JUDGMENT

Dalal, J C - These are three appeals by Har Prasad Thakur and Hanuman and Avadh Behari Brahman from their conviction under Section 304 read with Section 149, I.P.C. The appeal of Har Prasad was argued by Mr. St. George Jackson. In his case at the worst the charge can be only one of hurt and the matter is soon disposed of. There was the usual quarrel and fight over cattle trespass and the party of Sangam Chamar in whose field trespass was committed appears to have disposed of the party of the owners of the cattle as the supporters of the owners came up one by one. It is said that when Ram Adhin deceased came up Har Prasad caught his hands and Hanuman, Avadh Behari, Sangam and Ram Das hit him with lathis. There is no allegation whatever made that there was any intention on the part of Sangam's partisans of causing the death of or grievous injury to the owners of the cattle. The desire appears to be to chastise the owners of the cattle which caused damage, Har Prasad must have expected that simple injuries would be caused and he could not be held liable for one of his party hitting a blow on the temple and causing Ram Adhin's death. I alter the conviction of Har Prasad to one under Section 323, I.P.C., reduce the sentence to the amount undergone by him up to the present and direct him to be released at once.

2. As regards Hanuman he was mentioned in the two reports one made by Dalganjan, cousin of Ram Adhin and the other by Partap, another cousin of Ram Adhin.. All the assessors agreed in holding him guilty. It is clear that in their opinion he gave the blow on the temple. It is true that his intention was not to cause death or grievous hurt, but when he hit on the temple with a lathi he intended to cause such hurt as would in the ordinary course of nature cause death. In my opinion he was rightly convicted under Section 304 and I dismiss his appeal.

3. As to Avadh Behari one assessor held him to be guilty while the other three held him to be not guilty. The medical evidence shows that besides the fatal injury there were contusions on the right and left shoulder, an abrasion on the left shoulder and a cut wound on the left little finger. Those are all simple injuries. I alter the conviction of Avadh Behari to one under Section 323 and reduce the sentence to rigorous imprisonment for 6 months.