1. The appeal is filed against the judgment and order of Sessions Case No. 158/1996 which was pending in the court of Additional Sessions Judge, Aurangabad. The appellants were charged for the offences punishable under section 147, 148, 307 of the Indian Penal Code. They are convicted of the offences punishable under section 147, 148 and 324 red with sec. 149 of the Indian Penal Code. Both the sides are heard. This Court has perused original record.

2. In short, the facts leading to the institution of the appeal can be stated as follows. Accused Nos. 2 and 3 are real brothers of accused No.1. Other accused are also relatives of accused No.1. Accused No.5 died during pendency of the case. Agricultural land of accused No.1 Tulshiram is situated in village Bolegaon Tq. Gangapur. Between lands of Tulshiram and of complainant Bankat there is bandh which is also Shiv of two villages viz. Bolegaon and Balapur. Land of Bankat is situated within limits of village Balapur. Though accused Nos. 2 to 6 are relatives of Tulshiram, they were living separate in their respective houses which were constructed in their fields. House of Tulshiram and house of Bankat are also situated in their respective fields.

3. Two months prior to date of incident, Tulshiram destroyed some portion of the aforesaid common bandh by ploughing the bandh. The incident in question took place on 3/2/1996 at about 7.00 p.m.. The complainant and his brothers Shivsingh and Ramsingh went to Tulshiram to ask him as to why Tulshiram had ploughed the bandh. Quarrel started between Tulshiram on one side and these three brothers on the other hand. The allegations are made that after starting of quarrel, other accused came there and then Tulshiram gave blows of axe on the heads of complainant and his two brothers. The allegations are made that the other accused took part in the incident and they used sticks. The complainant and his brothers shouted for help and some persons living in the vicinity rushed to the spot and they rescued complainant and his brothers.

4. Bankat and his brothers came to be shifted to Government Hospital, Gangapur as they had sustained severe injuries. Report of Bankat came to be recorded in the hospital and Crime came to be registered for aforesaid offences. Two police officers made investigation of the case. All the accused came to be arrested. Spot panchanama came to be prepared. Blood was found on the spot. During investigation, Tulshiram gave statement under section 27 of the Evidence Act and then he produced axe used in the incident which was kept in the house of one Apparao. The clothes of the complainant and other injured came to be taken over. As there were blood stains on the clothes of some accused, their clothes were also taken over.

5. On the same day, the side of Tulshiram gave report against Bankat and his brothers in respect of the same incident and counter case came to be filed against Bankat and his brothers on the basis of this report. Bankat and his brothers came to be acquitted in the said case.

6. Bankat (P.W.1) has given evidence that he and his brothers had gone to Tulshiram at about 6.00 p.m. to 6.30 p.m. to ask him as to why he had caused damage to the common bandh. He has deposed that when they started questioning Tulshiram, the other accused came there and then Tulshiram gave blows of axe to him, to Ramsingh and to Shivsingh. He has given evidence that other accused used sticks against them. He has deposed that he became unconscious as he sustained bleeding injury to head. He has deposed that his relatives shifted him to Gangapur hospital where his report at Exh. 16 came to be recorded. Exhibit 16 is duly proved in the evidence of Bankat and it is consistent on material points with substantive evidence of Bankat.

7. Cross examination of Bankat (P.W.1) shows that the houses of accused are situated in their respective lands and they live separate from each other. The evidence shows that the incident, due to which quar