JUDGMENT

KOSHAL, J.:— This appeal by special leave is directed against a judgment dated 27th/28th of September, 1977, of the High Court of Maharashtra upholding the conviction of the six appellants recorded by the learned Sessions Judge for two offences under Section 302 read with Section 149 and of one under Section 148 of the Indian Penal Code, the sentence awarded being imprisonment for life on each of the first two counts and of rigorous imprisonment for one year on the third with a direction that the sentences shall run concurrently.

The first appeal in the High Court was originally heard by Vaidya and Sawant, JJ., who differed with each other on the judgment to be rendered. Vaidya, J., holding that the appeal merited dismissal and Sawant, J., being of the opinion that it deserved acceptance in full. The case was therefore laid under Section 392 of the Code of Criminal Procedure before Apte, J., who concurred with Vaidya, J., so that the appeal stood dismissed by the impugned order.

2. Certain facts are not in dispute and may be stated at the outset. The occurrence took place on the 11th of November, 1974, in village Kole to which all the appellants except Khashaba (appellant No.5) belong. Appellants Nos. 1 to 4 and 6 live jointly in a house which abuts on a road 14 feet wide. Opposite that house lies the one belonging to the two unfortunate persons who lost their lives as a result of the occurrence which is said to have taken place in consequence of inimical relations between the accused and the opposite party. The waste water emanating from the house of appellant No.1 had been flowing towards the other side of the road and seeping into the western wall of the house of the deceased. This was one of the factors leading to animosity between the parties, another being that the family of the deceased had earlier sold to a third person some land which they wanted to re-purchase but were thwarted in their design by the accused who were instigating the vendee not to resell the land to the deceased.

3. The deceased were related to five of the eye-witnesses as would appear from the following pedigree-table:

Khashaba accused No.5 is said to be a friend of the family of the other accused and belongs to another village. He was said to be armed with a stick at the time of the occurrence.

4. The prosecution case may be stated thus. On the fateful day Nivas deceased left his house at about 10 A.M. for Karad where he wanted to have himself medically checked up. He returned home at about mid-day and told his wife that he had been driven back by Anna appellant No.2. By then Balasaheb deceased also came to his house from the sugar factory where he was working. It was at this juncture that the two brothers heard buses being hurled at them by all the accused and after emerging from their house picked up two small sticks and went towards the accused. A scuffle was imminent between the two contending parties when Bhimrao Kadam P. W. 20 who hails from another village lying about a mile away and who was then returning home from his field intervened, separated them, disarmed the two deceased and throw away the sticks which he snatched from them before continuing his journey.

At about 2 P.M. all the accused entered the house of the deceased, armed as aforesaid dragged them out of it on to the road and started bearing them with their respective weapons. Lakshmi P. W. 10 and Droupadi P. W. 11 intervened and received injuries at the hands of the accused. In the meantime Bhimrao P. W. 13, Uttam P. W. 14 and their brother Jayakar who had been working in their field and were informed by a boy about the assault on the deceased, came running to the place of occurrence but they too were beaten up by the accused who then made good their escape.

Jayakar brought a motor vehicle from Islampur and took his four injured brothers as well as the two ladies to the Civil Hospital there. In the meantime Bhimrao appellant No.1 reached police station Islampur where he compla