JUDGMENT :

SUBHASH CHAND, J.

1. Heard learned counsel for the appellants and learned counsel for the State.

2. The instant criminal appeal is preferred on behalf of the appellants against impugned Judgment of conviction and Order of sentence dated 3rd February, 1994 passed by the 3rd Additional Sessions Judge, Deoghar in Sessions Case No. 17 of 1991, whereby, the appellants no. 1 Lakhiram Hembram @ Lukhiram Hembram and the appellant no. 3 Santan Hembram have been convicted for the offence under Sections 302/323/325 of the Penal Code, 1860 and they were sentenced to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and no any separate sentence was awarded to them under Sections 323 and 325 of the I.P.C. The appellant no. 2 Abhilash Hembram and the appellant no. 4 Chhotenath Hembram are convicted and sentenced to undergo rigorous imprisonment for 5 years each under Section 325 of the Penal Code, 1860 further they are convicted and sentenced to undergo rigorous imprisonment for one year each under Section 323 of the I.P.C. The appellant no. 5 Anand Hembram was convicted and sentenced to undergo rigorous imprisonment for one year under Section 323 of the Penal Code, 1860.

3. The prosecution case in brief is that the written information was given by Lakhan Hembrom at the police station concerned with the allegations that there was custom in village Kharko on the occasion of Bandhna festival that all the people of village sing and dance in the streets of the village. There were two parties in the village on 13.01.1987 and it was Tuesday night 8 o' clock after having taken food while singing and dancing reached near the house of one Anil Rana in a street. At the same time some persons of other party of the village who also arrived dancing and singing among them Lukhi Ram Hembrom, Lubin Hembrom, Gome Hembrom, Santan Hembrom, Chotenath Hembrom, Anand Hembrom, Moti Hembrom, Ravan Murmu, Obinath Hembrom, Maneshar Hembrom, Avilash hembrom, Jeevan Hembrom and Madan Soren were also present. A small harmonium in village was defective which was at the house of the persons of the party of informant. The persons of the opposite party made demand of harmonium which was told to be defective by the persons of the informant-party. At this the persons of another party got annoyed and Santan Hembrom, Lukhiram Hembrom brought iron rod and Chotenath Hembrom, Avilash Hembrom, Motilal Hembrom brought lathi from the house. Santan Hembrom and Lukhiram Hembrom both assaulted with iron rod and Moti Hembrom and Anand Hembrom assaulted with lathi to Sahdeo Soren on his head and body. On account of the sustaining injuries inflicted by Santan Hembrom, Sahdeo Soren fell down on the ground. The informant (Lakhan Hembrom) reached to rescue him at this Santan Hembrom also assaulted him with rod and Abhilash assaulted with lathi on his back. Shiv Narayan Hembrom was also assaulted with iron rod by Santan. Chotenath and Abhilash assaulted with lathi. Haradhan Hembrom was assaulted by Lukhiram with iron rod. Mahendra Hembrom was assaulted by Lukhiram with lathi. Dhan Marandi was assaulted with iron rod by Lukhiram. Sahdeo Soren died at the place of occurrence. This occurrence was also seen by Pradhan Soren, Mansingh Hembrom, Shivlal Murmu, Pane Soren, Sahdeo Marandi and others. All the accused persons fled away after having seen the Sahdeo Soren dead.

4. On this written information, case crime No. 04 of 1987 was registered with the police station Palajori against 13 named accused under Sections 147, 148, 149, 302 and 323 of the Penal Code, 1860. The Investigation Officer after having concluded the investigation filed charge-sheet against all the 13 named accused before the court of Magistrate concerned and the Magistrate concerned after having taken the cognizance thereon had committed the case for trial to the court of Sessions Judge.

5. During trial accused Moti Ram Hembrom died on 27th May, 1991 and the trial court framed charge against all the 12 acc