Judgment R.N.Sahay, J. 1. These two appeals have been preferred by the convicted accused persons in Sessions Trial No. 54/83 of 7/85 decided by the 1st Additional Sessions Judge, Sitamarhi by judgment and order, dated 20th December, 1986. 2. In the said Sessions case there were fifteen accused persons, who were charged and tried for the offences punishable under Sections 147, 148, 447, 302 and 302/149, IPC. 3. In Cr. App. No. 14/87, the appellants Nand Mukhiya and Pragash Mukhiya are the sons of Girbal Mukhiya. Both the appellants have been convicted under Section 302, IPC and sentenced to imprisonment for life. They have also been convicted under Section 148, IPC and have been sentenced to three years imprisonment. They have been further convicted under Section 447, IPC and sentenced to three months imprisonment. 4. In Cr. App. No. 28 of 1987, there are 13 appellants. They have been convicted under Sections 302/149, IPC and sentenced to life imprisonment. They have been further convicted under Section 447, IPC and sentenced to three months imprisonment. Appellants No. 1, 8, 9, 10 and 11 have been convicted under Section 148, IPC and sentenced to three years imprisonment and the remaining appellants have been convicted under Section 147, IPC and sentenced to two years. 5. The charge against the appellants was that on 17th day of July, 1982 at village Koari, PS Sursand, District-Sitamarhi committed criminal trespass by entering in the maize field in possession of Ram Binod Thakur with intent to intimidate and annoy the informant and his father deceased Balram Thakur. Some of the appellants were armed with deadly weapons like bhala and farsa. The appellants were members of an unlawful assembly. The common object of unlawful assembly was to commit the murder of Balram Thakur and in furtherance of their common object they intentionally caused the death of Balram Thakur. 6. The case of the prosecution is that appellants Nand Mukhiya and Pragash Mukhiya were the assailants of the deceased. They had caused injuries on Balram Thakur by means of bhala and farsa. Nand Mukhiya-was also charged under Section 323, IPC causing hurt to Binod Thakur. The appellants in Cr. App. No. 28/87 were charged under Section 302/149, IPC for the murder of Balram Thakur. 7. They had caused injuries on Balram Thakur by means of bhala and farsa. Nand Mukhiya-was also charged under Section 323, IPC causing hurt to Binod Thakur. The appellants in Cr. App. No. 28/87 were charged under Section 302/149, IPC for the murder of Balram Thakur. 7. The case of the prosecution was that on 17.2.1982 at about 9 a.m., Balram Thakur, father of the informant, after constructing palani in the field used to keep watch day and night over the maize crop grown in a field situated on the northern bank of Sanghi river lying south of village Koari, PS Sursand. Son of Nandu Mukhiya plucked maize crops and for this act he was scolded by Balram Thakur. Son of Nand Mukhiya went to his village and narrated the incident to his caste men. Thereupon a mob consisting of 20 to 25 persons armed with lathi, bhala and barchi proceeded towards the field of Balram Thakur. Apprehending danger at the hands of approaching mob, Ram Binod Thakur along with Ramdeo Thakur, Harnandan Thakur followed them and found the mob taking turn from the pitch road near a bridge towards east for maize field. At the same time they rushed there and attempted to pacify the matter. Thereupon, Nand Mukhiya inflicted two blows with lathi portion of bhala at the back and one at the leg of Ram Binod, who fled towards Rasalpur for his life and went nearby bundh and continued to watch the developments. The mob encircled Balram Thakur in east-north angle of the field containing alua and accused Nand Mukhiya inflicted bhala blow on his father and thrashed him. Thereupon, Pragas Mukhiya inflicted barchi blow. Balram Thakur died on the spot. After the incident the mob retreated to the village. Then the informant and his men rushed at the place of occurrence where Balram Thakur was found lying dead. The informant and his men changed the route and ultimately rushed at Sursand where his statement was recorded by SI, A.K. Verma of Sursand police station at State Dispensary on 17.2.1982 at 14 hours. 8. The defence of the appellants was total denial of the occurrence over the maize field bearing plot No. 1166. The defence alleged that the prosecution party was trying go usurp the land emerging out of Sanghi river which was in possession of accused persons. 8. The defence of the appellants was total denial of the occurrence over the maize field bearing plot No. 1166. The defence alleged that the prosecution party was trying go usurp the land emerging out of Sanghi river which was in possession of accused persons. Two labourers of Ramdeo Thakur were seen spading the plot and Pragas rushed there and forbade them and they returned peacefully at village. In the village Ramdeo Thakur entered into exchange of words with Pragas as to why they forbade his labourers and challenged to get the matter settled by going over the land at river Sanghi where accused Pragas and his associate wanted to get the matter pacified by negotiation but Ramdeo and his men paid no heed and started assaulting and injured the accused persons and they were rescued by villagers, who transported them to Sursand Hospital, where SI took down the statement of Pragas (Ext. A). In a nut-shell the defence was that prosecution party was aggressor and after injuring the accused persons they filed counter case as counter blast. 9. As many as 13 witnesses were examined on behalf of the prosecution. The main witnesses are PW 11, PW1, PW 3, PW 4 and PW 7. 10. The defence also examined three witnesses in support of the defence and filed two documents. 11. According to the medical evidence the deceased Balram Thakur had sustained following anti-mortem injuries which resulted in his death. (i) Sharp cut on the medial aspect of left thigh having dimension of 1-1 /4" x 1 /4" x 1/2" deep. (ii) Sharp cut on the posterial part of left thigh having dimension of 3/4" x 1/4" x 1/4". (iii) Bruise on right shoulder having dimension of 1/2" x 1/2". Injury Nos. (i) and (ii) were caused by sharp cutting weapons like bhala and barchhi while injury No. (iii) was caused by blunt weapon. 12. Ram Bind Thakur, the informant, in his evidence has supported the version in the FIR. From his evidence it reveals that Nand Mukhiya inflicted three lathi blows in quick succession with the lathi portion of bhala on the informant. The informant and his men watched later part of the occurrence standing at the bundh, which was short distance from the maize field. It is alleged that Nandlal Mukhiya inflicted bhala blow on Balram Thakur. From his evidence it reveals that Nand Mukhiya inflicted three lathi blows in quick succession with the lathi portion of bhala on the informant. The informant and his men watched later part of the occurrence standing at the bundh, which was short distance from the maize field. It is alleged that Nandlal Mukhiya inflicted bhala blow on Balram Thakur. Pragas Mukhiya inflicted barchhi blow and rest of the accused persons were armed said to have been assisting Nand Mukhiya and Pragas Mukhiya. 13. Ramdeo Thakur (PW 1) and Hari Nandan Thakur (PW 3) have corroborated the evidence of the informant. 14. So far defence evidence is concerned, Dr. Jainarain Purbey, Medical Officer, Sursand Hospital was examined and he deposed that on 17.2.1982 he examined injured Ram Pragas Mukhiya and found the following injuries on his person : (i) Incised wound 1" x 1/4" x skin-deep. (ii) Incised wound 3/4" x 1 /4" x skin-deep on the left side of neck. (iii) Piercing wound sloping below inferior angle of scapula 1-1/4" x 1/2" x 1/4". (iv) Piercing wound 1/2" x 1/4" x 1/6" at thigh upper side. Apart from this there were five lacerated wounds. 15. On the same day he examined Luta Mukhiya and found the following injuries : (i) Piercing wound 1" x 1/4" x 1/4" on left lateral side of chest near 10th ribs upward directed. (ii) Incised wound l"xl/3"x 1/3" on the dorsen of left hand. (iii) Lacerated wound with swelling 3/4" x 1/3" x 1/3" on dorsen of fore-arm. (iv) Incised wound l/2"xl/4" xl/3" on left palm. Injury was also found on Nandlal Mukhiya. Injury was simple in nature. 16 The defence version was that on 17.2.1982 at 8 a.m., Rampragas learnt from somebody that some persons were spading his field. He along with Nand Mukhiya rushed there and found two Muslims spading the field. On question they gave out that they are labourers of one Ramdeo Thakur but the two appellants forbade them and they retreated. It is alleged that Ramdeo Thakur searching accused Pragas rushed to him near the house of Bhadai Lohar and there was exchange of hot words. Ramdeo Thakur along with 14 to 15 persons armed with bhala, lathi, farsa and nalkatua gun went over the field and thereupon, Pragas Nand Mukhiya also went at the field and one sarpanch Ramesh Thakur proceeded ahead to settle the matter. Ramdeo Thakur along with 14 to 15 persons armed with bhala, lathi, farsa and nalkatua gun went over the field and thereupon, Pragas Nand Mukhiya also went at the field and one sarpanch Ramesh Thakur proceeded ahead to settle the matter. All of a sudden Binod Thakur son of Baliram Thakur hurled bhala blow at Nandu and his men attacked the other accused persons with their weapons causing injury to Pragas, Nandu and Luta. 17. The learned Addl. Sessions Judge, however, has totally rejected the defence evidence. 18. The prosecution has not at all explained the injuries on the three persons. The deceased was alone when he was encircled by the accused persons and assaulted by them. In this situation, it is difficult to brush aside the injuries on three persons by the accused party including the main accused. The learned Addl. Sessions Judge has tried to explain the injuries of the deceased which does not appear to be logical. 19. In view of the evidence on record, I am constrained that the genesis of the occurrence has not been established by the prosecution. At any rate the conviction of the appellants under Section 302, IPC is not justified because there is no attempt to cause injury on the vital part of the deceased. 20. Learned counsel for the appellants submitted that according to Ext. A lodged earlier that the prosecution party was trying to grab the land of the appellants. As many as there were 11 injuries on the person of Pragash Mukhiya. Out of these two were incised injuries and others were simple in nature, which goes to show that the prosecution has not come out with the real story regarding the occurrence. 21. In the result, both the appeals are allowed and the conviction of the appellants are set aside. The appellants are discharged from the liability of the bail bond. 22. The case of the appellants in Cr. App. No. 28/1987 was argued by Mr. Partha Sarthy and Mr. Raj Kumar in Cr. App. No. 28/87. Both the counsel put in immense labour in rendering valuable assistance to the Court in deciding the appeal. We, therefore, request that both the counsel be paid fee by the Executive Committee Legal Aid as permissible under the rules. D.P.S.Choudhary, J. 23 I agree.