Judgment

RAY, J.:- This is an appeal by special leave from the judgment dated 31 August, 1968 of the High Court of Madhya Pradesh. The High Court dismissed the appeal of the appellant Gangu and accepted the appeal of the State against the judgment dated 31 March, 1965 of the Additional Sedssions Judge, Tikamgarh. The High Court maintained the conviction of the appellant Gangu and the sentence of 7 years rigorous imprisonment passed against him under section 304 Part I of the Indian Penal Code. The High Court set aside the acquittal of the appellants, Parichhat, Sunnu and Sitaram under sections 147 and 302 read with section 149 and under section 447 read with section 149 of the Indian Penal Code and sentenced each of them to rigorous imprisonment for 5 years under section 326 read with section 34 of the Indian Penal Code.

2. Each of the appellants Partichhat, Ram Sahai, Sunnu and two other accused Sitaram and Durji was charged on three counts. First that each was member of an unlawful assembly on 26 October, 1964 and in prosecution of the common object of such assembly, viz., in forcibly cutting the Tilli crop of Damrulal standing in the field plot No. 559 and in taking possession of that plot, committed the offence of rioting punishable under section 147 of the Indian Penal Code. Secondly, each on the said date committed criminal trespass by entering into the field plot No. 559 of Damrulal with intent to cut the Tilli crop standing in the field and thereby committed an offence punishable under section 447 of the Indian Penal Code. Thirdly, each was member of an unlawful assembly is prosecution of the common object of which. Viz., in forcibly cutting the Tilli crop of Damrulal standing in the field plot No. 559, and in taking possession of that plot, one of the members Gangu committed murder by intentionally or knowingly causing the death of Kashirman and each was charged under section 149 of the Indian Penal Code of causing the murder of Kashiram an offence punishable under section 302 of the Indian Penal Code.

3. The appellant Gangu was charged on three counts. The first two counts were similar to those of the other appellants. The third count was that Gangu on 26 October, 1964 did commit murder by intentionally or knowingly causing the death of Kashiram, and thereby committed an offence punishable under section 302 of the Indian Penal Code.

4. The prosecution case was this. The relationship between Damru and his brother Kashiram at he deceased and the appellant Parichhat was strained for some time with regard to possession of Khasra No. 559 of village Simra. The patta of the Khasra was given to Damru P. W. 1 on 8 October, 1963.Parichhat made efforts to have this patta cancelled. Parichhat was unsuccessful in obtaining cancellation of the patta granted to Damru. Parichhat decided to cut forcible the standing crop of Tilli sown by Damru over the land, of plot No. 559. Parichhat went with labourers on the field on 26 October, 1964. Damru requested the labourers not to cut the crop. The labourers went away. Parichhat opened the attack by a lathi blow on Kashiram. Kashiram warded off on his lathi and returned the blow of Parichhat with lathi. Sitaram and Ram Sahai thereupon exhorted Gangu. Gangu thrust his ballam in the chest of Kashiram who after giving lathi blows on Sunnu and Sitaram, fell on the ground. Damru beat Sunnu and Sitaram with lathi. All the accused thereafter ran away. Kashiram died when he was taken to the police station. Damru made the First Information Report.

5. The accused pleaded not guilty to the charge. The defence of Parichhat was that he was in possession of the field and had sown Tilli thereon. His further defence was that he was assaulted by lathi by Damru Kashiram and others. Gangu, Ram Sahai and Mst. Durji pleaded that they were not present at the place of occurrence. The rest of the accused pleaded that they were falsely implicated.

6. The Sessions Judge held that the land in dispute was in the possession