JUDGMENT

Santosh Hegde, J.-Two of the original 6 accused persons who were charged for offence punishable under section 302 read with 34, 109, 148, 147, 323 IPC before the 1st Additional Sessions Judge, Giridih are before us in this appeal challenging their conviction and sentence imposed on them by the said trial court as confirmed by the High Court of Judicature of Patna, Ranchi Bench. Brief facts necessary for the disposal of this appeal are as follows :

2. The appellant herein and 4 other accused persons formed themselves into an unlawful assembly armed with lathis and Tangi on 23.6.1980 and went to the field of Ugan Mandal PW-4 when said PW-4 and his cousin Shankar Mandal were ploughing the land situated on the Eastern side of village Karmatand, P.S. Birni, District Giridih and picked up a fight with the said 2 persons. Being afraid of attack on themselves said Ugan Mandal and Shankar Mandal ran away from the said place. The prosecution further alleges that after the said persons ran away, the accused returned back to the village. On the way they met Jhalar Mandal uncle of abovesaid Ugan Mandal who happened to ask them what the matter was. Being enraged by such a question from Jhalar Mandal the appellants herein allegedly hit him on his head with a lathi as a result of which he received injury on his head and fell down. Prosecution then alleges that all other accused persons also assaulted said Jhalar Mandal which was noticed by Ugan Mandal and on his raising an alarm his son Dhanu Mandal and nephew Bhuneshwar Mandal also reached the place and they were also assaulted by the accused. When other villagers came to the place of occurrence the accused persons went away. Said Ugan Mandal and other relatives of Jhalar Mandal then took the injured Jhalar Mandal to Giridih hospital where he died. Based on a complaint lodged by Ugan Mandal after completion of investigation 6 persons including the 2 appellants in this appeal were charged for offences mentioned hereinabove. The Sessions Court after trial came to the conclusion that the prosecution has proved the major charge of section 302 read with 34 IPC against the appellants herein and convicted and sentenced them to imprisonment for life, while it found the other 4 accused persons guilty of offence under section 302 read with section 109 IPC and sentenced them to undergo imprisonment for life on that count while those accused persons were also found guilty of offences punishable under sections 323, 147 and 148 IPC but no separate sentences were awarded on those counts. In an appeal filed against the said judgment and conviction before the High Court of Patna at Ranchi Bench, the High Court came to the conclusion that the prosecution has failed to establish its charge against other accused, accordingly, conviction and sentence imposed on them by the trial court was set aside while it found the two appellants before us guilty of offence punishable under section 302 read with 34 IPC and confirmed the sentence of imprisonment for life imposed by the trial court. It is against the said judgment of the High Court the two appellants are before us in this appeal.

3. We have heard Mr. A . Sharan, learned senior counsel for the appellants and Mr. Ashok Mathur, learned counsel for the respondent-State and perused the recods. So far as the incident in question which led to the death of Jhalar Mandal on 23.6.1980 is concerned, we are in agreement with the findings of the two courts below. We are also in agreement with the finding of the High Court that it is the injury caused on the head of the deceased which led to his death.

4. Learned senior counsel appearing for the appellants, however, contended assuming that the death of the deceased was caused by the injury suffered by him on his head said act of the accused persons cannot be construed as an act of committing murder or even culpable homicide not amounting to murder, and at the most it could be an act of causing grievous hurt. In support o