JUDGMENT

SARKARIA, J. :— These appeals, are directed against a judgment dated August 24, 1974 of the High Court of Madhya Pradesh. They arise out. of these facts :

Babulal, Suratlal, Gajraj, Ramesh Kumar and Mohanlal Rai, all the five were tried by the Additional Sessions Judge, Chhindwara in respect of offences under Ss. 302, 302/34, 302/149, 147 and 148, Penal Code. Ramesh Kumar and Mohanlal were charged and tried by the same court in respect of offences under Sections 302, 362/34, 302/147, 147, Penal Code. By his judgment dated July 26, 1971, the learned Sessions Judge acquitted Suratlal, Gajraj, Ramesh Kumar and Mohanlal of the charges under Ss. 302, 302/149, and 302/341, Penal Code. Gajraj was, however, convicted under Sections 147, 148 and 324, Penal Code and was sentenced to imprisonment ranging from one year to two years with a direction that the sentences would run concurrently. Ramesh Kumar and Mohanlal and Suratlal were convicted under Sections 147 and 323, Penal Code and each of them was sentenced to imprisonment ranging from six months to two years, sentences being concurrent. Babulal was convicted under S. 302, Penal Code simpliciter and was sentenced to imprisonment for life. He was also convicted under Ss. 147 and 148.

2. The convicted accused preferred appeals to the High Court of Madhya Pradesh, The State also filed a separate appeal for setting aside the acquittal of the accused persons on the murder charge against all the appellants, excepting Babulal. The High Court by a common judgment, dated August 24, 1974, dismissed the appeals of the accused persons but allowed the State appeal and set aside the acquittal of the appellants Suratlal, Gajraj, Ramesh Kumar and Mohanlal, All the convicted persons have now come in appeal to this Court against the judgment of the High Court.

3. The prosecution story was as under :

Ammolal (PW 2) had a cloth shop near Kamania Gate. On account of heavy, sales, he called his younger brother Sarmanlal, deceased and cousin, Gulzar (PW 21) to help him in business. In the evening at about 8 p.m. on the day of occurrence, (Nov. 22, 1970) he was sent by Ammolal for recovery of certain dues from one Ramesh near Patni Talkies. The deceased and their servant Jaichand (PW 5) went to Ramesh for this purpose. After about half an hour or so, they were on their way back. When they were near Kamania Gate, the appellants surrounded them and a scuffle ensued. The appellants started beating the deceased with kicks and fist blows. Jaichand ran to the shop and informed Ammolal how the appellants had encircled Sarmanlal. On receiving this information, Ammolal Jaichand and Gulzar Prasad rushed to the spot. They found the five appellants beating Sarmanlal. A large crowd had gathered, the shops were open and there was electric light. When Ammolal tried to intervene, Suratlal appellant caught hold of Ammolal and threw him on the ground. It was further alleged that Babulal and Gajraj took out knives from their pockets and gave one stab blow each to the deceased. On seeing this and after saving himself from Suratlal, Ammolal ran away and concealed himself in a nearby lane from where he is said to have witnessed the incident. The story, as developed at the trial, is that after the initial beating with kicks and fists, the said blows were given to the deceased after he was taken to the nearby sidelane opposite to the shop of Jagan, Barber. After stabbing Sarmanlal there, it is said, all the appellants proceeded to the shop of Ammolal shouting that they had done away with Sarmanlal and would settle with Ammolal. They did not find Ammolal at his shop. Suratlal threw a knife at the board lying at the shop. The appellant then went away, Sarmanlal. died in the Hospital about half an hour after the receipt of the injuries. Ammolal then made the first information report at the police station.

4. Dr. Vaidya found the following injuries on the person of Sarmanlal :

(i) Cut, wound 1/4" x 1/4" on left side of epigastrium