Judgement

SHELAT, J.:- The appellants are Chamars by caste, three of whom appellants Ghurphekan, Mahangu and Musafir, are related to each other. The other two, Sarju and Raj Kumar, though not related to Ghurphekan have in the past been involved with him in one litigation or the other.

2. Upnet Rai and his brother, the deceased Hirday Rai, bhumidhars. There was a long standing enmity between Upnet Rai and Hirday Rai on the one hand, and Ghurphekan and his adherents, on the other, fed intermittently by litigation, both civil and criminal. On December 14, 1962, a judgment was to be delivered in a civil appeal to hear which Upnet. Rai had gone to the court as his son, Sarab Chand was a party. A case under Section 110 of the Code of Criminal Procedure against Ghurphekan was also fixed for hearing on that day. It was said that Ghurphekan assaulted Upnet Rai as he was returning from the Court on that day, causing him as many as 27 injuries. For that assault, Ghurphekan was convicted under Section 325 of the Penal Code. He had, however, filed an appeal against the said conviction, pending the hearing of which he was enlarged on bail. Such was the state of relations between the appellants on the one hand, and Upnet Rai the deceased Hirday Rai and their family members on the other.

3. In the afternoon of January 19, 1964, Hirday Rai, his son Subhash Chandra, his nephew Sarab Chand, and his cousin Kuber Rai were in Hirday Rai s field scrapping grass. The filed was next to the houses of the appellants. After Hirday Rai had scrapped some grass and tied it into a bundle and was carrying it home, the five appellants came to the field, Ghurphekan armed with a spear and the rest with lathis, and attacked Hirday Rai Sarao Chand, Subhash Chandra and Kuber Rai were at that time at some distance from Hirday Rai in another part of the field. When they rushed at the spot, where Hirday Rai was, to release him, the appellants attacked them also. In the course of that attack Hirday Rai was also given a spear blow in his abdomen by appellant Ghurphekan which caused him to fall down. A number of persons, hearing the cries raised by the victims, arrived at the spot whereupon the appellants retired to their houses. Hirday Rai was then removed to Ghazipur hospital from where Subhash Chandra sent his report to the nearest Police Station. That report was made the basis of first information. Since Hirday Rai s condition got worsened, a Magistrate was called who recorded his dying declaration. Hirday Rai succumbed to the spear injury he had received and died the next day. On these facts, the five appellants were charged under Sections 302 and 323 read with Section 149 of the Penal Code.

4. The appellants denied the charges against them three of whom, namely, Sarju, Mahangu and Musafir denied their presence at the time of the incident. Ghurphekan and Raj Kumar however, spelt out an alternative case alleging that the prosecution party had come to Ghurphekan s house and had attacked him with lathis and a spear. One Ram Cheese, a relation of Ghurphekan happened to be there at the time. In rescuing Ghurphekan, Ram Cheese first wielded a lathi with which he disarmed Sarab Chand who had a spear in his hand. He then wielded the spear which possibly hit Hirday Rai. They alleged that in the attack upon them Ghurphekan and Raj Kunmar received certain injuries. Later on, they lodged a report at 11.30 that night.

5. The medical evidence revealed that Hirday Rai had five injuries, one of which was spear injury in his abdomen. Kuber Rai, Sarab Chand and Subhash Chandra had four, three and four contused wound respectively. On the side of the appellants, Ghurphekan and Raj Kumar had nine and two injuries respectively all simple in nature, caused with blunt weapons. Four of the injuries received by Ghurphekan were, however, on his head.

6. There were thus two alternative cases put forward by the parties before the Trial Judge. The main question was whether the incident took place in t