1. - This appeal has been filed by four accused persons, Daldas, Gulabdas, Ratani and Ganpati. Daldas and Gulabdas are real brothers. Ratani is wife of Daldas, and Ganpati is daughter of Gulabdas. The appeal seeks to challenge the judgment of the learned Sessions Judge, Churu dated 5.12.1983, passed in Sessions Case No. 532/1982, convicting the appellant Daldas for theoffence under Sections 302, 325/34 and 323/34 and convicting the other accused persons for offences under Sections 325/34, and 323/34 I.P.C., and acquitting all of them for the remaining offences. The accused Daldas has been sentenced for the offence under Section 302 with imprisonment for life, and fine of Rs. 1000/-, in default to undergo 6 months' rigorous imprisonment, under Section 325/34 he has been sentenced to 2 years' rigorous imprisonment with fine of Rs. 100/- in default to undergo one month's rigoroug imprisonment and under Section 323/34 he has been sentenced to undergo 6 months' rigorous imprisonment. All substantive sentences have been ordered to run concurrently. While the other three accused persons Gulabdas, Ratani and Ganpati have been released on probation, for keeping peace and to be of good behaviour for a period of two years.

2. During pendency of the appeal, the accused appellant Gulabdas has expired, and vide order dated 24.11.1999 his appeal was ordered to stand abated. Thus, the present appeal survives only on behalf of the three accused persons Daldas, Ratani and Ganpati.

3. The brief facts of the case are, that on 5.8.1982 at about 10.15 in the night, in the Government Hospital Ratangarh, the Head Constable recorded the statement of injured Tulsidas son of Ladudas Swami resident of Khaleria, wherein it was stated by the injured, that they are three brothers, in the west of the village, there is a land measuring 35 bigha, wherein his share is of 10 bighas towards the south. There is a dispute with the accused persons Daldas and Gulabdas about the boundary for the last 8 years. It was alleged, that Daldas and Gulabdas go on moving the boundary every year, and they plough his land, they have already grabbed portion of the land, but he did not speak, but then this year also the boundary was still moved, and day before yesterday fresh fencing was erected. One Bore tree, which was existing in his land has been included by accused persons to be in their land. This was informed to him by his sons Bhanwar Das and Ruga Ram. On the day of statement, being Thursday at about 5 PM, he and his son Bhanwar Das went on the field, went near the boundary, and looking at them, the four accused persons came on the boundary, Saraswati kept standing at some distance, then he told Daldas and Gulabdas, as to why they have again moved the boundary, and with this, he dismantled the fencing to the extent of about 3 paces. Thereupon the accused persons told, that they will bring persons and get the boundary measured and asked for the concurrence of the witness, the injured, to which he agreed. At that time, verbal altercation also took place. Then the injured and his son started smoking, in the meanwhile Ratandas and Harudan also came, and told that you should not fight every year, both side should erect their own fencing, and after so advancing good counselling they went towards west. The informant also sat on the fencing, accused persons, who were standing also told to smoke, in the meantime, a part of the fencing happened to fall by the foot of the injured. Thereupon Daldas inflicted a blow with the iron Zai, as a result of which he fell down. Then various injuries were inflicted on his head, left hand, right hand, Gulabdas inflicted injury on his left leg with Zai. Thereupon his son Bhanwar Das came to intervene, on whom also injuries were inflicted by Ratani with Zai. Gulabdas also inflicted injuries on his head, and Ganpati inflicted injuries on his knee. Thus, the father and son fell down, thereupon, Ratandas rushed, and started shouting in the loud