JUDGMENT

M.K. Mukherjee, J.-Jagdish Narain, the appellant No. 1, alongwith his two sons Avdhesh

and Avinash and two friends Rameshwar Dayal, the appellant No. 2, and Surya Prakash was tried by the Additional Sessions Judge, Pilibhit, for rioting and murder of his step brother Jitendra Nath. The trial ended in an acquittal; and aggrieved thereby the State preferred an appeal. During the pendency of the appeal Avdhesh and Surya Prakash died and consequently their appeal abated. As regards others, the High Court affirmed the acquittal of Avinash but reversed that of the two appellants (the respondents therein) and convicted and sentenced them under Sections 148 and 302, read with Section 149 IPC. The above order of conviction and sentence is under challenge in this appeal preferred under Section 379 Cr. P.C.

2. Shorn of details the prosecution case is that on February 11, 1977 the deceased, his son Achal Kumar (P.W. 1) and his servant Devi Ram (P.W. 2) were carrying sugarcane in a bullock-cart from their village Mar to a mill in Bilsanda for getting the same weighed. While P.Ws. 1 and 2 were in the bullock cart with the latter driving it, the deceased was following the cart on foot. At