Ramaswami, J

[1] This appeal is preferred by the State against the acquittal of accused 4 and the convictions of accused 1 to 3 under Section 304 (Part II) instead of under Section 302 I. P. C., in Sessions Case No. 132 of 1957 on the file of the Sessions Division, Salem.

[2] The facts of this case are within a brief compass. There have been ill-feelings between the four accused persons and the deceased Naina Goundan. Accused 1 to 3 are the sons of accused 4. The deceased Naina Goundan had purchased lands which originally belonged to accused 4. The accused were pressing this Naina Goundan to give back two acres of land. The deceased was refusing. The accused therefore bitterly hated the deceased.

[3] On 8-9-1957 at about 9-30 A.M. according to the prosecution the deceased Naina Goundan was ploughing his lands. The four accused then came' there and obstructed the old man from ploughing. They were insisting that he should give them back two acres of land. On Naina Goundan persisting in ploughing, accused 1 to 4, who were armed with bamboo stick and big portia sticks, fell upon him and belaboured him. Naina Goundan raised an alarm. In addition to Naina Goundan crying out, his grandson, P.W. 5, who was in the field gathering flowers for making a garland, raised an alarm. Thereupon the sons of Naina Goundan viz., Karurigannan (P.W. (1) who gave the first information report in this case, and his elder brother Kadaswami (P.W.2) ran there, P.Ws. 1 and 2 saw the deceased heing belaboured by die accused. On their interfering, P.Ws. 1 and 2 were also beaten by the accused. The wife of P.W. 1, Palani Ammal (P.W. 3) came there. Re-senting her interference, she was also beaten by the accused. P.Ws. 4 and 6 who live in the vicinity came there and witnessed the beating of P. Ws. 1 to 3 by the accused. They also noticed the deceased Naina Goundan lying on the ground, near his plough. P.W. 5, has already been referred to as having witnessed the occurrence while collecting flowers for making a garland. P.W. 7 Korattayan alias Kali Goundan came there on hearing this Galatta. At that juncture the accused were going towards their nearby houses, armed with Sticks. P.W. 7 saw at the scene of occurrence the deceased and P.Ws. 1 to 3 injured. The injured persons told him what had happened. P.W. 8 speaks to the prior enmity between the parties and does not throw any light on the occurrence. '

[4] P.W. 1, the son of the deceased, went and reported to the village Munsif (P.W. 16) before 11 A.M. about the occurrence. The first information report sets out concisely the aforesaid information. P.Ws. 4 and 6 are mentioned as having been present among others. The village Munsif verified the information and found severe injuries on the-deceased which had broken the hones all over and also injuries on P.Ws. 1 to 3, The village Munsif then despatched his reports to the Police and the Magistracy.

[5] Subsequent to the information given by P.W. 1 to the village Munsif, accused 4 went to the village Munsif in the afternoon and gave information that when he was cooking in his- field hut at about 9-30 A.M., the deceased and his sons P.Ws. J and 2 and the wives of P.Ws. 1 and 2 and the grand-daughter of the deceased came there and the deceased and his sons started cutting the Seetha Trees, Papaiya trees and Athi trees forming the fence to This land, that on hearing the sound of cutting he rushed to the spot and questioned them that the deceased and his sons started belabouring him with stout sticks and stones, that on hearing his alarm his own sons accused 1 to 3 came there, that his sons were also belaboured with thick sticks and bill-hooks, that accused 1 and 2 were given blows on their heads with stout sticks, that accused 3 was given a cut on his right shoulder and another cut on the centre of his head and that then the deceased and his relatives ran away and that this is known to Chinnaswami and Nallur Sevi Goundan of Kongupatti village. This report also was s