Amitav K. Gupta, J.-The present appeal has been preferred against the judgment and order of conviction and sentence dated 4.7.2003 and 5.7.2003 passed by Addl. Sessions Judge (F.T.C.-II), Hazaribagh in Sessions Trial No. 155/ 199.

2. The prosecution case, in brief, is that on 5.4.1990 at about 8.30-9.00 A.M. the informant, Gendo Mahto (P.W. 2) along with his father, Meghlal Mahto (deceased) and uncle, Ganesh Mahto were ploughing their land situated in Kodobhijha when all of a sudden Baijnath Mahto alias Khoda Mahto along with 5-6 persons came there variously armed with lathi, bhala, pharsa and gadasa and asked his father as to why he was ploughing the land to which his father did not reply. On persistence of Khoda Mahto his father replied that the soil had softened hence, they had to plough the land. It is alleged that the son-in-law of Khoda Mahto, whose name he does not know, ordered to assault with lathi whereupon Khoda Mahto, his son-in-law and Jagdish Nayak, Duler Chand Mahto, Chhotia Nayak, Sukar Mahto and Loda Mahto started assaulting the informant and his father and uncle. It is alleged that Khoda Mahto and his son-in-law assaulted his father and Jagdish Mahto and his brother and Khoda Mahto assaulted and injured him with danda. Subsequently, Khoda Mahto and Jagdish Sundi assaulted and injured his uncle. He saw Khoda Mahto, his son-in-law and Sukar Mahto assaulting his father with lathi and gaita due to which his father sustained severe bleeding injuries on the head and died on the spot. It is stated that Karu Sao (P.W. 1), son of Girdhari Sao who was present nearby in his land/field also saw the occurrence. P.W. 2 ran shouting towards his village whereafter all the accused persons fled away. It is stated that earlier there was litigation regarding the land with the accused persons in which the case was decided in favour of his grandfather.

On the basis of the aforesaid statement, Bishungarh P.S. Case No. 24/89 dated 4.5.1990 under Sections 147, 148, 149, 323, 325, 302 and 447 of the I.P.C. was registered and in course of investigation the dead body of the deceased, Meghlal Mahto, was sent for post-mortem. On completion of investigation charge-sheet was submitted against the accused persons. Cognizance was taken and the case was committed to the Court of Sessions whereafter it was transferred to Addl. Sessions Judge, FTC-II, Hazaribagh for trial and disposal. Charge was framed against the accused persons to which they pleaded not guilty and claimed to be tried.

3. The prosecution examined altogether seven witnesses viz. P.W. 1-Karu Sao; P.W. 2-Gendo Mahto (the informant); (P.W. 3-Churamal Mahto; P.W. 4-Dr. Ram Naresh Jha has proved the post mortem report (Ext.-1); P.W. 5-Dr. S.N. Lal, has proved the injury report (Exts.-3/1 and 3) of injured Gendo Mahto (P.W. 2) injured Ganesh Mahto; P.W. 6-Rajendra Vishnu Nanhe, the Investigating Officer proved the fardbeyan (Ext.-4) and formal F.I.R (Ext.5), Exhibits-6 and 7 are the requisition of the injury slip of injured Ganesh Mahto and Gendo Mahto, Ext.-8 the seizure list, Ext.-9 the inquest report and P.W. 7 is Bodhan yadav.

4. On closure of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. and the defence is of complete denial.

On the basis of the evidence on record, the learned trial court found all the seven accused guilty of the charges under Section 447 read with 149 of I.P.C. and convicted the present appellants for the offence under Section 302 read with 34 I.P.C., under Section 323 read with 34 I.P.C., and under Section 447 read with 149 I.P.C. and sentenced them to life imprisonment under Section 302 read with 34 I.P.C and a fine of Rs. 500/- each in default thereof to undergo two months simple imprisonment however no separate sentence was passed under Section 447 read with 149 I.P.C. and under Section 323 read with 34 I.P.C.

5. Learned senior counsel, Sri Tripathi, while assailing the impugned judgment, has contended that the