At that time Badri Narain was holding a spear and Swami Nath a kudal with him.
In companyrse of the altercation when Swami Nath attempted to attack Shyam Narain with kudal the latter and Narain Dutt tried to run away towards the village but companyld number succeed as the five accused persons, including the appellants, surrounded them and started assaulting Shyam Narain with their respective weapons.
To bring home the charges levelled against them the prosecution rested its case primarily upon the ocular version of the incident as given out by Swami Dayal P.W.1 , Jamil Khan P.W.2 and Narain Dutt P.W.3 .
The High Court companycurred with all the findings recorded by the learned trial judge and dismissed the appeal.
It having, however, appeared to the learned judge that Swami Nath was roped in because he was the son of Badri Narain though he did number participate in the assault he acquitted Swami Nath while recording the order of companyviction and sentences against the appellants and Badri Narain.
On hearing the shouts of Shyam Narain and Narain Dutt when their brother Swami Dayal and his son Ramashish reached there,the three appellants also assaulted them with lathis.
Swami Dayal then went to the police station and logged an FIR whereupon a case was registered,which ended in a chargesheet against all the five accused persons.
While the altercation was going on,the three appellants reached there armed with lathis.
The story as put forth by the prosecution was that on June 7,1978 at or about 900 A.M. a heated alteration took place between Shyam Narain the deceased and his brother Narain Dutt on the one hand and Badri Narain and his son Swami Nath since acquitted on the other, over dismantling of the mend which divided their respective agricultural plots.
K. MUKHERJEE, J. This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the appeal preferred by the three appellants herein and one Badri Narain since dead challenging the companyviction and sentence recorded against them under Section 302/34 and 323/34 of the Indian Penal Code hereinafter referred to as the IPC by the Additional Sessions judge Gonda.
