JUDGMENT

Abdul Qadir, J. - Inder Singh, Tek Singh, Waryam Singh and Arjan Singh have been convicted under Section 326. Indian Penal Code, read with Section 34, Indian Penal Code, and have been sentenced to ten years' rigorous imprisonment each by the Additional Sessions Judge, Lahore. They have appealed against their convictions and sentences through Pandit Sheo Narain, whom I have heard, and I have also heard Mr. Zafrullah Khan for the Crown.

2. On the 29ch October, 1921, there was a quarrel, between the party of the appellants on the one band and of Sudh Singh deceased on the other, over a turn of water. The turn of the appellants was to finish at 1 P.M. and that of Sudh Singh was to begin. Sudh Singh and his sons and some others went to take their turn and began to cut off the water that was flowing into the field of the appellants.

3. The latter resisted saying that one of their fields remained yet to be watered and that they would allow the other party its turn after watering that field. Thereupon a quarrel ensued, in which injuries were caused to Sudh Singh, father of Kundan Singh, and as a result of those injuries, Sudh Singh died in hospital on the 3rd November, 1921. The six persons were then committed to the Sessions for trial under Section 302, Indian Penal Code, read with Section 149, Indian Penal Code. Two of them have been acquitted, because they were not said to have taken any part in the beating of Sudh Singh and had only beaten Kundan Singh, but there was no separate charge framed against them under Section 323, Indian Penal Code. The charges of the remaining four persons were altered by the learned Sessions Judge to those under Section 326-34, Indian Penal Code as he took the view that the case was not one of murder but was either one of culpable homicide or fell under Section 326, Indian Penal Code, and as be thought the culprits could be punished as heavily under Section 326, Indian Penal Code, as under Section 304, part II, he thought it safer to convict tham under the former section, because the evidence showed that it was uncertain who had struck the fatal blow.

4. According to the evidence of the Assistant Surgeon (P.W. No. 1), no less than sight injuries were found on the body of the deceased, of which four were caused by some sharp edged weapon, and others by a blunt weapon. The most dangerous injury of these was an incised gaping wound 1 1/2 inches by 3/4 inch about the middle of the bead. The bone underneath it was cut and the membrane and the brain were lacerated. There was a compound fracture under this wound. Kundan Singh (P.W. No. 3), his brother Kehr Singh (P.W. No. 8) and Jaimal Singh (P.W. No. 9) give direct evidence as to the occurrence and name the four appellants as the persons who assaulted the deceased with chhavis. The main contentions of Pandit Sheo Narain on behalf of the defence are the following:

(1) That the fight was propably due to a misunderstanding and being a sudden and unpremediated fight a lenient view of the case should have been taken;

(2) The party of the appellants were entitled to resist the taking of water by the other side and have done nothing more than executing the right of self-defence;

(3) Arjan Singh, appellant, should have been given the benefit of the doubt because of the material difference between the version in the first report and the version given by the deceased in the statement made by him on the 31st October, 1921;

(4) All the appellants, should not have been awarded the same amount of punishment because three of them who admittedly did not strike the deceased on the head did not deserve to receive the same punishment as those who were alleged to have struck him on the head.

5. I have considered all the above contentions along with the arguments addressed to me respecting them, but I think this appeal must fail. With regard to point No. 1 Pandit Sheo Narain says that admittedly the clock, which the parties used to consult for ascertaining time, was not availabl