JUDGMENT

Agarwala, J. - Pratap aged 45 and Bhairon aged 28 have been convicted u/s 302, I.P.C. and sentenced to death. They have also been convicted u/s 24 of the Cattle Trespass Act, and sentenced to six months' rigorous imprisonment. They appeal against their convictions and sentences. There is also before us the usual reference for the confirmation of the sentence of death.

2. The prosecution story was as follows. On the 28th February 1953, at about 10 a.m. Rajdhar, brother-in-law of Desraj, and Karan Singh, cousin of Desraj had gone to the field of Karan Singh for harvesting the crop. The field of Desraj adjointed the field of Karan Singh. Rajdhar noticed that eight bullocks were grazing the gram crop in the field of his brother in-law Desraj. Rajdhar rounded up those cattle and drove them towards the cattle pound at Kachwan Kalan. He had walked about a furlong with the cattle when all of a sudden eight persons, including the two Appellants and one Kukkan alias Sheocharan, appeared on the scene. They surrounded Rajdhar. Pratap Appellant was armed with a pharsa and Bhairon Appellant was armed with an axe, and the rest were armed with lathis. They prevented Rajdhar from taking the cattle to the cattle pound. Rajdhar protested and said that the cattle had done damage to the crop to the extent of Rs. 150/- and that he would impound the cattle. This led to a quarrel, and one of the assailants, namely, Kukkan struck a lathi blow on the head of Rajdhar. Pratap Appellant then attacked Rajdhar with a pharsa and Bhairon Appellant with an axe. Rajdhar on receiving the blows fell down on the ground; and the prosecution alleged that the other accused beat Rajdhar with lathis after he had fallen down. Rajdhar became unconscious due to the injuries received by him and died two days later in the hospital.

3. The first information report of this incident was lodged by Karan Singh at the police station Jaria in the District of Hamirpur, which was seven miles from the place of occurrence at about 3:15 p.m. the same day. It is obvious that the report was lodged without any delay.

4. Rajdhar was examined in the hospital before be died, and six injuries were found on his person. They were:

(1) An incised wound 5" X 1/2" cum swelling meninges and brain with cut fracture of right parietal and frontal bones underneath, lacerated brain being visible. The injury No. 1 was a gticvous injury and a dangerous one.

(2) An incised wound 21/4"X1/2"X bone cum swelling on the forehead, 1/2" above the right eye brow.

(3) A punctured wound 1/2"x/10"x scalp, on the forehead, 1/2" to the left of mind line, touching the left eye brow.

(4) Echymosis of both eye-lids with swelling over both temples and upper portion of cheeks.

(5) An incised wound 13/4"X1/4"X scalp cum swelling on the left parietal region 3" above the left ear.

(6) Contused area 4"xl3/4" on the right scapular and infra scapular regions.

5. In the opinion of the doctor injury No. 1, that is to say, the incised wound 5"X1/2", which had cut the brain and the right parietal bones, was dangerous to life But the other injuries appeared to him to be simple.

6. On Rajdhar's death a post-mortem examination of his body was done and it was performed by the same doctor, and he reported the injuries in much the same fashion as he had done before the death of Rajdhar. But now that he had opened up the body he could find what had happened inside on account of the injuries. He found that there was coagulated blow under the scalp. There was crack fracture of the right parietal temporal and frontal bones. A triangular piece of the right frontal bone was completely detached from the other bones. The membrane was cut under injuries Nos. 1 and 2. There was big clot of blood over the membrane at the site of injury No. 1. The brain tissues were lacerated on the right frontal region and there was haemorrhage. There was a fracture of the right middle fossa and both the anterior fossae were also fractured. Death, in the opinion of the