P. S. Mishra, J.

Criminal appeals by the convicted persons and the two Government Appeals, one against acquittal and the other for enhancement of sentence, arise out of a common judgment and raise contentions both of facts and law which overlap each other. They have been heard together and are being disposed of by a common judgment,

2. In an occurrence taking place on 25.12.1978 in village Usrahi. P.S. Jainagar, District Madhubani, 4 persons were killed and many other persons sustained injuries by lethal weapons. The occurrence took place at about 7 a.m. over a ridge between revisional survey plot nos. 10425 and 10426, area 4 kathas 2 Dhurs belonged to P.W. 22, Rajgir Gohiwar. He had grown sugarcane in the said field and the crop had been cut and removed by him before the occurrence. Survey plot no. 10425 having an area of 10 kathas belonged to Mahadeo Yadav (accused appellant) and he was in possession there of. He had grown wheat in the eastern half of the said land and there were small plant of wheat present when the occurrence took place. He had also grown Tisi and khesari plants in the other half Another plot in the vicinity (plot no 10424) belonged to Sonfi Yadav in which he had grown sugarcane and yet another plot in the vicinity, plot no. 10456 belonged to Deolal Gohiwar who had grown Tisi and khesari crops in his land. Plot Nos. 10425 and 10426 were divided by a ridge between them. A few days before the occurrence, according to the prosecution some laboures of Mahadeo Yadav (appellant) had cut a small portion of the said ridge from the south. Ajablal Gohiwar who was the Mukhiya of the local Gram Panchayat, was informed by Rajgir Gohiwar (P.W.22) about the cutting of the ridge at the instance of Mahadeo Yadav. The Mukhiya intervened and at his intervention the ridge was restored on 25.12.1978 at about 7 a.m. P.W. 2, Shubh Narayan Yadav learnt that Mahadeo had gone with a mob of 40-45 persons to demolish that ridge. He informed the Mukhiya and others about it. The mukhiya, P.W.2 and many other persons with them proceeded to the fields. While they were in the way, a mob of 40-45 persons with lethal weapons emerged from a sugarcane field (plot no. 10424) Ajablal and others, when they saw the mob, ran towards west to save themselves. but the mob chased them. When, however, Ajablal and others were in plot no 10456 they were surrounded by the members of the mob and assaulted. According to the prosecution appellant Ramkhelawan assaulted Rajdeo Gohiwar with a Farsa, appellant Mahendra Banrait assaulted Laxmi Thakur with a Farsa, appellant Rajendra Banrait assaulted Asarfi Gohiwar with a Farsa and Ajablal, who had fled further was assaulted in plot no. 10425 by appellant Uttim Banrait, Mahadeo Yadav and Matwar Yadav and others. Some other persons who were with Ajablal and other victims, were also assaulted by the member of the mob.

3 After assaulting the Mukhiya and others the members of the mob fled away. According to the prosecution, besides Rajdeo Gohiwar, Laxmi Thakur and Asarfi Gohiwar and Mukhiya Ajablal P.W.S. 1, 2, 3, 4, 5 and 7 were also assaulted in the occurrence.

4. On a telephonic message that two parties at village usrahi were ready to clash with each other and so there was an apprehension of the breach of the peace, the officer in charge of Jainagar Police Station (P.W.17) made an entry in the station diary and proceeded with some other Police officials to prevent breach of the peace. The police party reached at the village at 11.45 a.m. Rameshwar Thakur (P.W. 8) made statements about the Occurrence and on his Fardbeyan (Ext. 14) P.W. 17 took up the investigation of the case and a formal F.I.R. was drawn up at the Jainagar Police Station. An assistant Sub Inspector of police held inquest over the dead bodies of Laxmi Thakur, Rajedo Gohiwar and Asarfi Gohiwar who were found kept on cots in the fields of Deolal Gohiwar bearing R.S. No. 10456 and prepared inquest reports (Exts. 15 to 16/2) P.W. 17 inspected the