The distinction between the first and second parts of S. 149 of the Indian Penal Code and its application to the facts of the case.

Judgment

J. L. KAPUR, J. : These are two appeals which arise out of the same judgment and order of the High Court at Allahabad and involve a common question of law. Appellants Tej Singh and Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh s cousin and Maiku was a servant of Tej Singh. They were all convicted under S. 302 read with S. 149 of the Indian Penal Code and except Mizaji who was sentenced to death, they were all sentenced to imprisonment for life. They were also convicted of the offence of rioting and because Tej Singh and Mizaji were armed with a spear and a pistol respectively, they were convicted under S. 148 of the Indian Penal Code and sentenced to three years rigorous imprisonment and the rest who were armed with lathis were convicted under S. 147 of the Indian Penal Code and sentenced to two years rigorous imprisonment. All the sentences were to run concurrently but Mizaji s term of imprisonment was to come to an end after "he is hanged". Against this order of conviction the appellants took an appeal to the High Court and both their convictions and sentences were confirmed.

2. The offence for which the appellants were convicted was committed on July 27, 1957, at about sunrise and the facts leading to the occurrence were that field no. 1096 known as Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded as in possession as tenant inchief. Sometime in 1949 he mortgaged this plot of land to one Lakhan Singh. In 1952 this field was shown as being under the cultivation of Rameshwar, the deceased and four other persons, Ram Sarup who was the uncle of Rameshwar, Jailal his brother, Sita Ram and Saddon. The record does not show as to the title under which these persons were holding possession. The mortgage was redeemed sometime in 1953. The defence plea was that in the years 1954, 1955, 1956 possession was shown as that of Banwari. But if there were any such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of Rameshwar, and four others abovenamed. These entries showing cultivating possession of the deceased and four others were continued in 1957. On April 18, 1957, Banwari sold the field No. 1096 to Tej Singh appellant who made an application for mutation in his favour but this was opposed by the deceased and four other persons whose names were shown as being in possession. In the early hours of July 27, 1957 the five appellants came armed as above stated. Mizaji s pistol is stated to have been in the fold (phent) of his dhoti. A plough and plank known as patela and bullocks were so brought. The disputed field had three portions, in one sugarcane crop was growing, in the other Jowar had been sown and the rest had not been cultivated. Maiku started ploughing the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept watch. Bateshwar P. W. 7 seeing what was happening gave information of this to Ramsarup who accompanied by Rameshwar, Jailal and Israel came to the Sukhna field but unarmed. Ram Sarup inquired of Tej Singh as to why he was damaging his field and Taj Singh replied that he had purchased the field and therefore would do "what he was doing" which led to an altercation. Thereupon, the four persons cutting the sugarcane crop i.e. Mizaji, Subedar, Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej Singh, Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died 1/2 hour later. The accused, after Rameshwar fell down, fled from the place. Ram Sarup, Jailal and Israel then went to the police station Nawabgunj and Ram Sarup there made the first information report at about 7-30 a.m., in which all the five accused were named. When the police searched for the accused they could not be found and proceedings were taken under Ss. 87 and 88 of the Code of Criminal Procedure, but before any process was issued Subedar, Tej Singh and