JUDGMENT

P. Jaganmohan Reddy, J. :- This appeal is by special leave against the judgment of the High Court of Punjab and Haryana allowing the appeal of the State against the acquittal of the appellants under Section 302 read with Section 149 and convicting them of the said offence read with Section 34 I.P.C. and sentencing each of them to imprisonment of life. Five accused who are all brothers were tried before the Sessions Judge, Patiala for offences under Sections 302, 307, 324 read with Section 149 I.P.C. as also under Section 148 of the said Code. The Sessions Judge convicted Jagdev Singh first accused of offence under Section 302 and sentenced him to death subject to confirmation by the High Court. He also convicted him to the offence under Section 307 and sentenced him to three years rigorous imprisonment and a fine of Rs. 500/- in default to undergo further rigorous imprisonment for six months. The second, fourth and fifth accused Gurbux Singh, Darshan Singh and Kuldip Singh respectively were convicted for offences under Section 324 and each of them sentenced to rigorous imprisonment of one year and a fine of Rs. 250/- and in default for a further period of three months rigorous imprisonment. Amrik Singh third accused was convicted under Section 323 and sentenced to six months rigorous imprisonment and a fine of Rs. 150/- and in default of payment of fine further rigorous imprisonment of for 1 1/2 months.

2. The reference and appeal of Jagdev Singh were dismissed and the conviction and sentence of death was confirmed by the High Court. The appeal by the State insofar as Gurbux Singh was concerned was dismissed and his appeal was allowed with the result that even his conviction and sentence under Section 324 I.P.C. was set aside and he was acquitted of all the charges. As already stated, the appeal of the State in respect of the other three accused was allowed. The special leave petition of Jagdev Singh against his conviction under S. 302 and the sentence of death was dismissed by this Court on March 20, 1969, so that this appeal is only concerned with the three accused Nos. 3, 4, & 5, namely Amrik Singh, Darshan Singh and Kuldip Singh.

3. The prosecution case was that the five accused, the deceased Gurdev Singh and Sarmukh Singh are all brothers and reside in village Rauni Kalan. Gurmel Singh, P.W. 5 and Rup Singh, P.W. 8 who is family friend of Gurmel Singh also reside in Rauni Kalan. It appears that six or seven months prior to the occurrence which took place on October 16, 1967, Rup Singh had filed a complaint under Section 107 of the Code of Criminal Procedure against all the appellants out of whom security proceedings were instituted only against accused Gurbux Singh and Kuldip Singh and they were both bound over to keep the peace. In those proceedings Gurmel Singh and his uncle Thamman Singh who was living with Gurmel Singh had appeared as prosecution witnesses which fact, it is alleged, gave rise to ill feeling between Rup Singh and Gurmel Singh's families on the one hand and appellants' on the other. About a month prior to the occurrence the deceased Gurdev Singh had come home on annual leave from the army where he was working. It is the case of the prosecution that on the day of the incident Bachan Singh P.W. 6 who is the maternal uncle of Gurmel Singh, and who is a resident of village Berma in Ludhiana District which was about 12 miles from Rauni Kalan came to that village at about 6 p.m. in order to see his nephew Gurdev Singh the deceased. After he had spent about an hour with his nephew he and the deceased Gurdev Singh accompanied by Gurmel Singh went to the house of Rup Singh for the purpose of purchasing a buffalo which Rup Singh wanted to sell. At that time Gurmel Singh is said to have a lathi with him while Bachan Singh and the deceased had no kind of weapon in their hands. When all these persons reached the house of Rup Singh they found him sitting near his door and started talking to him. At that time