JUDGMENT :

MOHIT KUMAR SHAH, J.

The present Appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 24.06.1993 and 26.06.1993 respectively, passed in Sessions Trial No. 253 of 1983 arising out of Uchkagaon P.S. Case No. 6 of 1980 dated 22.06.1980 registered for the offence under Sections 147/148/149/307/302 of the Indian Penal Code and Section 27 of the Arms Act, passed by the learned 1st Additional Sessions Judge, Gopalganj, Shri Binod Mohan Prasad.

2. At this juncture, it would be relevant to mention that though the appeal was preferred by 15 appellants, however, during the course of pendency of the present appeal, as many as 11 appellants have died, hence, the present appeal survives qua four appellants, namely, 1. Ramashraya Singh, 2. Amod Singh, 3. Satya Narain Awadhiya & 4, Binay Kumar.

3. By the aforesaid judgment dated 24.06.1993, all the appellants have been held guilty and convicted under Sections 302/149 of the Indian Penal Code and as far as appellant no.1 is concerned, he has been further held guilty and convicted under Section 307/34 of the Indian Penal Code. The learned trial Court by an order dated 26.06.1993 has sentenced all the appellants under Section 302/149 of the Indian Penal Code to undergo imprisonment for life and as far as appellant no.1 is concerned, he has been further sentenced under Section 307/34 of the Indian Penal Code to undergo sentence of rigorous imprisonment for 10 years.

4. The short facts of the case are that the fardbeyan of Yogendra Prasad Srivastava son of late Sheonandan Prasad Srivastava of village Mahaicha, P.S. Uchkagaon, District Goptalganj was recorded at Gopalganj Sadar Hospital on 22.06.1980 at about 11.00 A.M. by one Chandrika Prasad Singh, Officer-Incharge, Uchkagaon Police Station. In the fardbeyan Shri Yogendra Prasad Srivastava disclosed that one case under Section 145 Cr. P.C. was going on in between him and his co-villager, namely, Shri Nand Kishore Prasad pertaining to land situated in the village and the said land was in his possession from much before as also he had planted corn and Arahar. On 22.06.1980 at about 7.00 A.M. in the morning, various persons of the village Mahaicha Nayatola, P.S. Uchkagaon, District Gopalganj, namely, (1) Harihar Singh, armed with farsa, (2) Ramsurat Singh, armed with bhala, 3. Girdhari Prasad, armed with farsa, 4. Ramashray Singh, armed with Khocha, 5. Kapildeo Singh, armed with farsa, 6. Baban Singh, armed with farsa, 7. Daroga Singh, armed with bhala, 8. Sukhdeo Singh, armed with lathi, 9. Jagannath Singh, armed with Bhala, 10. Amod Singh, armed with Farsa, 11. Rampati Awadhiya, armed with country made pistol, 12. Lakhan Lal Awadhiya, armed with farsa, 13. Raghopati Awadhiya, armed with Khocha, 14. Ramdeni Singh, armed with lathi, 15. Nand Kishore Prasad, armed with lathi, 16. Binay Kumar, armed with country made pistol and 17. Satyanarayan Awadhiya, armed with lathi, had arrived at the aforesaid land and by means of spade (Kudal), started making ridge and had also called for bullock for ploughing the field. Upon seeing the aforesaid events, the brother of the informant, namely Mankeshwar Prasad as also his nephew, namely, Ajay Kumar Shrivastava went to the said field and told them not to make the ridge as also asked them as to why they were doing such thing, whereupon the accused persons had threatened to kill them and had said that Nand Kishore Prasad was in possession of the said land, hence the sale deed should be executed in favour of the accused persons and they had come there to capture the said land whereafter on the orders of Nand Kishore Prasad, the accused Harihar Singh had assaulted the brother of the informant, namely, Mankeshwar Prasad by farsa and upon being hit, he fell down. Then, the accused persons, namely, Ram Surat, Girdhari Prasad, Ramashray Singh (appellant no.1), Kapildeo Singh, Daroga Singh, Nand Kishore Prasad had started assaulting