JUDGMENT

SARKARIA, J. :— Sixteen persons of village Tolkyakhedi were put on trial for the murder of one Kanahiya. The Sessions Judge convicted all of sixteen under Section 302/149. Indian Penal Code and sentenced each of them to imprisonment for life. On appeal, the High Court acquitted thirteen of them but maintained the conviction of Purshottam, Badrilal and Bansilal. Purshottam and Badrilal who are brothers, are now the appellants before us by special leave under Art. 136 of the Constitution.

2. In village Tolkyakhedi, there are two warring factions. One led by Shivlal (P. W. 3) and the other by Purshottam appellant. There has been criminal litigation between these factions. The police had also initiated security proceeding against the two parties.

3. On September 6, 1972, about 9 or 10 months before the murder in question, Radhye Shyam son of Badrilal appellant was murdered, and Kanahiya deceased, Shri Krishan (P. W. 1) son Shivlal ( P. W. 3) along with others were being prosecuted for that murder. The deceased and his co-accused P. W. 1 had been released on bail.

4. The prosecution story as narrated at the trial was that on June 27, 1973 at about 4. p. m., deceased Kanahiya accom