JUDGMENT :

1. This appeal is directed against the judgment of conviction and order of sentence dated 30.03.2005 passed by the learned Additional Sessions Judge III, Rajmahal, Sahibganj in Sessions Case No. 152 of 2000, Sessions Trial No. 70 of 2002 in connection with Kotal Pokhar P.S. Barharwa P.S. Case No. 86 of 1999, corresponding to G.R. Case No. 415 of 1999, Sahibganj, Jharkhand, whereby and where under the learned trial court convicted the accused appellants for the offence punishable u/s 323 of the Indian Penal Code, 1860 and further they were given benefit of section 3 of the Probation of Offenders Act, 1958

2. Heard Mrs. J.K. Mazumdar, learned counsel assisted by Ms. Anushka Sharma, learned counsel for appellants and Mrs. Vandana Bharati, learned A.P.P. for the State.

3. Learned counsel appearing on behalf of the appellants has submitted that this appeal is directed against the impugned judgment of conviction and order of admonition dated 30.03.2005 whereby and where under the appellants were convicted for the offence punishable u/s 323 of the Indian Penal Code, 1860 and further they were given benefit of section 3 of the Probation of Offenders Act, 1958 and accordingly, they were released after due admonition without awarding sentence to the appellants.

4. It appears from the record that during the pendency of this case, two of the appellants have died and the learned A.P.P. has filed a counter affidavit on behalf of the State stating therein that two of the appellants namely the appellant no. 1. Narayan Chandra Ray @ Narayan Chand Rai and appellant no. 2. Hari Shankar Rai @ Hari Rai have died and along with the counter affidavit their death certificates have also been filed and from the perusal of the death certificates it appears that the appellant no. 1. Narayan Chandra Rai @ Narayan Chand Rai has expired on 28.07.2009 and appellant no. 2. Hari Shankar Rai @ Haria Rai has expired on 22.04.2022 and, therefore, it is submitted by the learned A.P.P. that let this appeal be abated with respect to these two appellants, since, no near relative has come forward to continue with this appeal.

5. Learned counsel appearing on behalf of the appellants submitted that since two of the appellants have died, let this appeal be abated with respect to the two appellants as no close/near relative or kith and kin has come forward to continue with this appeal, accordingly, this appeal gets abated with respect to these two appellants. The office is directed to delete their name form the cause title of the memo of appeal.

6. The rest of the appellants are renumbered as Dinesh Kumar Rai as appellant no. 1 and Khoka Rai as appellant no. 2.

7. The prosecution story arose in the wake of written report before the O/C of Kotal Pokhar P.S. Barharwa P.S. given by the informant Bhagwati Prasad Sah, who alleged that on 30.10.1999, at about 12:00 A.M., he (the informant) along with Mansa Rajwar was coming on Kotal Pokhar-Bijoypur Road and while they were crossing Sihulidanga village, they saw that accused Narayan Chand Rai and his three sons were harvesting the paddy crop grown by the informant in his field. At that time, the accused Narayan Chand Rai saw the informant and ordered his sons to confine the informant, then the accused persons confined and started assaulting the informant with lathi. During occurrence Hari Shankar Rai @ Hari Rai gave a lathi blow on the knee of the informant so he fell down on the road. Thereafter, the accused persons carried the informant to the paddy field and again assaulted there. Accused Narayan Chand Rai started pushing his throat by lathi with intention to kill him but on hulla, witness Bijoy Sah, Chunni Lal Sah and Rahman Mian came there. It has also been alleged that accused Narayan Rai snatched Rs. 350/- from his pocket. The occurrence was witnessed by so many persons and out of them, one Ramjee shah rushed to Kotal Pokhar P.S. and informed the police. On his information the Police came to the place of occurrence. I