Baital Singh, Bhagwan Singh and Jangjit Singh are real brothers. Ram Gopal, Ram Charan and Sheo Charan are the sons of Baital Singh. Om Prakash is the son of Bhagwan Singh. Sri Lal deceased was the son of Jangjit Singh. Baital Singh was not having good relations with his brothers Bhagwan Singh and Jangjit Singh


2. Baital Singh, his three sons, Ram Gopal, Ram Charan and Sheo Charan along with Bidha and Shankar were tried for the murder of Sri Lal son of Jangjit Singh. They were acquitted by the Trial Court. On appeal by the State of U.P., the High Court reversed the judgment of the Trial Court and convicted Baital Singh, Ram Gopal, Ram Charan, Sheo Charan and Shanker under S. 302 read with S. 149 IPC and were sentenced to life imprisonment. They were also convicted under S. 324 read with S. 149 IPC and S. 148 IPC. The acquittal of Bidha by the Trial Court was upheld by the High Court. We have been informed that Ram Charan and Sheo Charan died during the pendency of the appeal before the High Court. This appeal has been filed by Baital Singh and his son Ram Gopal


2. We have heard learned counsel for the parties. We have been taken through the judgment of the Trial Court as well as of the High Court. We have also been taken through the statements of witnesses and other record. We are in agreement with the appreciation of evidence by the High Court and are not inclined to interfere with the findings reached by the High Court except so far as these relate to Baital Singh-appellant. It is admitted position that no role was assigned to Baital Singh by any of the eye-witnesses in their statements under S. 161 Criminal Procedure Code, whereas at the trial the eye-witnesses deposed that Baital Singh gave injuries by a lathi. Baital Singh was 60 years of age at the time of occurrence which took place in the year 1972. We have a lurking suspicion in our mind so far as the presence of Baital Singh is concerned. It is common tendency in the faction-ridden villages to rope-in all the members of the adversary family. Keeping in view these circumstances we give benefit of doubt to Baital Singh and set aside his conviction and sentence


3. As a result of acquittal of Baital Singh we alter the conviction of the remaining accused from S. 302 read with S. 149 to S. 362 read with S. 34 of the IPC. It is true that there was no charge under S. 302 read with S. 34 of the Indian Penal Code but the facts of the case are such that the accused could have been charged alternatively either under S. 302 read with S. 149 or under S. 302 read with S. 34. In this case according to the prosecution story all the accused came out of the house of Baital Singh and attacked Sri Lal. Ram Gopal and Ram Charan were armed with spears whereas Bidha, Baital Singh and Sheo Charan were armed with lathis. In the circumstances of the case no prejudice is likely to be caused to the accused whose appeal is being dismissed. This Court in Lachman Singh v. The State, 1952 SCR 839 : (1952 Cri LJ 863) and Karnail Singh v. State of Punjab, 1954 SCR 904 : (1954 Cri LJ 580) has held that the conviction under S. 149 can be substituted by S. 34 keeping in view the facts of the case


4. We, therefore, accept the appeal so far as

Baital Singh is concerned and dismiss the appeal in respect of Ram Gopal. We, however, alter the conviction of Ram Gopal to S. 302 read with S. 34 and maintain the sentence of life imprisonment awarded to him. The bail-bond of Ram Gopal is cancelled and he is directed to surrender forthwith to undergo the balance of the sentence Order accordingly.