Sheo Kumar Singh-I, J.

Challenge in this appeal is the order dated 9.10.1998 passed by Session Judge Lakhimpur Kheri in Session Trial No. 581 of 1998 under Sections 147, 148, 149, 323, 304 II of IPC, P.S. Mohamdi, District Kheri whereby and whereunder the accused appellant Jagannath and Malik @ Lal Bahadur were convicted under section 148 IPC and sentenced to undergo rigorous imprisonment for one year. Accused Ram Bilas and Chunni were convicted under section 147 IPC and sentenced to undergo six months rigorous imprisonment. Accused appellant Jagannath, Ram Bilas, Malik alias Lal Bahadur and Chunni were further convicted under Section 304 IPC part II read with section 149 IPC and each one of them was sentenced to undergo rigorous imprisonment for ten years. They were further convicted under Section 323 IPC read with section149 IPC and each one of them were sentenced to undergo rigorous imprisonment for six months. All the sentence were directed to run concurrently.

2. The brief facts giving rise to the present appeal is that Misri lal, Chunni Lal, Ram swaroop and Dwarika Prasad were brothers. Accused-appellants Jagannath and Ram Bilas are son of Chunni Lal. Malik is son of Ram Swaroop. Both the parties prosecution and defence belong to the same family. With regard to certain land dispute, some hot talks were exchanged between the parties and also on the point of grazing of the Urad crop by cattle of Jagannath on 28.7.1986, all the accused-appellants came on 28.9.1986 to the shop of Chunni Lal where in panchayat, it was settled that none of the parties will damage the crop of other through their cattle. After the panchayat, Jagannath went to his house abusing opposite party and at about 11.00 A.M. Jagannath armed with kanta, Ram Bilas, Chunni, Ujagar and Ram Swaroop armed with lathi and Malik armed with Sooja came near the shop of Chet Ram and started assaulting Misri Lal and Stm. Buddha wife of Misri Lal. Hearing hue and cry, Dwarika elder brother of Misri Lal, Katori sister of Misri Lal and her husband Raghubar and Ram Autar came there and saw all the accused-appellants assaulting Misri Lal and Smt. Buddha causing serious injuries on the body of these two person. On exhortation of complainant and other witnesses, the accused-appellants ran towards south. The complainant party arranged bullock cart and brought the injured Misri Lal and Smt. Buddha in bullock cart and when they were carrying for medical treatment and reached near rice mill of Mohamdi, Misri Lal died as a result of injuries received in this incident.

3. Written report was prepared by one Rajendra Kumar on the dictation of Shyam Babu and same was lodged with the police station Mohamdi and after that Smt. Budha was sent for medical examination with one of the home guard to Primary Health Centre Mohamdi. The first information report was lodged and entered into the G.D. and statement of the witnesses were recorded by the I.O. Dead body of the deceased Misri Lal was brought to the police station by bullock cart and inquest report was prepared. After preparing connected police papers i.e. photo lash, challan lash, letter to C.M.O., dead body was sealed and sent through constable Babu Lal and Homeguard Anoop Ram for post mortem. After recording statement of witnesses and completing the investigation, the investigating officer submitted charge sheet. The Magistrate took cognizance and committed the case to the court of Session where accused appellants were summoned and charges were levelled against them under Sections 148, 302/149, 307/149 IPC for which they pleaded not guilty and claimed for trial.

4. In order to prove the prosecution case, prosecution has examined Shyam Babu as PW-1, Smt. Buddha as PW-2, Dr. R.C. Singh as PW-3 and Sri P.L. Shakya as PW-4. In the statement recorded under Section 313 Cr.P.C., all the accused-appellants have submitted that they have been falsely implicated in this case due to the reason of inimical relation between the parties.

5. I