JUDGMENT

Capoor, J. - This appeal has been preferred by Nanhey and Bum and is directed against an order of the learned Temporary Civil and Session's Judge, Varanasi whereby the Appellants were found guilty of the offences Under Sections 302/34 and 447 of IPC and which one of them was sentenced to undergo imprisonment for life for the former and to undergo three years R.I. for the latter offence. The sentences awarded by the learned trial court were ordered to run concurrently. Along with the Appellants four more accused persons were tried for the aforesaid offences but they were acquitted.

2. The facts leading to the prosecution of the Appellants and the other accused persons may briefly be stated as below. The Appellants and the accused persons Madan and Ghaman were own brothers, being the sons of Sarju. The other accused persons, Lallan and Bachche were the sons of accused Madan. The accused persons and Bachau deceased resided in the same village, namely, Baburi within the jurisdiction of P.S. Chandauli, district Varanasi. There had been a long standing dispute between the accused persons on the one hand and Bachau deceased on the other with regard to plot No. 158 situate in the afroesaid village. That plot along with one other plot was purchased by Bachau deceased and his brothers under a sale deed dated 22.9 1918 executed by one Chamaru and his mother Smt. Anandi and since the purchase they had been in possession thereof. On 13.11.1961 at about 7 or 8 A.M. Bachau was getting the aforesaid plot ploughed by two of his Halwahas nemely, Steonath, P.W. 3 and Faujdar and he himself began digging the corners with a spade. The accused persons reached there and asked Bachau to refrain from getting the plot of land ploughed. The protest was not heeded to and Bachau said that he was the owner in possession of the plot and would get it ploughed. The accused persons were variously armed with at his and Gandasas and they launched an attack on Bachau who plied his spade in self defense. Smt. Daulat, P.W. 1 the widow of Bachau, was on her Ghabutra at that time and the aforesaid plot was visible from her Ghabutra. She saw the whole incident. At the alarm raised by the victim, she and other persons who were in the vicinity, namely, Ram dhari, P.W. 6, Budhlal, P.W. 5, Sura Singh, P.W. 4 Jhullan, Dharmu and Praduman Tewari rushed to the scene of occurrence and saw the incident. As a result of injuries received, Bachau fell down in the aforesaid field and became unconscious and thereafter he did not regain his consciousness. Smt. Dauiat assisted by some other persons took him to her Ghabutra and dictated a report, Exhibit Ka. 1, to one Manatim Singh and carried her husband along; with the report to P.S. Chandauli where it was lodged at 12.05 hours and a formal report, Exhibit Ka-9, was prepared on its basis and a case u/s s. 148 and 307 of IPC was registered in the General diary, Bachau was sent to the Ghandauli dispensary where his injuries were examined by Dr. R.R. Dwivedi, P.W. 8 at 12.45 hours. Eight injuries including five lacerated wounds and three contusions were found on his person. Since his condition was precarious he was taken to S.S.P.G. Hospital, Varansi under medical advice and there he breathed his last during night between 16th and 17th of November, 1961.

3. The post mortem examination on the dead boby was performed by Dr. S.G. Srivastava, P.W. 7. The probable time since death was estimated as one day. As a result of external examination, the following antemortem injuries were found on the dead body:

1. Lacerated wound 1 l/4 x l/2" x bone deep on the right side of scalp, 2 1/4" above right pinna. The wound runs obliquely. Its margins are ragged and covered with blood clots.

2. Lacerated wound 3" x 3/8" x bone deep on the left half of scalp. It runs longitudinally and is 1/2" away from median line. The margins are ragged and covered with blood clots.

3. Lacerated wound 1" x 1/2" x muscle deep on the left parietal bone. It runs

obliquel