JUDGMENT :

Sujit Narayan Prasad, J.

1. The instant appeal under section 374(2) of the Code of Criminal Procedure is directed against judgment of conviction dated 07.04.1998 and the order of sentence dated 13.04.1998 passed by the learned 5^th Addl. Sessions Judge, Hazaribagh in Sessions Trial No. 105 of 1991 whereby and whereunder the appellants, named above, have been convicted under sections 148, 302/34 and 307/34 of the Indian Penal Code and sentenced to undergo RI for life under section 302/34 of the Indian Penal Code, RI for 10 years under section 307/34 of the Indian Penal Code and RI for 3 years under section 148 of the Indian Penal Code and all the sentences shall run concurrently.

2. Before proceeding further, it is pertinent to mention that the appellants, namely, Jagdish Nayak, Hulo Nayak and Rama Nayak have died during the pendency of the instant appeal and, as such, the present appeal qua the aforesaid appellants were abated vide order dated 06.04.2026, passed by this Court.

Factual Matrix

3. The prosecution case was instituted on the fardbayan of the informant Tulsi Nayak (P.W.-5) son of late Atwari Nayak of village Choubey, P.S Barkattha, District-Hazaribagh recorded on 05.07.1990 at 11 hrs., at Choubey Middle School.

4. The informant has stated in his fardbeyan that on 05.07.1990 at about 5:00 AM, he had gone towards Tara Ahar for easing. There he heard halla coming out from the side of Middle School. On hearing halla, as soon as, he went to the north of the middle School, he saw accused persons, namely, Kishun Nayak armed with tangi; Jagdish Nayak armed with lathi; Gurucharan Nayak armed with berchha; Ganesh Nayak armed with lathi; Mathura Nayak armed with tangi; Chatri Nayak (since dead) armed with lathi; Hulo Nayak armed with lathi, Rama Nayak armed with berchha and Munna Devi armed with tangi, had surrounded his father Atwari Nayak (deceased) from all around and were assaulting his father on the road.

5. The Informant further alleged that just before he reached there, his two brothers, namely, Sahdeo Nayak (P.W.-3) and Rameshwar Nayak (P.W.-1), had reached there and were trying to save their father. The informant by raising halla tried to save his father and his brother. At this, the accused persons chased him to assault and threatened him to kill. Then, informant out of fear did not go there and went near his new house and began raising halla from there. His father wanted to run away from there to save his life, then accused Kishun Nayak and Mathura Nayak with tangi and berchha respectively assaulted on his father’s head with intention to kill him as a result of which his father fell down.

6. Thereafter, the accused persons, namely, Jagdish Nayak (since dead), Gurucharan Nayak, Ganesh Nayak, Chatri Nayak (since dead), Hulo Nayak (since dead), Rama Nayak (since dead) and Munna Devi with their weapons, lathi, berchha and tangi continued assaulting his father. His both brothers fell on his father and covered him, but, the accused persons continued assaulting his father. On halla, Nakul Choudhary (P.W.-2), Nanhak Nayak and informant’s mother Bandhani Devi (P.W.-4) came there and on seeing them, accused persons fled away. When informant along with aforesaid persons reached near his father, he found his father in pool of blood and later on he died. He had injuries over his head with tangi and berchha and both the hands of his brothers Rameshwar Nayak (P.W.-1) was fractured and blood was oozing out from the mouth and nose of his brother Sahdeo Nayak (P.W.-3).

7. The informant had stated the cause of occurrence was land dispute relating to partition of land with the accused persons, who are their agnate. It is further alleged that on 04.07.1990 the cattle of the accused person had grazed the paddy seedlings in the field of the informant and the informant had given the cattle in the cattle pond, which annoyed the accused persons and to fulfill the old grudge committed murder of his father and also attempted to commit murder