Judgment

PALEKAR, J:- This is an appeal by special leave from the judgment dated September 27, 1965 of the Patna High Court setting aside an order of acquittal passed by the learned Assistant Sessions Judge, Chapra and convicting the six accused and sentencing them to different terms of imprisonment.

2. Ten persons were put up before the learned Sessions Judge on charges under Sections 147, 148, 323,324, 326,307 and last two also r/w 109-IPC. The offences were committed in two incidents one following the other and arising out of it. Plot No. 1187 of village Bareja, a garden land, was in the possession of Shyamdutta Tiwari P. W. 11 and his co-sharers who were all Tiwaris. The plot originally belonged to the family of Mishras - a widow in which, one Gharbarna Kaur, had alienated the same in favour of one of the Tiwaris. The plot originally belonged to the family of Mishras - a widow in which, one Gharbharna Kaur, had alienated the same in favour of one of the Tiwaris. The appellants are Mishras. The Mishras filed a suit against the alienees for a declaration that the widow was not entitled to alienate the land and in that suit, which was filed in 1944, it was declared that the alienation was not binding on the Mishras after the death of Gharbharna Kaur. Since Gharbharna Kaur was living, the possession of the land continued with the Tiwaris and it was in that right that Shyamdutt Tiwari and his co-sharers were in possession of the land.

3. On 31st March, 1965 Shyamdutt Tiwari cut an old and dry tree in that garden for the purpose of fuel. The idea was to cut up the tree into small logs and to take them home for being used as fuel. Next day i.e. on April 1, 1965 at about 6.00 A.M. Shyamdutt received information that the Mishras, namely, the appellants and others were likely to remove the wood of the tree and so he, in the company, of some other cosharers went to the garden. There he saw the six appellants plucking and collecting fuel from the tree, Shyamdutt objected, where upon there was an altercation between him and the appellants which resulted in appellant Jainarain ordering his companions to kill Shyamdutt. On that signal the appellants took out weapons hidden by them in the bushes and started an assault on Shyamdutt. Appellant Kashi Naresh who had a bhala in his hand threw it aiming at the stomach of Shyamdutt but it did not hit him as Shyamdutt leaped up and the bhala passed through the gap between the legs. Appellant Balram thereupon struck Shyamdutt with his bhala on the upper portion of the leg. Appellant Mandeo who wielded a Farsa struck it on the head of Shyamdutt. As a result of that blow Syamdutt fell down and thereupon appellant Suraj struck Shyamdutt with his bhala on the right side of his chest. Shyamdutt then turn over, whereupon appellant Satya Narain hit him with a bhala on the hip. The others who were with Shyamdutt picked him up and took him to the Chapra hospital.

4. In the meantime Shyamdutt s nephew Girdhar who learnt about the assault came to the place of occurrence. By this time some of the Mishras had departed but other Mishras had taken their place and according to the prosecution there was an assault on Girdhar.

5. After his arrival at Chapra hospital, Shyamdutt was examined by Dr. Mishra P. W. 10 who found that Shyamdutt s condition was serious and there was danger to his life. Steps were, therefore, taken for recording his dying declaration. It was recorded by a Magistrate on the same afternoon at about 2.25 P.M. (Ext. 7). In the evening the Sub-Inspector of the local Police Station at Chapra came there and recorded the statement of Shyamdutt and the First Information Report was drawn up at Manjhi Police Station which had jurisdiction over village Bareja where the assault had taken place. In the meantime the injured Girdhar was also brought to the hospital and on the information given by him investigations started simultaneously with regard to both the incidents. After completing the investigations, the