Judgment

HIDAYATULLAH, J. : The appellants, who are four in number, have been convicted by the Rajasthan High Court under S. 302 read with S. 34 of the Indian Penal Code and sentenced to imprisonment for life. Previously they were convicted along with three others by the Sessions Judge, Merta under S. 302 but read with S. 149 of the Code. On the acquittal of the others the change in the section wad made. The appellants were charged in the alternative and no question of a new charge arises. Special leave was granted to the appellants limited to the question whether S. 302 read with S. 34 was applicable to the facts of the case. At the hearing before us Mr. Prem claimed that under the leave he was entitled to argue that the offence disclosed by the evidence did not fall within S. 302, Indian Penal Code, while Mr. Brij Bans Kishore contended that the only point on which leave was granted was whether S. 34, Indian Penal Code was properly invoked. In our opinion, leave was not granted on the latter point which does not present any difficulty at all but on the question whether the conviction for murder is justifiable.

2. The incident took place on June 29, 1961, at about 5 or 5-30 a. in. a