JUDGMENT

V.G. Oak, J. - These two connected appeals have been filed by three persons, Allahdia, Mohammad Saddiq and Lakhan Singh, who have been convicted by the learned Sessions Judge of Bijnor under Sec. 304 and 323 read with Sec. 34, I. P. C. Allahdia and Mohammad Saddiq have been sentenced to imprisonment for life under Sec. 304134, I. P. C. Lakhan Singh has been sentenced to rigorous imprisonment for ten years for the same offence. Each of the three men has been sentenced to rigorous imprisonment for one year under Sec. 323|34, I. P. C. The two sentences have been ordered to run consecutively.

2. According to the prosecution, one Lalu died leaving a good deal of property including a Rathkhana in village Buderan. Allandia accused is a brother of Lalu deceased. Allahdia is a resident of village Malakpur adjoining village Buderan. Lalu's widow Smt. Amiran. There was litigation between Smt. Amiran and Allahdia. She executed a sale deed with respect to the Rathkhana in favour of Idu and his brothers. Idu's brothers are Jamal Uddin alias Jumma, Etwari and Nazir Ahmad. Idu and his brothers took possession over the Rathkhana purchased by them from Smt. Amiran. One morning Idu and his brothers were at the Rathkhana. Thirteen men including the present three appellants attacked Idu and his brothers with lathis in order to take forcible possession over the Rathkhana. When Idu's mother Smt. Mariam intervened, she too was beaten by the assailants. In this way these 13 men inflicted a number of injuries on Idu, his three brothers and their mother Smt. Mariam. Injuries received by Etwari and Nazir Ahmad were serious. They died the same day as a result of their injuries. The village chaukidar lodged a report about the incident at the police station. After investigation the police prosecuted 13 persons for rioting, for murder, and for causing injuries to Idu and others.

3. Most of the 13 accused said that they took no part in beating Idu and his relations. Mohammad Saddiq accused also said that he was not there. The plea of Allahdia accused was that he was in possession over the Rathkhana. Idu and others wanted to take forcible possession over the Rathkhana. They attacked Allahdia with lathis. So Allahdia accused hit back in self-defence. Lakhan Singh accused said that he intervened on seeing the fight between Allahdia, and Idu's party. So Lakhan Singh also received injuries.

4. The learned Seniors Judge was of the view that, the case was proved against only three accused, Allandia, Mohammad Saddiq and Lakhan Singh. The Court, however held that the case fell under Sec. 304, I. P. C., and not under Sec. 302, I. P. C. These three accused were, therefore, convicted for causing the death of Etwari and Nazir Ahmad. They were also convicted for causing injuries to Idu and others. The three accused were sentenced as detailed above. The remaining ten accused were acquitted of all the charges.

5. Appeal No. 1632 of 1956 has been filed by Lakhan Singh. Appeal No. 1164 of 1956 has been filed. by Allahdia and Mohammad Saddiq. Mr. L. Chandra appearing for Lakhan Singh informed us that Lakhan Singh died a few days back in jail. So Lakhan Singh's appeal abates. We are now concerned with the appeal of Allahdia and Mohammad Saddiq only.

6. It is common ground that, there was a fight between Allahdia accused and Idu and others in the morning of 11-9-1955. The village chaukidar lodged the report (Ex. P-12) the same day at 4 p.m. It has been proved that the same day Allahdia accused lodged a separate report (Ex. P-31) at 5 minutes after 3 p. m. When Allahdia accused was questioned by the Court about this report (Ex. P-3I) , he said that he had gone to the police station, but his report was not taken down. He said that he was arrested and kept in the lock-up. The report (Ex. P-31) was not his report. However, Charan Singh head constable (P. W. 5) proved that the report (Ex. P-13) was dictated by Allahdia accused at about 3 p. m. It is to be noted that Allahdia's