Mudholkar, J. - (1.)This is an appeal by special leave from a judgment of the High Court of Patna altering the conviction of the appellants under s. 304, Part II read with s. 149 of the Penal Code into convictions under s. 326 read with s. 149, I.P.C. but maintaining the sentences and affirming the convictions under s. 147 and s. 426, I.P.C. as well as the sentences awarded ink respect of those offences.
(2.)The prosecution case was that there was a dispute between Ram Bilas Singh of Shahpore and his two sons Ram Naresh Singh and Dinesh Singh on the one hand (appellants before us) and Deva Singh (P.W. 2) and his brothers on the other with respect to a Dochara in a village Dihara. On April 22, 1957, at about 9.00 a.m. while Deva Singh, along with his brother Laldeo Singh, the deceased and two other persons Dhunmun Singh (P.W. 4) and Dasain Hajam were sitting in the Dochara the appellant No. 1 Ram Bilas Singh arrived there in a truck with a mob of 40 to 50 persons which included the other two appellants before us, besides four other persons who were acquitted by the trial court. Ram Bilas Singh is said to have fired from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down, but got up later. Thereupon Ramdeo Singh (acquitted by the trail court) fired from his gun and the shot hit Laldeo Singh on the chest and he fell down again. After that, Ram Bilas Singh Gumasta of Dihara (acquitted by the trial court) fired a second shot from his gun hitting Laldeo Singh on the abdomen and killing him instantaneously. The appellant Ram Bilas Singh is further said to have fired two shots at Deva Singh hitting him on his right thigh. Appellants Ram Naresh Singh and Dinesh Singh are said to have assaulted Deva Singh with lathis as a result of which he fell down and thereafter the mob proceeded to dismantle the Dochara by demolishing its mud pillars, as a result of which its thatched roof fell down. Having achieved their object, the mob is said to have left the place, taking away along with them a palang, a bamboo cot, two quilts, one lantern and one garansa.
(3.)The incident attracted number of villagers to the spot including Jagdish Singh, Bhagwat Singh (since dead) and Ajodhya Singh. After report was lodged of the incident, the police arrived on the spot, held the panchnama (inquest) on the body of Lal Deo Singh and followed the usual procedure. A search was made for the seven accused persons, including the appellants, but it took some time to find them out and arrest them. Eventually, they were placed before a magistrate who committed them for trial for offences under s. 148, s. 302 read with s. 149 and s. 426, I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta of Dihara were specifically charged with offences under s. 302, I.P.C. for having committed the murder of Laldeo Singh. Ram Bilas Singh was further charged under s. 307 of the Penal Code for attempt to commit the murder of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2 and 3) were further charged with offences under s. 323, I.P.C. for assaulting Dhunmun Singh (P.W. 4). The court of Session acquitted both Ram Bilas Singh as well as Ramdeo Singh of the offence under s. 302, I.P.C. and also acquitted all the seven accused persons of the offence under s. 302 read with s. 149, I.P.C. It, however, convicted the three appellants before us under s. 304, second part, read with s. 149 of the I.P.C. and under ss. 147 and 426, I.P.C. but acquitted the appellants 2 and 3 of the offence under s. 323, I.P.C.