S.K. Seth, J.

(1) Twelve persons were placed before the 8th Additional Sessions Judge, Ujjain to take their trial under Sections 148; 149,302,149:307 IPC and Sections 25,27 of the Arms Act. Seven of these persons have been acquitted and we are not concerned with them any longer but the remaining five have been found guilty, details of offences; convictions and sentences are as under :-

Section 302/149 R.I. for life with fine of Rs. 1000/- to each with default stipulation; Section 148 IPC one year rigorous imprisonment with fine of Rs.500/- with default stipulation to each; Section 326 IPC 3 years' R.I. with fine of Rs. 1000/- with default stipulation to A-1 and A-3 for causing grievous hurt to Nanuram; Section 25 r/w 27 of the Arms Act two years' R.I. and fine of Rs, 1000/- with default stipulation to A-1 Champalal and A-4 Shobharam. Section 324 IPC six months' RI and fine of Rs. 500/- with default stipulation to A-l Champalal for causing simple hurt to Pappu. The sentences have been ordered to run concurrently. Against their convictions and sentences, the five appellants have appealed to this Court.

(2) The occurrence took place at about 9-10 pm on July 17th 1997 in the village Mitikhedi, a small village under Police Station Badnagar in District Ujjain. Admitted facts at this stage are as under. Deceased Ramchander and the acquitted accused Mangilal are nephew and uncle respectively. There was long pending dispute between them about one Bigha agriculture land leading to civil litigation and acrimonious relationship. A ready and heady mix for homicidal results. It also appears that accused party had filed a counter-case against the complaint party alleging that they were victims of an attack by Ramchander (Deceased) and his henchmen. This is mentioned in paragraph 47 of the impugned judgment and from the memo of appeal it appears that the counter case was registered as S.T.No. 289/97 and both were tried by the Fast Track Court presided in by 8th ASJ, Ujjain and the counter-case resulted in conviction of Pappu (PW6) and other co-accused under Section 326 IPC. Surprisingly the certified copy of that judgment has not been placed on record of this appeal.

(3) The case of the prosecution in brief is as follows: dispute relating to above land forms the motive which led to the fight between complainant party and assailants. Assailants as many twelve came variously armed and attacked the victim party at their house in the village at about 9.30 pm: at that time Ramchander, his son Pappu,(PW6), Ramchander's Brother Nannuram(PW5), wife Suganbai(PW-9) and Dhanaji (PW-10) co-brother-in-law of Ramchander were sleeping in the Parchi. FIR (Ex.P-23) was lodged by Suganbai at about 2 am in the early morning of 18.7.1997 at PS Badnagar. Injured eye witnesses (PW5) Nanuram,(PW6) Pappu; (PW10) Dhanaji and Ramchader were examined by Dr. S.K.Shrivastava(PW8) at Badnagar: their MLC reports are Ex. P-15 to Ex. P-17: Same doctor also examined injuries sustained by some of the assailants, and their MLC are Ex.D-4 (A-3 Gulcbslngh); Ex D-9(A-4 Shobharam) and Ex.D-10 (A-5 Bhagwansingh)Fx.D-13 is the medical report of A-5 Bhgawansingh showing compound fracture distal end of 4th and 5th metacarpal of left hand. Ex.D-14 is the X-ray report of A-4 Shobhram. Dying declaration (Ex.P.-13) of Ramchander was recorded by Tehsildar Bhagwan Singh Pekra(PW4).

(4) Dr. Shrivastava referred Ramchander to the District Hospital, Ujjain, but he died on his way to Ujjain from Badnagar. At Ujjain autopsy was performed by Dr. C.S.Bhargava (PW1) and the post-mortem report is Ex.P.-2 wherein cause of death was shock due to grievous injuries. After completing investigation, Police filed charge sheet indicting twelve persons as mentioned above. Appellants denied the charges, hence they were put to trial which led to their conviction and various sentences, and hence they are in appeal before us. The other seven accused were acquitted of all the charges.

(5) In criminal cases t