ORDER :

1. This appeal is directed against the judgment of conviction and order of sentence dated 23.09.2005 passed by the learned 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 87 of 1999 in connection with Sarawan (Sonaraitharhi) P.S. Case No. 163 of 1998, corresponding to G.R. Case No. 931 of 1998 & T.R. No. 454 of 1999, Deoghar, Jharkhand, whereby and where under the appellants along with one Dindayal Mahto were convicted and the appellant no. 1 Bishwanath Mahto has been convicted u/s 307 of IPC and sentenced to undergo R.I. for 7 years and a fine of Rs. 2000/- (Rupees two thousand) and in case of default of payment of fine Bishwanath Mahto was further ordered to undergo R.I. for three months. Original appellant no. 2 Kumi Mahto (since dead) appellant no. 3 Rajendra Mahto, Appellant No. 4 Yogendra Mahto were convicted for the offence punishable u/s 323 of IPC and sentenced to undergo R.I. for six months and a fine of Rs. 500/- (Rupees five hundred) and in case of default of payment of fine they were further directed to undergo one month Rigorous Imprisonment, the appellant no. 5 Binod Mahto was convicted for the offence punishable u/s 325 of IPC and sentenced to undergo R.I. for three years and a fine of Rs. 1000/- (Rupees one thousand) and in case of default of payment of fine, he was further directed to undergo R.I. for three months.

2. It is found that the among the five appellants one of appellants Kumi Mahto has expired and report to that effect has also been received from the court of District & Additional Sessions Judge-I, Deoghar, from which it appears that out of the five appellants one of the appellants Kumi Mahto has expired as far back as on 10.02.2016 and the death certificate has also been provided by the Karyakari Pradhan – Suresh Kumar Garuav of gram Panchayat Kusumthar, Block Sonaraythadi, District-Deoghar and rest of the appellants are alive.

The learned defence counsel appearing on behalf of the appellants submitted that no close relative has come forward to continue with this appeal on behalf of the appellant Kumi Mahto and, therefore, let this appeal be abated.

The learned A.P.P. for the State submitted that the appellant no. 2 Kumi Mahto has expired and since no close relative has come forward to continue with this appeal on behalf of the deceased appellant, let this appeal be abated.

Having taken into consideration aforesaid facts and submissions of the parties, this appeal is abated with respect to the appellant No. 2 Kumi Mahto, let his name be deleted from the cause title of memo of appeal and this appeal is heard and disposed of and rest of the four appellants are renumbered.

3. Briefly stated the prosecution story, as unfolded in the fardbeyan of the informant Parawal Mahto (P.W. 5) s/o late Khubha Mahto resident of village Bagjhopa P.S. Sonaraitharhi, Distt. Degohar dt. 24.11.1998, and recorded at Sadar Hospital, Deoghar in emergency ward by R.P Chaurasia then the O.C. Sonaraitharhi P.S., was that on 21.11.1998 at about 5 p.m. when he reached near Kali Manda at village Bagjhopa after taking wheat and manure in the meantime Bishwanath Mahto armed with sword came out from field for Arhar and uttered that enemy was in the range so he should have been killed. He assaulted him with sword on his head, he warded off blow of sword and thumb of right hand was cut and also sustained injuries on head. At the same time, Kumi Mahto, Rajendra Mahto, Yogendra Mahto, Binod Mahto, Dindayal Mahto also assaulted with rod and lathi by which he sustained injuries on his person. He became unconscious. On his alarm his brother Ramu Mahto and Shanker Mahto, who were making bundle of paddy came there to rescue him. They were also beaten by the accused persons with lathi, danda and sword. They were also admitted in Hospital with him. He was taken to police station, but he was not fully conscious, therefore, he could not explain about the occurrence and his brother Shanker Mahto explained whatever had taken