K.D. SHARMA, C.J. — This is an appeal filed by Punja, Mogji, Kheema and Sawji against the judgment of the Additional Sessions Judge, Dungarpur, dated March 2, 1977. by which each appellant was convicted under sections 147, 307/149, 323/149 and 363, I.P.C. and sentenced to undergo rigorous imprisonment for one year on the first count, on the second to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months, on the third count to undergo rigorous imprisonment for six months and on the fourth to suffer rigorous imprisonment for six months. All the substantive sentences of imprisonment awarded on the four counts were ordered to run concurrently in the case of each appellant. It will not be out of place to mention that during the pendency of the appeal, Sawji appellant expired on April 6, 1977. Hence, the appeal filed by him abated on his death.

2. The prosecution case against the remaining three appellants was as follows:-

3. Punja appellants brother Pema was murdered and a criminal case was registered by the police at police station, Ganeshpur, about the offence of murder. Head Constable Shanker Lal accompanied by Constables Moti Singh, Suresh, Karan Singh and Labh Shanker came to village Kathri Khurd where the deceased used to live, and started investigation into the case of murder. After some investigation, they were carrying Pemas wife Mst. Sukhi and one Taju to the police station from village Kathri Khurd for further investigation Alongwith the Head Constable and the Constables, there were other persons, namely Moga, Shanker and Kachra. When the police party came out of the village and reached near a hillock, along with Taju and Pemas wife, Mst. Sukhi and other above mentioned persons about 600 or 700 persons of village Torania and Morayee came there having armed themselves with lathis, swords dharia, bows and arrows and gun. They had come to kill Mst. Sukhi and Taju Shanker Lal, Head Constable, asked these persons not to take law into their hands, but they turned deaf-ears to his advice and attacked Sukhi and Taju with the weapons in their hands. As a result of beating administered to Sukhi and Taju, Sukhi fell down unconscious and her baby aged about 1 1/2 years fell from her lap and was lifted up by some person. Taju, however, tried to run away but somebody struck a blow on his head with a sword, as a result of which he fell down when another person fired a shot from his gun at his left thigh. The miscreants disappeared from there as they thought that Taju had died Shanker Lal and other Constables brought the two injured to Ganeshpur and from Ganeshpur they carried them to Dungarpur Hospital in a bus for treatment of their injuries. Shanker Lal, Head Constable came back to police station Ganeshpur, on May 29, 1975 and lodged a report of this incident with the police on the basis of which a criminal case under sections 148, 353, 363 and 307/149, I.P.C. was registered. The police made usual investigation into the matter and after collecting necessary evidence filed a charge-sheet against 21 accused including the 3 appellants in the court of the Munsiff and Judicial Magistrate, Dungarpur, under sections 307,148, 149, 353 and 363, I.P.C. The learned Judicial Magistrate, upon finding a prima-facie case exclusively triable by the court of Sessions, committed 21 accused including the present appellants to the court of the Additional Sessions Judge, Dungarpur, for trial for the aforesaid offences. The learned Sessions Judge tried all the accused persons for the above mentioned charges and found Punja, Mogji, Sawji and Kheemaji accused only guilty under secs. 147, 307/149, 323/149 and 363, I.P.C. The other accused were acquitted by him of all the charges framed against them, Punja, Mogji and Sawji were also acquitted of the charges under sections 148, 326/149 and 325/149, I.P.C. The learned Addl. Sessions Judge, accordingly con

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