MADHAVENDRA SARAN, J.

1. This appeal has been preferred against the judgment and order dated 29.4.1993 passed by Sri B.B. Verma, 3rd Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial no. 112/1990 arising out of Shikarpur PS case no. 25/1990 whereby he convicted appellant Sadre Alam u/s 304 (Part II) of Indian Penal Code (in short as Code) and sentenced him to undergo R.I. for 10 years as also u/s 323 of the Code for a period of three months. However, the sentences have been ordered to run concurrently.

2. The prosecution case, in short, is that informant Kuer Yadav on 3.2.1990 at about 12 Noon when he returned back home from the distillery he was informed that appellant along with others was constructing house on his land. The informant went there and found that appellant had encroached his part of land in constructing the house. The informant requested the appellant to stop the construction as they had encroached part of his land but his request was ignored and he was threatened that if he interefered he shall be assaulted. When the son of informant tamed. Munna Yadav stopped the appelant and others he was assaulted by the appellant with Chhura at his hand. In the neanwhile, informants another son Ram keshwar Yadav snatched the chhura from the hands of the appellant upon which the appellant picked up a tangi (axe) and struck on the head of the informant who sustained injuries. He further stated that his father Sukar Yadav was also assaulted who succumbed to the injuries in the hospital. The other son of informant named Prem Yadav was also assaulted. On hulla the villagers arrived and saved informants party. The appellant and others, however, managed to run away. The alleged occurrence took place due to land dispute. The fard bayan of Informant was recorded on 3.2.1990 at 13.00 hours by the police at Narkatiyaganj hospital. On the basis of fard bayan of the informant the police registered Shikarpur PS case no. 25/1990 and after concluding investigation submitted charge sheet. Cognizance was taken and the case was committed to the Court of Sessions for trial. After trial learned 3rd Additional Sessions Judge, West Champaran, Bettiah convicted and sentenced the appellant as mentioned above. Against the said conviction and sentence the appellant has preferred the present appeal before this court.

3. The defence version was that on 3.2.1990 at about 8 AM the accused persons were repairing their shed on their own lands. The informant and his sons came there and demolished the shed and assaulted appellant Sadre Alam and Harun Ansari with knife, farsa and lathi for which Harun lodged FIR with Shikarpur police and the case was registered as Shikarpur PS case no. 26/1990 and in this case also charge sheet was submitted u/ss 306 and 307 of the IPC. According to accused the informant and his sons were aggressors and they had taken law in their own hands.

4. To bring home the charge the prosecution examined 12 witnesses who are PW1, Md. Aftab Alam, PW2, Sudhanshu Jha, PW3, Dr. B.K. Bhutt PW4, Tej Narayan Das, PW5, Laxmi Yadav, PW6, Dhrub Yadav, PW7, Prem Prasad Yadav, PW8, Nathuni Rai, PW9, Munna Prasad Yadav, PW10, Dasrath Yadav, PW11, Kuerdeo Yadav and PW12, Ram Keshwar Yadav. The defence also examined 2 witnesses in defence who are Md. I jhar (DW1) and Awadhesh Prasad (DW2).

5. Dr. B.K. Bhutton on 5.2.1990 was posted as Civil Assistant Surgeon in M.J.K. Hospital, Bettiah. On the same day at 11.30 AM he performed post mortem examination on the dead body of Sukar Yadav son of Bandhu Yadav and found following ante mortem injuries on his person;

(i) Swelling 2x1" over parietal region of scalp in the middle;

(ii) Eccymosis 1"x 1/2" on the left cheek;

(iii) Abrasion 1"x 1/2" in medial side of right hand.

On dissection he found that there was communicated fractures on both parietal bones. The meninges were lacerated and large quantity of blood clots were present. In the opinion of doctor the death was due to shock a