JUDGMENT

BHAGWATI, J.:—The incident, out of which this appeal arises, took place at about 9.30 p.m. on 2nd August, 1967 in a village called Charra within the jurisdiction of 1157 Barla Police Station. The genesis of the incident was petty dispute which arose between the first appellant, on the one hand and Bhajan Lal, Raghubar Dayal and his brother Shyam Lal on the other. The houses of Bhajan Lal and the first appellant are situate adjoining to each other and each of these houses had a chabutra in front of it. The Chabutra of Bhajan Lal was demolished by the Town Area Committee of Charra for facilitating construction of pacca drain and so also, the chabutras of various other residents of the village but the Chabutras of the first appellant was spared. Bhajan Lal carried a feeling that the first appellant was responsible for the demolition of his Chabutra and he, therefore, started bearing ill will against the first appellant. He was supported by Raghubar Dayal and Shyam Lal who took sides with him in this dispute with the 1st appellant. On 2nd August, 1967 at about 7 p.m. there was exchange of hot words between Shyam Lal and the 1st appellant in connection with this dispute and, according to the prosecution, the 1st appellant is alleged to have said on this occasion that he would properly deal with Shyam Lal as he was a great supporter of Bhajan Lal. The prosecution case was that late in the evening on that day at about 9.30 p.m., while Raghubar Dayal and Shyam Lal were lying in their cots on the Chabutra in front of their house, the appellants and Chandra Prakash, Chiranji Lal, Hazari Lal and Prem Shankar came there and challenged Rabhubar Dayal and Shyam Lal. The latter replied stating that they did not wish to enter into any quarrel with the appellants and their companions and asked them to go away. At that time, the appellants, Chiranji Lal and Hazari Lal were completely unarmed and the only two persons who had weapons with them were Chandra Prakash, who carried a knife and Prem Shankar, who had a danda. The appellants and their companions, according to the prosecution, dragged Raghubar Dayal and started assaulting him with kicks and fists and then Prem Shanker attacked him with his danda. Shyam Lal immediately intervened, but whilst he was trying to separate Raghubar Dayal, Chandra Prakash whipped out a knife from his pocket and gave three or four knife blows to Shyam Lal. On hearing the noise, Raghubar Dayal s brother-in-law Sajjan Kumar and his nephew Laxmi Chand came out of the house with lathis and started assaulting the appellants and their companions. By this time some other neighbours also arrived on the scene and they were Prem Chand, Raj Bahadur, Ram Kisan, Budh Sen and Bhagwan Das. The appellants and their companions thereupon ran away from the scene of the offence. Raghubar Dayal and Shyam Lal being injured were taken to the hospital at Charra and there, Raghubar Dayal got a report written by one Bhagwan Swarup and he took that report to the Police Station at Barla where a first information report was lodged and a case was registered. The injuries received by Shyam Lal were rather serious and he had, therefore, to be removed to the District Hospital at Aligarh but he expired at 6-40 p.m. on 3rd August, 1967. Sub-Inspector Ram Prakash Gupta carried out the investigation and after it was completed, he submitted a charge-sheet against the appellants and Chandra Prakash, Chiranji Lal, Hazari Lal and Prem Shanker.

2. The defence of appellants Nos. 1 and 2 and Chandra Prakash was that while the first appellant was in Jawahar Chowk at about 9.30 p.m. on 2nd August, 1967, the 2nd appellant and Chandra Prakash came there for going to their house and at that time Shyam Lal Raghubar Dayal, Laxmi Chand and Sajjan Kumar suddenly appeared and started assaulting them with dandas as a result of which the 3rd appellant also happened to come there and he too was beaten. The 3rd appellant also put forward the same defence and adde