The main legal point established in the judgment is the evaluation of evidence to determine the nature of injuries and the presence of intention or knowledge to cause death, leading to the alteration of the conviction from Section 304 part II/34 to Section 323/34 of the IPC.

JUDGMENT :

This appeal is preferred against the Judgment of Conviction and order of sentence dated 23.08.2003 passed by the learned 9th Additional Sessions Judge, Hazaribagh in S.T. No.528 of 2001, arising out of Gola P.S. Case No.16 of 2000, corresponding to G.R. No.955 of 2000, whereby and where under accused appellants Shambhoo Mahto and Balram Mahto were held guilty for the offence punishable under sections 304 part II/34 of IPC, for which they were directed to undergo RI for 7 years and to pay a fine of Rs.1000/- each and in default of payment of fine they were further directed to undergo RI for two months.

2. The prosecution case arose in the wake of fardbayan of one Makhan Thakur recorded on 19.05.2000 at 15.15 pm at Gola Hospital, Gola. It has been alleged therein that the informant on Friday dated 19.05.2000 at 12.30 pm was getting his house repaired with the help of labourers, meanwhile Chatru Mahto, Balram Mahto and Shambhoo Mahto came up there with lathi, danda and began to scold him and stopped him from doing repairing work saying that the land was belonging to them, but when the informant said that it was his land, the aforesaid three accused persons began to assault him by lathi and as a consequence he sustained injury on his head and when his son Pancham Kumar Thakur, wife Panchami Devi, daughters Jyanti Devi and Sarswati Devi came to rescue, the accused persons injured them also. Meanwhile Dewanand Mahto and Pramod Mahto also arrived there with lathi in their hands and entered into the house and on being protested they also assaulted the informant and his family members and then several people from the village gathered there and rescued him being assaulted more. The reason assigned by the informant for the quarrel was landed property dispute.

3. On the basis of fardbayan lodged by the informant, Gola P.S. case No. 16/2000 was registered under Sections 323, 448, 341/34 of IPC and later on added section 304 of the IPC against the accused and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance was taken and the case was committed to the Court of Sessions 9th Additional District & Sessions Judge, Hazaribagh, framed charge on 31.05.2002 under Sections 426, 337, 304 of IPC and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

4. Heard Anoop Kumar Mehta learned defence counsel appearing on behalf of the appellants and learned APP Mr. Azeemuddin appearing on behalf of the State.

5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the conviction and sentence passed by the learned trial court is contrary to the fact and circumstance of the case and contrary to the settled principles of law and learned court below failed to appreciate the vital omission and commissions in the depositions of PWs. It has been submitted by the learned defence counsel that the learned court below erroneously and illegally treated the fardbeyan of the informant as dying declaration under section 32 of the Evidence Act whereas admittedly the deceased informant died after 4 days of the occurrence and that too after taking treatment at primary health centre when he came back to his home. It has also been contended on behalf of the appellant that admittedly the alleged incident took place due to landed property dispute but the learned trial court in a criminal trial has evaluated the documentary evidences of the properties in dispute as whom the disputed land was belonging and further no independent witnesses have been examined in this case when admittedly co-villagers nor any labourers whose names were given by P.W.s were examined and further there is a major discrepancy about the place of death of the deceased as P.W.1 to P.W.4 have said that the informant died at Gola Hospital on 24.5.2000 but P.W.8 I.O. stated that