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 accompanied by Shri Krishan (P. W. 1) and Poona (P. W. 2) was returning from the fields. When he reached near the habitation of the village, the 16 accused persons variously armed confronted them. The appellants and Bansilal and three other accused were armed with Pharsis, Ramkaran was carrying a gun, while the rest were armed with lathis. Purshottam, Badrilal appellants and their co-accused Bansilal gave blows to Kanahiya on the head, while the remaining accused were shouting- "kill him kill him". The culprits then fled away. On hearing the alarm raised by P. W. 1 and P. W. 2, Shivlal (P. W. 3), Nanda (P. W. 4) and Rameshwar also reached the spot. Mohan (P. W. 8) and others also went to the spot. They removed Kanahiya to his house, and administered him water. Thereupon the deceased made a dying declaration before the witnesses that Purshottam, Badrilal and Bansi and beaten him with Pharsis, while the rest armed with lathis had surrounded him. The deceased died on his way to Nalkheda Hospital.

5. Dr. K. C. Jain (P. W. 10) who performed the autopsy found only one external "cut wound on left parietal area of the deceased. The dimensions of the wound were 51/2" x 1/2" x 1 1/2" extending from frontal suture to the occipital suture, 1" left lateral and parallel to midline. In the opinion of the Doctor (P. W. 10). this injury which had been caused with a sharp weapon, "could not be caused by two simultaneous strokes/blows."

6. The reason given by P. W. 10 for this opinion, was that he found only one external "cut wound and there were no lacerations or indents". P. W. 10 further testified that in his opinion, after receipt of this fatal injury on the head, the victim must have immediately lost consciousness and could not have regained consciousness or spoken anything till his death. P. W. 10 further explained that revival of consciousness by the deceased after receiving this injury was not possible because the injury must have caused concussion followed by compression of brain. The flow of blood from sinuses over the brain matter must have paralysed the whole brain system.

7. In their earlier statements recorded under Sections 161/164. Criminal Procedure Code, P. W. 3, P. W. 4 and P. W. 5 claimed to be full-fledged eye-witnesses of the occurrence. At the trial, however, they took up the position that they had reached the scene of occurrence just after the incident, when all the accused were still present on the spot variously armed.

8. P. W. 1 and P. W. 2 however consistently claimed to have witnessed the entire occurrence. All the five witnesses. namely P. Ws. 1 to 5 and also P. W. 8 stated that the deceased after his removal to his house and administration of water made a dying declaration that the three accused Badrilal, Purshottam and Bansilal had caused him th