Judgment

KHANNA, J.:- This is an appeal by special leave by Lalji (23), Mahabir (45), Nar Singh (30), Paras Nath (27), and Ram Naresh (30) against the Court, judgment. of the Allahabad High Court affirming fin appeal the conviction and sentence of; the appellants. Lalji has been convicted under Section 304 Part I and Section 148 Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of ten years on the first count and rigorous imprisonment for a period of two years on the second count. Lalji has, in addition to that been convicted far offenses under Section: 324 read with Section 149, Section 325 read with Section 149 and Section 323 read with Section 140 and has been sentenced to undergo rigorous imprisonment for a period of two years, 2 l/2 years and one year respectively. Mahabir .Paras Nath and Ram Naresh have been convicted under Section 147, Section 304 Part I read with Section 149 Section 324 read with Section 149. Section 325 read with Section 149 and Section 323 read with Section 149 Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for a period of 18 months, five years, 18 months, 21/2 :years and one year res" pectively. The sentences in the case of each of the appellants have been ordered to run coneurrently. Budhdhu (50) and Munni Lal (20) were tried along with the appellants. Munni Lal was acquitted by the trial court, while Budhdhu was acquitted by the High Court.

2. The appeal arises out of an occurrence which took place at 7 a.m. On March 29, 1965 in Nawagarh near village Shahpur Nawada at a distance of five miles from police station Chandauli in Varanasi district. As a result of that occurrence, Pancham (45) resolved fatal injuries and later died at 11 a.m. Injuries were also received by Nand Lal (PW 1), Munshi (PW 2), Jhuri (PW 3), Potan (PW 5) and Bhagat gan on the side of the complainant. On the side of the accused, Lalji, Mahabir, Paras Nath and Ram Naresh received injuries. Both parties rushed to the police station and lodged reports. On the side of the complainant, report was lodged by Nand Lal PW at 8.30 a.m. while on the side of the accused report was lodged by Mahabir at 8.35 a.m. On the basis of those reports, two cases were registered and both parties were sent up for trial. The trial court convicted the accused appellants and Budhdhu in the present case, and Nand Lal, Munshi Jhuri, Bhaggan and one Sheo in the cross case.

3. Lalji accused is the son of Budhdhu accused. Ram Naresh, Paras Nath and Nar Singh accused are the maternal uncle s sons of Mahabir accused.

4. The prosecution case is that Nand LaI PW is the owner of plot No. 129/2.-Mahabir accused, who is a collateral of Nand Lal PW, owns the adjoining plot. Mahabir had put up a hut on his own plot. There is mend (dividing ridge) between the plots of Nand Lal and Mahabir. On the morning of March 29, l965, it is stated, Pancham deceased and Nand Lal PW saw that Budhdhu and Mahabir were digging earth and thus extending the frontage of Mahabir s hut. Ram Naresh armed with a gandasa, Lalji and Munni Lal armed with spears and Nar Singh and Paras Nath armed with lathis were standing close to Mahabir with a view to help him. Pancham raised a protest against the act of the accused party whereupon Mahabir and Budhdhu picked up lathis and those two accused along with the other accused started beating Pancham and Nand Lal with their respective weapons. Jhuri and Munshi then came there, but they too were attacked, Potan and Bhaggan also tried to intervene, but injuries were caused to them also by the accused party. During the course of this occurrence, Lalji thrust his spear in the abdomen of Pancham who fell down on the ground. Nand Lal, Jhuri and others on the side of the complainant used their lathis, and in the process the accused were injured.

5. Bhaggan on medical examination was found to have two injuries caused by brunt weapon. One of those injuries was grievous as it had resulted in