JUDGMENT

K. JAYACHANDRA REDDY, J.:—This is an appeal under Section 379, Cr. P.C. read with Section 2 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act. There are four appellants. They are original accused Nos. 1, 2, 4 and 5. They along with. Tha Chandji Badarji (A-3) were tried for offences punishable under Sections 147,148,149, 302/ 34 and 323, I.P.C. The learned trial Judge acquitted all of them. The State preferred an appeal and a Division Bench of the Gujarat High Court reversed the order of acquittal and convicted A-1 under Section 302, I.P.C. and sentenced him to undergo imprisonment for life. He was also convicted under Section 148, I.P.C. and sentenced to undergo one years R.I. A-2 to A-5 were convicted under Section 302/149, I.P.C. and sentenced to undergo imprisonment for life. A-2 was also convicted under Section 148 and sentenced to one years R.I. A-3 to A-5 were also convicted under Section 147, I.P.C. and sentenced to six months R.I. The sentences were directed to run concurrently. Before filing this appeal, A-3 died. The remaining accused Nos. 1, 2,4 and 5 have preferred this appeal. The prosecution case is as follows:

The complainant Bhupatsing Andaji was residing with his father and mother in Samdhi-Motawas and doing agricultural work. He had six brothers, he being the eldest. The other brothers were also residing with him. It appears that an election took place in the village two months before the occurrence in which accused No. 1 contested and when Dungarji Ghemarji voted against him, the accused who all belonged to one group wanted to kill him. On 18-3-76 at about noon when Dungarji Ghemarji was going to village Samdhi from his field and when he approached the office of Mota Vas, all the accused were sitting there, A-1 was armed with a sword, A-2 with a Barchhi and A-3 to A-5 with sticks. A-1 instigated A-4 to kill Dungarji as he did not give them vote. A-4 therefore dealt a blow with the stick on the hand of Dungarji who started running as he was afraid that he would be killed. He ran to the house of Andaji Motiji (the deceased). All the five accused followed him with the weapons in their hands. After Dungarji entered the house, Andaji was sitting near the door of his house. At that time one Kapurji Ratnaji was sitting on the Ota of the house of Andaji. Kapurjis mother Anduben was also sitting on the Ota. Complainant Bhupatsing was sitting on the Ota near the door of the house. When the accused followed Dungarji to kill him, the deceased intervened and accused No. 1 asked him to bring Dungarji out and Andaji refused saying that he has taken shelter under him and that he would not bring him out. Thereupon A- 1 gave a blow with a sword on the head of Andaji who fell down. A-2 gave a blow with Barchhi on the face of the deceased and A-3 to A-5 gave him stick blows. Thereafter the accused ran away. The deceased died on the spot. Thereafter the two wives of Andaji, the deceased, who are mother and step-mother of complainant Bhupatsing, were called from the field. They came after one and half hours. Bhupatsing went to lodge a complaint in Gadh Police Station with one Agarsing, his cousin. They reached the Police Station at about 4 p.m. and Jamadar kept them waiting for some time till P.S.I. came at about 5.30 p.m. and recorded the complaint. After registering the crime, P.S. I. went to the scene of crime and arrested the accused. The inquest was held and the dead body was sent for post-mortem. Doctor Sasbihari Amratlal conducted the post-mortem and he found a transversely placed incised wound on the scalp; a Stab wound on the lower part of left cheek; a bruise on the axillary prominence of left cheek and 8 to 9 bruises on the left lateral half of the back. All the injuries were antemortem. On internal examination, he found linear fracture of the skull long placed traversely on the junction of two parietal bones and intracranial haemorrhage with a big clot of blood and the brain was injured due to rup