J.C.SHAH, J.

(1) AFTER arguments were concluded in this appeal we ordered that the appellant Narain Singh be acquitted of the offence under s. 304 Part II of the Indian Penal Code of which he wag convicted and the sentence passed on him be set aside. We proceed to set out our reasons in support of the order.

(2) NARAIN Singh and his three nephewsMehar Singh, Mewa Singh and Pakhar Singhwere tried before the Court of Session, Ludhiana for offences punishable under s. 302 read with s. 34 of the Indian Penal Code, on the charge that on October 31, 1958, they had in furtherance of their common intention caused the death of one Bachan Singh by making a murderous assault on him.

(3) THE prosecution case was that in the evening of October 31, 1958, when Narain Singh and his three nephews were irrigating their field, Bachan Singh diverted the flow of water into his own filed. Narain Singh and his nephews were thereupon enraged, and there was a quarrel between them and Baohan Singh. Narain Singh and his nephews made an attack upon Bachan Singh and caused him serious injuries. According to the prosecution, Mehar Singh at the time of the assault was armed