Ranawat, J.—This is a criminal appeal by Ram Ratan, Ganapat and Harbilas, against the Judgment of the Additional Sessions Judge of Dholpur, dated the 21st of April, 1935, convicting the accused-appellants under sec. 302 and 306 both read with sec.34 of the Indian Penal Code, and sentencing them each to transportation for life and fine Rs. 300/-or in default 6 months further imprisonment under sec 302 read with sec.34 I. P.C., and to 7 years R. I and a fine of Rs. 200/-or in default 4 months further R.I. under sec. 307 read with sec. 34 I.P.C. Both the sentences were ordered to run concurrently.

2. The prosecution case is that Pyare, brother of the three accused-appellants, was murdered about one year before the date of occurrence in this case, and a case against Daryav, Bidha and others is pending in the court of the Sub Divisional Magistrate of Dholpur. The relations of Daryav, Bidha and other with Ram Ratan and his family were strained on account of the murder of Pyare. Daryav was keeping Mst. Ramdei, a Kachhi girl, and Pati, who a also a Kachhi and who wanted to keep Mst. Ramdei, had a grievance against Daryav on this account During the night between 14th and 15th of April, 1954, when Daryav was sleeping on a cot with Mst. Ramdei in a Madhaiya in the Nohra of Cheta Gadariya the accused Ram Ratan, Ganpat and Harbilas, Sudhre, Inder, Pati, Ajba and others came and Pati and Ajba took their positions in front of the gate of Chetas Nohra and Inder and Sudhre near the cot of Megha and Narain in the court-yard of the Nohra, while Ram Ratan, Ganpat and Harbilas entered the Madhaiya. Both Ram Ratan and Ganpat were armed with swords and Harbilas with a lathi. Ram Ratan and Ganpat inflicted an injury on the neck of Mst. Ramdei, causing her instantaneous death and several cut injuries on the head and other parts of Daryavs person. Daryav raised a cry and Bidha, having heard it, came towards chetas Nohra and was confronted by Pati and Ajba at the gate. Pati fired a shot with the gun which he was carrying, one of its pellets hitting Bidha on the upper and front part of his right forearm. After firing the gun both Pati and Ajba ran away from that place and Inder, Sudhre, Ram Ratan, Ganpat and Harbilas also came out of the Nohra and escaped, but they were noticed by Bidha who was at that time at the gate of the Nohra. While Ram Ratan Ganpat and Harbilas were in the Madhaiya Inder and Sudhre kept a watch on Megha and Narain and warned them not to get up. After the accused left the place Daryav got up and having crossed the side-wall of the Nohra outside the Madhaiya saw Maharaj Singh S/o Hargovind, Nawab and his son Amar Singh and Nihal Singh standing by the side of Nohra wall but outside it and entered the Nohra by its main gate. He then called out Megha and Narain and asked Narain to get him his pancha from the Madhaiya. Narain accordingly brought him his pancha which was then worn round his waist by himself. Bidha then went to the house of Badan Singh, father of Daryav, and informed Rati Ram, brother of Daryav, about this occurrence, who sent Vidhya Ram to Badan Singh at the latters Khaliyan in order to inform him about this affair. Badan Singh came to his house and then to the Nohra along with Bidha and Rati Ram. He saw Daryav and met Megha and Narain on the spot and left for the police station of Maina with Rati Ram. First information Report was lodged by him at 5 A. M. in which Ram Ratan, Harbilas, Ganpat, Sudhre, Inder, Srichand, Ajba, Nihal, Maharaj Singh S/o Pyare, Maharaj Singh S/o Hargovind, Pati Ram Kachhi and one or two others whose names are not legible on account of the paper having been torn, were mentioned. Habib Khan and Girdhari Lal, constables of police, reached the spot of occurrence and a little later Makkhan Singh, investigating officer, also joined them. The dead body of Ramdei, along with Daryav and Bidha were sent to Dholpur for medical examination. All those persons who were named in the first information report ex

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