JUDGMENT :

[Sujit Narayan Prasad, J.]

1. Reference may be made to the order dated 23.01.2023, in pursuance thereto, following order was passed:

“Mr. A.K. Kashyap, learned senior counsel assisted by Mr. Rakesh Ranjan, appearing for the appellants in Criminal Appeal (DB) No. 5 of 1994, has submitted on instruction that the appellant No. 3, namely, Kirti Narayan Mandal, has been informed to be dead on 13.12.2019 and, as such, he wants to file an affidavit to that effect.

Although an affidavit has been filed on behalf of the State in pursuance to the order dated 02.04.2019 passed in the proceeding of this appeal, the State is directed to file further affidavit about the survival status of the appellant.

Let a report be called for from the Chief Judicial Magistrate of the Judgeship of Godda about the survival status of the appellants. The report to that effect be furnished on or before the next date of hearing.

Let this order be communicated through the Principal District & Sessions Judge, Godda to the court of Chief Judicial Magistrate, Godda for compliance.

Let these matters be listed on 06.02.2023.”

2. Pursuant thereto, an affidavit has been filed on behalf of the State wherein it has been stated that the appellant no. 3, namely, Kirti Narayan Mandal (Criminal Appeal (DB) No. 5 of 1994) has died on 13.12.2019. Such statement has been made on the basis of the certificate as contained in letter dated 05.02.2023 supported by the death certificate.

3. Learned counsel appearing for the appellant has submitted that he is having no instruction to pursue the appeal through the legal representative of the original appellant no. 3, namely, Kirti Narayan Mandal.

4. Considering the fact about death of appellant no. 3 and there is no legal representative to purse the appeal, therefore, the appeal so far as appellant no. 3 is concerned stands abated.

5. However, this Court has passed an order on 23.01.2023, whereby and whereunder, the report was also called for from the Chief Judicial Magistrate, Godda but as per the office note dated 03.02.2023 no report has yet been received.

6. Registrar General of this Court is directed to seek explanation from the Chief Judicial Magistrate, Godda as to why report has not been submitted and place it before the Hon'ble Chief Justice on the administrative side.

7. Since both the appeals arise out of the common judgment of conviction and order of sentence, as such they are taken up together and are being disposed of by this common order.

8. These appeals have been filed under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction dated 17th December, 1993 and order of sentence dated 20th December, 1993, passed by learned Additional District & Sessions Judge, Godda, in Sessions Trial No. 161 of 1992/56 of 1993, by which the appellants were found guilty of the offence punishable under Section 302 read with Section 34 of the Penal Code, 1860 and were convicted for the offence punishable under Section 302 of the Penal Code, 1860 and sentenced to undergo life imprisonment for the offence punishable under Section 302/34 of the Penal Code, 1860.

9. As per fardbeyan of the informant, namely, Yogendra Kumar Thakur (P.W. 1), as recorded before Sub-Inspector of Police (P.W. 8) in the night of 26.09.1991 at about 20 : 00 hours at Government Hospital, Meharma, the prosecution case in brief, is that:

The informant had a Trekker (Jeep) bearing Registration No. BR-10L/6104 was registered in the name of mother of the informant. On 25.09.1991 at about 4.00 P.M., the driver of the vehicle, namely Suresh Pd. Gupta after loading passengers on the said Trekker at Firozpur Patichak Bus Stand was going towards Pirpainti. In the meantime, the Clerk of said Bus Stand and Ashok Ram and one another person, whose name was not known to him but to whom he can identify by face, started quarreling with the driver and asked to unload the passengers from Trekker and do as he directs. Upon this, there was hot talk in between th