Judgment

RAY, J. :- This is an appeal by special leave from the judgment dated 10 June, 1968 of the High Court at Bombay setting aside the order of acquittal of the appellants and convicting them under section 325 read with section 34 of the Indian Penal Code for having assaulted and injured Choharjasing and sentencing each of the appellants to four years rigorous imprisonment and a fine of Rs. 1000/ each and six months rigorous imprisonment in default of payment of fine and further convicting the appellants under section 323 read with section 34 of the Indian Penal Code for having assaulted and injured Ramkeshwarsing and sentencing each of the appellants to three months rigorous imprisonment. The sentences were to run concurrently.

2. The appellants and another accused were charged under sections 143, 147, 307 read with section 149 of the Indian Penal Code. The four appellants were also charged under section 148 of the Indian Penal Code. In the alternative the appellants were charged under section 307 read with section 34 of the Indian Penal Code. The appellants and the other accused were further charged under section 326 read with section 149 of the Indian Penal Code. In the alternative they were charged under section 324 (326?) read with section 34 of the Indian Penal Code. The appellants and the other accused were further charged under section 324 read with section 149 of the Indian Penal Code. In the alternative they were charged under S. 324 read with section 34 of the Indian Penal Code.

3. The complainant Choharjasing and Nandlal are brothers. They resided in room No. 5 of Vidya Bhuvan Kurla along with their cousin Ramkeshwarsing and Gayitrising brother-in-law of Choharjasing. Choharjasing, Nandlal and Ramkeshwarsing were employed at Premier Automobiles at Kurla. The prosecution witness Awadh Narayan who resided at Moturam Chawl was also employed at Premier Automobiles. Another procecution witness Dinanath was a shopkeeper residing at Halav Pool, Kurla. The first appellant dealt in milk and resided at Maulana Chawl, Halav Pool, Kurla. Appellant No. 2 is the brother of appellant No. 1 and resided at a nearby Chawl at Halav Pool and was employed at Premier Automobiles at Kurla. Appellant No. 3 also resided at Halav Pool Chawl, Kurla and was employed at Premier Automobiles, Kurla. Appellant No. 4 resided at another Chawl at Kurla and was also employed at Premier Automobiles, Kurla. Accused No. 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bhagwat Bhuvan, Halav Pool, Kurla.

4. The prosecution case was this. The relation between Choharjasing and his brother Nandlal on the one hand and appellants Nos. 1 and 2 on the other were strained for some time. On the morning of 15 October 1964 Nandlal brought a truck load of earth and spread the same in front of their room. On that account there was some altercation between him and appellants Nos. 1, 2 and 3. On the morning of 16 October, 1964 Choharjasing left his room and went to Podar hospital at Worli for undergoing an operation for fistula. He returned to his room at about 11 or 12 noon. On his return he was told by his brother Nandlal about the quarrel and that the appellants and another accused had given a threat and enquired as to where Chohariasing was. Nandlal further told Choharjasing that the appellants and the other accused had threatened that they would break Choharjasing s hands and feet. Choharjasing went to the Police Station and filed a non-cognizable complaint. The police directed Choharjasing to approach the proper criminal court. Choharjasing went to prosecution witness Dinanath and told him about the threats.

5. Choharjasing then returned to his room and lunched with his brother Nandlal, cousin Ramkeshwarsing and brother-in-law Gaitrising. Choharjasing was not feeling comfortable after the operation. He sat on a charpoy (cot) outside his room. Nandlal was with Choharjasing. Ramkeshwarsing was inside the room. At about 5 or 5.30 p. m. the appellants came the