JUDGMENT

Piggott, J. - This is an appeal by five persons, Kure and his sons Dava, Khimma and Kalu and a caste-fellow and neighbour of theirs named Bhikan, who have been convicted on separate charges of offences punishable under Sections 147 and 323 of the Indian Penal Code and also of an offence punishable u/s 304A of the same Code It is common ground that on the night of the 28tb of November last, being the night following the bathing festival of the Kartiki Puranmashi, there was an affray in the village of Shaudan between two parties of Chamars, in the course of which serious injuries were suffered and inflicted. The first report was made by the prosecution witness Bhaggan Chamar who brought to the Police Station his niece Musammat Kesi, a girl about 10 years of age. Kesi was at that time suffering from serious injuries on the bead and she died shortly after having been sent to the dispensary. Bhaggan himself and his brother Mukkha, father of the girl Kesi, were subsequently found to be suffering from injuries such as might have been received in the course of a lathi fight. On the other side the appellant Kure had received injuries on the head, on the left shoulder and on the left band, and his right wrist was apparently broken, of his sons, Khimma had received a contused wound on the head and another injury of an unimportant nature, while Kalu and Dava were also slightly marked. The girl Kesi had received two distinct blows on the head by which the bones of the skull had been seriously fractured.

2. The evidence as to what took place is contradictory and unsatisfactory in many respects, as is not unfrequently the case where there has been an affray between two factions made up of men belonging to the same caste and residents of the same village. These Chamars usually live in some outlying portion of the village, and it would seem in the present case that the other residents of the village either beard nothing of this affair until it was over or did not think it worth while to concern themselves about a quarrel amongst their low caste neighbours. The only alleged eye-witness of the occurrence not a Chamar is a man of the name of Balle, a Jat by caste, who has been produced for the defence. He may have seen something of the affair, but his evidence, while supporting the case for the accused in its general outlines, seems to me most unsatisfactory and unreliable. He says that the fight was between Kure and his three sons on one side and a considerably larger number of persons, including the prosecution witnesses Bhaggan, Mukkha, Cheta and Bakhshi on the other. He gives a very vague account of what took place, suggesting in one part of his evidence that it was too dark for him to see much. He had to admit afterwards that it was bright moonlight, which, of course, it would be on the night in question. In one part of his evidence he says that he saw Kure fall to the ground and lying injured, and afterwards contradicts himself by saying that no one fell to the ground while he was present and that Kure must have done so after he had gone away. On his own showing he took exceedingly little interest in the business. The most significant part of his evidence is that he deposes to the presence of all three appellants Dava, Khimma and Kalu, whereas Kalu does not admit that he was in the village at all on the night in question. The stories told by the two parties are set forth in the judgment of the Court below and no good purpose would be served by my repeating them here. I very much doubt whether the truth as to the origin of the affray has been told by either party. I see no reason to doubt that there was a fight in which five persons or more were concerned on each side, the common object on each side being to cause hurt to members of the opposite party. Putting aside as unreliable the evidence of Balle, I certainly do not find that the remaining two witnesses called for the defence, Musammat Manbhari and Chhuttan, suffice to show that