JUDGMENT

PATHAK, J.:— This appeal by special leave is directed against the judgment of the Bombay High Court dismissing the appeal of four appellants against their conviction and sentence under Section 302 read with Section 34, Indian Penal Code by a Session Judge and allowing an appeal by the State against the acquittal of the remaining two appellants and convicting and sentencing them under Section 302 read with Section 34, Indian Penal Code.

2. The prosecution case before the trial court was that Ananda (the deceased) and Rama (appellant No.4), although formerly friends, on account of certain disputes had become hostile towards each other. It was said that at mid-day on 5th August, 1970, Baban (appellant No.6) and Ranga (appellant No.2) went to the house of Radhabai, (P. W. 3) where Ananda was already present. The two appellants and Ananda left the house after a short while. Some moments later a gun shot was heard by Radhabai and Soma (P. W. 1), his wife Bayanabai (P. W. 2) and Kisabai (P. W. 4). The four rushed towards that direction and, it is alleged, saw Baban and Ranga giving blows with an axe on Anandas head. Meanwhile, Rama (Appellant No.4) and Nama (appellant No.3) also arrived, armed with an axe, and shortly thereafter Babu (appellant No.1) and Sampat (appellant No.5) reached the scene. The case is that all the five appellants except Rama struck Ananda with the axe several times. Ananda received serious injuries and lay in a pool of blood on the cart-track on a point lying between the houses of Radhabai and Kisabai. His brother Yeshwant (P. W. 6) arrived soon after and he was informed by the witnesses of the circumstances in which Ananda had been killed. Yeshwant sent his cousin Balu (P. W. 7) to the police station at Shirala and a First Information Report was lodged. The appellants who had run away remained absconding and were arrested subsequently on various dates at different places.

3. The appellants were charged with the offence under Section 302 read with Section 149, I. P. C. and also under Section 148, I.P.C. But, as the High Court has pointed out, the offence described was falling to be the offence under Sec. 302 read with Section 34 I.P.C. The learned Sessions Judge, Sangli who tried the accused held that Babu and Nama were entitled to acquittal, and he convicted the remaining accused under Section 302 read with Sec. 34, I.P.C. and sentenced them to rigorous imprisonment for life. The convicted accused filed an appeal before the Bombay High Court and the State filed an appeal against the acquitted of the two other accused. The Bombay High Court has by its judgment dated 5th December, 1973, as mentioned earlier, affirmed the conviction and sentence of the four appellants, and it has allowed the State appeal against the other two appellants, convicting them under Section 302 read with Section 34 I. P. C. and sentencing them to rigorous imprisonment for life.

4. In this appeal we have been taken through the evidence on the record by learned counsel for the appellants in support of his submission that the eye-witnesses were unreliable and there was no cogent material for convicting the appellants. It is urged that the prosecution case that a gun was fired cannot be believed because there is no evidence that anyone among the accused carried a gun and also because no empty or discharged cartdige was found on the scene. We are inclined to agree with learned counsel. The evidence in support of the case that a gun was fired is difficult to accept in the absence of concrete evidence. But we find ourselves unable to accept that there was no noise at all at the time. Evidently, there was the report of a loud blast which drew the attention of people towards the scene. And, as the High Court has rightly pointed out, it was caused by some contrivance to inform the other accused that they should gather on the scene as Anada was in their power. It was thus that we find the other accused came running to the spot. But, inciden