Judgment

SARKARIA, J.:- This appeal by special leave is against the judgment, dated September 17, 1971, of the High Court of Judicature at Allahabad acquitting on appeal Jashodha Nandan Gupta, aged 18 years, Narain Prasad Gupta aged 17 years, Durga Prasad Dube aged 18 years, and Ram Samujh Singh aged 17 years, of charges under Sections 302/149, 148 and 147, Penal Code.

2. All the five accused- respondents were students of the Government Polytechnic, Gorakhpur. Accused Harish Chandra Dvivedi lived in Room No. 10 of Hostel No. 1, while the other accused resided in the adjacent Hostel No. 1. (sic). The students were running their own messes on co-operative basis. Vijai Narain Pandey, a student was the manager of the mess of which, among others, the deceased Kamta Prasad, Jashodha Nandan accused and one Narain Prasad Gupta were members. Every member had to make an advance deposit to cover his dues. The deposit of Narain Prasad Gupta had run out. On November 4, 1966, Vijai Narain Pandey orally told Narain Prasad Gupta that since he had not paid his mess dues, he would not be given food in the mess from the following day. Harish Chandra Dvivedi accused took up the cause of the defaulter. Accompanied by Narain Prasad Gupta he went to Pandey and demanded an explanation from Panedy as to why the meals of Narain Prasad Gupta had been stopped, Pandey showed him the account. Jasodha Nandan was not satisfied. Both of them went away holding out threats to Pandey.

3. On November 6, 1966, at about 5 p.m. Jashodha Nandan Gupta and Harish Chandra Dvivedi accused confronted Pandey in front of Hostel No. 1. Jashodha Nandan slapped Pandey. Shortly thereafter, on the move of Pandey, thirteen members of the mess assembled and passed a resolution which was scribed by Kamta Prasad deceased, expelling Jasoda Nandan Gupta accused and Narain Prasad Gupta from the mess.

4-5. From November 7, 1966, the Polytechnic closed for Diwali holidays and reopened on November 16, 1966. On that day, a notice was served on Narain Prasad Gupta that he and Jashoda Nandan Gupta had been expelled from the mess.

6. Josodha Nandan Gupta returned to the Hostel on November 17, 1966 and inquired of the deceased if the mess was running. The deceased retorted asking how the accused was concerned with the mess, adding that they had been expelled from the mess. Jasoda Nandan Gupta flew into a rage and proclaimed that since the deceased was at the root of the mischief, he would deal with him (deceased). At about 7. p. m. on that day, all the five accused were closeted in a conference in Room No. 7 of Hostel II in the occupation of Narain Prasad Gupta and Ram Samujh Singh accused. The deceased accompanied by his room-mate, Parmatmanand Tewari (P. W. 2), apprehending trouble, went to the office of Shri. B. N. Singh, Warden (P. W. 1) at 8.15 p.m. and complained that Jasodha Nandan Gupta had abused him. Mr. Singh advised them to go to their room while he would call Jasodha Nandan and inquire. Mr. Singh then sent his poen to call Josodha Nandan but the latter refused to obey. The Warden then went away to his residential quarter which is a part of Hostel II. Thereafter, Jasodha Nandan Gupta, accompanied by the other four accused, went to the quarters of Mr. Singh and complained that Kamta Prasad had abused him. Mr. Singh told the accused how Kamta Prasad had made a similar charge against him. He advised them not to quarrel over trifles and assured that he would see to their mess arrangements on the following day. Thereafter, all the five accused, proceeded to their rooms. Kamta Prasad and Parmatmanand Tewari, who had seen the accused earlier proceeding to the quarter of the Warden, had come out and stood on the Khuronja Road (raised footpath) at the corner of the Hostel. When the accused on their return from the Warden s quarter reached that point, Kamta Prasad asked Jasodha Nandan as to why they had gone in a body to make a false complaint to the Warden when, in fact, Jasodha Nandan himself h