Umamaheswaram, J.

[1] These two appeals are directed against the judgments of the Sessions Judge and the Assistant Sessions Judge, Krishna in Sessions Case Nos. 41 of 54 and 6 of 1955 respectively. Accused 1 to 7 are the appellants in Criminal Appeal 51 of 55 and accused 1 and 4 are appellants in Criminal Appeal 149 of 55. The appellants in Criminal Appeal 51 of 55 and one S. Venkayva, accused 8 in S. C. 6 of 55 were jointly committed for offences under Sections 148, 302, 436 and 201, I.P.C. before the Sessions Judge, Krishna.

But the Sessions Judge, Krishna separated the case against all the accused under Sections 436 and 201, I.P.C. from the case against accused 1 to 7 under Sections 148 and 302, I.P.C. as mentioned in paragraph 3 of the judgment and following the decision of the Full Bench of the Madras High Court in - 'Narayana Bhatta v. King' 1948 Mad WN Cr 113 : AIR 1949 Mad 9 (A). The case which was so separated was tried by the Sessions Judge as S. C. No. 6 of 55.

[2] We shall proceed to deal with Criminal Appeal 51 of 55 in the first instance. The first charge against all the seven accused was that on or about the 4th day of April 1954, they formed into an unlawful assembly at 11 a.m. in the village of Hanumanthapuram (also known as Gaddipadu) Gannavaram Taluk, Krishna District, with the common object of such assembly, commit an offence of rioting armed with deadly weapons, viz., spears and tapper's knife and thereby committed an offence under Section 148, I.P.C.

The second charge was that at the same time and place and in the course of the same transaction as set out in charge No. 1 and, in furtherance of the common object aforesaid they did commit murder by intentionally and knowingly causing the death of Kagitha Ramayya of the same village by stabbing him with spears and cutting him with tapper's knife and thereby committed an offence punishable under Section 302, I.P.C.

The learned Sessions Judge found that all the accused were guilty of an offence under Section 148, I.P.C. He further found that accused 3, 5 and 6 were guilty of the offence punishable under Section 302, I.P.C. while accused 1, 2, 4 and 7 were guilty of an offence under Section 326, I.P.C. He convicted and sentenced all the accused under Section 148, I.P.C. to undergo rigorous imprisonment for two years. So far as accused 3, 5 and 6 were concerned, he sentenced them to transportation for life. Under Section 326, I.P.C. he convicted and sentenced accused 1, 2, 4 and 7 to undergo rigorous imprisonment for three years. He directed that all the sentences should run concurrently. The accused have consequently filed the appeal.

[3] In the village of Hanumanthapuram there lived three brothers Kagitha Adayya, Kannayya and Vallayya. The deceased Ramayya was the son of Adeyya. The 1st accused is the son of Kannayya, The 2nd accused is the son of the 1st accused. Accused 3 to 6 are the sons of Vallayya. The 7th accused is the grandson of a cousin of those three brothers and Sonti Venkayya, the 8th accused in S. C No. 6/55 is the daughter's son of another cousin of those three brothers.

[4] The case of the prosecution as spoken to by the widow of the deceased Ramayya is briefly as follows: There were ill-feelings between the deceased Ramayya and the 1st accused to three years prior to the date of occurrence and they were not on visiting or talking terms. A month prior to the occurrence, the fence between the house of the deceased and the accused fell down.

On 4-4-1954 at about 10 or 11 a.m. the deceased Ramayya and his son, examined as P. W. 2 were digging pits with a crowbar to erect the fence. All the accused obstructed them from putting up the fence and quarrels started between them, P. Ws. 7 and 8 advised them not to quarrel and left the place after giving the advice. P. Ws. 5 and 6 came on the scene when the quarrels went on. At that time, the 6th accused said that they should each bring a spear and stab Ramayya. All of them went inside the house o