JUDGMENT

Agarwala, J. - This is an appeal by seven persons, Horam, Chhote, Jithua, Mangala, Ram Chander, Jhabra and Moti, who have been convicted by the Sessions Judge of Moradabad under Sections 304/149 325/149 323/149 and 147, Penal Code, and sentenced to various terms of imprisonment, the maximum sentence being seven years.

2. The prosecution case was that the accused Ram Chander was a tenant of a certain plot in Village Jagua in the District of Moradabad in the zamindari of Mohammad Mehdi Raza. There were ejectment proceedings against Ram Chander and it was alleged possession was delivered by the court amin to the zemindar's representative on 1lth November 1945. At that time there were no crops in the field. In June 1946, be the prosecution story went on, the zemindar got a crop sown in the field but owing to excessive rain this crop did not come up satisfactorilly About ten days later, namely, on 27tb June I9i6, the zemindar decided to have the field reploughed and reown. He sent Teja along with Ram Das, Imam Baza, the zemindar's brother, and Sabir Husain, his karinda, to the field in question They started ploughing the field when the accused in a body came up on the scene and asked why the field was being ploughed and without waiting for the reply proceeded to beat Teja. Rani Das ran to the rescue of Teja and was also beaten. Then Imam Baza and Sabir Husain, who came to the help of Teja and Ram Das, were also given a beating. As a result of the beating Sabir Husain died later in the day.

3. A report of this incident was made by Teja at 6-80 P. M. the same day. Of the accused, Horam also made a report earlier in the day at about 10-58 a. M. In this report it was stated that Horam and his brother Chhote went to see the field. (It may be mentioned that Chotte and Horam both are the sons of Ram Chander, the erstwhile tenant of the field.) Horam saw that Teja, Ram Daa, Hishua, Kalewa and Sabir Husain were ploughing up the field which had already been sown by him. Horam and Chhote asked them why they were re ploughing the field. Upon this the persons mentioned above said that they had been Ordered by the zemindar to re-plough it. Horam prohibited them from doing be and thereupon those persons beat him and Chhote with lathis as the result of which both of them were injured.

4. The defence of Horam and Chhote was on the lines of Horam's report just mentioned, while the defence of the other accused was that they had been falsely implicated and that they had nothing to do with the matter.

5. As a result of this marpit, which admittedly took place, four persons were injured on the side of the complainant; Sabir Husain, who died, received one contused wound and one contusion on the head resulting in the fracture of the skull, which was the cause of his death, Teja received four bruises and a broken arm, Imam Raza bad three bruises and Ram Das a contused wound on the bead, two bruises and an abrasion. On the side of the accused, Horam received one injury and Chhote received five injuries, Horam' injury being on the head. It is clear, therefore, that the complainant's party got the worse of the fight.

6. In support of the prosecution case, the three surviving victims, Teja, Imam Raza and Ram Das, and four other eye-witnesses, Mohammad Hanif, Chhajju Singh, Tufail Abmad and Hira Singh, were produced. The learned Sessions Judge disbelieved these four witnesses, two of them, namely, Hira Singh and Chhajju Singh, bad turned hostile. He relied on the evidence of the three surviving victims to some extent, though not to the whole extent. In his opinion the facts were that the field in question had been delivered into the possession of the zemindar and Ram Chander accused had been ejected and was aware of the ejectment proceedings; that in spite of this fact he persisted in sowing his crop in the field; that on the day in question the zemindar's party came and ploughed up the crops, and that the accused, realising what was going to be done, formed