JUDGMENT

Addison, J. - Dharam Singh and his three sons, Bighwan Singh, Sawan Singh and Mangal Singh, were tried for the murder of Budkan and for causing grievous hurt to his elder son Labhu on 5th November 1926, i.e., the Dewali day, under Sections 302 and 325, I.P.C., respectively. Sawan Singh has been convicted under the second part of Section 304 and under Section 325 read with Section 34, I.P.C., and sentenced to seven years' and one year's rigorous imprisonment in respect of the offences charged against him. The other three have been sentenced to four years' rigorous imprisonment each under Section 325 read with Section 34. I.P.C., in connexion with the first offence and under the same sections to one year's rigorous imprisonment each in connexion with the second offence. They have appealed while the son of the deceased has preferred a revision petition to the effect that all should have been convicted of murder under Section 302, I.P.C., and that, in any case, the sentence should be substantially enhanced.

2. The four assessors were of opinion that the appellants were guilty of the murder of Budkan. They accepted the prosecution story in its entirety. As regards motive, the learned Sessions Judge found that it had been established, quarrels having commenced between the two families for years before, which continued upto the day in question when there was a dispute over the trespass of a calf and a quarrel that very evening between Kalu, the younger son of the deceased, and Harnama on the one side and Sawan Singh appellant on the other owing to Sawan Singh extinguishing Harnama's lighted candle (it was Dewali night) in attempting to light his own candle at it. The Sessions Judge, however, thought that the two quarrels of that day were not serious enough for the appellants, as a result thereof, to have intended to murder the deceased or to cause such bodily injury as they knew to be likely to cause death.

3. On the facts the learned Sessions Judge held it established by the evidence that when the deceased went to get water about 7-30 p.m., he was seen by Sawan Singh, appellant, and that the appellants waited for him in their doorway till his return with the bucket when they attacked him with lathis. The first severe blow was struck by Sawan Singh who had quarrelled that evening with Kalu. Labhu, the elder son of the deceased was at once called by Sajada, P.W. No. 3, servant of the deceased, and he, too, was severely beaten when he intervened. Mt. Bishni, wife of the deceased, also arrived and received an injury. Then Kalu, the younger son, came and Sawan Singh, appellant, struck at him but the blow was warded off and Kalu in self defence severely injured Sawan Singh's nose with a lathi with an iron band at one end.

4. The learned Sessions Judge further held that the defence raised by Sawan Singh and Mongal Singh was false. Their case was that Sawan Singh was attacked by Kalu and Harnama after the quarrel over the candle and that in the course of that fight Labhu arrived with an axe, whereupon Mangal Singh, appellant, came to help his brother and the deceased also arrived, received a blow from a lathi and fell down on a peg. He also rejected the alibis of the other two appellants. No evidence was called for the defence by any of the appellants.

5. On these findings the Sessions Judge held that the common intention was to beat the deceased and Labhu, when the latter arrived, and not to murder the deceased; that Sawan Singh knew that the blow he inflicted was likely to cause death and he, therefore, was guilty under the second part of Section 304, while the other knew that the aged deceased was likely to suffer grievous hurt from the lathi blows given and were guilty under Section 325 read with Section 34. He further held all the appellants guilty under Section 325 read with Section 34 of causing grievous hurt to Labhu, who suffered from severe concussion of the brain and did not recover consciousness for ten days and whole life w