JUDGMENT

R. S. SARKARIA, J.:— This appeal is directed against a judgment of the High Court of Madhya Pradesh 990 converting, on appeal by the State, the acquittal of the appellants into conviction. It arises out of these circumstances.

2. There were two opposing factions of Ahirs in village Gurha Police Station Harpalpur, District Chhatarpur. One faction was led by Gulab deceased and the other by the accused. There was bad blood between the two factions. Their relations were strained. Both the factions were proceeded against under Section 107, Cr. P. C. Even on the day of occurrence, which took place on 21-2-1967, a criminal case under Sections 324, 147, Penal Code was pending against Gulab and his partymen.

3. On 21-2-1967 in the morning. Gulab was grazing his goats at the village Tank. At about 10 or 11 a. m. the appellants Muluwa, Nathu alias Siyawaniwala, Mannual and the acquitted accused, Ramdas, Mohan, Kandu, Gangaram and Ramesahai (excepting Bihari and Laxmi Prasad) were seen proceeding to the place where the deceased was. They were proclaiming that they would kill Gulab at all costs and would see to him who dared intervene. Mannulal was armed with a Barchhi, and the rest with lathis. Near the Tank, these eight accused, including the appellants, made a concerted assault on Gulab with their respective weapons. They caused numerous injuries. The victim became unconscious. Taking him to be dead, the assailants left the place. The occurrence was witnesses by Smt. Jugatia (PW 1), the daughter of the deceased who implored the assailants to desist from the assault. The appellant Muluwa chased her upto some distance. Shortly after the first assault, all the eight assailants returned to the scene accompanied by Bihari and Laxmi Prasad. Bihari was carrying an axe and Laxmi Prasad a lathi. Finding that the deceased was still alive, Bihari shouted that Gulab should be finished. As a result, all the ten accused again showered blows on Gulab with their respective weapons, and thereafter went away. Bihari carried away the Farsa of Gulab which had broken during the assault. After the departure of the assailants, the daughter carried her injured father home. She then proceeded to the Police Station Harpalpur for report. On the way she was confronted by Muluwa and Nathu appellants who turned her back under threat of death.

4. At about 12 Noon, one Ram Charan son of Halku Ahir of village Gurha lodged an information (Ex. P-15) at the Police Station, purporting to have been derived from one Buckle, to the effect, that there was an apprehension of assault on Gulab deceased at the hands of Mulu, Ganga and Siyawaniwala of the village. It was added that Gulab had a quarrel with Bihari. Head-Constable Ahmed Beg after entering this report, deputed Constables Mohan Singh and Triloki Nath to proceed to the village "for ascertaining the truth". The Constables found the injured Gulab at his house. Smt. Jugatia was also there. The injured was laid in a bullock-cart. Mst. Jugatia and Buckle PW 7 also got into the Cart. Escorted by the Constables, they reached the Hospital at Harpalpur. The Medical Officer saw Gulab and pronounced him dead. On being informed by the Constables, the Station Officer, Parmanand Misra reached the Hospital and recorded the statement (Ex. P-1) of Smt. Jugatia at 2 p. m. On the basis of her statement, the murder case was registered against the accused. Pramanand then prepared the inquest report and sent the dead body for post-mortem examination which was conducted by Dr. B. S. Wankhede (P. W. 15) ON 22-2-1967 at 12.30 P. M. The Doctor found eight penetrating wounds, seven bruises, one incised wound and multiple abrasions on the body. The incised wound was located on the occipital bone. Its dimensions were 3" x 2" x 3". There were fractures of the left temporal, left parietal and occipital bones. There were fractures of left humerus, right femur, right ulna and dislocation of metacarpo-phalangial joint of the left middle finger. In