Judgment

BAHARUL ISLAM, J.:- This appeal by special leave has been directed against the judgment and order passed by the Allahabad High Court dismissing two appeals filed by the appellants before it. The appellants were convicted under Sections 302, 307 and 323 all read with Section 149 of the Penal Code. They were sentenced to imprisonment for life, each, under Section 302/149, rigorous imprisonment for 7 years, each, under Section 307/149 and rigorous imprisonment for six months, each, under Sec. 323/149 of the Penal Code. Appellants Harish Chandra and Nathu were further convicted under Section 148 of-the Penal Code and sentenced to rigorous imprisonment for two years, each. The sentences were directed to run concurrently.

2. The facts material for the purpose of disposal of this appeal may be stated thus. The prosecution alleges that there was long standing enmity between the parties of the deceased and the appellants. Some time prior to the incident a flour mill was installed and a house constructed by P.W. 1, Pahelwan, in his plot of land. In front of the flour mill and the residence of Pahelwan there was some vacant land in his possession. The appellants had started throwing rubbish on the land. Pahelwan and his son, Ram Swarup (deceased) objected to this. The appellants were annoyed at the objection of Pahelwan and his son Ram Swarup. On 31st December, 1968 at about noon appellants Harish Chandra and Ram Sewak had some altercation with Pahelwan and Ram Swarup in connection with throwing of rubbish on the aforesaid land and as a consequence the relation between the parties worsened. In the evening at about 8 Oclock on the Ist of January, 1969, appellant, Ram Sewak, armed with a lathi went to the front of the flour mill of Pahelwan and started to hurl abuses on Pahelwan and his son Ram Swarup. Appellant, Ram Sewak, challenged Pahelwan and his companions to see them that day. At that time, it has been alleged, an electric light was burning in the front of the room of the flour mill as usual. At the call of the appellant, Ram Sewak, the other appellants came variously armed with lathis and spears and started giving blows to Pahelwan and his son, Ram Swarup, both of whom, according to the prosecution, were unarmed. Pahelwan, somehow, managed to snatch the spear from the hand of the appellant, Ishwari, and started giving blows to the assailants in order to defend himself. At that time, it has been further stated, appellants Harish Chandra and Nathu fired their gun and pistol respectively. As a result Ram Swarup was hit and he fell down in front of the flour mill. The shot of Nathu hit P. W. 1 Pahelwan, Lal Ram and Shri Kishan, all of whom received injuries. Lekh Raj, P. W., then attacked the appellants with his lathi, as a result of which some injuries were caused to the appellants including Harish Chandra. Thereafter the appellants escaped.

3. Ram Swarup succumbed to bullet injuries while he was being removed to the police station. A first information report was lodged by P. W. 1, and eventually the appellants were committed to the Court of Session that convicted and sentenced as stated above. Their appeal was also dismissed by the High Court as earlier stated.

4. Learned counsel for the appellants submitted that large number of injuries had also been received by the appellants and that there was no finding by the Courts below as to how the assault initially started and which party was the aggressor, prosecution has not explained as to how the appellants received the injuries. As such, he submitted, the conviction for the offences with the aid of Section 149, Penal Code, was bad in law. In support of his contention he relied on a decision of this Court reported in AIR 1976 SC 2263. This Court in AIR 1976 SC 2263 (supra) has held :

"(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on t