JUDGMENT :

Raj Beer Singh, J.

1. This appeal arises out of impugned judgment and order dated 02.11.2000 passed by learned Additional District & Sessions Judge, Court No. 7, Azamgarh in Session Trial No. 203 of 1988 (State vs. Sankatha and Others), whereby accused-appellant Dhruv Raj Rai has been convicted under Section 304 Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to seven years rigorous imprisonment along with fine of Rs. 1,000/- and accused-appellants, namely Ramesh Rai, Radhey Shyam, Ghan Shyam alias Dhannu, Man Shyam alias Munnu, Rajeshwar Rai, Singhasan, Jagdish and Mahendra have been convicted under Section 304/149 IPC and sentenced to seven years rigorous imprisonment and fine of Rs. 1,000/- each. All the appellants-accused were further convicted under Section 326/149 IPC and sentenced to five years rigorous imprisonment with fine of Rs. 500/- each. Accused-appellants Ramesh Rai and Radhey Shyam were further convicted under Section 147 IPC and sentenced to one year rigorous imprisonment. Accused-appellants, namely, Ghan Shyam alias Dhannu, Man Shyam alias Mannu, Rajeshwar Rai, Singhasan, Jagdish, Mahendra and Dhruv Raj Rai were further convicted under Section 148 Cr.P.C. and sentenced to two years rigorous imprisonment. In default of payment of fine under Sections 304 and 326 IPC, accused-appellants have to undergo six and three months additional imprisonment. The substantial sentences awarded to each of the accused persons were directed to run concurrently.

2. At the very outset it may be mentioned that co-accused Sankatha, Ghan Shyam and Surya Bali have died during trial, while accused-appellant no. 2 Rajeshwar Rai and accused-appellant no. 5 Ghan Shyam alias Dhannu have expired during pendency of this appeal and thus, appeal in respect of appellant no. 2 Rajeshwar Rai and accused-appellant no. 5 Ghan Shyam alias Dhannu stand abated.

3. The prosecution version is that before the incident of the present case, on 09.01.1987 Ghan Shyam Rai and others have given beatings to complainant Rajender Rai (PW 1) and others and in that regard a case was lodged. The incident of the present case took place on 06.03.1989. It was alleged that on 06.03.1987 at around 11:30 AM when Bajrangi Rai was going to irrigate his field, the accused-appellants came there and hurling abuses, they asked him to stop irrigation. Hearing noise, one Phool Chand, Gorakh Rai, Harikesh Rai and some other persons also reached there but the accused-appellant no. 1 Dhruv Raj Rai gave a spear (ballam) blow at Bajrangi while remaining accused persons started beating with lathis. When PW-2 Phool Chand, Rajendra Rai and Harikesh tried to intervene, they were also beaten by the accused persons.

4. The complainant reported matter to police by submitting a written tehrir Ex. Ka-1 and on that basis, case was registered against all the accused persons under Sections 147,148,149,326,323,504 IPC on 06.03.1989 at about 12:45 PM vide FIR Ex. Ka-10.

5. Injured Phool Chand was medically examined by PW-4 Dr. Abdul Moin vide MLC Ex. Ka-2 and following injuries were found on his person:

(i) 3.5 cm x 1 cm x muscle deep lacerated wound on the right side of forehead 1 cm above the right eyebrow. Clotted blood present.

(ii) 2.5 cm x 0.5 cm x muscle deep vertical lacerated wound on the forehead including inner part of right eyebrow. Clotted blood present.

(iii) 10 cm x 1 cm x scalp deep lacerated wound on the middle part of head 15 cm above the left ear. Clotted blood present.

(iv) 4.5 cm x 1.0 cm x through and through incised wound on the letf ear. Blood clotted present. Margins clear cut.

(v) 13.5 cm x 0.5 cm x muscle deep oblique incised wound on the left side of neck including the pinna of left ear. Margins clear cut blood present.

(vi) 2 cm x 0.5 x muscle deep incised wound on the left side of face 3 cm below the outer contusion of left eye. Blood present.

(vii) 4 cm linear abrasion on the inner part of right thigh 25 cm above the knee joint.

(viii) 19 cm linear a