JUDGMENT

SHINGHAL, J.:— This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji), and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25/28, 1970. The Additional Sessions Judge of Khamgaon convicted them of offences under Sections 325 and 147. I. P. C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 50/- for the offence under Section 325, and to rigorous imprisonment for six months and a fine of Rs. 25/- for the offence under Section 147, I. P. C. The High Court held, on appeal, that they were guilty of the offence under Section 302 read with S. 34, I. P. C. and sentenced them to imprisonment for life by setting aside their acquittal for the offence of murder of Bhonaji. Ninaji and Raoji were also convicted for an offence under Section 325 read with Section 149, I. P. C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji s sons Samadhan and Rambhau. Mr. Harjinder Singh, Amicus Curiae, stated on behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would confine the appeal to their conviction for the offence under Section 302/34, I. P. C. for causing the death of Bhonaji. We would therefore concern ourselves with the incident which resulted in Bhonaji s death, and the conviction of the appellants therefor.

2. Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commission of various offences in an incident which took place in mauza Narkhed in Buldana district on September 29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other. It was alleged that on September 29, 1966, at about 6 p.m. there was a quarrel between the two factions at gothan , near the house of Bhonaji, because of the impounding of a she buffalo of Ananda (who was one of the nine accused in the case) by Bhonaji s third son Madhukar and of the cow of Ninaji s nephew Narain. It was alleged that the nine accused, including the present appellants, went to gothan. There was some altercation between accused Ananda and Samadhan and the parties beat each other. Samadhan and his relations then went to their house, which was close by. Samadhan, who had received some 1538 injuries at gothan , went inside his house to dress then up. His father Bhonaji sat on an Oota in from of the house. It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there, Reports of the incident were lodged at the police station. Bhonaji succumbed to his injuries on October 2, 1966. The police investigated and challaned nine accused including appellants Ninaji and Raoji. The Additional Sessions Judge convicted them all, but acquitted Parashram and Ram Das. While accused Ninaji and Raoji were convicted and sentenced as aforesaid, the remaining five accused were convicted and sentenced for offences under Sections 325 and 147, I.P.C. or/and 325/149 and 147, I.P.C. As has been stated, this appeal is by Ninaji and Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death.

3. It has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present at the incident which took place at gothan , and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting on his oota.

4. We have been taken through the evidence on the record, and we find that there is no justification for the argument that the fatal injur