The main legal point established in the judgment is the consideration of familial relationship, lack of criminal antecedents, and the prolonged duration of the criminal prosecution in deciding the appropriate sentence for the appellants.

ORDER :

1. This appeal is directed against the judgment of conviction dated 16.06.2003 and order of sentence dated 17.06.2003 passed by the Additional Sessions Judge, Fast Track Court-III, Garhwa by which the appellants Vijay Baitha, Parmeshwar Mali and Keso Mali (died during the pendency of this appeal) have been sentenced to undergo R.I. for one year under section 148 of IPC only and further the appellant no. 5 Tetri Devi (died during the pendency of this appeal) was convicted to sentenced to undergo R.I. for 3 years u/s 325/149 IPC. The appellant no. 1 Abhimanyu Baitha and appellant no. 4 Subodh Kumar Baitha have been convicted and sentenced to undergo R.I. for five years u/s 325/149 IPC.

2. The prosecution case arose in the wake of fardbeyan of Chuttur Baitha whose statement was recorded on 17.08.1993. The said informant alleged that on 16.08.1993 at about 5.00 p.m. his nephews Abhimanyu Baitha and Subodh Kumar Baitha came to his house and questioned him as to why he had tied the she buffalo at their place. Out of fear, he immediately removed the she-buffalo and tied her inside his house. Thereafter, they threatened him that today in the evening when his son Nandu Baitha would return from Itwa (Haidernagar) after teaching he would be beaten near the river. At the time of return of his son Nandu, the informant went east of his village to Koel river but his son did not turn up. Thereafter, he came to know that his son would not return back today, then he proceeded to return back then he saw that Subodh Kumar Baitha, Abhimanyu Baitha, Tetri Devi, Vijay Baitha, Keso Mali and Parmeshwar Mali all variously armed with different weapons were sitting on the bank of the river and surrounded him and thereafter assaulted by lathi and danda. Subodh Kumar Baitha hit him on his left leg under the knee while Abhimanyu Baitha hit him near his right eye. Vijay Baitha hit him on his waist and when he fell down due to the said assault, Subodh Kumar Baitha tried to throttle him due to which he was having pain around his neck, thereafter having heard halla, Bali Ram Pandey, Triveni Pandey and Parmeshwar Upadhyay of village Bhandaria, Mandari and Checharia respectively who were coming from that way saved him from further assault. Thereafter, his co-villagers arrived who first took him to his house. Later, he came to Garhwa Sadar Hospital for treatment and thereafter his statement was recorded by the police.

3. On the basis of the aforesaid fardbeyan of the informant Chuttur Baitha, a formal FIR was drawn, the investigation of the case commenced, after completion of the investigation, the charge sheet was submitted and the case was committed to the Court of Session for trial. Learned trial court framed the charges for the offences punishable under sections 307, 323/34, 147, 148, 149 of IPC and after concluding the trial the impugned judgment of conviction and order of sentence was passed which is under challenge.

4. It appears from the record that during the pendency of this appeal, appellant no. 5 Keso Mali and appellant no. 6 Tetri Devi had died as per the report received from the Superintendent of Police, Garhwa and none of the close relatives of the said appellant nos. 5 & 6 have come forward to make an application to take leave of this Court to continue this appeal and accordingly, learned counsel for the appellants submitted that let this appeal be abated with respect to the dead appellants namely appellant no. 5 Keso Mali and appellant no. 6 Tetri Devi and the learned defence counsel appearing on their behalf did not raise objection. Hence, their name were deleted from the Cause Title Of Memo Of Appeal.

5. Heard Mr. J.S. Tripathy, learned counsel for the appellants and Mr. Suraj Verma, learned A.P.P. for the State.

Arguments on behalf of the appellants:

6. Learned counsel for the appellants assailing the impugned judgment of conviction dated 16.06.2003 and order of sentence dated 17.06.2003 contended that there is no legal evidence in this case t