JUDGMENT

K. JAYACHANDRA REDDY, J.:— This appeal is directed against the judgment of the High Court of Allahabad confirming the convictions and sentences awarded to the four appellants by the trial court. These four appellants along with two others were tried for offences punishable under S. 302 read with S. 149, S. 324 read with S. 149, S. 325 read with S. 149 and S. 323 read with S. 149, I.P.C. The trial Court convicted the four appellants herein under S.302 read with S. 149 and sentenced each of them to undergo imprisonment for life. They are also convicted under Ss. 147, 148 and S. 324 read with S. 149, I.P.C. The trial Court acquitted the other two accused. The convicted accused as well as State preferred appeals. The High Court while dismissing the appeal by the State converted the convinction of the other four namely appellants herein to one under S. 304, Part II read with S. 149 and sentenced each of them to undergo rigorous imprisonment for a period of five years. The other minor convictions and sentences were confirmed and thus partly allowed the appeal. Being aggrieved by the same they have preferred this appeal.

2. Learned counsel for the appellants contended that the High Court had rejected the substratum of the prosecution case and that the appellants are entitled to a complete acquittal even on the findings of the High Court.

3. The prosecution case is that Middu, one of the acquitted accused, was married to one Smt. Hajra. The relations between wife and the husband were strained and Smt. Hajra was living separately from her husband and she filed an application for maintenance which was pending on the date of the incident. The deceased one Abdul Majid and another were doing pairavi on behalf of Smt. Hajra, All the parties including the accused belong to the same village. On 15-12-1971 at about 9 P.M. the deceased, P.W. 1 and some other persons were sitting under the thatch of P. W. 1 in his Baithak. At that time all the four appellants came there. Abdul H amid, the first appellant was armed with a Tabal, a cutting weapon and others were armed with lathis. Middu was armed with a Gandasa. All these persons started beating the deceased who received severe injuries and died subsequently. They also caused injuries to P.Ws. 3, 6 and others. According to the prosecution these accused wanted to take revenge against the deceased and P.W. 1 who were helping Smt. Hajra. P.W. 1 went to the Police Station and gave a report on 16-12-71 at about 12. 10 P.M. i.e. more than 12 hours after the incident. P..W. 12, Sub-Inspector registered the crime and took up the investigation. He sent the injured for medical examination. P.W. 5 the Doctor found on the injured deceased an abrasion and a lacerated wound on the head. On P.W. 3 he found one incised lacerated wound and two abrasions. On P.W. 6 he found two lacerated wounds, one incised, three contusions and three abrasions. The deceased succumbed to his injuries in the Hospital. The inquest was held and the dead body was sent for post-mortem. Another Doctor P.W. II conducted the post-mortem. He noted a stitched wound near the right ear and an abrasion on the back and one contusion on the left side of the head. On internal examination he found radial fracture of left parietal and temporal bones and it was opined that the death was due to scull injuries. After completion of the investigation the charge-sheet was laid.

4. The third appellant herein also gave a report to- the Police 15 minutes before the report lodged by P.W. 1. It was stated therein that the deceased was keeping Smt. Hajra forcefully to have illicit relations with her. The matter was referred to the panchayat and it was decided that Smt. Harja should be restored to her lawfully wedded husband Middu on the day of the occurrence at 9 p.m. Around about that time P. W. 3 came out and raised instigating cries on hearing which the deceased and five others came with lathis and .other weapons and attacked the accused, in the cours