JUDGMENT

SHINGHAL, J. :—This appeal by Bhagwati, Shital and Ram Avadh, sons of Salaru, is directed against the appellate judgment of the Allahabad High Court dated December 18, 1970 setting aside their acquittal by Civil and Sessions Judge (Gonda Bahraich) of the offence under Section 302 read with Section 34, I.P.C. and sentending them to imprisonment for life for that offence.

2. It was alleged by the prosecution that one Sheo Prasad was the first cousin of Bachchu Lal (P.W. 5). He married Smt. Dharamraji, but had no child. He had some agricultural land in village Nagwa in Gonda district of Uttar Pradesh, but he allowed Bachchu Lal to cultivate it because of his weak health. Sheo Prasad died, and his widow Smt. Dharamraji inherited his fields which however continued to be cultivated by Bachchu Lal, Smt. Dharamraji thereafter went away to Basti as she married Nabbu Lal, who was the brother-in-law of appellant Bhagwati. Thereafter she executed a sale deed (Ex. Ka-29) of the land in favour of Bhagwati on May 11, 1965. A day earlier, Bachchu Lal made an application for mutation of the fields in his name on the basis of his relationship with Sheo Prasad. Bhagwati also made a similar application after execution of the sale deed in his favour and Smt. Dharamraji supported that application by filing her consent on November 15, 1965. Bachchu Lal s case was that, after her remarriage. Smt. Dharamraji forfeited her right to Sheo Prasad s fields; and it is not in dispute that the controversy was pending on the date of the alleged incident.

3. Bachchu Lal was, according to the prosecution, in possession of the land all along and was cultivating it. On July 2, 1967, half an hour after sunrise. Bachchu Lal s sons Jokhan and Munna went to Sheo Prasad s field, which was adjacent to their own field, to plough it. After they had ploughed it a little, it is alleged that appellants Bhagwati, Shital and Ram Avadh came there. Bhagwati and Ram Avadh were armed with lathis , while Shital was armed with a spear. They began to beat Jokhan and Munna, who cried for help. Lalla (P.W. 1), Sridhar (P.W. 2 and Matai alias Matadin, who were ploughing their fields nearby, rushed to the place of occurrence. They say the appellants beating both Jokhan and Munna in the field of Sheo Prasad. When Jokhan fell down. Munna ran away to the adjacent field of Molbu, but the appellants brought him to Sheo Prasad s field by dragging him by his leg and beat him again. Lalla (P.W. 1), Sridhar (P.W. 2) and Matai alias Matadin reprimanded the appellants, and they ran away towards the village. The witnesses went near Jokhan and Munna and found that they were about to die. Cots were obtained from the village and Jokhan and Munna were taken to Dhomariya Dih which was at a distance of about a mile. They were then taken in ekkas" to police station Nasirganj, which was at a distance of about seven miles from the place of occurrence. Jokhan died on the way near Jamadarpura. An oral report (Ex. Ka-1) was lodged by Lalla (P.W. 1), at the police station at 8.45 a.m. Munna was sent to Sadar Hospital, Gonda, but he also succumbed to his injuries on the way. A case was registered at the police station and it was investigated by Station House Officer Taj Bahadur Singh (P.W. 10). The dead bodies were taken to the mortuary at Gonda and were examined by Dr. J. Chandra. Appellant Bhagwati was arrested the same day, but appellant 1451 Shital was not found until July 5 and appellant Ram Avadh surrendered on July 11.

4. It was with these allegations that the appellants were committed to the Court of Session. As has been stated, they were acquitted by the Sessions Judge, but have been convicted by the High Court of an offence under Section 302 read with Section 34, I.P.C. and sentenced to imprisonment for life.

5. It has been argued by Mr. Anthony on behalf of the appellants that the trial Court had correctly evaluated the evidence of Lalla (P.W. 1) and Shridhar P. W. 2 and that the High Court was