JUDGMENT

B.R. James, J. - The Appellants before me are four in number, viz., Suraj Din and his brother Basdeo, and Indra Pal and his brother Sripal, all residents of a hamlet of village Sarkandi, district Fatehpur. The Sessions Judge has held that on 20-8-1952 at dawn these four in furtherance of a common intention committed an attempt to commit culpable homicide not amounting to murder of one Nathu Kewat and has sentenced them each to 21/2 years' rigorous imprisonment u/s 308 read with Section 34, IPC. In addition he has found that at the same time Basdeo and Sripal in furtherance of a common intention caused simple hurt to Sheonandan and has awarded them three months' rigorous imprisonment each u/s 323 read with Section 34, IPC. The appeal is directed against these convictions.

2. It is common ground that at the time and date aforesaid Nathu Kewat sustained two lathi injuries, one a bone-deep contused wound 1" X 1/2" on the right side of the head fracturing the skull-bone underneath, and the other an abrasion l"1/2" on the left knee-joint. The former injury was a very serious one, and but for prompt medical attention at the hospital at Fatehpur he might not have survived. Sheonandan had a scalp-deep contused wound l"x1/2"on the head, and three 1" long linear abrasions below the left knee. The doctor of Fatehpur has given the opinion that all these injuries were by lathis, but I am not inclined to accept his view in toto; Sheonandan's head injury was no doubt due to a lathi, but the linear abrasions indicate rubbing against a sharp edge, e.g., falling on a thorny bush.

3. The prosecution case against the Appellants embraces both the motive for the attack and the mode of its execution, and may be outlined as follows. The four Appellants, who are on friendly terms with each other, are hostile to an elderly Brahmin widow named Indrani who lives in another hamlet of their village Sarkandi. The first cause for this hostility is that for three years this woman had let out some fields to the Appellants Suraj Din and Basdeo but had dispossessed them three months prior to the occurrence. Secondly, about three years previously her son had appeared as a witness against the Appellants Indra Pal and Sripal in a criminal case in which they secured an acquittal. Third, the injured man Nathu Kewat is her faithful servant while the Appellants have been trying to induce him to leave her, but he has consistently refused to do so. Now, 20-8-1952 was an important bathing-day, and with the object of taking her ceremonial bath in the Ganga Sm. Indrani left her village on the morning of the 19th August for Bhitauraghat. She was accompanied by her servant Nathu and another villager named Sheonandan. They were on foot. Near Fatehpur they were joined by one Nathu Pradhan. The distance to the ghat being considerable the party spent the night in village Jamalpur. From there they started off at dawn. They had proceeded for about three furlongs when they found the four Appellants sitting under a tree by the road-side, each holding a lathi. Since they too appeared to be bound for the bathing festival Nathu Kewat invited them to join the party, and this they did. They had gone for about 100 yards when the Appellants suddenly launched an attack on Nathu Kewat from behind; on receiving a severe blow on the head he fell down on the ground. On seeing the attack Sheonandan came up to intervene, but the Appellants Basdeo and Sripal struck him also, knocking him down. The hue and cry attracted a number of other wayfarers, at whose approach the miscreants bolted.

4. Nathu Kewat was unconscious and appeared to be in a serious condition. As soon as an ekka could be procured Indrani and the Pradhan brought the two injured men to the hospital at Fatehpur, about three miles distant. The necessary medical examination and treatment took place there. Indrani and the Pradhan then proceeded to the police station of Husainganj, within which circle the place of occurrence lies, and