JUDGMENT (S.B. SINHA, J.)

1. Leave granted.

2. Appellants and one Raghu Manjhi, since deceased, along with four others were tried for commission of offences under Sections 302/149, 307/149, 326/147/148/324 and 326 of the Indian Penal Code.

3. The occurrence is said to have taken place on or about 31.10.1997 at about 2.00 p.m. at village Simultand within the jurisdiction of Chandan Kiyari (Bangaria Assistant Thana) Police station in the district of Bokaro. First Information Report (FIR) in relation to the said incidence is said to have been recorded at 3.45 p.m. in the complainant's (Suresh Kumar Das, P.W.10) house. In the FIR, it was alleged by the complainant that when his father Nagender Nath Das (deceased) and uncle Manpuran Das were sitting in front of their house after taking meal, he heard a noise (hulla) whereupon he came out and saw Ravishwar Manjhi, son of Berda Manjhi armed with `iron tenta', Jaleshwar Manjhi, son of Veda Manjhi armed with `tangi', Kala Chand Manjhi, son of Berda Manjhi, Santu Manjhi son of Balesar Manjhi armed with `bhala', Raghu Manjhi son of late Nakul Manjhi armed with `bhala' and Umakant Rajak armed with `bhala' were assaulting his father and uncle. He raised an alarm whereupon his other uncle Gour Das came to rescue them. Jaleshwar Manjhi assaulted him also with a `tangi' as a result of which he had received an injury on the palm of his right hand. Manpuran Das, his uncle sustained injuries on his left armpit, on left knee joint and on the left side of the head. Jaleshwar Manjhi caused tangi blow to his father. When he wanted to take his father with him then Ravishwar Manjhi pierced iron tenta (ballam) on the right side of the back of his father and fled away. The motive for commission of offence was stated to be objection by his father from creating nuisance by the accused in front of their house. In the FIR, it was said to have been recorded that the dead body of Nagender Nath Das was lying on the road and Gour Das was lying in injured condition and Puran Das was lying in the state of unconsciousness.

4. P.W.17-Shankar Ram A.S.I., however, stated that on the said date he had received a phone call informing him that a fight was going on at village Simultand. On the basis of the said information, he recorded a `Sanha' and proceeded towards the place of occurrence. However, admittedly, the said `Sanha' has not been produced. He, furthermore, did not disclose as to from whom he received the information.

5. Indisputably, another fard-beyan of Ravishwar Manjhi (accused No.5) was recorded by one Alok Kumar, the Investigating Officer of the present case. He, however, had not been examined by the prosecution.

6. Both the FIRs were lodged at about 10.15 p.m. in the Chandankiyari Police Station. Whereas FIR No. 104 was recorded against the appellants under Sections 147, 148, 149, 323, 324, 326, 307 and 302 of the Indian Penal Code, FIR No. 105 was registered against the complainant party under Sections 147, 148, 149, 323, 324, 342, 448 and 354 of the Indian Penal Code.

7. The case of the appellants as stated in the said FIR No. 105 lodged by the accused No. 5 is that the deceased had trespassed into his house and tried to outrage the modesty of Chinta Muni Majhian, wife of his younger brother and when she raised alarm, appellants tried to save her. The deceased, however, was armed with a tangi wherewith he assaulted on both the appellants. He called all his family members who also were armed with lethal weapons. Appellants were assaulted causing injuries to them. The injuries sustained by the appellants Ravishwar Manjhi and Jaleshwar Manjhi were examined by the SHO Chandankiyari Police Station. He prepared injury reports of the appellants and sent them to the hospital for further treatment.

8. The injured, however, were sent to the private clinic of P.W. 11 - Dr. Ratan Kejriwal. Admittedly, at Chandankiyar