Judgment

VAIDIALINGAM, J.: These appeals, by special leave, by the five appellants who are accused Nos. 1 to 5, are directed against the common judgment and order dated April 26, 1968 of the Andhra Pradesh High Court in, Criminal Appeals Nos. 833 and 1031 of 1966.

2. The appellants took their trial before the learned Additional sessions Judge, Nellore for the following offences:

1. Rioting armed with deadly weapons under Section.148 I. P. C. against Nos. 1 to 5.

2. Murder with common intention under Section 302 read with S.34 I. P. C. accused Nos. 1 to 5.

3. Murder under Section 302 I. P. C. only against accused No. 2.

4. Voluntarily causing hurt with dangerous weapon under Section 304 I. P. C. against accused No. 4.

3. The prosecution case was as follows: One Mannam Siddaiah had seven sons of whom P. W. 3 is one. The first and the third accused are brothers and their other two brothers were Peraiah and Sheshaiah. Similarly, the second and the fifth accused are brothers and the fourth accused is the son-in-law as also the sister s son of the first accused. The mother of the first and the third accused and the mother of the second and fifth accused are sisters. The father of the first accused Venkataiah and Peda Guravaiah, father of Siddaiah were brothers. There was bitter enmity between the family of Siddaiah and mat of the first accused. On the morning of June 27, 1966 .Peraiah, the brother of first and third accused was killed and the six sons of Siddaiah were alleged to be responsible for his murder. At about 3 p.m. the same day, the appellants in order to retaliate for the murder of Peraiah formed themselves into an unlawful assembly along with ten other persons and went to the house of Siddaiah to kill him. The first accused was armed with a Bandinatu Karra; the second accused with an axe; the third accused with a rokali; the fourth accused with a medithoka; and the fifth accused with a nagalikarru. On seeing Siddaiah in his house the second accused pulled him out and hit him on his head with the axe. Siddaiah fell down whereupon all the accused hit him with the weapons which they had and caused him multiple injuries, as a result of which Siddaiah died on the spot. P. W. 3, one of the sons of Siddaiah who was with his father at that time, tried to intervene but was beaten by the fourth accused. The witnesses to the occurrence are stated to be the daughter, widow, son and daughter-in-law of the deceased Siddaiah being P. Ws. 1. 2. 3 and 4 respectively. The daughter of Siddaiah, P. W. 1 gave the report about the occurrence Ex. P. 1 on the same day at about 5 P. M. to the village Munsif, who contacted the police, as a result of which investigation commenced. P. W. 3, who had received an injury was examined by the doctor P. W. 5, who found the following injury on the body of P. W. 3:

"A contused wound 1" lateral to the middle line middle of the left shoulder blade back 1-1/2" x 1" skin deep. Clotted blood seen at the site. Age of injuries about 40 hours."

P. W. 5 has given a wound certificate Ex. P. 2. According to P. W. 5 the above injury was simple. At this stage it may be mentioned that in the evidence P. W. 5 has stated that the injury was really not on the left shoulder blade as mentioned in Ex P. 2 but on the right shoulder blade. But nothing turns on this mistake because there is no controversy that P. W. 3 did sustain an injury.

4. P. W. 5 has also issued the post-mortem certificate Ex. P. 4, regarding the injuries found on the body of Siddaiah. The following injuries were found on his body:

"1. A contused wound on the right arm upper third 1" x 2" skin deep. Clotted blood seen.

2. A contused wound on the left arm upper third and left forearm lower third 1" x 2" x skin deep, each wound clotted blood seen at the site.

3. A vertical incised wound 5" above the right ear 2"x1"x bone deep clotted blood seen at the site.

4. A horizontal wound behind 1" lateral to the right ear 1"x1/2" bone deep, clotted blood seen at the site.

5. An in