Judgment

P. JAGANMOHAN REDDY, J.- This appeal by special leave is directed against the judgment of the Allahabad High Court setting aside the conviction of Hori Lal and Bisram under Section 307 read with Section 34 of the I.P.C. and instead convicting them under Section 326 read with Section 34 I.P.C. and sentencing each of them to rigorous imprisonment for 5 years.

2. The appellants who are the residents of Bhitwa Gadan Khera are friends belonging to the same party. It was alleged that on June 14, 1964 Bisram s cattle strayed into the field and damaged the crop of Deo Dutt who is the nephew of Sagar Singh and Jeet Bahadur. In respect of this damage Deo Dutt and his partner Ram Bharose complained to Bisram who along with some other persons went to the house of Deo Dutt and threatened him and the members of his family including Jeet Bahadur and Sagar Singh. Thereupon Deo Dutt lodged a complaint in the Police Station. Because of this complaint relations between the parties became strained as a result of which the accused stopped working for Jeet Bahadur and Sagar Singh and even asked the other members of his beradari to follow suit. On March 29, 1965 at about 5.30 p.m. Jeet Bahadur P.W. 2 along with his labourer Shri. Pal deceased was reaping the harvest. The field of Sagar Singh P.W. 1 is situate just adjacent to the field of Jeet Bahadur with only a char road between their fields. It is the prosecution case that on that day both the accused armed with kantas went to the field of Jeet Bahadur and challenged him. Immediately thereafter they began to deal kanta blows on Jeet Bahadur. Jeet Bahadur P.W.2 cried out whereupon Sagar Singh P.W. 1 hearing the shouts rushed to his aid. Maya Ram P.W. 3 and Himachal and Ram Pal who were nearby also rushed to the aid of Jeet Bahadur. Accused Bisram is said to have fired a revolver at Sagar Singh but he did not receive any injury. Thereafter the accused ran away towards the village. As Jeet Bahadur was injured, Sagar Singh P.W. 1 took him to the police station and there lodged a report Ex. Ka-1 at about 9.55 P.M. on March 29, 1965. The investigation officer Bhanu Prakash Sharma, P.W. 5 investigated the crime, prepared site plan, recorded statements of the witnesses and seized bloodstained mud. Jeet Bahadur was admitted to the District hospital at Unnao. Dr. Srivastava examined him on March 30, 1965 at 9.30 A.M. and found as many as 10 injuries of which injuries 2 to 7 were incised wounds, injuries 1 and 9 contusions and injuries 8 to 10 abrasions. All the incised injuries except No. 7 showed that the bones had been cut these injuries are as follows:

"2. Incised wound 3" x 1" x bone vertically on the right half forehead just above the right eye brow.

3. Incised wound 1 1/4 x 1/2 x bone cutting the underlying bone lower part left humorous just above the left elbow on the back of left arm.

4. Incised wound obliquely 5" x 2" x bone cutting the underlying radius and above left in the middle of the left forearm back.

5. Incised wound 5" x 1" x bone on the back of the left forearm lower 1/3rd. Slightly obliquely cutting both the bones of left forearm.

6. Incised wound 4 1/2" x 1" x bone on the left leg middle back and laterally cutting the underlying tibia bone shaft."

3. The defence of the accused is that they had been falsely implicated. The prosecution examined Sagar Singh P.W. 1, Jeet Bahadur P.W. 2 and Maya Ram P.W. 3 as eye witnesses and since Sri Pal one of the eye witnesses died after his evidence was recorded by the committing Magistrate, his deposition was admitted and treated as evidence under S.33 of the Evidence Act (Ex. Ka-11). The learned Sessions Judge believed the eye witnesses and relying upon Ex. Ka-3 convicted the accused under S.307 read with S. 34. The learned Judge however acquitted them of the second charge of attempting to murder P.W. 1 with pistol.

4. In this appeal Mr. S. C. Agarwal learned counsel for the appellants contends firstly, that the injuries as found by the doctor do no