JUDGMENT

Srivastava, J - Four persons, Ram Adhin, Bhagwandin, Ram Adhar and Lalta were committed to the Court of Session at Unao for trial under Section 302, I.P.C., for having intentionally caused the death of Sheo Gobind Singh on 6th February 1932. The learned Sessions Judge disbelieved the prosecution evidence in regard to Ram Adhar and Lalta and acquitted them. As regards the remaining two accused Ram Adhin and Bhagwandin, he found that they had exceeded their right of self-defence and were guilty under Section 304, I.P.C. He accordingly convicted them under that section and sentenced them to undergo rigorous imprisonment for five years each. Ram Adhin and Bhagwandin have appealed to this Court.

2. The case for the prosecution, as disclosed by the evidence of the prosecution witnesses, is that there had been enmity between the accused and the deceased for some years. Sheo Gobind Singh was a strong and robust pahlawan who used to teach wrestling to one Ram Bishal of Sahla. On 6th February 1932 at about 8 a.m. Sheo Gobind Singh went to the house of Ram Bishal at Sahla and sat on a stack of bricks outside his house. Bhagwandin and Ram Adhar accused were also seen by Kedar Nath P.W. 5 talking to one another below the chabutra of his house near by. Kedar Nath apprehended that Sheo Gobind Singh and Bhagwandin might come to blows. He accordingly went to one Har Sewak and expressed his apprehensions to him. Thereupon he, Sheo Dulare and Har Sewak went to Sheo Gobind Singh, asked him to leave the village and also asked Bhagwandin and Ram Adhar to go back to their house. Sheo Gobind Singh then went and sat on a chabutra of Mahadeoji. While Sheo Gobind Singh was sitting there, Ram Adhin, Bhagwandin, Ram Adhar and Lalta attacked him with their lathis and felled him to the ground resulting in his death on the spot. When he was attacked he is said to have called out "Sala mar legiya." Ram Bishal P.W. 6 informed P.W. 1 Jagmohan Singh brother of the deceased, Sheo Gobind Singh, that he had been killed and was lying dead near the chabutra of Mahadeoji. Jagmohan Singh came to the place and dictated to Swami Dayal Pat-wari the report Ex. 1 which was sent to the thana through one Mahabir Lodh.

3. Ten witnesses were examined for the prosecution four of whom, namely, Jag-dish P.W. 3, Durga Prasad P.W. 7, Ghandrapal Singh, P.W. 8 and Sheo Sahai P.W. 9 cLalmed to be eye-witnesses. Ram Adhin appellant stated that he was returning on the morning of the occurrence from Bihar station when Sheo Gobind Singh who was sitting on the chabutra of Mahadeoji asked him where his father Bhagwandin was. He retorted that Bhagwandin might be his (Sheo Gobind Singh's) father but he was only his brother. Thereupon Sheo Gobind Singh struck him two lathi blows with his iron bound lathi, one of which he warded off with his hand and the other fell on his head. In order to save himself he struck Sheo Gobind Singh a few blows with his danda in self-defence. Bhagwandin pleaded alibi.

4. The learned Sessions Judge has examined the evidence of the prosecution witnesses in great detail. He also examined two persons, Ganga Din and Ajudhia under Section 540, Ciriminal P.O. After an elaborate and Careful examination of the entire evidence, he came to the conclusion that neither the prosecution nor the defence had given the true cause of the fight and that both sides had suppressed the true facts. His finding was that when Sheo Gobind Singh was sitting on the chabutra of Mahadeoji, Ram Adhin and Bhagwandin returned from the station and when they passed by the chabutra there was some dispute and Sheo Gobind Singh who was a strong pahlwan and a bully, rushed at them and struck Ram Adhin and the latter and Bhagwandin struck lathi blows on him which resulted in his death. He disbelieved the entire prosecution evidence in so far as it tried to implicate Ram Adhar and Lalta. He also rejected in toto the evidence of P.W. 1 Jagmohan Singh, the alleged extra judicial confession alleged t