JUDGMENT

Harish Chandra, J. - Ram Prasad Singh and Salik Singh, father and son, residents of village Khampur in police circle Baksa in the district of Jauapur, were prosecuted along with one Tinmia Singh, a nephew of Ram Prasad Singh, under Sections 323 and 304 read with Section 34 of the Indian(sic) Penal Code. Tinmin Singh was acquitted by the learned Sessions Judge of Jaunpur. The Appellants were also acquitted of the charge u/s 302 read with Section 34, I.P.C., but he convicted them under Sections 323 and 304 read with Section 34, I.P.C., and sentenced them each to one year's and five years' R.I. respectively for the two, offences. The two sentences have been ordered to run concurrently.

2. The complainant Mahadeo Singh and his brother Ram Sunder Singh deceased belonged to village Karchuli in police circle Machhlishahr in the district of Jaunpur. Village Karchuli is situated at a distance of about two miles from village Khampur. The Appellants and the complainant are descended from common an esters, the father of the complainant. Mahadeo Singh being a brother of the grandfather of the Appellant Ram Prasad Singh. The families have been separate since a long time, but certain Khatas in the two villages are still common although, the fields are in the separata possession of the two families and are cultivated sept(sic). rately by them.

3. The prosecution case is that on July, 1945 in the morning plot 30 situated in village Karchuli was being ploughed by one Matai, a ploughman of the complainant and the deceased Ram Sunder Singh who was an old managed about 75 years, was standing by. This plot is also part of a joint Khara of the complainant and. the Appellants. But admittedly it was in the separate cultivation of the complaint and the deceased. About two hours after sunrise the Appellants accompanied by Tinmin Singh arrived and stopped Matai from ploughing the field. When Ram Sunder Singh protested, he was beaten by them with lathis, and felled to the ground. Mahadeo Singh was grazing his she-buffaloes at some distance from the scene of occurrence. On hearing the shouts of the deceased and Matai, he ran to the scene of occurrence and in order to save his brother struck the Appellants with his danda. The Appellants then started beating Mahadeo Singh with their lathis and felled him also to the ground. In the meanwhile a number of persons arrived on the scene of occurrence and the assailants ran away. The deceased was unconcious and Mahadeo Singh had also received numerous injuries and was not in a fit condition to go to the thana. It is said that he too had become unconscious. Matai was accordingly sent to the thana, which is at a distance about 10 miles from the scene of occurrence, and he made a report there at 4 o'clock in the afternoon and stated all these facts. The first information report is Ex. P1 on the record. Ram Sunder Singh expired after about an hour after the occurrence. The station officer procesded to village Karchuli, prepared a sketch map of the scene of occurrence and held an inquest on the dead body of the deceased and after completing the investigation sent up the Appellants along with Tinmin Singh for trial with the result already mentioned above.

4. The Appellants pleaded not guilty. Their case is that Ram Prasad Singh was cutting his own Babul tree standing in a field north of plot 30 which is under the exclusive cultivation of the Appellants. Ram Sunder Singh deceased objected and struck Ram Prasad Singh with his danda. Ram Prasad then struck the deceased in return. Mahadeo Singh also arrived and there was a free lathi fight detween Mahadeo Singh and the deceased on the one side and the Appellants on the other. The prosecution examined Matai.

5. Mahadeo Singh and the eye-witnesses Jhunnu Singh, Bach ha, Sheomurat and Mahesh apart from some other witnesses whose evidence is more or less of a formal character. All the eye witnesses are residents of village Karchuli. The Appellant also examined three witnesse