Judgment

HEGDE, J.:- This is an appeal by special leave. In the trial court as many as eight persons were charged under Sections 147, 148, 201/149, 302/149 and 447/149, I. P. C. They were also charged alternatively under Sections 323/34, 302/34, 307/34, 447/34 and 201/34, I. P. C. The learned trial Judge acquitted A-6 to A-8 of all the charges for which they were tried. He convicted accused 1 and 3 under the second part of Section 304, I. P. C. and sentenced each of them to suffer rigorous imprisonment for two years for the said offence. He convicted accused 2, 4 and 5 under Section 323, I. P. C. and sentenced each of them to suffer imprisonment for 6 months or the same. Both the State as well as the convicted persons went up in appeal against the judgment of the trial court to the High Court of Gujarat. The State was aggrieved by the acquittal of the accused under the murder charge. The High Court accepted the appeal of A-1 and A-3 and acquitted them. It also accepted the appeal of the State in part and convicted Accused 2, 4 and 5 under the 1st Part of Section 304/34, I. P. C. For that offence each one of them was sentenced to suffer rigorous imprisonment for five years.

2. The incident giving rise to this case occurred at about noon on September 22, 1964, in Survey No. 265 on the outskirts of the village Ghanad of Lakhtar taluka in Surendranagar District. According to the prosecution case deceased Sabalsingh and P. W. 5 were the owners of the said Survey No. 265. The field in question lies by the side of the road running North to South from Ghand village to Nana Ankewalia. Survey No. 265 is about a mile from the village site of Ghanad. Across the road mentioned earlier, some of the villagers of Ghand own lands. To reach those lands as well as to reach Nana Ankewalia, the villagers had to go by the road referred to earlier. But that road used to be submerged during rainy season and during that time, the villagers used to pass through the uncultivated portion of Survey No. 265 known as Mocham land.

3. The prosecution evidence discloses that on September 21, 1964, i.e., a day before the occurrence when Accused 4 and 5 who have fields on the eastern side of the road were passing through the Mochan land, they were obstructed by deceased Sabalsingh. He warned them not to go by that way thereafter though as a matter of concession it is said he allowed them to go over the land on that day. On the day of the occurrence, it is said that A-4 and A-5 again tried to go by that way. At that stage Sabalsingh and his brother P. W. 5 obstructed them. On being so obstructed A-4, returned to the village and thereafter A-1 to A-5 came there armed with spades and sticks. When they tried to pass through the Mochan land, they were obstructed by deceased Sabalsingh, deceased Bhupatgar and P.Ws. 5 and 6. On being so obstructed, the deceased as well as P.Ws.5 and 6 were attacked by A-1 to A-5 as a result of which Sabalsingh and Bhupatgar died and P.Ws.5 and 6 seriously injured.

4. The defence version as given by A-1 is that at about noon on the day of occurrence, A-4 came to him and told him that five to six Darbars and Bavas (evidently referring to the deceased persons and P. Ws. 5 and 6) had assaulted his brother on the previous day and had restrained him from passing through the Mocham and again on that day those Darbars and Bavas had assaulted him and obstructed him from going to his lands. He also told him that he had given that complaint to the Sarpanch and that he had come to tell him thereafter. He further says that after receiving that information he went to the Panchayat office. At that time he saw village people running to Nana Ankewalia road. He thought that there may be a fight and so he went along the Ankewalia road. At the scene of the occurrence he found two groups of persons facing each other. Very soon thereafter Sabalsingh inflicted knife blows on the chest and abdomen of A-2, his brother who on receiving those blows fell down and the