1. This criminal appeal has been preferred against the judgment of conviction dated 08.09.2000 and order of sentence dated 11.09.2000 passed by learned 4th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 773 of 1990 by which and whereunder he convicted the appellants for the offences punishable under Sections 426 and 307 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one month for the offence punishable under Section 426 of the Indian Penal Code and to undergo rigorous imprisonment for five years for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. However, both the sentences were ordered to run concurrently and the period already undergone by the appellants was ordered to be set off against the above stated sentences.

2. In brief, the prosecution case, is that P.W. 1, Kabir Choudhary gave his Ferdbeyan to S.I., Nathnagar police station on 28.06.1988 at about 11:30 hours in Budhiya Hospital, Nathnagar to this effect that on the same day at about 09:00 A.M. appellants being armed with deadly weapons were cutting the boundary of his field whereupon he went there and forbade them to do so but appellant no. 2, namely, Faudi Tanti ordered the others to assault him and after that appellant, Faudi Tanti gave one spade blow to him causing injury on his left hand. Furthermore, appellant no. 3, namely, Arjun Tanti gave farsa blow to him causing injury on his head. The rest appellants as well as one accused Pancha Tanti assaulted him with lathi. He further stated that his nephew Kamal Choudhary (P.W. 4) and his sons, namely, Arjun Choudhary (P.W. 5) and Janardan Chodhary (P.W. 6) came to his rescue but appellant no. 4, namely, Geno Tanti hurled bhala blow to Kamal Choudhary as a result of which he sustained injury on his right hand whereas appellant no. 3, namely, Arjun Tanti assaulted him with farsa causing injury on his head. The rest persons also assaulted his sons Arjun Choudhary and Janardan Choudhary with lathi. The witnesses, namely, Bhumi Choudhary (P.W. 3), Tulsi Choudhary (P.W. 2) and Naresh Choudhary came there and witnessed the occurrence.

3. On the basis of aforesaid ferdbeyan, Nathnagar P.S. Case No. 123 of 1988 for the offences punishable under Sections 147, 148, 149, 324, 307, 323 of the Indian Penal Code was registered and accordingly, formal first information report was drawn up against the appellants and accused, Pancha Tanti for the above stated offences. The matter was investigated by the police and after completion of investigation, police submitted charge sheet against the appellants and accused, Pancha Tanti for the offences under Section 307 and other minor sections of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.

4. All the appellants and co-accused, Pancha Tanti were put on trial and accordingly, all the appellants along with co-accused, Pancha Tanti were charged for the offences punishable under Sections 426, 307 read with Section 149 of the Indian Penal Code whereas appellant Faudi Tanti was separately charged for the offence punishable under Section 307 read with Section 109 of the Indian Penal Code. The charges were denied by the appellants.

5. In course of trial, prosecution examined, altogether, seven witnesses and also got exhibited injury reports as Exhibit-1 series.

6. During pendency of the trial, accused Pancha Tanti died and accordingly, the proceeding against him was dropped.

7. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence and claimed their false implication. The defence also examined one witness who proved para 17 of case diary as Exhibit-A.

8. From perusal of statements recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that defence of the appellants was total deni