Chandra Shekhar Jha, J.—At the outset, it is submitted that appellant no. 2 namely, Rampravesh Singh died during the pendency of present appeal. Accordingly, present appeal stands abated against him.

2. In view of aforesaid, now this appeal survives against appellant no(s). 1, 3, 4 and 5.

3. The present appeal has been preferred by the appellants-convicts under Section-374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the impugned judgment of conviction dated 28.06.2004 and order of sentence dated 29.06.2004 passed by learned Additional Sessions Judge (Fast Track Court No. III), Aurangabad in Sessions Trial No. 305 of 1990/194 of 2002, whereby the concerned Trial Court has convicted the appellants under Section 148, 307 and 149 of the Indian Penal Code (for short ‘IPC’) and appellants have been sentenced to undergo R.I. for two years under Section 148 of the IPC and ten years R.I. under Section 307/149 of the IPC. All aforesaid sentences ordered to run concurrently.

4. The brief facts of the prosecution case as it is apparent from fardbeyan of informant namely, Harihar Singh that his uncle Nand Kishore Singh resided with the informant promising to transfer his land property to the informant. It is alleged that on 25.04.1989 at about 5:30 P.M. when informant along with his son Umesh Singh and Vijay Singh was separating paddy grains from the hay, his brother Sheonandan Singh armed with gadasa, Ram Pravesh singh armed with sabbal and Binay Kr. Singh, Rajiv Kr. Singh and Ranjan Kr. Singh all sons of Sheonandan Singh having been respectively armed with pistol, bhala and lathi surrounded the informant and his sons. They assaulted the informant and Vijay Singh with their weapon as a result they sustained injuries and bleeding. Rajeev Kr. Singh hurled bhala on the informant’s head due to which there was bleeding. Umesh Singh son of informant started fleeing away as a result Binay Kr. Singh started firing upon him, but he escaped unhurt. On the alarm raised by Umesh Singh his brother Anuj Kumar Singh reached at the P.O. upon which appellant Ram Pravesh Singh assaulted him with sabbal. Informant’s uncle Nand Kishore Singh also ran from his courtyard to the informant’s grain yard and he was assaulted in head by gadasa of accused Sheonandan Singh which was witnessed by Satyendra Singh, Upendra Singh and Surendra Singh. The informant has alleged that since his brothers Sheonandan Singh and Ram Pravesh Singh felt annoyed believing that his uncle Nand Kishore Singh shall transfer his share of land to the informant, therefore, all the accused having formed an unlawful assembly armed with deadly weapons assaulted the informant and his two sons as well as uncle Nand Kishore Singh, with the intention to kill them infurtherance of their common intention.

5. On the basis of informant’s fardbeyan a case was registered as Town P.S. Case No. 131 of 1989 against all above named five accused persons for the offence punishable under Sections 147, 148, 149, 323, 324, 341 and 307 of the Indian Penal Code, where Section 27 of the Arms Act was also added by order dated 29.04.1989.

6. Learned Chief Judicial Magistrate, Aurangabad on the basis of materials collected during investigation took cognizance and committed this case to court of Sessions on 25.07.1990 for its trial and disposal. Learned trial court accordingly framed charges against appellants-accused, which upon explanation to accused/appellants, pleaded as “not guilty” and claimed trial.

7. To substantiate its case, before learned Trial Court the prosecution has examined altogether 8 witnesses. Three defence witness were also examined in defence. They are:—