Judgement

RAY, J.:- This is an appeal from the judgment of the High Court of Gujarat.

2. The appellants were charged with offences under Section 302 and 323 read with Section 34 of the Indian Penal Code. Accused Nos. 1 and 2 were charged for the individual offences under Sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji. The deceased Amarji was the brother-in-law (sister s husband) of Vaghji Mansangji. Two important eye-witnesses were Pabaji, Dajiba and Pachanji Kesarji. Amarji was Pabaji s mother s sister s son. Pachanji is the first cousin of Vaghji Masangji.

3. Accused No. 3 Mulubha is the maternal uncle (mother s brother) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jithubha is the son of another maternal uncle of accused No. 2.

4. Accused No. 2 was residing at Bhalot. Vaghji also resided there. About two months prior to the date of the occurrence on 26th January, 1965at 8 p. m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji. There was exchange of words between the members of the two families. Accused No. 2 Ranubha and his father Naranji assaulted the wife of Vaghji. Vaghji then filed a complaint. Ultimately, the complaint was compounded on the intervention of accused No. 3 Mulubha. The prosecution case is that because of the behavior of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad. The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to reside in the village.

5. On 26 January, 1965 Amarji, Pabaji, Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot. They left Bhalot at about 10 a. m. and reached Khedoi at about 1 p. m. The cart loads of fuel wood were sold in Khedoi by about 5 p. m. They made some purchases and then left Khedoi at about 7 p. m. While returning home Amarji s cart was in the front and Pabaji, Pachanji and Vaghji followed him in that order. There was not much distance between each cart. When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the there accused persons were noticed waiting on the road. All of them caught hold of Amarji and attacked him who was in the first cart. In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji. Mulubha was armed with an axe. Accused Nos. 1 and 2 dealt knife blows to Amarji. The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so, both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji. On seeing the attack on Vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any longer as they had already killed Amarji. Thereupon the accused stopped attacking Vaghji. By this time Amarji had come staggering to the spot where Pabaji was standing. Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart. Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last.

6. The carts were taken to village Khedoi. It is the prosecution case that the three accused persons followed these carts upto a certain distance and then accused Nos. 1 and 2 left while accused No. 3 disappeared near Khari Vadi. Pabaji took the carts to Moti Khedoi and saw police head constable Banesing who had come to Khedoi for p