1. - This criminal appeal is directed against the judgment dated 31st August, 1978 passed by the Additional Sessions Judge, Saran, whereby the appellant has been convicted under Section 304, Part II IPC, and sentenced to undergo five years rigorous imprisonment with a fine of Rs. 200/ in default of payment of fine, to further undergo rigorous imprisonment for six month.

2. Brief facts giving rise to this appeal are that a report was lodged on 7-10-1977 at 3.00 P.M. at the police station Chhipabadod by Ganpatlal, alleging therein that, on the previous day, their bullock entered into the filed of his nephew Birda were the maize crop was standing and when his wife, Kajodi went to the well Birda started abusing her and gave her threats to beat. She came home and protested, on which he and Mangilal went to their field possessed by them jointly. Mangilal started ploughing. It has further been alleged that when he (Ganpatlal) reached, he asked Birda as to why did he abuse his wife-upon this, Birda repeated abuses and at that time his brother Mangilal stopped the ploughing and came to Birda to make him understand on which Birda gave one lathi blow as a result of which he (Mangilal)