JUDGMENT

GOSWAMI, J.:—In this appeal by special leave at the instance of the State of Punjab the only question that arises for consideration is whether the conviction of two accused should have been under Section 302/34, I.P.C. instead of Section 326/34, I.P.C.

2. Accused Surjan Singh and Charan Singh are brothers and are living jointly in one house. Labh Singh was the deceased. About eight or nine years before the occurrence there was a criminal case against Labh Singh and two others on account of causing hurt to accused 1131 Charan Singh. That case, however, was compromised. Even the deceased s son, Harbhajan Singh (PW 6) stated that there was no dispute between his father and the accused since that compromise.

3. On August 26, 1967, after taking liquor in the house of Piara Singh (PW 4), Labh Singh, Zail Singh (PW 2) and Ujagar Singh (PW 3) were returning home at about 10.00 P.M. Labh Singh was ahead of the other two and when he reached near the house of the accused. Charan Singh armed with a kasaia, and Surjan Singh armed with a takwa were standing near their house. A lalkara was raised by Charan Singh that Labh Singh would not be permitted to escape. Thereupon Surjan Singh aimed