since deceased during pendency of appeal) and Rameshwar Mahto are sentenced to undergo imprisonment for a period of six months under Section 147 IPC and R.I. for 2 ½ years u/s 326 of IPC and all the aforesaid accused persons were also sentenced to pay a fine of Rs.500/- each u/s 326 IPC and in default of payment of fine, one month imprisonment was further awarded.

2. It appears from the record that the accused-appellant no.2 Jagan Mahto s/o Late Khedan Mahto had expired during pendency of this appeal and the learned APP has filed an affidavit to that effect by which it appears that the said accused-appellant no.2 Jagan Mahto s/o Late Khedan Mahto has died about 14 years ago and the local Mukhiya and the member of the Panchayat Samiti had issued Death Certificate which are the part of the said affidavit filed on behalf of the State by APP which is also found from the report dated 13.5.19 received from the Principal District and Sessions Judge, Hazaribagh which is available on the record and hence his name is deleted from the Cause Title of Appeal as the appeal has abetted against the said the accused -appellant no. 2 Jagan Mahto in the light of the submissions advanced by the learned defence counsel appearing on behalf of the deceased accused-appellant no. 2 Jagan Mahto as no close relative wanted to continue with this appeal on his behalf.

3. The allegations against the appellants arose in the wake of the written report of informant that he was harvesting potato crops from the land of Muneshwar Mahto. His son Braj Kishore was sitting on a Rickshaw brought by Muneshwar Mahto. At the relevant time, the accused Degan Mahto (since deceased) was going with pair of Bullock which, started unusual behaviour seeing the rickshaw. Then the said Degan Mahto since deceased started abusing his son and him also. In the meantime, other accused persons reached there armed with lathi, gandasa and have assaulted the informant and his son. Both of them sustained head injury and other injuries and thereafter they left. The incident took place on 07.02.87 at about 6 pm and then he along with his injured brother went to police station for lodging the case.

4. On the basis of the written report of the informant, the FIR was lodged and the case was registered against the accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance of the offences was taken and the case was committed to the Court of Sessions. The accused persons pleaded not guilty to the charges explained to them and denied the allegations levelled against them and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

5. Heard Mr. Pramod Kumar, learned defence counsel appearing on behalf of the appellants and Mr. Bishambhar Shastri, APP appearing on behalf of the State.

Arguments on behalf of the learned defence counsel

6. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the impugned Judgment of conviction and order of sentence is illegal, arbitrary and perverse to the law and in the facts and circumstances of this case. It is contended that the learned trial court failed to appreciate the evidence of witnesses, who are gotias (agnates) and cannot say the relevant date, day and month about the occurrence and gravely erred in accepting the contradictory e