D.N. Upadhyay, J.

1. This appeal has been directed against the judgment of conviction and sentence dated 27th June, 1992, whereby appellants, namely Ran Vijay Singh, Prakash Singh (dead) and Jalian Singh have been held guilty for the offence punishable under section 302/34 of the I.P.C. and sentenced to undergo R.I. for life, whereas the appellant, namely Ran Vijay Singh has been further held guilty under section 323 of the I.P.C., but no separate sentence for the said offence has been inflicted.

2. The prosecution case, as it appears from the Fardbayan of Ravinandan Shukla (P.W. 6) in brief is that on 22nd May, 1983, Sadhu Charan Shukla (deceased), father of the informant sold 11 pieces of bamboo at the rate of Rs.20/- each to one Gobardhan Mahli (P.W.2). Thereafter, the informant, at the instruction of his father went to the house of Gobardhan Mahli to count the bamboos sold. In the meantime, appellant Ran Vijay Singh reached to the place and raised objection against cutting and selling of bamboos and he told that the bamboo bush belonged to him and therefore the deceased had no authority to sell those bamboos. In course of raising objection against selling of Bamboo, altercation took place between Ran Vijay Singh and the informant. Sadhu Charan Shukla (deceased), father of the informant, also reached to the place, where after, appellant Ran Vijay Singh caused assault to him by means of Lathi. When the informant intervened, he was also assaulted by appellant Ran Vijay Singh.

It is further alleged that the remaining accused persons, namely Braj Kishore Shukla, armed with spear, Prakash Singh armed with knife, Manbodh Hazam, armed with Lathi, Kameshwar armed with Lathi, Jalan Singh armed with Lathi, Balram Singh armed with Tangi appeared at the scene of occurrence and they also participated in causing assault to the deceased and to the informant.

It was also disclosed that in course of assault Shakuntala Kumari (P.W.1) sister of the informant, Deo Deep Ram Shukla, uncle of the informant, had tried to save the deceased, but they were also assaulted by the accused persons. After the assault, accused persons fled away. Sadhu Charan Shukla was brought home and he died on the next morning at about 8 a.m. At about 12 noon, on 23.5.1983, Fardbayan of informant Ravinandan Shukla (P.W. 6) was recorded on the basis of which Kuru P.S. Case No. 21 of 1983 was registered under sections 147, 148, 149, 325, 323, 302 I.P.C. against the accused persons. F.I.R. was registered and after due investigation charge-sheet was submitted and accordingly, case was committed to the court of sessions. All the seven accused persons named in the F.I.R. were charge-sheeted and put on trial vide S.T. No. 134 of 1985.

The prosecution, in order to substantiate the charges, examined all together 11 witnesses. At the conclusion, four accused persons, namely Braj Kishore Shukla, Manbodh Hazam, Kameshwar Singh and Balram Singh were acquitted, whereas appellants, namely Ran Vijay Singh, Prakash Singh and Jalan Singh have been held guilty and hence this appeal.

3. The learned counsel appearing for the appellants has assailed the impugned judgment and findings of the court below mainly on the ground that there is inconsistency in the statement of witnesses and there are material contradictions and omissions in their statements. All the material witnesses, i.e. P.W.1, P.W.4, P.W.5 and P.W.6 are closely related to the deceased and they all are interested witnesses. As per the Fardbayan, the incident took place at about 4-4.30 p.m. in the evening within the village, but no independent witness has come forward to support the prosecution case. The genesis of occurrence, the place of occurrence have not been proved. The Investigating Officer has not been examined as a result the place of occurrence has not been established by the prosecution and there are major contradictions in the statement of witnesses with regard to the place of occurrence. Further more, the dece