ORDER

V.D. Bhargava, J. - (Sept. 11, 1958) These are three connected which arise out of cross cases.

2. In criminal Appeal No. 344 of 1956 Shubrati, Walii alias Nazir, Yasin, Maqbool and Rafic have been convicted under Secs. 325 read with Sec. 149 and 147, I. P. C. and sentenced. to five years rigorous imprisonment under Sec. 325 read with Sec. 149 I. P. C. and again to two year's rigorous imprisonment under the same section. Under Sec. 147, I. P. C. they have been sentenced to one year rigorous imprisonment each. The sentence have been ordered to run concurrently. Appeals Nos. 346 and 374 of 1956 arise out of cross cases, and Qasim, the appellant in the former has been convicted under Secs. 148, 326 read with Secs. 149, 325 read with Sec. 149, I. P. C. and 323 read with Sec. 149 I.P.C. and sentenced to various terms of imprisonment while in the latter Manzoor and Jamil have been convicted under various sections of the Penal Code and sentenced to various terms of imprisonment.

3. The prosecution story in brief as detailed in the case out of which Appeal No. 314 of 1956 arises, was that one Allah Banda was selling ice in front of the shop of one Shabbir in Khalapar at about 6 p.m. Shubrati, one of the appellants went to him for purchasing five seers of ice. Those were the Ramazan days and in the evening they wanted ice for breaking their fast; it was the 8th May 1958. Allah Banda asked him to wait till the other customer, namely Chhidda who was also purchasing ice, had been disposed of. But it is said that Shubrati insisted that he should be disposed of and given ice before all others. Then Allah Banda refused to give him ice in preference to the first customers, and requested Shubrati to purchase ice from elsewhere. But Shubrati had no patience and he started abusing and beating him with fists and kicks. One Manzoor, who is one of the accused in the connected case and who is a relation of Allah Banda, saw the incident from a distance and he intervened. In the meantime, it is said, that the other appellants came and they attacked Allah Banda and Manzoor. Allah Banda received two contused wounds on the head; one was skull deep and the other bone deep. Both were on the upper part of the head, one injury being behind the other. He died of those injuries. There was extensive dotted blood under the scalp and the skull was fractured involving the front and parietal bone and both the temporal bones. Manzoor received 20 injuries out of which six were contused wounds and 10 were contusions; the others were swellings and abrasions.

4. On the side of the accused, Mohamad Yasin had as many as 19 injuries. They also included 4 contused wounds and 12 contusions. Shubrati appellant received a lacerated wound muscle-deep on the right back forearm, a contusion and an incised wound on the right side chest upper part. Maqbool appellant received as many as 8 injuries including 3 contusions and 5 abrasions. The story of the defence was that Maqbool after offering his prayers in the Bucher's Mosque came and asked Manzoor, Shakoor, Wazir, Manga and Qasim not to indulge in cow-slaughter during Ramazan days and create trouble, upon which there was an exchange of abuse between Maqbool and others and there was a fight.

5. So far as the fight is concerned, it is admitted and in which at least Maqbool, Yasin, Shubrati and Walli on the one side and Allah Banda, Manzoor, Jamil and possibly Qasim on the other took part. There might have been other people involved in it, but atleast so far these people on either side are concerned there cannot be the least doubt that there had been a marpit between them as the number of injuries on both sides is considerable.

6. The learned Sessions Judge in this case has come to the conclusion that so far as the motive or the cause of the trouble related by the prosecution in appeal no. 344 of 1956 about the selling of the ice by Allahabanda is concerned, it is incorrect. Similarly he has held that the other story about the fi