N.M.KASLIWAL,J. - (1.)THIS appeal by accused Ram Pal and Madan Lal is directed against the judgment of learned Additional Sessions Judge No. 1, Baran, dated 27th January, 1981, convicting and sentencing them in the following manner : -
(a) under Section 148 : Two years rigorous imprisonment (b) under Section 302 read with 149 : Life imprisonment (c) under Section 326 : Ten years rigorous imprisonment read with Section 149 and a fine of Rs. 200/ - In default of payment of fine, to further undergo rigorous imprison - ment for two months

(2.)IT would not be necessary to mention detailed facts of the case as the learned Counsel for accused appellants has not challenged the incident and the participation of the accused appellants in the crime. The only contention raised on behalf of the accused appellants was that the police had registered a case against the accused persons on the basis of first information report lodged by Laxmi Narain Dhakar on 13 -3 -1970. The police filed a challan against the twenty three accused persons only as the present accused appellants had absconded. Out of the twenty three accused persons the learned Additional Sessions Judge Baran, vide judgment dated 6 -1 -1973, acquitted thirteen accused persons and convicled the remaining ten accused persons in the following manner.
(a) Two months R.I. for the offence under Section 148 IPC, (b) For the offence under Sections 324/149 IPC, they shall undergo 1 year's R.I. each. (c) For the offence under Section 304 Part I and 326 read with Section 149 IPC. ten years R.I. each one of them together with a fine of Rs. 200/ - each, In default of payment of the amount of fine each accused shall undergo two months R.I.

These ten accused persons filed an appeal in the High Court and learned Single Judge of this Court vide judgment dated 4 -9 -1973, in Criminal Appeal No. 26/1973 acquitted the three act used appellants and maintained the conviction and sentence so far as the remaining seven accused persons were concerned.

(3.)LEARNED Counsel for the accused appellants before us submitted that the above mentioned seven accused persons were convicted under Section 304/149 IPC, and other Sections and were awarded a sentence of ten years rigorous imprisonment and so far as the imprisonment awarded in respect of the other offences was concerned the same was ordered to run concurrently. It is thus submitted that the present accused appellants have been wrongly convicted under Section 302/149 IPC, for the same incident and they should also be convicted under Section 304/149 and should be awarded the sentence as given to the other co -accused whose conviction and sentence remained confirmed by the High Court in Criminal Appeal No. 26/1973.