ORDER :

1. This appeal is directed against the judgment of conviction and order of sentence dated 23.09.2005 passed by the learned 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 34 of 2000 in connection with Sarawan (Sonaraithari) P.S. Case No. 164 of 1998, corresponding to G.R. Case No. 932 of 1998 & T.R. No. 213 of 2000, Deoghar, Jharkhand, whereby and where under the appellant no. 1 Jagdish Mahto was held guilty for the offence punishable u/s 307 of IPC and sentenced to undergo rigorous imprisonment for 7 years along with fine of Rs. 2000/- (Rs. Two Thousand only) in default of payment of fine further directed to undergo imprisonment for 3 months. Further rest of the appellants were held guilty for the offence punishable u/s 323 of IPC and sentenced for six months RI along with fine of Rs. 500/- (Rs. Five Hundre Only) each and in default of payment of fine further directed to undergo R.I. for one month’s imprisonment.

2. Prosecution story is based on the fardbeyan of informant Bishwanath Mahto (P.W. 6) s/o late Manna Mahto resident of village Bagjhopa P.S. Sonaraithari, Distt. Degohar recorded at Sadar Hospital, Deoghar on 22.11.1998 at about 11.30 hours by A.S.I., B.D. Prasad of town P.S. Deoghar which was registered for aforementioned section on 26.11.1998 vide Sarawan (Sonaraithari) P.S. Case No. 164 of 1998 dated 26.11.1998 at 10.30 hours. Informant Bishwanath Mahto alleged that on 21.11.1998 from 10.00 a.m. he along with his brother Kumi Mahto, nephew Binod Mahto and son Rajendra Mahto was harvesting his paddy field near dam and after harvesting they had prepared bundles of the harvested paddy then at about 4.00 p.m. from field of Arhar situated at northern side Jagdish Mahto, Badan Mahto, Mauzi Lal Mahto, Deora J. Mahto, Basant Mahto, Sanjay Mahto, Parwal Mahto Shankar Mahto, Ramu Mahto, Tej Narayan Mahto all resident of village-Bagjhopa came there and Jagdish Mahto exhorted to kill as he was harvesting paddy. Thereafter, all the accused persons assaulted. Jagdish Mahto was armed with sword, Parwal Mahto was armed with spear and others were armed with lathi. He, his brother Kumi Mahto and Nephew Binod Mahto sustained injuries. They also took away four thali, one lota and one balti and also took away the bundles of harvested paddy. There were 10-15 other persons and Jagdish Mahto was claiming that the field belonged to him as the field was in the name of his ancestor. Threat was also extended by the accused persons, if case would be lodged then he would be killed. As a witness Jhabu Mahto- nephew of informant also signed fardbeyan of Bishwanath Mahto. Injured were medically examined. Statement of the witnesses were recorded and I.O. inspected the place of occurrence. I.O. arrested accused Shankar Mahto on 27.12.1998 and after completing the investigation filed charge sheet in the case to the court of Sessions for adjudication. Charge against all the accused persons was framed on 18th May 2002 to which they pleaded not guilty and claimed to be tried by the Court.

3. Learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal.

4. Heard Mr. Arbind Kr. Choudhary, the learned counsel appearing on behalf of the appellants, Mr. Aashish Kumar, learned counsel appearing on behalf of the informant and Mr. Shiv Shankar Kumar, learned A.P.P. appearing for the State.

Arguments advanced on behalf of the appellants & Informant

5. At the outset both the learned counsels appearing on behalf of the appellants and the informant jointly submitted that there was a case and counter case between both the parties. Against these appellants the case arose out of G.R. Case No. 932 of 1998 corresponding to Sarawan (Sonaraitharhi) P.S. Case No. 164 of 1998 and against the informant party of this case arose out of G.R. Case No. 931 of 1998 corresponding of Sarawan (Sonaraitharhi) P.S. case No. 163 of 1998 and after that both the parties