Judgment

SIKRI, J. :- Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges. Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under Section 302, I.P.C. Sheo Prasad Sharma was charged under Section 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person.

2. The Second Additional Sessions Judge, Bhagalpur convicted Sheo Prasad Sharma under Sections 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment. The appellant, Ram Prasad Sharma was convicted under Sections 326/149, 324/34, 201 and 148, I. P. C. and sentenced to four years rigorous imprisonment. Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted. Five of the accused persons were acquitted by the learned Second Additional Sessions Judge.

3. Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma. Both the appeals were heard together. The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under Section 304, I. P. C., in connection with the shooting and causing the death of Kalashwar and sentenced him to rigorous imprisonment for seven years. The convictions of seven others were altered from under Sections 326/149 to one under Sections 304/149 but the sentence of four years rigorous imprisonment was maintained. In other respects the convictions were maintained. The High Court, however, quashed the convictions under Section201, I.P.C.

4. The nine convicted persons filed petition for special leave to appeal. This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us.

5. The prosecution case as accepted by the High Court was, in brief, as follows. On August 15, 1960, at about 1.30 or 2 p.m., by the side of the Danr (water channel) known as Chaksafia Danr at village Bindi about five miles away from police Station, Banka, a serious occurrence took place. The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further north to village Bhadrar and other villages. Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated from the water of this Danr and there are detailed entries regarding the respective rights of the different villages in the Fard Abpashi which was prepared at the time of the last survey. It appears that the villagers of different villages who enjoy the above rights go in a body every year during the rainy season for clearing this Danr in order that there may not be any obstruction in the flow of water therein. On the date of occurrence, i. e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkundi went along with spades to clear this Danr in the usual course and some of them had lathis also with them. The total number of persons were estimated to vary from about 150 to about 400. When they reached the brick kiln, which exists in Malmala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons. Sheo Prasad Sharma and Ram Prasad Sharma were armed with guns and Patal Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas.

6. It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but his allegation was subsequently given up. Dhanusdhari Mehta was a retired Inspector of Police; his son Sheo Prasad Sharma was practicing lawyer at Bhagalpur at the time of the occurrence in question.

7. On seeing this