Judgment

HEGDE, J.- The appellants and one Dahya were tried before the Additional Sessions Judge, Surat in Sessions Case No. 13 of 1966 on his file. The second accused Ichhu and the afore-mentioned Dahya were tried for an offence under Section 302 read with Section 34, I. P. C. The first accused Makan Jivan and the 4th accused Jadav were tried for offences under Section 323, I. P. C. The trial Court acquitted Dahya. It convicted accused No. 2 Ichhu under Section 302, I. P. C. and sentenced him to suffer imprisonment for life. Accused 1 and 4 viz. Makan Jivan and Jadav were found guilty of offences punishable under Section 323, I. P. C. For those offences each one of them was sentenced to undergo rigorous imprisonment for one month and also to pay fine of Rs. 50/-, in default to undergo further imprisonment for 15 days. The convicted accused went up in appeal to the High Court of Gujarat but their appeal was dismissed. Thereafter this appeal was brought by special leave.

2. The accused Ichhu, Dahya and Jadav are the sons of accused Makan Jivan. The accused own a field in Survey No. 9 in the village of Ckha. The adjoining field in Survey No. 6 was owned by P. W. 2 Lallubhai: The deceased Tha-kore and P. W. 3 Kantilal are the sons of P. W. 2 Lallubhai. P. W. 4 Divali is the wife of deceased Thakore. In between the field of P. W. 2 and that of the accused there is a stream.

3. According to the prosecution case the deceased Thakore and P. Ws. 2 to 4 worked in their fields on the day of the occurrence viz. November 28, 1965. At about 4 p. m, on that day they began to water their brinjal plants by taking water from the stream that separates their field and the field of the accused. The accused were in their field at that time. The further case of the prosecution is that when Thakore and others were watering their field, all the accused came to the field of P. W. 2, in a body; at that time accused 2 and 3 were armed with Bhallas and accused 1 and 4 were armed with sticks; after coming there the accused abused P. W. 2 s party for taking water; then deceased Tha-kore told them that if they wanted they could also take water from the stream but there was no point in their abusing them and threatening them: but seeing the menacing attitude of the accused the deceased Thakore ran away from the place, then the accused pursued him, overtook him; accused 2 Ichhu alias Chiman Makan gave a Dharia blow on his head; thereafter accused 3 also gave him a blow; at the same time accused 1 and 4 beat Kantilal and Divali; as a result of this assault Thakore sustained very serious injuries; witnesses Kantilal, Lallubhai and Divali also sustained injuries. Thakore was immediately shifted to the hospital at Rander and admitted therein at about 6/15 p,m. The same day at about 8/10 p.m. Lallubhai as well as Kantilal were also admitted into the hospital for treatment. The First Information Report was laid before the police at about 7/15 p.m. on the same day. As the condition of Thakore was very critical, under medical advice he was shifted to the Civil Hospital, Surat. He passed away on the night between the 29th and 30th.

4. The post-mortem examination of the deceased Thakore disclosed two external injuries. They are (1) A diffused swelling on right side of the face, starting from front of upper end of Rt. ear to the angle of the lower jaw 5" X 2" and (2) A punctured wound on left parietal region, posteriorly and towards mid-line 1/2" X 1/2" X 1-1/2" brain deep. On internal examination by P. W, 11, who conducted the pest-mortem examination, the following injuries were noticed:

"(i) The Rt. parietal bone was broken into 6 pieces, varying in sizes from 1/4th to 1/2 inch by 1/4" to 1/2". The fracture extended upto the Rt. temporal bone and also to the left temporal bone in linear fashion in the size of 3" to 3-1/2".

(ii) The left parietal bone was fractured at the upper part in linear fashion from above downwards and forward, in the length of 4 inches.

(iii) A linear