Judgment

K. JAYACHANDRA REDDY, J. :- These two appeals are directed against the judgment of the High Court of Gujarat whereby acquittal of the two appellants of murder charge was set aside and the High Court convicted them under S. 302, IPC and sentenced each of them to undergo imprisonment for life. The two appellants (original accused Nos. 1 and 2) were tried along with three others for offences punishable under Ss. 302, 324, 326 read with Ss. 143, 147, 148 and 149, IPC. The trial Judge convicted the two appellants under S. 304, Part II, IPC and sentenced each of them to suffer five years R.I. and to pay a fine of Rs. 5,000/- in default of payment of which to suffer one years R.I. The other three accused were convicted under S. 324, IPC and sentenced to six months RI. The two appellants, A-1 and A-2 preferred an appeal against their conviction under S. 304, Part II, IPC and the State also filed an appeal against their acquittal of the murder charge. The State also filed another appeal for enhancement sentence. The other accused who were convicted for minor offences also preferred an appeal.The High Court dismissed the appeal filed by the two appellants and allowed the appeal filed by the State against them and convicted them u/S. 302, IPC as stated above. The sentence of fine was also confirmed. The other appeal filed by the State for enhancement of sentence was dismissed. We are not concerned with the convictions and sentences of the other three accused in these appeals.

2. The prosecution case is as follows.

The deceased Bababhai Visabhai and the first appellant Babubhai Ranchhodbhai had a dispute about right of way regarding their agricultural land and the first appellant filed a suit in which a Court Commissioner was to make a local inspection and send a report. On 4th May, 1990 at about 1-15 p.m. the deceased, his son Praveen, P.W. 4 and the complainant Prabhudas, P.W. 2 went to the place of incident along with two panchas. Likewise the first appellant (A-1) with the other accused including two of his panchas went there. In the presence of the Court Commissioner there was hot exchange of words between the two parties while the panchnama was being made on a point about depth of a pit. The Court Commissioner. apprehending breach of peace, left the place. Thereupon it is alleged that A-1 and A-2 took out their knives and gave blows to the deceased and to P.W. 2 Prabhudas and also to P.W. 4 Pravin. The other three accused are alleged to have held the victims. A report was given to the police and the injuried were admitted in the hospital. The deceased died on the way. After the inquest was held, the dead body was sent for post-mortem. The Doctor, P.W. 1 conducted the post-mortem on the dead body of the deceased and he found one verticle stab wound on the spinal region at the level of 10th rib and another stab wound over lower back of chest. On internal examination he found that injury No. 1 had passed through peritoneum and penetrating through the right lobe of liver and the death was due to shock and haemorrhage due to injury to the liver. The Doctor also found injuries on P.W. 4 and also on P.W. 2. The accused when examined u/S.313. Cr. P.C. pleaded not guilty. A-2. however, gave a complaint against the deceased and others for offences punishable u/Ss. 323 and 324. IPC stating that in the presence of the Court Commissioner the deceased and his people attacked them. The Doctor no doubt found some injuries on A-2 but the Doctor having examined the injuries on A-2 opined that they were self-inflicted. Therefore the police concluded that A-2 has given a false complaint.

3. The prosecution in the instant case mainly relied on the evidence of P.Ws. 2, 4 and 5 out of which two witnesses are injured. The trial court accepted the evidence of the eye-witnesses and held that there was an unlawful assembly and during the course of occurrence the deceased and the two witnesses received injuries. The trial court also accepted their evidenc