I.D. DUA, J.

(1) MASJI Tato Rawool, Janabai alias Rajani and Sahadeo Atmaram Rawool (original accused nos. 1, 5 and 6) are the three appellants in this appeal by special leave. They challenge their conviction by the Bombay High court on State appeal against their acquittal by the Additional Sessions Judge, Ratnagiri. Originally six persons, including the three appellants, were committed by the Civil Judge and Judicial Magistrate, First Class, Sawantwadi in Ratnagiri District for being tried under S. 148, Section 302, read with S. 149 and S. 302, read with S. 34, Indian penal code Masji Tato Rawool was in addition charged under S. 323, Indian penal code The occurrence in question had resulted in the death of Shankar Timaji Rawool. The prosecution story may now be briefly stated.

(2) TATO Masji Rawool, accused No. 2 resided in his house in hamle: known as Dongar Baherchi Wadi in village Nemale in Sawantwadi Taluka in Ratnagiri District. With him lived his wife Bhagirathi, (accused No. 3), his two sons, Masji (accused No. 1) and Sakharam (accused No. 4) and his two daughters, Mathubai, aged 12 years and Janabai (accused No. 5) who was married to Shaataram Mulik of Kondure. The deceased Shankar Timaji Rawool also belonged to the Rawool brotherhood and was distantly related to the accused persons, being their bhauband. He resided in his own house in the same Wadi along with his ailing mother, his brothers Shivram, Arjun and Hari and Shivrams wife Vatsala. He had two more brothers by name Vasu and Sahadeo, who resided in Bombay. There was no love lost between the family of the deceased Shankar and that of the accused Nos. 1 to 5. These two families had since about 8 or 10 years been on inimical terms with each other. Accused No.. 6, Sahadeo Atmaram Rawool, had his own scores to settle with the family of the deceased and his enmity with that family could also be traced back to 8 or 10 years. About a fortnight before the occurrence in question Shankar, deceased, had lodged a complaint against accused No. 6 and his two brothers for having cut stems from his (Shankars) land. On 8/12/1964, Sahadeo (accused No. 6) came to the house of accused No. 2 and started abusing Shankar who was sitting in his own house. When Shankar protested the other accused persons, namely, Tato, Sakharam and Masji sided with Sahadeo and challenged Shankar to come out, threatening him with death if he did so. Shankar kept quiet. On the following day at dawn Hari and Arjun, brothers of the deceased, went to their Kolarob land with plough. Shivram left his house at about 6 a. m. and went to his paternal aunt Shevantabai who lived at Kumbharwadi. At about 7 a. m. accused, Masji, Sakharam and Janabai (Nos. 1, 4 and 5 respectively) went towards their mangar with sticks and after some time they and accused No. 6 also armed with a stick, came out of their mangar and passed by the house of Sundarabai (P. W. 5), widow of Sonu Rawool. In the meantime Shankar also came out of his house and while going by the footway he was accosted by accused Nos. 1,4,5 and 6 near the spot known as gothan. Seeing them he started running away in order to escape but they caught him and started beating him with sticks. As Shankar shouted for help, his sister-in-law Vatsalabai and other persons who were nearabout, hearing his call for help, came out. They saw the four accused (Nos. 1,4, 5 and 6) beating him. Shankar, as a result of beating, fell down with his face upwards. By that time Shivram returned to his house and on being informed by his mother about the beating, he also went to the place where Vatsala was standing. In the meantime accused Nos. 2 and 3 also came out of their houses and went towards the place of occurrence. Bhagirathi (accused No. 3) had brought with her two Palkovatas and Tato (accused No. 2) was armed with a stick. Bhagirathi gave one Palkovata to her son Masji (accused No. 1) and the other to her daughter Janabai (accused No. 5). Janabai then gave blows wi