Judgment

PALEKAR, J.:- This is an appeal by special leave by seven accused who have been convicted by the High Court under section 302 r/w 149, I.P.C. and section 147, I.P.C. They are all sentenced to life imprisonment. In all nine persons were put up for trail before the Additional Sessions Judge, Monghyr. They included in the seven appellants, one Indradeo Singh and Babulal Singh. The Sessions Court convicted Indradeo Singh under section 302, I.P.C. and sentenced him to imprisonment for life. The other accused were all acquitted. Indradeo Singh appealed to the High Court against his conviction and sentence. The State also appealed against the acquittal of the remaining eight including Babulal. The High Court did not admit the appeal against Babulal but admitted the appeal against the appellants and after hearing, convicted the appellants as aforesaid. The appeal of Indradeo Singh was dismissed. The seven appellants and Indradeo Singh applied for special leave to this court. Leave was granted to the appellants only.

2. The incident out of which the case arises took place at about 1.00 P.M. on Sunday the October 4, 1964 in the village Belchi within the jurisdiction of Halsi Police Station which is about ten miles away. A couple of hours earlier there was a prior incident in which the deceased Dhotan Singh and the aforesaid Babulal Singh, were involved. It appears that the buffaloes belonging to the accused grazed in the paddy field jointly cultivated by Dhaton Singh and his cousin Baleshwar Singh, P. W. 1. The paddy field was close to the Dalan of Babulal. On a protest made by Dhaton Singh to Babulal, there was an exchange of abuse. The matter, however, ended there without any harm being done.

3. At about 1.00 P. M. Baleshwar Singh, P. W. 1. and Dhotan Singh returned from their field to the village. This field was much further to the North of the village and it appears that Baleshwar Singh, P. W. 1. came to know from Dhotan Singh about the incident of grazing. As the two of them passed through the village lane on their way to their houses, the present incident occurred. The two were coming from North to South. As they came near the Dalan of Babulal, it was noticed that the nine persons referred to above were sitting in the Dalan. On seeing Dhotan Singh, Babulal is supposed to have cried "the enemy has come, assault and kill him." That was a signal, for all the nine of them to come out of the Dalan into the lane. Indradeo Singh had a saif a kind of sharp double edged sword, in his hand while the other eight including the appellants and Babulal were armed with sticks. Immediately they came out, they surrounded deceased Dhotan Singh, and Indradeo pierced his saif into the chest of Dhotan Singh Baleshwar Singh, P. W. 1. Who was following him about 8 or 10 paces behind shouted "brother, run away". Thereupon Dhotan Singh ran back to the North. The case is that all those accused who were armed with lathis pursued him and assaulted him with the result that Dhotan Singh fell down some 67 away from the original place of assault and shortly thereafter he died. The First Information Report was lodged by P. W. 1 that same afternoon at about 5.00 P. M.

4. The defence was that all the nine accused had been falsely implicated. It was stated that there was a quarrel about the grazing of cattle between one Kailash Singh and the deceased Dhotan Singh and Babulal had nothing to do with it. It was during the course of this quarrel, somebody picked up a bamboo pole from the mandap of Harcharan Baba and attacked the deceased Dhotan Singh in the chest. Dhotan Singh and the prosecution witness belonged to one group and due to enmity and grudge all the nine accused who were close relative were falsely implicated.

5. The learned Sessions Judge after a careful scrutiny of the evidence accepted the story that there was an incident at about 10 O clock. This incident concerned Dhotan Singh and Babulal. He also accepted the prosecution story that at about 1.0