Judgment

P. JAGANMOHAN REDDY, J.:- The Additional Sessions Judge, Dhar, convicted four accused under S. 148 as also under Section 302 read with Section 149 and in the alternative Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to two years rigorous imprisonment and life sentence respectively. The High Court confirmed these convictions and sentences, against which one of the accused namely the Appellant has filed this Appeal by Special Leave.

2. The prosecution case is that Jamunabai P. W. 4 and Janibai are the widows of two brothers Jawarchand and Nandaji respectively, they owned considerable land in village Kherod. Jamunabai and Janibai had two daughters Ram Kunwar and Deo Kunwar respectively. These ladies rented their lands to the deceased Purushottam who was the real brother of Ramesh Chandra P. W, 1. Accused 1 Bhanwar Singh and Accused 3 Amar Singh are sons of Accused 5 Kunwarji. It is alleged that the lease of the land by Jamunabai and Janibai in favour of Purshottam had aggrieved the accused Juwar Singh who is nephew of Jamunabai and Janibai. It is further alleged that a day before the incident a male calf of the deceased had damaged the rachka (fodder) of Ganesh and the later had threatened the deceased that he would take revenge. On 18-1-66 at noon Purshottam accompanied or closely followed by Ramesh P. W. 1, Babulal P. W. 2 and Jamunabai P. W. 4 were going to their field to fetch the fodder (rachka), While they were passing by a well known as Radhakund or Sarkari Bawadi all the five persons accompanied by Ganesh were standing on the embankment of the pond near the well when Kunwarji challenged Purshottam to halt and incited the other accused persons to attack him. On being so incited accused Bhanwar Singh delivered a blow with a Lohangi at the head of Purshottam as a result of which Purshottam fell down on the ground. Accused Juwar Singh and Hindu Singh struck Purshottam with Dhariyas while Amar Singh struck him with Pharsa. Thereafter accused Bhanwar Singh delivered two further blows with his Lohangi on the back of Purshottam after which all the accused ran away. A number of persons including Jamunabai P. W. 4, Babulal P, W; 2, Sunder Singh P. W, 5, and Gendalal who were present at or near the place of occurrence witnessed the incident. The injured Purshottarn was put on the cot and taken to the Mhow Neemuch Road with the object of taking him in a bus to Sadalpur which was at a distance of 5 miles from the village Kherod. When the person incharge of the bus refused to take the injured he was placed in a cart and while he was being taken to Sadalpur he died. At first when Purshottam was injured a report had been given and initially the offence was registered under Sections148, 149 and 307 of the Indian Penal Code. After the dead body was taken to the Police Station, Bhajanlal who recorded the First Information Report Ex. P. 1 amended the offence into one under Sections 148/147 and 302 of Indian Penal Code. An inquest of the dead body was prepared as per Ex. P. 2 and the body was sent for Post-mortem to the Dhar Civil Hospital where a Post mortem was held by Dr, Kulkarni P. W, 3. The accused were called into the Police Station on the evening of the 19th and arrested on the morning of 21-1-1966. It is alleged that on information furnished by accused Bhanwar Singh, Hindu Singh, Amar Singh, Juwar Singh a Lohangi, a Pharsa and a Dhariya were recovered respectively at the instance of the above persons. The accused denied the offence. The Appellant s case however was that he was at his own house and saw Ganesh, Babu Lal, Ramesh and Purshottam fighting near the Bawadi. Seeing the persons fighting he went there to pacify but Purshottam hit a blow with Lathi on his head rendering him unconscious. The other accused pleaded alibi. While the recovery of the weapons was admitted by the accused the Additional Sessions Judge found that there was nothing to connect those weapons with the offence. He