Judgment

GROVER, J.: This is an appeal from a judgment of the Punjab and Haryana High Court upholding the conviction of the appellants who are brothers under S. 302 read with S. 34 of the Indian Penal Code and confirming the sentence of death imposed on them by the learned Sessions Judge, Hissar. We have already, by a brief order dated May 7, 1971, set aside the conviction and sentence of the appellants under section 302 read with section 34 and have convicted them under Part I of section 304, Indian Penal Code, for which a sentence of 7 years has been imposed on each of the appellants. We now proceed to give the necessary details and our reasons for making the aforesaid order.

2. H. C. Sethi is a practicing advocate of Hissar. His son, Subhash Chander deceased was a Major in the Indian Army. His second son, Suresh Chander, is an advocate and the principal witness in the case. In February 1969 H. C. Sethi and his family appear to have purchased 125 acres of land in village Talwandi Rana, near Hissar. Possession had been obtained by the landlords of 80 Killas of land either by compromise with the tenants or by obtaining ejectment orders against them from the competent revenue courts. About 6 or 7 acres of land were stated to be still under the cultivation of appellant Tarachand. The purchasers made an application in the court of the Assistant Collector, Hissar for his ejectment in March, 1969. Tarchand appeared on one date but he did not appear thereafter. On May 9, 1969 an ex parte order of ejectment was passed against him. According to the terms of the decree, however, he was to vacate the land in possession only after he had been allotted some land out of certain surplus area.

3. According to the case of the prosecution the occurrence is alleged to have taken place on July 15, 1969 at about 6 p.m. in the evening on the Dhansu passage leading to the village Talwandi Rana, near the house of Surja Kumar. Khasra No. 174/2 is situated at a distance of 10 or 11 feet from the place of occurrence. It may be stated that one of the main points for decision will be whether this Khasra number which admittedly was in possession of Tarachand appellant before the killabandi in the year 1952-53 continued to remain in his physical possession even after the consolidation proceedings had started and it had been shown in the Khasra Girdawari as the property of the village abadi deh. On behalf of the appellants it was claimed that it was in possession of Tarachand on the day of the occurrence.

4. We may now refer to the first information report which was registered without any delay. It was made by Pat Ram who is working as a clerk to H.C. Sethi, Advocate. After giving the necessary facts about the purchase of the land by the Sethi family he proceeded to state that the ex parte decree for ejectment which had been granted against Tarachand was passed without any compensation and for that reason he was nursing a grudge against the deceased Subhash Chander, Suresh Chander and others. At about 3 p.m. on the day of the occurrence the two brothers, Manphhul Singh a Siri and Patram (informant) went on a tractor to plough the land which was in their possession. After demarcating the area in their possession they were going back to village Talwandi Rana at about 6 p.m. on the kutcha Dhansu passage when the harrow got detached from the Tractor. Alter leaving the harrow and the tractor with Suresh Chander a party consisting of Subhash Chander, Patram and Manphul Singh started for village Talwandi Rana in order to bring a rod. Meanwhile Suresh Chander started attaching the harrow to the Tractor. The party consisting of Subhash and other had only covered a short distance and had reached near the house of Surja Khumar when the appellants came from the opposite side armed with jailers. Tarachand raised a lalkara saying that they were going to teach a lesson for obtaining an ex parte eviction decree. Both the appellants then attacked Subhash Chander with the respec