Judgment

RAY, J. :- This is an appeal by special leave from the judgment dated 6 May, 1968 of the High Court of Rajasthan convicting the appellants Devi Lal and Bihari under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to imprisonment for life.

2. There were seven accused in the case. The accused were Devi Lal, Brijlal, Jagram, Bihari, Mukhtiar Singh, Bahadur and Nathu. The Sessions Court tried the accused for offences under Sections 148, 307/149 and 303/149 of the Indian Penal Code. The Sessions Court convicted Devi Lal, Jagram and Bihari under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to imprisonment for life. The other accused were acquitted.

3. The State of Rajasthan preferred an appeal against the acquittal. The High Court dismissed the appeal of the State against accused Brijlal and Nathu and admitted the appeal as against the other accused.

4. The High Court maintained the conviction of the appellants Devi Lal and Bihari under Section 302 read with Section 34 of the Indian Penal Code and their sentence to imprisonment for life. The conviction of Jagram under Section 302/34 of the Indian Penal Code sentencing him to imprisonment for life was set aside. The appeal of the State was dismissed.

5. The prosecution case was this. Around mid-night of 11 June, 1966, Dhannaram and Sultan went to a liquor shop at village Daulatpura. Dhannaram is the nephew of Motaram and Sultan is Motaram s son. There were two groups. One was Motaram s and the other was of Binjaram and Nathuram. There was enmity between the two groups. When they reached near the house of Surja, accused Brijlal and his brother Ladu met them. Brijlal and Ladu are sons of Binjaram. There were exchanges of verbal abuses between the two groups. Ladu gave a blow with the butt end of the gun on the eye of Dhannaram.Dhannaram had an axe with which he gave a blow to Ladu. Ladu fired his gun. Ladu was carried to Government Hospital at Ganganagar and was admitted there. On the following day 12 June, 1966 at about 7 a. m. Motaram, his son Brijlal P. W. 1 and Dhanna P. W. 3 nephew of Motaram all went to the bus stand to make a report at the police station Hindumalkote. All the seven accused formed an unlawful assembly. Accused Brijlal and Nathu carried guns, while the other accused carried lathis. Nathu shouted that enemies were standing that they should be attacked. Thereafter Nathu fired his gun. Brijlal also fired his gun. None was hit. Motaram, his son Brijlal and his nephew Dhanna ran to save their lives. Brijlal and Dhanna managed to jump away. Motaram was encircled by the accused. Devi Lal gave a lathi blow on his head. The other accused beat him. Motaram received 14 injuries. His condition became precarious . All the accused ran away. Brijlal and Dhannaram afterwards came to Motaram. They found Motaram in a serious condition. They took him to the hospital at Ganganagar. On the way Motaram expired .

6. Among the accused Brijlal, Jagram and the appellant Bihari are sons of Binjaram. There was enmity between Motaram on the one hand and Binjaram and accused Nathu on the other.

7. There were four prosecution eye-witnesses of the alleged occurrence. They were Brijlal P. W. 1, Dhannaram P. W. 3, Birbal P. W. 2 and Hariram P. W. 4. Witness Brijlal is the son of Motaram. He is described as witness Brijlal to avoid confusion with accused Brijlal son of Binjaram. Dhannaram is the nephew of Motaram. Witness Brijlal s father Motaram deceased had appeared as a witness for the prosecution in a case against the accused Bihari and Brijlal son of Binjaram. The case was under Section 307 of the Indian Penal Code. Witness Brijlal further said that Motaram had appeared as a prosecution witness in another case under Section 307 of the Indian Penal Code against the appellant Devi Lal. Witness Brijlal s evidence in short was this. Mukhtiar Singh was convicted for causing injuries to witness Brijlal and was sentenced to one y