Judgment

FAZAL ALI, J.:- The appellants have been convicted under S. 304-II read with Section 149 and sentenced to three years rigorous imprisonment. This appeal by special leave is directed against the judgment of the Orissa High Court which affirmed the conviction and sentences passed by the Sessions Judge.

2. We have gone through the judgement of the High court as also that of the Session Judge and we have also heard the learned counsel for the parties.

3. Mrs. Sunanda Bhandare appearing in support of the appeal, however, submitted that the case of appellant No. 2 Laxman Pradhan merits serious consideration because there is no legal evidence to show that he inflicted any lathi blow to the deceased. It was submitted that on the finding of the High Court that the appellants had exceeded the right for private defence of property, the charge under Section 149 which was based on the common object to assault must necessarily fail. In that view of the matter unless there was specific evidence against appellant No. 2 Laxman Pradhan that he had assaulted the deceased, he cannot be convicted under Section 323. In our opinion, the contention raised by Mrs. Bhandare regarding Laxman Pradhan