MIHIR KUMAR JHA, J.:–This appeal is directed against the judgment of conviction and sentence dated 18.7.1989 passed by the 5th Addl. Sessions Judge, Siwan in S.Tr.No. 11 of 1987, whereby and whereunder the five appellants, namely, Jitan Ri, Rabindra Rai, Kabindra Rai, Chandeshwar Rai and Rajeshwar Rai have been convicted under sections 302/149 and Section 147 of the Indian Penal Code and have been sentenced to undergo Rigorous Imprisonment for life as well as R.I. for one year respectively though both the sentences have been directed to run concurrently.

2. It has to be noted at this place itself that the trial court had also convicted co-accused Hira Rai and co-accused Ekbal Rai for offence under sections 302 and 148 of the Indian Penal Code sentencing them to undergo R.I. for life and also R.I. for two years but their appeal on account of their death during the pendency of this appeal has stood abated as recorded in the order of this Court dated 14.9.2011.

3. The prosecution case, in brief, as per First Information Report recorded at the instance of Suresh Singh (P.W.6) on 5.9.1986 at 2.30 P.M. is that on the same day at about 11 A.M. in the morning while he along with his brother Laxman Singh (deceased) were weeding the crops of paddy in the southern western flank of his house, his agnates Hira Rai (since dead) armed with farsa, Ekbal Rai (since dead) armed with farsa, and all these five appellants, namely, Jitan Ri, Rabindra Rai, Kabindra Rai, Chandeshwar Rai and Rajeshwar Rai, armed with lathi had arrived over there and having abused them it was Ekbal Rai who had given the first farsa blow over his brother Laxman Singh (deceased) as a result where Laxman Singh had suffered injury and cried in pain. It is further alleged by the informant that thereafter co-accused Hira Rai (since dead), had also caused a farsa blow to him and his right knee got injured and he too had fallen down and started crying. It is also alleged that Hira Rai (since dead) thereafter had given another farsa blow on the person of the informant causing injury in his right thigh. The informant has also stated that Hira Rai (since dead) thereafter had also caused another injury on his brother Laxman Singh by farsa, as a result whereof both brothers had fallen down separately but even thereafter all the accused persons including these appellants kept on assaulting them indiscriminately by their respective weapons i.e. farsa and lathi.

4. The informant has claimed that on hulla raised by them, Bhulotan Rai (not examined), Raghunath Rai (not examined), Kapoor Chand Rai (P.W.2) and Baleshwar Rai (not examined) had arrived at the place of occurrence and had seen the occurrence. The informant has also stated that having caused injury on both Laxman Singh and him Hira Rai had said that both of them have been done to death and after this they had also left the place of occurrence. In the F.I.R. the informant had also claimed that as his brother having several injuries on his person had died at the spot, he could not bring the dead body to the police station and had left it in the field while starting for the Police Station in an injured condition alongwith his villager Haribansh Raut for lodging the case. The motive for the said occurrence in the F.I.R. itself has been stated to be a old dispute relating to a field which was in the name of his mother Deshapati which was in their cultivating possession but was sought to be forcibly occupied by the appellants and others by dispossessing them and on account of this alone they were assaulted by the accused persons including the appellants by means of farsa and lathi.

5. On the basis of the aforementioned information given by the informant, to which Kapoor Chand Rai (P.W.2) was the attesting witness, the police case Bhagwanpur P.S.Case No. 0060/1986 was instituted wherein the police after completing investigation had submitted a charge sheet against all the seven accused persons including these appellants and Hira Rai and

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