JUDGMENT

GUPTA, J.:—These are two appeals from a common judgment of the Allahabad High Court by which the High Court disposed of two appeals substantially affirming the order of substantially affirming the order of conviction and the sentence passed on the appellants by the II Temporary Civil and Sessions Judge, Meerut, for the murder of one Chauhal Singh. Ishwar Singh, appellant in Criminal Appeal 6 of 1975, was convicted under Section 302 of the Indian Penal Code and sentenced to death by the Sessions Judge. Each of the four appellants in Criminal Appeal 21 of 1975, namely, Ilam Singh, Harpal, Brahm Singh and Deep Chand was convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to life imprisonment. All the five appellants were further found guilty under Sections 323 and 324 read with Section 149 of the Indian Penal Code and each was sentenced to rigorous imprisonment for nine months under the former section and for two years under the latter. Ishwar Singh and Harpal were also found guilty under Section 148 of the Indian Penal Code and were sentenced to rigorous imprisonment for two years each while the other three appellants were convicted under Section 147 of the Indian Penal code and each sentenced to rigorous imprisonment for one year. The sentences were directed to run concurrently.

2. The High Court dismissed the appeal preferred by Ishwar Singh and accepted the reference for confirmation of the death sentence passed on him. The other appeal preferred by four other accused was also dismissed except for a small variation in that their conviction and sentences under Section 302/149 of the Indian Penal Code were set aside, instead they were convicted under Section 326/149 of the Indian Penal Code and each of them was sentenced to rigorous imprisonment for seven years. The High Court was of the view that Ishwar Singh was guilty of murder but the other four appellants did not share with him the common object to kill, though they had undoubtedly the common object to cause grievous hurt.

3. The incident leading to these appeals occurred in village Samaspur police station Daurala, in District Meerut of February 14, 1973. First information of the crime appears to have been lodged by one Mahabir Singh of that village on the same day at 9.05 A.M. The report says that a dispute had been going on for several days between the informant Mahabir and Ishwar Singh, who owned adjacent lands, over the construction of a drain by Ishwar Singh and on February 13 Mahabir demolished a portion of the drain with Ishwar Singhs permission. The report proceeds that at about 8 in the morning of February 14. the five accused persons came to Mahabirs house, variously armed, demanding to know why he had demolished the drain, and Ishwar Singh with a ballam, Harpal with a bhalla, and the rest with lathis started assaulting Mahabbir and those who were present in his house at the time. Ishwar Singh struck Chauhal Singh who was there on the chest with his ballam, as a result of which Chauhal Singh died then and there". Chauhal Singh was the father-in-law of Mahabirs sister. The report adds that injuries were sustained by Satyapal who was Mahabirs sisters husband, Dharampal, Pritam and Jaipal who were all related to Mahabir, and one Ghanshyam. According to this report, besides the injured persons, there were three other eye-witnesses of the occurrence, namely, Ram Rikh, Jait Singh and Nahar Singh.

4. It appears that though Ishwar Singh was convicted under Section 302 simpliciter, the charge on this count framed against Ishwar Singh and Harpal Singh was for an offence punishable under Section 302 read with Section 149. The relevant charge reads :

"Fourthly : That you, along with the aforesaid other accused, on the same day, at the same time and place, were members of an unlawful assembly, in prosecution of the common object of which, some of the members did commit murder by intentionally causing the death of Chauhal Singh and you