Judgment

GOSWAMI, J.:- This criminal appeal by special leave is directed against the judgment of the Allahabad High Court affirming the conviction of the five appellants, Bhajan Singh, Chain Singh, Baldeo Singh Jagat Singh and Gurbachan Singh under Sections 302/149 I.P.c. and sentence of imprisonment for life on each of them. Bhajan Singh, Chain Singh and Jagat Singh have further been convicted under Section 147, I.P.C. and sentenced to rigorous imprisonment for one year each and the two other appellants have also been convicted under Section 148, I.P.C. and sentenced to one and a half year s rigorous imprisonment each. Special leave was refused to Baldeo Singh and Gurbachan Singh.

2. The prosecution case may briefly be stated:

Chain Singh and Baldeo Singh are sons of Bhajan Singh. Gurbachan Singh is the son of Jagat Singh. The deceased is Bakhsheeh Singh, who was the brother of Major Singh and a cousin of appellant, Bhajan Singh. Major Singh had purchased some land in their village Paivandkheri from one Sohan Singh and Gurbanchan Singh was in unlawful possession of over 15 to 16 bighas of the said land. There was litigation between Gurbachan Singh and Major Singh in respect of this land. Gurbachan Singh subsequently sold his entire land including the disputed area to Bhajan Singh. Thereafter Major Singh and his father Ujagar Singh asked Bhajan Singh to give up possession over the land purchased by Major the occurrence, suggested to him that they should go to the Patwari and settle the matter to which Bhajan Singh agreed. On September 17, 1964, at about 11.30. A.M. Bakhsheesh started on a cycle for the house of the Patwari with papers in connection with the disputed land. He was followed on foot by his father, Ujagar Singh and brother Major Singh. When Bakhsheesh Singh had hardly gone a distance of about 20 or 25 paces from his house, the five appellants accosted him. Baldeo Singh was armed with a spear and Gurbachan Singh with a gandasa and the three other appellants were armed with lathis. Bakhsheesh Singh got down from the cycle and Bhajan Singh caught hold of him and incited the other appellants to beat him. Bakhsheesh Singh requested the appellants to accompany him to the Patwari to settle the dispute, but Jagat Singh said that they would settle it on the spot. Baldeo Singh then gave a spear blow to Bakhsheesh Singh, Gurbachan Singh gave him a gandasa blow on the head and Chain Singh beat him with his lathi. Thereafter the appellants ran away. The occurrence was witnessed by Ujagar Singh (P. W. 3) Major Singh (P. W. 2) and Jogendar Kaur, widow of the deceased (P. W. 4) and Sadhu Singh, Sardar Singh and Prakash Singh, who were servants of Ujagar Singh. Bakhsheesh Sing was injured in the abdomen and his intestines came out. The injury was bandaged with the turbans of the deceased and Ujagar Singh and he was taken to the Police Station, Afzalgarh, where a first information report was lodged by Major Singh at 12.45 P.M. The police sent him to the hospital at Sherkot where Dr. Yogendra Pal (PW 4) in the Committing Court, examined him. From there he was taken to the District Hospital, Bijnor. As his condition was serious, a dying declaration (Ex. Ka-8) was recorded at 9.30 P. M. by the Tahsildar-Magistrate Shri Balbir Singh (P. W. 1) Bakhsheesh Singh died next day, September 18, 1964, in the afternoon. Post-mortem examination was performed by Dr. P. P. Agarwal on 19th September 1964. According to the Doctor death was due to shock and haemorrhage from the injuries

3. It appears that, Gurbachan Singh and Chain Singh had some simple injuries on their person but they did not report to the police nor were they examined by Dr. K. C. Gupta (D. W. 4) earlier than September 20, 1964, at 4.00 P. M.

4. The defence plea is an absolute denial by Bhajan Singh, Baldeo Singh and Jagat Singh while Chain Singh and Gurbachan Singh gave a different version of the occurrence. According to Chain Singh he and Gurbachan Singh were grazing their cattle by t