JUDGMENT

Allsop, J. - The appellants Perana, Mewa, Happu and Toiyan have been sentenced to death tinder Section 302 of the Indian Penal Code for murdering one Bhikam Singh. They have appealed and we also have before us the reference made by the learned Sessions Judge on the subject of the confirmation of the sentence. There can be no doubt that Bhikam Singh was attacked and killed on the morning of July 10, 1935. The story for the prosecution is that he had been into the fields to relieve himself and was returning when be was attacked by the appellants who had a grudge against him because he being the headman of the village had accused them of committing thefts and had threatened them.

2. The story for the defence is that Perana alone caused the injuries which resulted in the death of Bhikam Singh and that he caused those injuries in exercise of the right of private defence. The story is that Bhikam Singh had dumped some rubbish in Perana's field and that he got angry when Perana remonstrated with him and asked him to remove it. It is said that he first attacked Perana with a lathi and then when Perana seized that, picked up a spade and that thereupon Perana hit him with a lathi in order to protect himself. The learned Sessions Judge has disbelieved the story told by the defence.

3. We have no doubt that it is not a true story in so far as it sets forth that Perana acted in exercise of the right of private defence. The medical evidence shows that Bhikam Singh had received two blows on the head and one on the right arm. He also had an abrasion on the inside of the left shin bone, but it is not necessary that that injury was caused with a lathi. It would appear that the person or persons who attacked Bhikam Singh hit him first on the arm when he attempted to ward a blow off his head and then when his arm was disabled gave him two blows on the head. Bhikam Singh's skull was fractured, and he died as the result of the injury. It is admitted that Perana at least caused these injuries. We do not think that they could possibly have been caused in exercise of the right of private defence. The story told by Perana is very improbable and the man himself appears to have had no injuries at all. The rubbish heap, it is said even by the defence witnesses, had been in the field for over 20 years. It is quite probable that (he prosecution witnesses are speaking the truth when they say that Bhikam Singh remonstrated with the accused for committing theft and that the accused were displeased with him. On the other hand, one of these witnesses Lakhan Singh says that there was certainly a dispute between Perana and Bhikam Singh when the latter was going out into the fields that morning because Perana asked Bhikam Singh to remove the rubbish from his field and Bhikam Singh refused to do so. This witness says that nothing happened at the time but that the appellants attacked Bhikam Singh when he was returning. We think that it is almost certain that there must have been some quarrel about this matter and that that was the immediate cause of the trouble between the parties. We do not think, however, that Bhikam Singh attacked Perana and that Perana acted in exercise of the right of private defence.

4. The remaining question is whether the other three appellants took part in the attack. The witnesses for the prosecution, Shiam Lal, Lakhan Singh, Kitab Singh and Abdul Sattar say that the other three appellants did take part in the attack. There was another witness Abdullah who is mentioned in the First Information report and who gave evidence before the Committing Magistrate but who was not called as a witness by the prosecution in the Court of Session. We have examined him in this Court under the provisions of Section 540 of the Code of Criminal Procedure. He says that all four appellants were present but that Perana alone attacked the deceased and that he called to the other three appellants to help him but they were in a hut about 20 paces away and did