Judgement

RAY, J.:- This is an appeal by special leave against the judgment of the High Court at Bombay dated 26th June, 1967 dismissing the limine the appeal filed by the appellants against the judgment of the Additional Sessions Judge, Sholapur dated 6th February, 1967.

2. The appellants Dnyanu, Tukaram and Hariba were convicted under Section 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo imprisonment for life. The appellants were also convicted under Section 326 read with Sec. 34 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for a period of one year. The appellants were also convicted under Section 323 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for a period of one month only. All the sentences were to run concurrently.

3. The prosecution case in short is as follows. There were criminal prosecutions between the appellants and some members of the party of Dnyanuba Gadade. Dnyanuba and prosecution witness Panda Shingade appeared in those cases as witnesses against the appellants. On 3rd July, 1966 Dnyanuba went to the shop of one Gulab Kalawat at Taluka Sangda in Sholapur District for getting some grocery on credit. The shop-keeper declined to give him grocery and a quarrel ensured between the two. The prosecution case is that the complainant Narayan Balu, Panda Shingade, Yeshwant Patil, Gana Patil and Nana Gadade happened to be there casually and on the complainant s intervention the dispute was settled. Thereafter Hariba who is an old man of 75 arrived at the shop of Gulab and without any rhyme or reason started abusing Panda Shingade. Thereupon, Panda beat appellant Hariba with a chapal and Dnyanuba beat him with fists. Again the complainant intervened and pacified the parties whereupon appellant Hariba left the place and went towards his flour-mill.

4. Shortly thereafter appellants Tukaram and Hariba came to the shop of Gulab. Tukaram was armed with an iron pipe. Apprehending that the appellants might beat Dnyanuba and Panda, the complainant went ahead and entreated the appellants not to rake up the quarrel which was already settled. The appellants then went to their farm-house. Dnyanuba and his companions continued to sit at the shop of Gulab for more than an hour. Then the party of Dnyanuba thought that it would not be safe to allow Dnyanuba to go alone, they all started going towards the house by a foot track which passed through the land of one Narayan Mali. The appellants who were in their farm-house saw the party going along the foot track and they left the farm-house and went towards the approaching party. Appellant No. 1 carried two spears in his hand, one of which he handed over to appellant No. 2 on the way. Then the appellants and the party of the deceased came across each other on the foot track in Narayan s field. Then Dnyanuba requested the appellants not to beat them since the quarrel was settled. Disregarding this request, at the instigation of appellant No. 3, appellant No. 2 stabbed Dnyanuba with a spear on his chest. Dnyanuba then collapsed. Thereupon Yeshwant Patil fell on his person to save him and appellant No. 1 stabbed Yeshwant Patil on his back. The complainant tried to snatch the spear from the hands of appellant No. 1. Injury was caused to the index-finger of the complainant s right hand. At the same time appellant No. 2 hit Nana Gadade with the handle of the spear. Then 5 members of the party of the deceased began to pelt stones at the appellants. The appellants sustained injuries.

5. The appellants denied the charge and pleaded a right of self-defence. This defence was that the party of the deceased Dnyanuba which consisted of about 15 to 20 persons were the aggressors and were beating the appellants Nos. 2 and 3 with sticks and stones. Appellant No. 1 and his wife were coming to the place of the incident. When they approached, the opposite party