Judgment

UNTWALIA, J.:- Criminal Appeal No. 71 of 1971 has been filed by the two appellants on grant of special leave by this Court. Criminal Appeal No. 77 of 1971 is an additional appeal by one of the appellants under Section 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act. 1970.

2. Both the appellants are brothers and residents of village Shankar in the District of Jullundur. Piara Singh the third accused was their friend. He has not come up in appea1 to this Court. It is not known why ? The prosecution case may be stated in a narrow compass. The occurrence in question took place at about 7.00 p.m. the 21st February, 1968. The motive of the occurrence is said to be connected with an incident that occurred about 2 years before it. Some poppy-heads were recovered from the possession of appellant Hardev Singh. He was convicted on his confessional statement and fined Rs. 50/-. On the 20th February, 1968 at about 5.00 p. m. P. W. 7 Kewal Singh with his brother was returning from his well. He was going to his house. When he reached near the haveli of appellant Hardev Singh the latter started abusing him saying that Kewal Singh had been instrumental for his prosecution in the case of poppy heads. Appellant Hardev Sigh threatened to kill P. W. Kewal Singh. The parties were separated by one Gurdas. The prosecution case further was that the following day i. e, on the 21st February, 1968 at about 7.00 p.m. Kewal Singh was sitting at the shop of P. W. 8 Hussan Lal. Appellant Hardev Singh passed that way. After about 15 minutes Hardev Singh returned alone with appellant Harjinder Singh and Piara Singh. Hardev Singh was armed with a kirpan. Harjinder Singh had a takwa while Piara Singh carried a sota. All of them shouted a lalkara on hearing which Kewal Singh rushed towards his house which was close-by. The three accused followed him and overtook him at a distance of 10 or 12 karams. Harjinder Singh gave a takwa blow on the head of Kewal Singh. The latter fell down. In the meantime mother of Kewal Singh Smt. Tej Kaur reached there from her house which was close-by. She lay herself on Kewal Singh in order to save him. Appellant Hardev Singh inflicted a kirpan blow on the head of Tej Kaur who fell down and became unconscious. Piara Singh gave two or three sota blows to Kewal Singh. The prosecution case was supported as eye witnesses by P. W. 7 Kewal Singh and P. W. 8 Hussan Lal who had also witnessed the occurrence. Tej Kaur died on the 24th February as a result of the head iniury received by her with the kirpan of appellant Hardev Sigh. The injury in the opinion of the doctor was sufficient in the ordinary course of nature to cause her death. Kewal Singh was also examined by a doctor who found an incised wound over the left parietal bone, a swelling, a contusion and a scratch on the different parts of the body of Kewal Singh. All his injuries were simple in nature.

3. Appellant Hardev Singh was charged under Section 302 of the Penal Code for having committed the murder of Tej Kaur. Appellant Harjinder Singh was charged under Section 324 for causing simple injuries by a sharp cutting weapon to Kewal Singh. Accused Piara Singh had been charged on having caused simple injury with a blunt weapon on the person of Kewal Singh. The peculiar feature of this case is that all the three accused were also charged with the aid of Section 34 for all the substantive offence under Sections 302, 324 and 323 of the Penal Code.

4. The learned Sessions Judge of Jallandhar, who tried the three accused. convicted appellant Hardev Singh under Section 304, Part I of the Penal Code and sentenced him to undergo rigorous imprisonment of 5 years. Appellant Harjinder Singh was awarded one year s rigorous imprisonment for his conviction under Section 324. Accused Piara Singh was convicted under Section 323 with a sentence of 6 months rigorous imprisonment. Hardev Singh and Piara Singh were convicted under Sections 324/34 with one year s rigorous impris