Judgment

BHAGWATI, J.:- This appeal, by special leave, is directed against an order passed by the High Court of Madhya Pradesh confirming the conviction and sentence of the appellants. The appellants with four others were prosecuted for offences under Section.326 read with Section 34 and Section 325 read with Section 34 of the Indian Penal Code. The case against the appellants and the other accused was as follows: One Ganpat was in the possession of a field called Buliyawala where Arhar crop was standing. On 16th February 1968 in the afternoon at about 4 p.m. Ganpat on reaching his field found that the cattle of the accused were grazing in his field. Ganpat rounded up the cattle in order to take them to the cattle-pound, whereupon an altercation took place between Ganpat and the accused. Appellant No. 2, who was armed with a Lohangi, gave a blow causing fracture on the left hand of Ganpat. Baijnath, another accused, also gave lathi blows to Ganpat. Ganpat thereupon fell down semi-unconscious, but at that stage his son Rajdhar came along to the field. Rajdhar on arrival was attacked by appellant No. 1 with a farsi and an injury was caused to him on his left hand. Appellant No. 2 also gave a blow on the right hand of Rajdhar with his Lohangi. Rajdhar ran for safety but he was pursued and ultimately he fell down unconscious. On regaining consciousness Rajdhar went home and found that in the meantime his father Ganpat had also come back. Both Ganpat and Rajdhar thereafter went to the Ashok Nagar Police Station and lodged the first information report in regard to this incident at 8.15 p. m.

2. The version of the appellants and the other accused was, however, different. Their case was that at about 3 p. m. on 16th February, 1968 the cattle of Ganpat and Laljiram were grazing in the field of appellant No. 2. When appellant No. 2 tried to take the cattle to the cattle-pound, Ganpat and Laljiram objected and took away the cattle from the possession of appellant No. 2 by force. Thereafter Ganpat, Rajdhar and some others went to the house of the accused Komal and gave him blows with spears, farsi Lohangi and sticks and then belaboured Raghunath and accused Kalloo Ram who met them on the way, and lastly attacked Jagannath Prasad, Baldev Prasad and the appellants with spears, farsis, sticks and lohangi. It appears that in the course of this incident some minor injuries were caused to Ganpat and Rajdhar but that was in exercise of the right of private defence and no offence was, therefore, committed by the accused. In fact, a first information report in regard to this incident was lodged by one Jwala Prasad with Ashok Nagar Police Station at 8 p.m.

3. On the basis of these two first information reports cross-cases were filed by the police. One was a case against the appellants and the other four accused out of which the present appeal arises. The other was a case against Ganpat, Rajdhar and others. Both cases were tried separately and each was decided on the basis of the evidence recorded in it. In the former case, with which we are concerned, the other four accused were acquitted but the appellants were found guilty, appellant No. 1 under Section 326 and appellant No. 2 under Sections 325 and 323, and sentenced to suffer rigorous imprisonment for three years for the offence under Section 326, two years for the offense under Section 325 and three months for the offence under S. 323, the last two sentences against appellant No. 2 being directed to run concurrently. The appellants, being aggrieved by the order of conviction and sentence passed against them, preferred an appeal to the High Court of Madhya Pradesh but a Division Bench of the High Court dismissed the appeal and confirmed the conviction and sentence of the appellants. This decision of the High Court is impugned in the present appeal brought with special leave obtained from this Court.

4. It is apparent from a bare reading of the judgment of the High Court that it suffers from a seri