PRADEEP KUMAR,J. - (1.)BOTH appeals are directed against the judgment of conviction and order of sentence, dated 14th November, 2002, passed by Shri Nalin Kumar, District and Sessions Judge, Fast Track Court III, Garhwa in Sessions Trial Case No. 379 of 1994, by which judgment, he convicted three appellants. Appellant No. 1, namely, Indra Deo Yadav RI for five years and appellants No. 2 and 3, namely, Anand Deo Yadav and Bandhu Yadav for RI of three years.
(2.)IT is submitted by the learned counsel for the appellants that it will appear from the evidences that there is no nexus between the assault which is alleged to have taken place on 18th May, 1994 when the informant and other witnesses went to the house of the appellant Indra Dev Yadav and his death on 22th May, 1994. Moreover the delay of four days in lodging the FIR has not been properly explained.
In that view of the matter the conviction of the appellant under Section 304(II) is also bad in law and fit to be set aside and on the other hand learned counsel for the State has opposed the prayer and submitted that it will appear from the medical evidence that due to the injuries caused on 18th May, 1994, the deceased died due to the assault and hence, the same is the immediate result of the assault and delay has been explained by the informant in his FIR itself.

(3.)AFTER hearing learned counsel for the parties and going through the record it appears that prosecution case started on the basis of Fardbean given by the informant, P.W.-2 (Dhani Dubey) on 22th May, 1994 stating therein that on 18th May, 1994, his brother-Harendra Dubey had gone to the market for purchasing various articles for Tilak Ceremony of younger brother-Fulendra a Dubey to Bhawanathpur market itself. After purchasing one quintal of rice he gave the same to the accused Indra Dev Yadav and also gave Rs. 40/- as fare of his bullock-cart for taking the rice to his house and he stayed there for purchasing other articles. When his brother Harendra Dubey returned in the night and inquired about the rice then it was stated by his family members that no rice has come. Then he along with his brother Singari Ram and Ramjanam Bhuiyan went to the house of Indra Dev Yadav and inquired about the rice and asked him as to why he has not delivered the rice, to which the appellant stated that "what he will do if he will not give riceand there was some argument and thereafter accused-Indra Dev Yadav went inside and came back with his two brothers namely, Anand Deo and the other accused Prabhu alias Bandhu Yadav armed with lathi and started assaulting Harendra Dubey with lathi. When the informant and other wanted to save their brothers, they were also assaulted. Harendra Dubey was thrown on the field and all the three brothers one by one assaulted him on the stomach by their respective legs. He became unconscious and subsequently brought to the house. As there was Tilak Ceremony on the very next day of his brother i.e. on 19th May, 1994, they got busy at the home itself. On 20th May, 1994 he complained acute pain in his stomach. On 21th May, 1994, while he was being carried to Hospital at Garhwa, he expired, on the way.