The question of competency of a child witness to testify is a condition precedent to the administration of an oath or affirmation and is a question distinct from his credibility when he had been sworn or affirmed.

( 1 ) THIS Rule is against the order of conviction of the Sessions Judge of Midnapere dismissing the appeal preferred by the two petitioners but allowing a portion of it by setting aside the conviction of petitioner No. 1 Purna Chandra Khandra under one count of Section 323, I. P. C.

( 2 ) THE petitioners were tried by the Assistant Sessions Judge, Midnapore and a jury on charges under Sections 304 and 323 I. P. C. By a majority verdict the petitioners were found guilty. So far as the charge under Section 304 I. P. C. was concerned the jury found petitioner No. 1 guilty and on the other charge under Section 323 I. P. C. , also he was found guilty. Petitioner No. 2 Harihar was on the charge under Section 304 I. P. C. found guilty of an offence under Section 325 I. P. C. and he was found guilty on the charge under Section 323 I. P. C. Petitioner No. 1 was sentenced to rigorous imprisonment for six months on each of the charges on which he was found guilty and the sentences were directed to run concurrently. Petitioner No. 2 on being found guilty under Section 325 1. P. C. was sentenced to rigorous imprisonment for two and a half years. He was also sentenced under Section 323 I. P. C. to rigorous imprisonment for six months. The sentences were directed to run concurrently. There was another person on trial who was found guilty by the jury but was however acquitted on appeal by the Sessions Judge.

( 3 ) THE prosecution case before the Judge and the jury was that on 5-8-1956 the petitioners who are brothers dug a ditch by a northern side of a fencing which was the boundary to the north of the khamar of one Makhan, who was killed in this ease. The result of digging of the ditch was that a part of the fencing broke down. Over this there was a quarrel between the deceased Makhan and his mother Paro Bewa (P. W. 6) on the one hand and the petitioners, co-accused Sarat and their mother Sulochana and their sisters Saro and Piro on the other. In course of the quarrel, the petitioner Harihar hit the deceased Makhan on his head with bamboo hank. After he fell down petitioner No. 1 Purna poked him with a lathi. The co-accused since acquitted, was said to have instigated the petitioners by asking them to beat Makhan to death irrespective of the consequences. Paro Bewa, the mother of the deceased tried to intervene but she was also assaulted by the mother and sisters of the petitioners. On hearing the cries of Paro Bewa, the mother of the deceased, her brother Suren appeared on the scene. It is said that as he tried to intervene he too was assaulted by the petitioners and the co-accused and received injuries on his head and other parts of his body. Many people then arrived on the scene and saw a part of the incident. Makhan was carried to his house but no doctor was called to examine him at night. The following morning Makhan and the other injured persons were taken to the doctor at Beliabera and on medical advice they went to Jhargram hospital but Makhan died on the way to the hospital. P. W. I Guhirno, a relation of the parties came in the afternoon of the date of occurrence and heard something about it. He went to the police station, the following morning and then lodged the first information report in the case.

( 4 ) THE petitioners pleaded not guilty and their case was that Makhan, his mother and other relations of Makhan went to cut some bamboos from the bamboo grove of the petitioners with an axe during the absence of the petitioner Purna. They also went there with lathis with a view to forcibly occupy the lands of the petitioners, claiming the land as their own. At this the petitioners and their mother and sisters protested whereupon the deceased Makhan and his uncles assaulted the mother and sisters of the petitioners causing injuries to them. The petitioner Harihar and the co-accused tried to intervene when the deceased Makhan struck them with the axe and his maternal uncles struck them with lathis. There was a scuff