Judgment

P. JAGANMOHAN REDDY, J.:- This appeal by special leave is limited only to sentence and the question is whether the offences as held proved by the High Court fall under the first part of sec. 304, I.P.C. of which the accused were convicted and sentenced or under Part II of the said section 12 accused were charged with offences of murder, voluntarily causing hurt and grievous hurt, house trespass and for rioting of whom 5 were acquitted by the Additional Sessions Judge, Rampur 7 others were convicted under section 302, read with section 149, I.P.C. for 2 offences under section 325 read with sec. 149, for three offences under section 323 read with sec. 149, as also under sec. 449, and sec. 147, I.P.C. Each of them was sentenced to life imprisonment, two years 6 months , one year and two years rigorous imprisonment, respectively, on each of the aforesaid counts. All the sentences were directed to run concurrently.

2. The incident for which the accused were convicted arose out of a dispute relating to the ownership of a vacant piece of land situated opposite to the house of Sadi Hassan, P.W. 1 who is the father of the deceased Shaukat. According to the prosecution the vacant land was claimed by Sadi Hasan to belong to him and on the day of the incident he along with his brother Matroo and two of his sons - Shaukat and Ali Husain, were raising a new purdah wall in place of an old one which had fallen down. All the 7 appellants along with the other 5 acquitted accused, are said to have come there armed with lathis and asked Sadi Hasan and others to stop constructing the wall because the rasta would be obstructed. Sadi Hasan replied that the land belonged to them and they would build the wall. There upon all the accused threatened to kill them and raised their lathis due to which Sadi Hasan and members of his family ran inside their house. But even then the appellants and their companions entered the house and started assaulting them. On hearing the alarm raised by Sadi Hasan and his relations, some others came and intervened and it is said that even Amzad, another son of Sadi Hasan and Gulshan, wife of Sadi Hasan were also assaulted by the appellants. The defence of the appellants was that except for appellants Chand and Maqsood, the remaining appellants were not present nor did they participate in the incident. Chand and Maqsood contended that the land over which Sadi Hasan was constructing a wall did not belong to him and that no purdah wall ever existed there. They further stated that there was a rasta over that land and when they objected to its being closed they were themselves assaulted by Sadi Hasan and his son Shaukat and so they had used lathis in their self-defence, that when Amzad and Ali Husain also came and started assaulting them, they wielded their lathis against them as well in self-defence, and that Smt. Gulshan also received some injuries when she intervened. They also stated that the incident took place where the wall was being constructed and not inside the house of Sadi Hasan.

3. The High Court in appeal was of the view that the medical evidence supported the prosecution case and gave a lie to the defence version; and that it was not disputed that as many as 6 persons received numerous injuries on the side of Sadi Hasan, one of whom was a woman, and one of them died as a result of the injuries. On the side of the appellants, Chand and Maqsood were examined by Dr. H. C. Gupta, D. W. 3. Two injuries were found on the person of Chand, one of which was a contused wound and the other a scabbed abrasion. Maqsood had three injuries, one of which was a contusion and two scabbed abrasion.

4. The evidence of the eye witnesses was accepted by both the courts though it was held that the allegation that the old purdah wall of Sadi Hasan had been there before it had fallen down and that it was being re-built, was not established, nonetheless it was also held that the accused had not merely tried to stop Sadi Hasan and h