B.N. Kirpal, J. - (1.) THE Appellants were tried for offences under Sections 147, 148 and 302 of the Indian Penal Code (for short 'IPC') or in the alternative under Section 302 read with Section 149 on the allegation that they had committed rioting and that while being armed with deadly weapons, they had committed murder of Deokaran Singh, or in the alternative, they all committed his murder in prosecution of common object of unlawful assembly of which these seven Appellants were members on 21st September, 1979, at 5 p. m. at village Baghwar, P. S. Kareli.
(2.) THE Sessions Judge, Narsinghpur by his judgment dated 8th February, 1980, acquitted the Appellants. The State filed an appeal against acquittal and the son of the deceased -Deokaran Singh also filed a revision application. The High Court came to the conclusion that the judgment of the trial Court was perverse and, on the appraisal of the evidence, it set aside the acquittal of the Appellants and convicted each one of them under Section 304 Part -II read with Section 149, I. P. C. Different sentences were imposed. It is against this judgment that appeal by special leave has been filed. The case of the prosecution was that prior to 21st September, 1979, the date of the incident, construction of a road from Kareli to Baghwar had commenced. The contractor for the work was one Jethabhai (CW -1). The construction work was being done near the huts of Hari Ram and Sukh Ram (father of Sushilabai PW -3). As there were disputes with regard to the location of the road in the village, opinion of the members of the Gram Panchayat had been sought by the contractor a couple of days earlier. One opinion was that the road should pass near the huts of Hari Ram and Sukh Ram which would involve damaging their huts and, to tills proposal, the deceased Deokaran Singh was opposed. It is alleged that on the morning of 21st September, 1979, Deokaran Singh had protested against the construction of the road which would result in the damage to the huts of the poormen and, therefore, the work appears to have been deferred. Later that day at about 5 p. m. Deokaran Singh again passed that way and he found that the construction of the road had begun in a manner which would adversely affect the huts of Hari Ram and Sukh Ram. He again protested. It was then that a number of persons assaulted Deokaran Singh with pickaxe, axe and spade etc. which implements were being used in the construction work and were readily available at the spot, thereby causing injuries to Deokaran Singh which led to his death on the spot.
(3.) ACCORDING to the procession when Deokaran Singh had, opposed the construction of the road and the contractor not having agreed to the construction in view of the opposition, the Appellants themselves had commenced the construction work. When Deokaran Singh had appeared on the scene at about 5 p. m. and had protested, then Appellant No. 5 - Inder is alleged to have called out to kick Deokaran Singh in the face and this was followed by an assault on Deokaran Singh by all the Appellants headed by Harnam Singh -Appellant No. 1 who gave the first blow with a pick -axe on the head of Deokaran Singh.;