This criminal appeal has been directed against the judgment of conviction and order of sentence dated 29.09.2003 and 30.09.2003 respectively passed by the Addl. Sessions Judge, Fast Track Court No.1, Gumla in connection with Sessions Trial No. 170 of 1996 corresponding to G.R. Case No. 366 of 1995 arising out of Palkot P.S. Case No. 24 of 1995 whereby all the appellants have been held guilty for the offences punishable under Sections 302 read with Section 149, 148 and 323 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302 read with 149 of the Indian Penal Code and R.I. for two years under Section 148 of the Indian Penal Code. No separate sentence under Section 323 of the Indian Penal Code has been inflicted.

2. The facts, emerging from the First Information Report, are that on 28.05.1995 at about 8.00 a.m. the informant who was grazing goat at Asanpani had seen nine plough in his field. Thereafter he went to inform his father Ganthura Nagesia and other relatives Garthu Nagesia and Gendal Nagesia. After collecting them when the informant with his father went to Asanpani field, they found that the appellants were ploughing the field. When they raised objection against ploughing of the field, appellant Jitu Nagesia told that he would plough the field and whosoever will come to raise objection, he would be done to death. Thereafter Daura Nagesia who was standing at the bund provoked his associates upon which all the appellants who are named in the F.I.R., took out Balua and Tangi, which were kept in the field from before, and started causing assault to informant and their companions. Daura Nagesia, Sukra Nagesia and Baisku Nagesia caused assault to Gendal Nagesia and killed him. The informant and his companion were also subjected to assault by the appellants by means of respective weapons which they were holding and also by means of stones thrown with the help of catapult. After committing the offence, the accused persons fled away.

On the basis of First Information Report lodged by Hafindar Nagesia (PW-4), Gumla, Palkot P.S. Case No. 24 of 1995 under Sections 147, 148, 149, 447, 324, 323, 337 and 302 of the Indian Penal Code was registered. The investigation was carried out, inquest report was prepared, the weapon and other articles found at the place of occurrence were seized and dead body of Gendal Nagesia was sent for post mortem examination. The Investigating Officer had recorded statement of witnesses and after concluding the investigation, submitted charge-sheet against all the appellants. Accordingly, cognizance was taken and the appellants were put on trial after framing of the charge. The learned trial judge, considering the evidences and documents on record, held the appellants guilty for the offence punishable under Section 302/149, 148 and 323 of the Indian Penal Code and inflicted sentence, as indicated above.

3. Since learned counsel Mr. Triveni Mishra who was not present on the last date and today he is present but not feeling well, learned counsel Sri Ashutosh Anand has been appointed as amicus curiae to argue the case on behalf of the appellants.

4. The impugned judgment of conviction and sentence has been challenged firstly on the ground that the Investigating Officer has not been examined and that has caused great prejudice to the appellants. Due to non-examination of the Investigating Officer, place of occurrence has not been proved. The contradictions appearing in the statement of witnesses could not be referred. Some other facts like institution of counter case and the result of investigation have not been brought on record. Secondly, there was no unlawful assemblage. The appellants were ploughing their field at the time of occurrence and ploughing field could not be considered unlawful. Land dispute prevailing between the parties has been admitted. Injuries caused to some of the appellants have also been admitted. As a matter of facts, the informant and his companion wer