JUDGMENT

M.K. Mukherjee, J.-26 persons including the 10 appellants were arraigned before the Sessions Judge, Jabbalpore for rioting, two murders and other allied offences. The trial ended in an acquittal or all of them; and aggrieved thereby the respondent-State of Madhya Pradesh filed an application seeking leave to appeal under Section 378 Cr.P.C. The High Court however granted leave only against the 10 appellants (the respondents therein). After hearing the parties the High Court allowed the appeal, set aside the acquittal of the 10 appellants and convicted and sentenced each of them for offences punishable under Sections 148, 325/149, 302/149 (one count) IPC. Aggrieved thereby the appellants have filed the present appeal under Section 379 Cr.P.C.

2. Briefly stated the prosecution case is on July 2, 1981 at or about 10. A.M. when Gajadhar (PW 3) alongwith his sons Bhagwat and Lakhanlal and wife Kusumbai were cultivating their land, which is at a short distance from their village, the accused persons came there variously armed. While the appellants Niranjan prasad and Narayan Prasad (since dead) had rifles with them the other appellants were carrying weapons like lathis, spears and pharsa. Seeing the accused persons coming in a riotous mood Gajadhar and his family members tried to flee towards their village but could not succeed as on the way the miscreants caught them up on the road near the house of Khoobchand (PW4) and some of them started beating Gajadhar with the weapons in their hands. When his son Lakhanlal came to his rescue the appellant Sitaram assaulted him on his head with a ballam (spear) while some of the other appellants assaulted him with iron rods. Khoobchand then came to their rescue only to be assaulted by some of them. It is the further prosecution case that when they found Santkumar, another son of Gajadhar coming towards the road the appellants Narayan Singh and Niranjan Singh fired at him. Then the miscreants fled away. An information about the incident was given by one Rametibai at the Sihora police station immediately thereafter which was entered in the station diary. After making that entry ASI Dayaram Dube (PW27) went to the place of occurrence and first recorded the statement of Khoobchand which was treated as FIR. He then sent the four injured to the Hospital where Santkumar and Lakhanlal succumbed to the injuries in that very night. On completion of investigation PW 27 submitted chargesheet.

3. To prove its case the prosecution relied principally upon the ocular version of the incident as given out by Gajadhar (PW3). Khoobchand (PW4), Raj Kumari Bai (PW5), wife of the deceased Santkumar, and Kusumbai (PW6), wife of Gajadhar and a dying declaration made by Santkumar.

4. On perusal of the judgment of the trial Court we find that the principal grounds which weighed with it for recording the order of acquittal were that the medical evidence that was adduced by the prosecution to prove the injuries on the person of the deceased Lakhanlal PWs. 3 and 4 completely belied the ocular version of the witnesses and that their version regarding the murder of Santkumar was not at all reliable. Besides, the trial Court found that the evidence regarding the dying declaration allegedly made by Santkumar was unsatisfactory.

5. In appeal the High Court concurred with the findings of the trial Court regarding the murder of Santkumar as also the dying declaration. The High Court, however, found that the findings of the trial Court that the medical evidence did not fit in with the evidence of the eye-witnesses was not a proper one. According to the High Court the evidence of the eye-witnesses clearly established that the 10 appellants herein committed rioting armed with deadly weapons and in prosecution of the common object of the unlawful assembly they committed the murder of Lakhanlal and also caused grievous hurt to PWs. 3 and 4.

6. To ascertain whether the above finding of the High Court as against the above 10 appell