JUDGMENT

Raza, J - The appellants Bahadur Khan, Nabidad Khan, Nairn Khan and Sazawar Khan alias Sajai Khan have been convicted by the learned Sessions Judge of Fyzabad under Section 304, I.P.C., and sentenced to five years rigorous imprisonment each. Six persons, namely, (1) Nabidad Khan, (2) Sajai Khan, (3) Qudrat Khan, (4) Bahadur Khan, (5) Siddiq Khan, son of Yakub Khan, and (6) Nairn Khan, son of Yudrat Khan, were committed to the sessions on a charge of murder in that they intentionally caused the death of Ghafur Khan by beating him with lathis at village Chirra on 10th April 1932, at about 8 p. m. Four persons more, namely, (1) Siddiq Khan, son of Ismail Khan, (2) Asaf Khan (3), Nairn Khan, son of Ismail Khan, and (4) Majid Khan were charged with the abetment of the offence of murder in that they were standing at or near the place of occurrence armed with lathis and had instigated the above named six persons to kill Ghafur Khan. These ten persons were sent up for trial, but only four persons, namely, Bahadur Khan, Nabidad Khan, Nairn Khan son of Qudrat Khan, Sazawar Khan alias Sajai Khan (appellants) were convicted and punished by the learned Sessions Judge under Section 304, I.P.C. The remaining six persons were acquitted by the learned Judge. The prosecution case may be summed up as follows; Ghafur Khan was returning from the Manjha to the north of village Chirra after inspecting his field, on 10th April at about 8 p.m. When he passed by the house of Sajai Khan, he was wayLald by the first named six persons who attacked him with lathis. He raised an alarm and his sister's son, Islam Khan, who had gone out in search of his she-goat, arrived on the scene and saw him (Ghafur Khan) being beaten-with lathis and felled to the ground by the six assailants named above. He saw the other four accused (Siddiq and others) standing in the lane between the-house of SaLal and Hamid armed with lathis.

2. They were shouting that Ghafur Khan should be beaten. Sajai struck Ghafur a blow with his lathi on the head and felled him to the ground. Sajai, Nabidad and Qudrat beat Ghafur with lathis after his fall on the ground. Nazim Khan, Allahyar Khan, Himmat Khan and Salem Khan arrived on the scene and remonstrated with the accused, but they were also beaten with lathis. The accused fled from the scene when they found that Ghafur Khan was dead. The murderous assault on Ghafur Khan was due to enmity between him and Qudrat Khan and Nabidad Khan. The accused pleaded not guilty. The defence was that Ghafur Khan, Nazim, Allahyar Khan and Islam were sitting in the house of Nazim which is close to Sajai's house. The women folk of Sajai's. family abused the four persons named above as they had thrown clods of earth in Sajai's house and the latter then came out of Nazim's house and advanced towards Sajai in order to beat him. An alarm was raised and Bahadur Khan, Nabidad Khan and Nairn Khan, son of Qudrat, responded to the alarm. Sajai rushed into his house and Bahadur Khan, tried to prevent the raiders from entering Sajai's house. Ghafur Khan hit Bahadur Khan on the head with a lathi and the latter retaliated and hit him (Ghafur) back with his lathi or danda on the head. Thereafter a lathi fight took place between Nazim and Allahyar on the one side and Nairn Khan and Nadibad on the other side. Several witnesses were examined on behalf of the prosecution but the learned Sessions Judge was not satisfied with their evidence. The prosecution witnesses who gave evidence about the occurrence were relations of Ghafar Khan and enemies of the accused. He came to the conclusion: " that the story put forward by the prosecution cannot be accepted owing to the unreliability of the prosecution witnesses."

3. Though the learned Sessions Judge rejected the prosecution story but at the same time he found it " difficult to accept the defence version in toto." It should be noted that five witnesses were examined on behalf of the defence to prove the defence story. The