JUDGMENT

Pullan, J - This is an appeal in a case in which the learned Sessions Judge of Sitapur has convicted three persons of an offence under Section 304, I.P.C. If I were only to read the last page of the judgment of the learned Sessions Judge I would find it difficult to understand how this was a case under Section 304. The learned Judge appears to have thought that Ishuri came towards the village where the accused lived and they, fearing that he had come to help a relation named Sheodin, who had been injured two days previously in a fight with Mohan, one of the accused, "wanted to put an end to his life or at least to disable him for any assault," and apparently in pursuance of this object they assaulted Ishuri who was alone and had no chance against the three assailants, and as the Judge says:

They caused fatal injuries to a man without any provocation and cannot, therefore, claim to have any mitigating circumstance in their favour.

2. On this view the Judge should have held that the case was one of murder. But apparently the Judge has not quite correctly stated what he really believes to have happened. "What he thinks is that there was a sudden fight, and because he does not know who began it he has given the accused the benefit of the doubt. This is the best view that I can take of the judgment, but I admit that I am only prepared to uphold the decision that the case is one under Section 304, because I take an entirely different view of the case from the learned Judge.

3. Ishuri had three injuries on the head and no more. At this point the Judge is wrong because he did not understand the medical evidence. When a man receives three injuries only on the head it is most improbable that he was attacked by more than two persons. The tradition of this country that there could be one accused person for every injury is unsound. In this particular case I find, and the learned Judge noticed the fact, that at first there were five accused persons, but when the medical evidence showed that there were only three injuries two of these were turned into spectators. The witnesses were quite as ready to accuse all five as they were to accuse three, but they modified their evidence in accordance with the medical report. The case has been run by Tika who is an enemy of Mohan accused, and the two persons, whom he had left along with Mohan are his brother Bandhu and his close relation Jagannath. The Judge has acquitted the two on lookers Mata Din and Gaya Din, but he has convicted the other three because, owing to his misunderstanding of the medical evidence, he thinks that as there were so many injuries there must have been more than one assailant. He does not believe any of the oral evidence or at least he gives reasons for me to disbelieve it. On the other hand he gives a very strange reason for disbelieving the defence evidence. Mohan, accused, said that he had a fight with Ishuri, that Ishuri knocked him down and that three Mends of Ishuri came up and hit Ishuri toy mistake for Mohan. The Judge disbelieves the evidence of Mohan's, defence witnesses because, instead of supporting this ridiculous story, they say that the fight was between Mohan and Ishuri only. This, in my opinion, is exactly what happened. Ishuri had a lathi and Mohan had a lathi. They had a fight possibly for the reason stated by the lower Court. In the course of that fight Ishuri was completely worsted and he died from his injuries. Mohan went back to the police station where he displayed the injuries which he had received two days before, so that he might at worst put up a plea of self-defence

4. I, therefore, hold that this was a case of a sudden fight and that it does fall under Section 304 and not under Section 302, but I do not believe that anybody except Mohan assaulted Ishuri. I, therefore, uphold the decision of the lower Court as to Mohan alone whose sentence of seven years' rigorous imprisonment is not excessive, but I allow the appeals of Bandnu and Jaganna