JUDGMENT :

1. The present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) has been filed against the judgment and sentence dated 31.07.1990 passed by Additional Sessions Judge, Bali (hereinafter referred to as “the trial Court”) in Sessions Case No. 18/1988.

2. The facts as stated in the F.I.R. are that at 9 am on 26.03.1988, one Chunaram @ Chuniya (hereinafter referred to as “the complainant”) and some of his family members went to the field co-farmed by them and the appellant, and the women accompanying Chuniya started to clean the harvest of mustard seeds (Raida), to which the appellant objected. The appellant threatened the complainant and his accompaniers of dire consequences and left the field.

3. The appellant, along with other co-accused viz., Mang Singh, Kundan Singh, Bheek Singh, Hukam Singh and Footar Mal, returned with lathis and iron pipes and engaged in a violent scuffle with the complainant and others namely Jana, Kanaram, and Dharmaram.

4. A report in the Roznamcha (Ex. P-5) was recorded at the instance of the complainant at 12:15 pm on the same day noticing that the appellant and other co-accused persons assailed him and his accompaniers with the intent of killing them. On the basis of such report, a case under sections 307, 147, 148, 149, 447 and 323 of the Indian Penal Code (hereinafter referred to as “IPC”) came to be registered against the accused persons.

5. During the investigation, medical examination of the injuries of Chunaram, Dharmaram, Kanaram and Jana was got conducted by the police. As fate would have it, Jana succumbed to his injuries and passed away, whereafter, a postmortem report was obtained in relation to Jana and section 302 of IPC was accordingly added to the case.

6. On 06.05.1989, the trial court framed following charges against the accused persons under sections 447, 148, 302, 323/149, 325 of IPC as the accused persons had pleaded “not guilty” and claimed a trial :-

“(i) You committed unauthorized criminal encroachment in the possession of Chuniya Kumhar resident of Banwli at 9 am on 26-3-1988 and thus, you committed an offence punishable under section 447 of the Indian Penal Code.

(ii) You, in consultation with your other five co-accused on the said date, at the said time and at the said place, formed an unlawful assembly, armed with deadly weapons, for the fulfillment of the common objective and thus you have committed the offence of section 148 of the Indian Penal Code.

(iii) With the intention of killing injured Jana on the said date, the said time and the said place, you hit him with an iron pipe and injured him in the head due to which he died and by beating him up with an ordinary blunt object intentionally, you have committed an offence punishable under 302 Indian Penal Code.

(iv) You were a member of the unlawful assembly at the said time and place on the said day, in the fulfillment of the common objective of the unlawful assembly, Hakji, Footarmal, Kundan Singh, Mang Singh and Bhik Singh beat up Dharma and Kana with blunt weapons due to which Dharma got simple injuries while Kana got simple & grievous injuries. Being a member of the unlawful assembly, you are also responsible for the act of your co-accused under section 149 of the Indian Penal Code and thus you have committed the offence under sections 325 and 323 read with section 149 of the Indian Penal Code.

(v) On the said day, at the said time and place, you were a member of the unlawful assembly, in the fulfillment of the common objective of the assembly, you assisted accused Bhik Singh, Mang Singh, in causing simple injuries on the body of Chuniya with blunt weapon. You, being a member of the unlawful assembly, are responsible for the act of your co-accused and thus you have committed an offence under section 323 read with section 149 of the Indian Penal Code”

7. During the trial, the prosecution produced a total of 48 witnesses, including the