AGARWALA, J. :- Behari; Kaddey and Tota, all residents of Aghapur, police station Milakpur, district Rampur, have appealed against their conviction under S.302, IPC and sentence of death. There is also before us a reference for the confirmation of the sentence of death.

2. The prosecution case against the appellants was that Tota appellant, aged 20 years, a gardener, was on visiting terms with the deceased Khargi, a barber. For some time past Tota started to associate with Behari and Kaddey, appellants, and severed his connection with Khargi deceased. This was not liked by Khargi and he asked Tota to pay visits to him. Upon this there was an exchange of abuse between the deceased and the appellants and the relations between the parties became strained. On 22-8-1950 a little after sunrise the three appellants went to the choupal of the deceased armed with lathis and started belabouring the deceased. A river flows below the choupal of the deceased. After receiving injuries the deceased fell into the river. The appellants assaulted the deceased with lathis even after he had fallen in the river till he died and was drowned and body was washed away by the river

3. The villagers searched for the body of the deceased but could not find it. Later on, the body was found by the Sub-Inspector in a canal about half a mile from the place of occurrence. The body had been eaten by tortoises and the head and the face were bitten off and the skin had dropped off. The eye lids were absent. The post mortem examination was held the next day at about 1 P.M. The visible injuries on the body consisted of a contusion 2" x 3" on the left shoulder and another contusion 1" x 1" on the right shoulder. Soft tissues of head and neck were absent, There was a tria radia fracture of right parietal bone.

In the brain there was clotted blood in an area 4" x 4" on the right lobe of cerebrum. The membrances were congested with petechial haemorrhage. In the opinion of the doctor, who performed the post mortem examination, death was due to coma following the injury on the head. The doctor in his statement in Court stated that the head injury could have been caused by one blow or by more than one blow and that the death was due to head injury and not to drowning because there was not much bloating and the deceased had not sucked in a large amount of water.

4. The appellants denied the commission of the offence and said that they had been prosecuted on account of enmity. In support of the prosecution case, Mohan, son of the deceased, who lodged the first information report, Masih Charan sweeper, who was grazing pigs on the bank of the river at the time of murder, Ishri, Bandu, Ghanshiam and Tirki, who were ploughing their fields at the banks of the river, were produced as eye-witnesses of the incident. The statements of these witnesses are not free from contradictions. But having given our best consideration to the arguments of the learned counsel for the appellants upon the question whether they should be believed or not, we have come to the conclusion that in substance their statement that the appellants beat the deceased with lathis is true, but that the prosecution case that the deceased was beaten even after he had fallen in the river has not been satisfactorily established.

5. Having regard to the statement of the doctor we are satisfied that the deceased met his death as a result of coma caused by haemorrhage in the brain consequent upon the injury on the head and not by drowning. It is possible that there was only one injury on the head. There were two other injuries on the shoulders and they must have been caused by the two other persons.

6. As the question whether the injury received by the deceased on the head though it caused death of the deceased was sufficient in the ordinary course of nature to cause death, was not cleared up in the court below; we examined the doctor in this Court. He has stated that the injury caused in the present case was suffic