Judgment

SARKARIA, J.:- The three appellants, who are brothers, were tried by the learned Sessions Judge, Patiala for the murders of Sardara Singh, Gian Singh and Harnek Singh and the appellants own brother, Baldev Singh.

2. Ajit Singh was convicted under Section 302, Penal Code for the murders of Baldev Singh and Sardara Singh and under Section 302, read with Section 34, Penal Code for the murders of Harnek Singh and Gian Singh, and sentenced to death on each count.

3. Bhoor Singh was convicted under Section 302, Penal Code for the murders of Harnek Singh and Gian Singh and under Section 302, read with Section 34, Penal Code for the murders of Sardara Singh and Baldev Singh and sentenced to death on each count. He was further convicted under Sec. 307, Penal Code and sentenced to 7 years rigorous imprisonment.

4. Kewal Singh was convicted under Section 302 read with Section 34, Penal Code for the murders of Harnek Singh, Gian Singh and Baldev Singh and sentenced to death. He was further convicted under Section 326, Penal Code for causing grievous hurt to Sardara Singh and Chhota Singh and sentenced to seven years rigorous imprisonment.

5. On appeal, the High Court of Punjab and Haryana upheld the convictions of all the accused on all the counts. The capital sentences awarded by the trial court to Ajit Singh and Bhoor Singh were confirmed. Kewal Singh s death sentence, however, was commuted to that of life imprisonment.

6. The convicts have come up to this Court in appeal by special leave granted under Article 136 of the Constitution.

7. Four or five years before the occurrence in question, Sardara Singh and Ishar Singh deceased had purchased, in the names of their sons, land from one Balbir Singh, a collateral of the appellants. The vendees, however, were unable to get possession of the land which was with the appellants. The venders instituted a suit against the appellants for possession of the land and obtained a decree. The appellants, went up in appeal against that decree. The appeal was pending when the occurrence in question took place.

8. On Diwali day, the 29th October, 1970, Chhota Singh (P. W. 6), his brother, Ishar Singh deceased, and their nephew, Harnek Singh deceased, were present at their tubewell. Kehar Singh (P. W. 4), a resident of the neighbouring village, Mirpur, also came there to purchase a she-buffalo. The visitor wanted to milk the animal which was present there. At about 5 p.m. Sardara Singh deceased, another brother of Chhota Singh, came and reported that on his way from Chanarthal Kalan, he was taunted by Baldev Singh and there was a sharp exchange of hot words between them with reference to the deceased s attempt to recover possession of the land. In the meanwhile, appellants Ajit Singh and Bhoor Singh, armed with guns, Kewal Singh appellant, Baldev Singh, deceased and two unknown persons, carrying gandasas, approached the tubewell. Bhoor Singh shouted that they would settle the scores once for all. Thereupon Sardara Singh. Ishar Singh and Harnek Singh deceased got hold of a Takwa, Gandasi and lathi respectively. P. W. Chhota was unarmed. Then, Bhoor Singh fired his gun towards the complainant party. The shot did not find its mark. Sardara Singh said that they could not stand against guns, Realising that discretion was the better part of valour, the complainant party ran towards the tubewell of Balwant Singh hotly pursued and fired upon from the appellants side. At this juncture, Gian Singh, deceased and his son, Jaswinder Singh (P. W. 5) who were at their tubewell about 80 Karams away, also reached there. They were unarmed. They in association with Kehar Singh P. W., tried to dissuade the appellants. Ajit Singh shouted that they should stay away if they wanted to be alive. The appellants encircled the complainant party. Ajit Singh fired a shot dropping Sardara Singh to the ground. Kewal Singh then inflicted gandasa blows on Sardara Singh. Harnek Singh deceased surged ahead to rescue his father when a s