The absence of intent to kill and the nature of injuries are pivotal in determining culpability under IPC Section 304.

JUDGMENT :

RAJESH KUMAR, J.

1. The captioned appeals arise out of a common judgment, hence the same have been clubbed and heard together and disposed of with a common judgment.

2. Heard Mr. Vijay Kumar Sharma, learned Amicus Curiae (In Cr. Appeal No.1211/ 2004), Mr. Shree Nivas Roy, learned counsel for the appellant (In Cr. Appeal No.1313/ 2004) and Mr. Bishwambhar Shastri & Mr. Shiv Shankar Kumar, learned A.P.Ps.

3. Both the appeals have directed against the Judgment of conviction dated 06.07.2004 and order of sentence dated 08.07.2004, passed by learned Additional Sessions Judge, Fast Track Court – IV, Giridih, in Sessions Trial No.267 of 2003, arising out of Dhanwar P.S. Case No.13 of 2003, whereby the appellant namely, Mantu Tiwary has been convicted for the offence under Sections 341 / 304 of the Indian Penal Code and has been directed to undergo rigorous imprisonment for five years with fine of Rs.500/- for the offence under Section 304 IPC and one month simple imprisonment under Section 341 whereas the appellant namely, Ashok Tiwari has been convicted for the offence under , 323 & 304/ 34 of the Indian Penal Code and has been directed to undergo rigorous imprisonment for three years with fine of Rs.500/- under Sections 304 / 34 and one month simple imprisonment under . All the sentences were directed to run concurrently.

4. The criminal law has been put into motion by lodging an F.I.R being Dhanwar P.S. Case No.13 of 2003 against three persons including the presents appellants under Sections 341 / 323/ 324/ 307/ 34 I.PC. The F.I.R has been lodged on the fardbeyan of informant namely, Arath Tiwary (since deceased). Lateron, Section 302 IPC has also been added.

The brief facts of the case, as stated in the F.I.R., is that on 26.01.2003 at about 05:00 p.m., the informant Arath Tiwari alongwith Pradeep Tiwari returned to his house from village Kathwara where they had gone for 'Jajmanika'. Thereafter, Pradeep Tiwari went to the house of Ashok Tiwari and Mantu Tiwari and told them to take their share in the articles receive in 'Jajmanika'. Thereafter, Ashok Tiwari, Mantu Tiwari and Paramshila Devi (wife of Ashok Tiwari) came to the house of the informant and showed their resentment as to why the informant had gone for 'Jajmanika'. Thereafter, they scattered the things which were received in 'Jajmanika' and went back. After sometime, at about 8:00 p.m. all the three accused persons again came back. They were armed with lathi and 'tangi'. They assaulted the informant. Paramshila Devi pulled his leg by the handle of umbrella due to which he fell down, Ashok Tiwari brutally assaulted him by lathi and Mantu Tiwari gave 'tangi' blow on his head with an intention to kill him. Thereafter, the informant became senseless and the accused persons fled away. On regaining his senses, the informant alongwith his family members went to police station and lodged F.I.R. Later on the informant died due to the said assault.

5. On the basis of the said fardbeyan, the police, after investigation, has submitted charge-sheet against three accused persons. Upon which cognizance has been taken and charge has been framed against the appellants under Section 341 / 323/ 302/34 IPC and the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried.

6. To substantiate the prosecution story, altogether eight witnesses have been examined.

7. P.W.-1, Dr. Rajesh Kumar, is the doctor, who has conducted post-mortem over the dead body of the deceased. All the injuries were found ante-mortem in nature caused by hard and blunt s