Judgment

SHELAT, J.-One Mange Ram and the four appellants herein were charged under Section 302 read with Section 149 and Section 148 of the Penal Code for causing the death of one Des Raj at about 10 a. m. on July 4, 1960. They were tried and convicted by the Sessions Judge, Rohtak and each of them was sentenced to imprisonment for life. In appeal against the said conviction and sentence, the High Court acquitted the said Mange Ram, but confirmed the conviction of the appellants, changing, however, their conviction from Section 302 read with Section 149 to Section 302 read with Section 34. This appeal is by special leave against the said conviction and sentence.

2. Mange Ram and appellant Deep Chand are brothers. Appellants Dharam Singh and Fateh Singh are also brothers and applicant Mohinder Singh is the son of Dharam Singh.

3. According to the prosecution, the relations between the said Mange Ram and the appellants on the one hand and the deceased Des Raj and his cousin, Daryao Singh, on the other were strained for a number of reasons, one of them was that Mange Ram suspected that his father, Gumani Ram, had been killed by the deceased, Des Raj. There was, besides, political rivalry in respect of the Panchayat elections between the parties. As it very often happens, this bitterness was sparked of by Dharam Singh s buffalo straying into Des Raj s field on the previous day. Hot words were then exchanged between the two.

4. The prosecution case, as laid before the Trial Court, was that while Des Raj was returning in a cart from his field after unloading manure and had reached the outskirts of the village, Mange Ram and the appellants came out of the Kotha of Mange Ram, armed with different weapons, and on Mange Ram raising the cry that they should settle their score with the deceased, all of them struck Des Raj with their weapons till he was killed. This incident was testified by Chandgi Ram, the nephew of Des Raj, who wassaid to be following the cart of the deceased and by witnesses Sultan, Bhalle Ram, Lachhi and Raghbir, who were either in their cattle enclosures or at the well nearby. It was said that immediately after the incident, Chandgi Ram; rushed to the shop of Daryao Singh at Sonepat 6 miles away and narrated the incident to him. Daryao Singh thereupon went to the police station leaving Chandgi Ram at the shop and lodged the First Information Report wherein he set-out the names of the appellants and Mange Ram as Perpetrators of the crime and also the names of Chandgi Ram and the other witnesses as persons who had witnessed the incident.

5. The Trial Judge accepted the evidence of Chandgi Ram and the four witnesses, who claimed to be the eye-witnesses, and convicted all the 5 accused. This was done in spite of the evidence of Piara Singh, D. W. 1, the Assistant Excise and Taxation Officer and Man Singh, D. W. 2, both of whom testified to the presence of Mange Ram at the office of witness Piara Singh that morning. The Trial Judge was of the view that although on that evidence Mange Ram could be said to be in that office that morning, that evidence was not enough to exclude the possibility of his having returned to the village in time to participate in the crime along with the appellants. The High Court, however, felt that even if the defence evidence was not sufficient to fully establish Mange Ram s alibi, it was enough to cast a reasonable doubt on the prosecution case against him and in that view gave him the benefit of reasonable doubt and acquitted him. Mange Ram having thus been eliminated from amongst the five assailants, Section 149 became inapplicable and the High Court, therefore, converted the conviction of the appellants to Section 302 read with Section 34 and also set aside their conviction under Section 148.

6. Two contentions were raised before us by Mr. Chari against the correctness of the conviction of the appellants by the Trial Court and by the High Court. The first was that although Daryao Singh had lodged