BABULAL MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants have challenged the judgment of their conviction and sentence dated 30th June, 2008 as passed against them by the learned 5th Additional Sessions Judge, Giridih in S.T. No. 55 of 1990. The appellant No. 1 was convicted for the offence under Section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years while the appellant Nos. 2 and 3 were convicted for the offence under Section 324 of the IPC and sentenced to undergo rigorous imprisonment, for one year each.

(2.) THE case of the prosecution stated briefly is that on the alleged date of occurrence all the accused persons including the present appellants formed an unlawful assembly being armed variously with weapons and they attacked the informant -party and as a result of assault by them one person, namely Mahadeo Singh sustained fatal injury to which he succumbed. Another injured, namely, Ajay Singh was referred to the hospital for his medical treatment. Thereafter on the basis of the informant's Fardbeyan a. case was registered for the offence under Sections 147, 148, 149, 307 and 302 of the IPC and the Police after concluding the investigation submitted charge -sheet for the above mentioned offences against all the accused persons. On cognizance of the offences being taken, the accused persons were put on trial.

(3.) ON considering the evidences adduced by the prosecution, the trial Court recorded its finding that the evidences do not make out the offence under Section 302 of the IPC. However, on the basis of direct and specific evidence against one of the accused persons, namely, Babulal Mahato that he had caused the fatal injury to the deceased and also considering the nature and circumstances of the occurrence, the genesis and other factors related to the occurrence, had recorded its finding that the said accused Babulal Mahato is guilty for the offence under Section 304 Part II of the IPC. As regards the present appellant Nos. 2 and 3, the trial Court relied upon the statement of the three witnesses, which suggested that the appellant No. 2, Parmeshwar Mahto had assaulted the witness Ajay Singh and the appellant No. 3 Dulo Sao had given a 'pharsa' blow on the person of the deceased Mahadeo Singh, which was though not fatal. The trial Court proceeded to record its finding of guilt against the appellant Nos. 2 and 3, Parmeshwar Mahato and Dulo Sao for the offence under Section 324 of the IPC and sentenced them to imprisonment for one year while sentencing the co -convict Babulal Mahato to rigorous imprisonment for five years. It is relevant to note here that during the pendency of this appeal, the appellant No. 1 Babulal Mahato had died and, therefore, the present appeal proceeds only against the surviving appellant Nos. 2 and 3, namely Parmeshwar Mahto and Dulo Sao.