JUDGMENT

SARKARIA, J.:— By our order, dated September 1, 1976 we had allowed this appeal and acquitted the appellant. We now proceed to give our reasons in support of that order.

2-3. The facts of the case may briefly be stated thus:

The deceased Methur Dass was a night watch-man in the orchard or Mohan Lal in the area of village Phulwaria, P.S. Pipra, District Champaran. The appellant and his two brothers, Rajeshwar Pandey and Raghunath Pandey trespassed into the orchard to steel plantains. Ram Asrey Pandey was armed with a bhalla (spear) while his brothers were armed with garases. The deceased protested and thereupon the appellant assaulted him with the bhalla, while his two companions inflicted injuries on him with their respective weapons. As a result, the deceased received 12 incised wounds. The occurrence took place at about 9 p.m. or sometime thereafter in the night between the 22rd and 24th of August, 1964. During the same night he succumbed to his injuries in the early hours of 24th August, 1964 in the Chakia Dispensary. The First Information Report was lodged on the basis of a statement (Ex. 1) made by Smt. Deoiharia (PW-4) the widow of the deceased, to Matuk Narain Singh,