S.K.Sharma, J.

1. Initially five persons have filed this appeal but one of them namely, Pyare Rai, died during pendency of this appeal. So his name has been expunged from the array of the appellants vide order dated 10-1-2008.

2. Appellant No. 1 Mahadeo Rai was convicted under Section 307 of the Indian Penal Code and was sentenced thereunder to undergo rigorous imprisonment for five years and other appellants namely, Sahdeo Rai, Subhash Rai alias Ranjan Kumar and Pannu Rai were convicted under Section 147 of the Indian Penal Code and out of these three appellants, two appellants namely, Sahdeo Rai and Pannu Rai were sentenced to undergo rigorous imprisonment one year each and appellant Subhash Rai alias Ranjan Kumar was given the benefit of the provisions of Probation of Offenders Act and was directed to be released on execution of probation bond of Rs. 2000/- with two sureties of the like amount each for a period of one year with a direction that in the meantime, he shall keep the peace and be of good behaviour failing which he shall be called upon by the Court during that period to appear and to receive sentence by judgment dated 13/14-7-1993 passed by Additional Sessions Judge XII, Patna in Sessions Trial No. 17 of 1988.

3. Prosecution case relates to Jakkanpur P.S. case No. 606 of 1987 under Sections 148, 324 and 307 of the Indian Penal Code which was initiated on the basis of fardbeyan of Suraj Rai (P.W. 6) who gave his statement on 29-5-1987 at 10-00 p.m. in P.M.C.H. Surgical Emergency Ward stating that on 29-5-1987 at 10.00 a.m. when his father Sri Bhagwan Rai (P.W. 1) went near the land over which a proceeding under Section 144 of the Code of Criminal Procedure was going on which is situated in the west of his door, saw that six persons engaged in sinking the Chapakal. On seeing his father, the accused persons started abusing and on the exhortation made by accused Punna Rai and Pyare Rai (since dead), accused Mahadeo Rai who was having pharsa in his hand, gave 2/3 pharsa blows on the head of his father causing injuries on his head and he received injuries in his right hand in saving himself. Thereafter Sahdeo Rai, Teka Rai and Subhash Rai caught his father and Mahadeo Rai assaulted him with pharsa on head and hands. Thereafter informants father fell down and became unconscious. On hulla, the informant and others went to the place of occurrence and thereafter informants father was brought to P.M.C.H. for treatment and at the time of giving fardbeyan, his father was unconscious. On the basis of said fardbeyan, the matter was investigated into arid after completion of investigation, charge sheet was submitted under the aforesaid sections, The cognizance was taken and the case was committed to the Court of sessions. The trial proceeded, Charge under Section 307 of the Indian Penal Code was framed against accused Mahadeo Rai and under Sections 307/149 of the Indian Penal Code was framed against all the accused persons. Charges were explained to them who pleaded innocence and preferred to face the trial.

4. The defence of the appellants was of their innocence and also that no injury was received by the injured in the manner and time and he might have received injuries in connection with other acts and due to enmity, they have been implicated in this case. The defence has also examined two witnesses. In order to prove its case, the prosecution examined altogether 7 witnesses. They are P.W. 1 Bhagwan Rai, P.W. 2 Umesh Kumar, P.W. 3 Tikam Rai, P.W. 4 Bhagwan Das Mahto, P.W. 5 Dr. Ramesh Prasad Singh, P.W. 6 Suraj Rai and P.W. 7 Deo Nath Bhagat.

5. P.W. 6 is the informant of this case and he has stated in his evidence that on 29-5-1987 at 10.00 a.m. when his father went to fetch water from the well, he saw that the accused persons were engaged in sinking the chapakal. Out of the said accused persons, accused Panna Rai and Pyare Rai (since dead) started abusing him and thereafter accused Mahadeo Rai who was armed with pha