Judgment

SARKARIA, J.:- This appeal is directed against the judgment, dated March 24, 1971, of the High Court of Judicature at Allahabad, convicting the appellants, by reversing their acquittal, on charge under Ss. 302, 307 read with Sections 149 and 148, Penal Code.

2. The prosecution case was that on May 18, 1965, at about 10 a.m. Girja Singh (P. W. 11) and Sidh Nath (P. W. 8) were proceeding to the Ganga for a bath which runs at a distance of one mile from their village Tarapur. Onkarnath, appellant met them coming from the opposite direction. He asked Sidh Nath as to why he was walking chest high. Sidh Nath replied that there was nothing abnormal in his gait. Onkarnath appellant then slapped Sidh Nath and roughly handled him. Girja Singh intervened and remonstrated. Onkarnath Singh slapped him, also.

3. Girja Singh was joint in residence and mess with his cousins, Jagdish Narain Singh (P. W. 1) and Deep Narain Singh deceased. Jagdish Narain was employed in the Engineering College of the Benaras University, and Deep Narain in the Diesel Locomotive Works, Varanasi. The places of their work being only four of five miles from this village, they used to return home daily after working hours.

4. On the day of occurrence, (May 18, 1965), when Deep Narain returned home at about 4-30 p.m. Girja Singh complained to him how Omkarnath had beaten him without any rhyme and reason. Deep Narain Singh assured him that he would censure and correct Onkarnath appellant. When Jagdish Narain (P. W. 1) reached home at about 4.45 p.m., Deep Narain told him how Onkarnath had beaten Girja Singh at about noon. Thereafter, the two brothers Jagdish Narain and Deep Narain proceeded together to their cotton field situated towards the east of the village. At about 4.45 p.m. (5.45)? when they were coming back from the field near the Darwaza of Hanuman Prasad Singh, they met Onkarnath and Chhabi Nath appellants conversing with Ram Asrey (Primus) son of Gauri Shankar. Deep Narain asked Onkarnath as to why he had beaten Girja Singh. Onkarnath insolently replied that he had done so; that he would repeat the feat and would see what he (Deep Narain) could do. A scuffle ensued. Onkarnathgrappled with Deepnarain and Chhabinath with Jagdish Narain. Deep Narain and Jagdish Narain being stronger, threw and pinned down their adversaries to the ground. In the meanwhile, Ram Asrey (Secondus) son of Jang Bahadur arrived. Ram Asrey Second us and Ram Asrey Primus disengaged them. Both the parties then proceeded to their respective houses. The deceased and his brother had hardly gone 70-80 paces and reached near the Darwaza of Hanuman Prasad, when all the five appellants and Amar Nath Singh, the acquitted accused, came there in a body and surrounded them. Onkarnath was armed with a spear, Chhabi Nath with a gandasa. Basdeo Singh and Gaya Singh with lathis; while Parasnath Singh and Amar Nath Singh were empty handed. Basdeo Singh and Gaya Singh struck Deep Narain with lathis while Chhabi Nath hit him on the head with the gandasa. Onkarnath Singh plunged his spear into the abdomen of Deep Narain. The alarm raised by the victims attracted. Vijai Bahadur Singh (P. W. 5), Hari Ram Pandey (P. W. 9) and Adit Prasad Singh (P. W. 2) to the spot. These persons and Ram Asrey (Primus) shouted to the appellants to desist. Chhabi Nath attempted gandasa blows on the head of Jagdish Narain which the latter warded off on his hands. Vijai Bahadur Singh snatched away the gandasa from Chhabi Nath. The assailants then ran away leaving Deep Narain and Jagdish Narain injured at the spot.

5. The injured were laid on cots and taken to the Arar (cross-roads) of the village, for further removal to the hospital at Varanasi. Deep Narain succumbed to his injuries at the Arar. His dead body was left there while Jagdish Narain was sent further to S.S.P.G. Hospital in a rickshaw. At the Arar, Adit Prasad Singh wrote the report Exh. Ka-1 and then carried it to Rohania where he handed it over in the Police Stat