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 with a spear, Pakhar Singh with a Kaholi, Mewa Singh with a salang and Narain Singh with a stick. A complaint was lodged about the assault with the police, and Bachan Singh was removed to the Civil Hospital, Ludhiana. The Sub-Inspector of Police investigating the case recorded the statement of Bachan Singh, and a First Class Magistrate of Ludhiana recorded his declaration on the evening of November 2, 1958. Bachan Singh died on November 3, 1958.

(4) NARAIN Singh and his nephwes were then prosecuted before the Court of Session Ludhiana for the offence of murder. At the trial, Narain Singh pleaded that he had acted in exercise of the right of self defence and had caused injuries to Bachan Singh because the latter had thrown him down and had attempted to strangulate him. His statement in the Court of Session, on which he was convicted, was as follows :-

"THE correct facts are that when I objected to the deceased cutting the nakka he caught hold of me and threw me on the ground. I was alone at the time. The other three co-accused were not with me. After I had fallen on the ground the deceased attempted to strangulate me. I was then wearing small kirpan. I unsheathed it and used it in self defence causing a couple of injuries to the deceased on the alarm raised by me, Mehar Singh (my co-accused) who was coming from the khal nearby, came to the spot and rescued me. He was armless and did not cause any injury to the deceased. I did not carry any stick but was wearing a small kirpan as usual."

(5) PAKHAR Singh and Mewa Singh denied their presence at the scene of offence. Mehar Singh claimed that he was present at the scene, and he had tried to intervene and separate Baohan Singh and Narain Singh. Narain Singh and Mehar Singh relied upon the circumstance that they also had injuries on their person which were noticed when they were medically examined. Narain Singh had six contused injuries and Mehr Singh had one incised injury and four abraded contusions. Before the Court of Session, Jagir Singha witness for the prosecution made important variations in his story as originally related by him in his complaint at the police station. Kaka, who, it was claimed by the prosecution, was an eye-witness, did not support the case for the prosecution. Hakku, another witness, was Dot examined by the prosecutor, but was merely tendered for cross-examination". One Johri whose name was not mentioned in the complaint was also examined by the prosecutor. Two statements of Bachan Singh which were in view of his death admissible as dying declarationsone recorded by the Investigating Officer and the other by the First Class Magistrate, Ludhianawere also tendered in evidence. The Sessions Judge held that the evidence of Jagir Singh was unreliable and that Johri c