S.H.S.ABIDI, J.

1. In Criminal Appeal No. 300 of 1989 all the seven appellants have been convicted under S.148 of the Indian Penal Code and sentenced to two years rigorous imprisonment. Appellant No. 2 - Mokhtar Rai has further been convicted under S.307 and 323 of the Indian Penal Code (for short I.P.C.) and sentenced to six years and six months rigorous imprisonment under the respective counts. Appellant No. 4 Sheoji Rai has also been convicted under S.324, I.P.C. and sentenced to one year rigorous imprisonment. Criminal Appeal No. 306 of 1989 has been preferred by appellant Thakur Rai against his conviction under S .302 and 148, I.P.C. and sentence of rigorous imprisonment for life and two years under respective counts. Both the appeals arise out of the same judgment and they have been heard together and they are being disposed of by this common judgment.

2. According to the fard-beyan (Ext. 4) given by Hari Charan Yadav (P.W. 9) on 27-l-1977 at 8.15 at the Bathan of Phulena Choudhary in village Derarai ke Bangara, police-station Siswan district Siwan to the Sub-Inspector of Police. Md. Nasiruddin (P.W. 14) it appears that on 25-1-1977 at 4 p.m. he had gone to bring fodder for his cattle and his father Phulena Choudhary (P.W. 10) and Lal Mohan Choudhary (not examined) were cutting fodder; younger brother Dwarika Yadav ( P.W. 4), Ram Rekha Yadav (P. W. 3) and Mundrika Yadav (P.W. 2) were uprooting fodder from the field, then from the North they heard sound of Jai Bajrang Bali. Phulena Yadav and Lal Mohan Choudhary came out from Bathan and began to see as to why there was noise. Informant-Hari Charan Yadav further stated that Sampat Rai, Radha Rai, Thakur Rai, Sheoji Rai, Mahatam Rai, Mokhtar Rai, Naresh Rai, Moti Rai and Ram Pravesh Rai came armed with bhala at the bathan and they were abusing Appellants Radha Rai and Sampat Rai said abusing to kill all and the needed money would be spent. Upon this Thakur Rai gave a bhala blow on the left side of the chest of Ramchandra when the victim took out the bhala from his chest he fell down dead. The informant Hari Charan Yadav was assaulted by Naresh Rai by Bhala on the left side of the stomach and his banian (ganji) was torn and the stomach was out. Mokhtar Rai gave bhala blows upon Dwarika Rai and Phulena Rai (P. Ws. 4 and 10). Appellant Sheoji gave two bhala blows to Mohan Rai (P.W.1). The motive for the occurrence was said to be that one day earlier i.e. on 26-l-1977 at 8 a.m. Sampats field was grazed by the she-buffalow of Phulena Rai (father of the informant) for which the father of the informant had apologised and assured that the occurrence would not be repeated but in the evening the accused, forming an unlawful assembly, came and assaulted the injured and killed Ram Chandra. On the basis of this fard-beyan (Ext. 4) the first information report (Ext. 3) was registered at Siwan P.S. on 27-l-1977 at 4.20 p.m.

3. Investigation of the case was taken up by P.W. 14 Md. Nasiruddin, S. I., who went to the spot, recorded the statements of the informant and the witnesses, prepared the inquest report and sent the dead body for post-mortem examination to Siwan Sadar Hospital, besides sending three injured also namely, Mohan Rai, Dwarika Yadav and Phulena Rai (P.Ws.1, 4 and 10) whose medical examination was done by Dr. Shyam Balak Sinha and so the injury reports of Phulena Yadav and Mohan Rai are Exts. 7 and 7/1. Since the condition of P.W.4 Dwarika Yadav was serious, his dying declaration was recorded by Sri R. K. Mishra Judicial Magistrate, Siwan, upon which put his left thumb impression. Ext.12 is said to be the statement of P.W. 4 which is said to have been recorded by A.S.I. Ramekbal Singh (not examined) which was brought to Sisawan police station on 27-l-1977 at 2 p.m. a constable Md. Din for which an entry No . 21 was made in the case diary (but already the fard beyan (P.W. 4)) was recorded at 8 a.m. on 27-1-1977 on the basis of which first information report was already