D.S.Mathur, J. - (1.) This is an appeal by Subhag and eight others against their conviction of offences punishable under Secs. 148, 302/149 and 324/149, I.P.C. They have all been sentenced to one year's Rule I. under Section 148 I.P.C., to imprisonment for life on both the counts under Section 302/149 I.P.C. and to two years' Rule 1. and a, fine o): Rs, 100/- each in case of default, another four months' Rule I. under Section 324/149 I.P.C. All the sentences are to run consecutively. Jagan, Chattir and Udit, appellants, have been given notice to show cause' why their sentence under Section 302/149 I.P.C. be not enhanced to death. Subhag, Lachhman, Udit and Kishore, appellants 1, 4V 5 and 8, are brothers and Bechan, appellant No. 9, is their cousin. Rameshwar, appellant No. 7, is the son of Bechan. Jagan and Chatur, appellants Nos. 2 and 3, are inter se brothers and they are cousins of Subhag, appallant No. 1. Bhual, appellant No. 6, is the nephew Rameshwar, appellant No. 7. All the appellants are thus collaterals and descendants of Subhag's grand-father. The two persons murdered are Suraj Deo and his son Jagdish, Ramdeo (P. W. 3) is the brother of Suraj Deo and Vijay Bahadur (P. W. 16) is the brother-in-law (Sala) of Ramdeo. The; appellants, the deceased and the above two witnesses are all residents of village Siswa Babu, situate within the jurisdiction of police station Belghat of district Gorakhpur. The other two (ye-witnesses; Lochan and Khuddur (P. Ws 7 and 9), reside in neighbouring villages and during the relevant period were working as labourers of Surajdeo and Jagdish.
(2.) On the morning of 24-9-1961 at about 8 a.m Suraj Deo along with his son Jagdish and their labourers including Lochan and Khuddur went to their field in village Chhaparhat for harvesting the paddy crop. Some of the labourers returned earlier with bags of harvestet paddy and the last to return were Suraj Deo, Jagdish and Lochan. Khuddur was a few paces ahead of them They passed the field of Jagbodh, situate in village Siswa Babu, at about 10 p. m. The prosecution case is that all the appellants along with three or four unknown persons were lying in ambush and on the arrival of the above three persons came out of the cover and assaulted them, Jagan, Chatirr and Udit were armed with pharasas and the rest with spears The appellants first of all assaulted Suraj Deo and killer him at the spot. Jagdish tried to run away but he was surrounded in the field of Lalta Lai, not far away from Jagbodh's field, and was given a beating by Jagan, Chatur and Edit. He also died at the spot. Lochan received a few spear injuries, it is said, at the hands o Bachan and Bhual.
(3.) Vindhya Chaj alias Lattur (P. W. 8) and Ran Acha (P. W. 15) were then returning to their village Rapatpur, and their attention being attracted by the shout: of Suraj Deo and Jagdish, they proceeded in that direction and were able to witness a major part of the occur hence. Ramdeo (P. W. 3), Vijay Bahadur (P. W. 16 and Raja Singh son of Jagdish, who were in or near this house situate at a distance of 125 paces, arrived late am were able to witness the assault on Jagdish only. Khuddur (P. W. 9) was, as mentioned above, a few paces ahead of Suraj Deo and others and he 'naturally could witness the incident from the beginning.;