Judgment

P. JAGANMOHAN REDDY, J.:- Sohan Lal, Jiwan and Janki were convicted of offences under Ss. 324, 323 read with 34 Indian Penal Code and each of them sentenced to life imprisonment by the Additional Sessions Judge, Rampur. They were further convicted of offences under Ss.324,323 read with S. 34, I. P. Code and each of them sentenced to rigorous imprisonment for one year and six months respectively under the two counts. The sentences were directed to run concurrently. In Appeal the High Court acquitted Jiwan and Janki of the offence of murder under S. 302 read with S. 34 and instead convicted them of offence under Section 325 read with S. 34 I. P. C. for which each of them was sentenced to five years rigorous imprisonment. Their convictions and sentences under Ss. 324 and 323 were maintained. The conviction of Sohan Lal for an offence under S. 302 read with S. 34 was converted into one under S. 302 I. P. C. simpliciter. The sentence of life imprisonment for the offence of murder as well as conviction and sentence under Ss. 324, 323 read with S. 34 was maintained. Sohan Lal and others have filed this appeal by Special Leave. It is contended on behalf of the Appellant Sohan Lal that as there is no evidence that he gave any fatal injury to the deceased the conviction and sentences under S. 302 also cannot be sustained. It is also urged that the Appellant was entitled in the circumstances in which the occurrence took place to exercise his right of private defence if the offence which occasions the exercise of the right be of the description which falls under Fifthly of Section 100 or under S. 101. Indian Penal Code. If so the conviction and sentence under Ss.324 and 323 are also not sustainable. In order to appreciate these several contentions it is necessary to set out briefly the prosecution case.

2. Makhan Lal P. W. 1, Jiwan and Janki accused 2 and 3 in the Trial Court were all residents of the Village Kapnairi. It is admitted that Makhan was married to Chameli D. W. 3 about 4 or 5 years prior to the incident and she began to live with him from about 2-3 years during which period it is alleged she developed illicit relations with Jiwan. It may here be pointed out that the Appellant was cultivating the lands of Jiwan as his Sajhedar. A year before the incident, she went to her parent s house and lived with her father and brother Sohan Lal in his village Hardua and did not return to her husband s village because of misunderstandings between herself and her husband. When Chameli was, reading in her brother s house Makhan went to bring her back on several occasions but every time Sohan Lal and his father Mangli did not permit him to do so.

3. A little after mid-day on 14-1-65 Makhan along with his brother Chunni Lal P. W. 2 and Jhanjan the deceased went to the house of the Appellant Sohan Lal in the village Hardua to bring back Chameli. At that time Sohan Lal was not at home as he had gone to Kapnairi with a cart to bring back Sugar cane. When Makhan asked Chameli to accompany him to his house, it is said she agreed to return with him and so both of them accompanied by Chunni Lal P. W. 2 and the deceased Jhanjan started for their viliage. After they had travelled about 1 1/2 miles they saw Sohan Lal coming with a cart load of Sugarcane along with Jiwan and Janki. When Sohan Lal saw Chameli going with Makhan he is said to have objected, with the result that a quarrel ensued between him and Makhan. At that time Sohan Lal was armed with a lathi, Jiwan with a Suja and Janki with a spear. The verbal quarrel resulted in all the three Sohan Lal, Jiwan and Janki attacking Makhan, Chunni and Jhanjan. Jiwan is said to have assaulted Jhanjan with a Suja as a result of which Jhanjan fell down and became unconscious. Makhan received several lathi blows and Chunni received a spear and lathi blow. Makhan and Chunni then cried for help and on hearing their hue and cry Tota Ram P. W, 3, Ram Lal P. W. 4 and Pemi rushed from the nearby fields and a