JUDGMENT

SARKARIA, J.:— These appeals under Section 2-A of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, are directed against a judgment of the Gujarat High Court whereby the acquittal of the appellants was set aside and converted into conviction. The facts are these:

The appellants, Abdul Samad, Abdul Vahab and Abdul Wajid, are original Accused 1, 2 and 3, respectively. Accused 1 and 2 are brothers and Accused 3 is the son of their sister. The deceased was one Maiyuddin who was dealing in mangoes in partnership with the acquitted Accused 7 and 8 n the town of Mehmedabad. Differences arose and the partnership was dissolved. After that dissolution, the deceased and his former partners started their independent businesses. This business rivalry led to quarrels between the deceased and Accused 1, 7 and 8.

2. On April 20, 1969, at 5.45 p. m., the three appellants along with five others (who may be referred to A-4, A-5, A6, A-7 and A-8), all residents of Mehmedabad, went in a body of Maiyuddin in the bazaar. A-1 was armed with a gupti, A-2 with guptis and a hockey-stick, A-3 was carrying a hockey stick; A-4 and A-6 had dharias, A-5 had a hammer-stick; A-7 and A-8 were armed with sticks.

3. A-2 and A-6 caught hold of the deceased, while A-1 gave him gupti blows on the chest. A-2 plunged his gupti into the abdomen of the deceased. Others also beat the deceased with their weapons.

4. Sikandermiya (P. W. 1), a brother of the deceased, who was running a pan bidi shop in the vicinity saw the assault. When he came to the rescue of his brother, A-3 gave blows to him with the hockey stick on the head, knee and leg. A-7 and A-8 also dealt stick blows to Sikandar. The deceased somehow succeeded in extricating himself from the clutches of the assailants and moved to a nearby shop and sat there. Apart from Sikander, the occurrence was witnessed by Amirmiya Saidmiya (P. W. 2). Mohamadhussain Abderehman Mansu (P. W. 3) and Kasammiyan Ahmadmyan (P. W. 9). Mohamed Mansuri brought a handcart and removed Maiyuddin, injured to the Hospital which is at a distance of about 200 yards from the scene of occurrence. Amirmiya informed Abdul Rehman, and then, these two also reached the Hospital. In the Hospital the injured was removed to the operation table. The Medical Officer, Dr. Shah, found the condition of the patient critical. He, therefore, thought it fit to record the dying declaration of the patient. The deceased stated to the Doctor that Samad (A-1) "and others" had caused him the injuries. The deceased could not state further anything intelligible. He went into a coma and died 4 or 5 minutes thereafter at 6-45 a. m.

5. Abdulrehman and Sikander then went to the Police Station and contacted Head- Constable Chandubhai Dayabhai. They requested him to record the First Information. Chandubhai expressed his inability to do, saying that he was not in-charge of the Police Station. Chandubhai however, informed Senior Jamadar Raju Mia came and recorded the First Information given by Sikandar, at 8 a. m.

6. In the meantime the Medical Officer had sent an intimation about the death of Maiyuddin, injured in the Hospital. Jamadar Raju Mia then went to the Hospital and collected the dying declaration from Dr. Shah. Subsequently, Police Sub-Inspector Gohil, arrived and took over the investigation. He prepared the inquest report. Exh.18, and sent the dead body for post-mortem examination. Accompanied by Sikandar, he went to the scene of occurrence and prepared the panchnama Ex.20. He found one chappal, a piece of hockey-stick and a blood-stained plank of wood. He seized these articles. He recorded the statement of Amirmiya. He deputed a constable to bring the accused to the Police Station. Accordingly, the constable brought A-1, A-4, A-5 and A-6 to the Police Station, where the Sub-Inspector arrested them. He found blood-stains on the shirt of A-1. He seized the shirt. A-6 gave a complaint to the Sub-Inspector, and complained of assault by Sikandar an