Judgment

JASWANT SINGH, J.:- The appellants, Bakhtawar and his son, Sathir, who were charged and tried under Section 302 read with Section 34 of the I. P. C. (hereinafter referred to as the Penal Code) for causing the death of one Balbir Singh, their co-villager, were convicted under S. 304, Part II of the Penal Code and were sentenced to ten years rigorous imprisonment and a fine of Rs. 500/- each by the Sessions Judge, Rohtak by his judgment and Order dated May 15, 1971. While the appellants preferred an appeal to the High Court against their conviction and sentence, the State filed an appeal against the aforesaid judgment and order of the Sessions Judge acquitting the appellants of the offence under S. 302 read with S. 34 of the Penal Code. The High Court by its judgment and Order dated Sept. 16, 1971 found that the prosecution had succeeded in establishing the guilt of the appellants under Section 302 read with Section 34 of the Penal Code. Accordingly, it altered the conviction of the appellants from the one under S. 304 Part II read with S. 34 of the Penal Code to that under S. 302 of the Penal Code and enhanced the sentence of each of them to life imprisonment remiting the fine. It is against this judgment and order that the appellants have come up in appeal to this court.

2. The case as put forth by the prosecution was: On July 20, 1969 at about 3.00 P.M. Balbir deceased while ploughing his land noticed the appellants cutting bushes from his Johari and taking it to the land which was in their possession as mortgagees from one Phule. Thereupon, the deceased prevented the appellants from doing so whereupon both the appellants launched an attack on him, Bakhtawar, appellant inflicting injuries on his arm and other parts of the body with a lathi and Sathir giving blows on his head from the wrong side of gandasi. On seeing the occurrence, Richhpal and maida, (P. Ws. 4 and 5) who had gone to Sheo Chands well situate near their fields to quench their thirst rushed to the place of occurrence and extricated the deceased from the clutches of the appellants who then ran away towards their fields. Leaving Maida to look after the deceased who had become unconscious as a result of the injuries inflicted on him by the appellants, Richhpal, (P.W. 4) went and reported the matter to the village Sarpanch named Risal Singh P.W. 8. On being informed about the matter, Risal Singh, (P.W. 8) accompanied by Richhpal (P.W. 4) arrived at the scene of the occurrence and removed the deceased to the Civil Hospital Beri where he succumbed to his injuries shortly after admission. On the expiry of the deceased, Dr. Ram Lal Gulati (P.W. 2) In-charge, Civil Hospital, Beri sent Ruqa (Exh. P.C.) to the Police Station, Beri on receipt whereof, S. I. Ram Singh, (P.W. 10) went to the hospital and recorded the statement (Exh. P.B.) of Richhpal (P.W. 4) on the basis whereof a case under S. 302 read with S. 34 of the Penal Code was registered against the appellants. After preparing the inquest report, the S.I. sent the dead body for post-mortem examination. Dr. T. R. Bhalla (P.W. 1) who performed the autopsy found 12 injuries on the body of the deceased which he detailed in the Post Mortem Report (Exh. PA) and opined that injuries Nos. 11 and 12 which were grievous were sufficient to cause the death of the deceased. After sending the body for Post-mortem examination, the S.I. repaired to the place of the occurrence and recorded the statement of Maida (P.W. 5). The S.I. also posted a constable to guard the place of the occurrence and on the next morning seized some blood from there vide Exh. P.F. and arrested the appellants. After the usual investigation, the appellants were proceeded against in the court of Judicial Magistrate, 1st Class, Jhajjar,, who committed them to the Court of Session to stand their trial under S. 302 read with S. 34 of the Penal Code.

3. On a consideration of the evidence, the Sessions Judge found that the appellants did not have the intent