JUDGMENT

KAILASAM, J.

( 1 ) THE two criminal appeals Nos. 59 and 60 of 1972 are by special leave. Criminal Appeal No. 59 of 1972 is preferred by Sarwan Singh, Karnail Singh, Zora Singh and Malkiat Singh, while criminal appeal No. 60 of 1972 is by Bachan Singh against their conviction and sentence imposed on them by the trial Court and confirmed by the Punjab and Haryana High Court in Criminal Appeal No. 512 of 1970. This Court granted special leave in both cases limited to the question as to whether the offence committed by appellants was one under S. 302, I. P. C. or under any part of S. 304, I. P. C.

( 2 ) THE facts necessary for determining what offence the accused were guilty of may be stated. Sant Singh is the father of Sarwan Singh, Bachan Singh and Mewa Singh. Sarwan Singh is the first appellant in Criminal Appeal No. 59 of 1972 and Bachan Singh is the sole appellant in Criminal Appeal No. 60 of 1972. The deceased Mewa Singh is their brother. Sarwan Singh had two sons, Zowa Singh and Karnail Singh who are appellants Nos. 3 and 2 in Criminal Appeal No. 59 of 1972. Sarwan Singhs daughter was married to Malkiat Singh who is the fourth appellant in Criminal Appeal No. 59 of 1972. Pending appeal, Sarwan Singh and Bachan Singh have died and their appeals have abated. We are therefore concerned only with Karnail Singh, Zora Singh and Malkiat Singh who are appellants Nos. 2, 3 and 4 in Criminal Appeal No. 59 of 1972.

( 3 ) THE deceased is the brother of the two accused and paternal uncle of the two other accused. The dispute was over a common Khal of the land and a pahi. The deceased Mewa Singh put an application before the Revenue authority against the accused and the matter was pending when the occurrence took place.

( 4 ) ON the date of the occurrence, 8-9-1969, at about 3 P. M. , P. W. 3, Mohinder Singh, went to Amar Singh, P. W. 5, who is Lambardar of his village in connection with the mutation of his land. Amar Singh was grazing his cattle near the minor canal just opposite to the well of the accused and the deceased Mewa Singh. When P. W. 3 was 20 Kadams away from the place where Amar Singh was grazing his cattle, he heard a Raula coming from the side of tube well of Mewa Singh. hearing the noise, P. W. 3 ran towards the place of the occurrence. he also saw P. W. 5, Amar Singh and Mohinder Singh, son of Thakar Singh, P. W. 4 also running towards the place of occurrence. The three witnesses and Ujagar Singh. P. W. 9 who are eye-witnesses spoke to the actual incident as follows :-"when they reached near the place of occurrence they heard Zora Singh shouting to Mewa Singh. Zora Singh was armed with a Gandasi, Karnail Singh was holding a Takwa, Malkiat Singh was armed with a Gandasi and Sarwan Singh and Bachan Singh were having a lathi each. Zora Singh gave a Gandasi blow to Mewa Singh who raised his hands to ward off the blow and sustained injury. Karnail Singh then gave a Takwa blow to Mewa Singh which he warded off by raising his hands and got an injury on his hand. Zora Singh and Karnail Singh gave more injuries with their respective weapons. Therefore, all the accused started causing injuries to Mewa Singh with their respective weapons while he was lying on the ground. "

( 5 ) ON the evening at about 8-30 P. M. , P. W. 14 saw Mewa Singh and enquired from the doctor whether he was in a fit condition to make a statement. The doctor gave his opinion that Mewa Singh was not fit to make a statement. Mewa Singhs condition was found to be not satisfactory and therefore he was moved to Civil Hospital, Ludhiana. He died at 5-40 p. m. on 9-9-1969. The doctor noted 27 injuries on the person of Mewa Singh. According to the doctor, the cause of death was shock and haemorrhage and the injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. Dr. Jagjit Singh, P. W. 5, examined Mewa Singh on admission to the hospital at 6-45 p. m. on 8-9-1969 and found 27 injuries on Mewa Singh, of which injuries 2 and 3 w