Judgment

PALEKAR, J.:- These criminal appeals by special leave are by Onkar Nath, Sidhauli alias Sri Narain and Kailash respectively from the Judgment of the Allahabad High Court by which the order of acquittal passed by the learned City and Sessions Judge, Kanpur is set aside and they have been convicted under Section 302 r/w Section 34, I. P. C. and sentenced to imprisonment for life. Kailash, Onkar Nath and Sidhauli alias Shri Narain were accused Nos. 1 to 3 respectively in the Sessions Court. The charge against them was that they had, in furtherance of their common intention, committed the murder of one Manohar Lal at about 8.10 P. M. on April 23, 1964 in front of the shop of a milk vendor, Chhunno, situate in Lathi Mohal P. S. Collectorganj in the City of Kanpur.

2. The deceased Manohar Lal was about 22 years old and was the son of one Kailash Nath. Kailash Nath had two shops-one in the Generalganj Bazar bearing the name of Kailash Nath Raj Kishore. The main business of sale and purchase was carried on in that shop. The other shop was in the Panch Kucha lane and bore the name of Kailash Nath Dalai. This shop was mainly concerned with the maintenance of Bahikhatas and oaccount books. Raja Ram, P. W. 1 was the Munim of Kailash Nath.

3. About 5 or 6 days prior to the incident the accused Sidhauli and Kailash were gambling in the Ahata of Sawai. Manohar Lal, the deceased, who happened to pass by the place reprimanded them for these activities. This was not liked by Sidhauli and Kailash who gave a threat to Manohar Lal. Manohar Lal reported the matter to his father who, thereupon, instructed his employees that one or the other of them should keep Manohar Lal company whenever he was going away from the house or the shop.

4. Accordingly, on the night of April 23, 1964 after closing the shop at 8.00 P. M., which was the time for all shops to close, Raja Ram, P. W. 1 and Manohar Lal started for the latter s house by the aforesaid Generalganj Bazar Street. That street appears to be a one way street and no conveyances, not even Rickshas, were allowed to ply in thatstreet. When the two of them reached near the shop of Chhunno, the milk vendor, they noticed that the three accused were near the aforesaid shop. On seeing them, they came up, Sidhauli addressed Manohar Lal reminding him about the superior airs about gambling which he displayed a few days ago and told him that he now wanted to settle scores with him. Manohar Lal retorted that he had seen many a person like Sidhauli whereupon Sidhauli asked the other two accused to finish Manohar Lal. Thereupon Kailash and Onkar Nath each whipped out a knife and attacked Manohar Lal in the back. Manohar Lal made an attempt to run but Sidhauli caught hold of him by his hand. Manohar Lal fell on the ground there and became unconscious. The incident attracted a number of persons and as the miscreants were running away, shouts were uttered and they were chased by Raja Ram, P. W. 1, Keshav Dutt, P. W. 2, Krishna Behari, P. W. 5 and one Ramesh Chand all of whom caught Kailash before he had run five or six paces while the other two accused Onkar and Sidhauli ran away and disappeared. Kailash had still the knife in his hand. He was disarmed by Raja Ram, P. W. 1. A large crowd had gathered on the spot and just when the captors of Kailash were thinking of taking him to the Police Station, Raj Kishore, P. W. 7, the brother of Manohar Lal, came on the scene. He was coming from the shop of one Nankare in the same street after closing the shop at about 8.00 P. M. On the way he had seen a crowd and hastened to the spot From some distance he first saw that Raja Ram, P. W. 1 and two or three other persons had caught hold of Kailash and after advancing further he saw his brother Manohar Lal lying on the road with injuries. Raja Ram shortly told him that Manohar Lal had been stabbed by two or three persons and that they were taking Kailash to the Police Station. He left it to Raj Kishore to remove Manohar Lal to