JUDGMENT

Ghulam Hasan, J - The only question involved in this appeal is whether the appellants had a right of private defence. The appellants are Saiyid Nisar Husain and Murtaza Husain, and are related to each other as cousins. Murtaza Husain is also married to the sister of Nisar Husain. Nisar Husain has been convicted by the learned Additional Sessions Judge of Bahraich under Sections 304 and 823, Penal Code, and sentenced to seven years' and six months' rigorous imprisonment respectively, while Murtaza Husain has been convicted under Section 823, Penal Code, and has been sentenced to six months' rigorous imprisonment. The charge against Nisar Husain was that on 24th April 1941, at about 8 A. M. at Mirganj, police station Qaiserganj, district Bahraich, he inflicted a fatal injury upon Imdad Husain with a karauli and was guilty of an offence punishable under Section 804, Penal Code, while Murtaza Husain accused caused hurt to Imdad Husain deceased and his brother Sirajul Husain and committed an offence punishable under Section 328, Penal Code.

2. Imdad Husain deceased and Sirajul Husain were brothers while Ikram Husain and Nisar Husain are brothers and Murtaza Husain, as already stated, is their cousin and a brother-in-law. The parties are descended from a common ancestor and have been admittedly on terms of enmity for a long time. Imdad Husain and Sirajul Husain have a cousin, whose name is Rahat Husain (P. W. 1). There was some dispute between Nisar Husain and Ikram Husain about their share in the ancestral house at Mirganj, which is near Jarwal village. It appears that Nisar Husain, who was employed in Bombay, used to send money to his brother off and on for additions and alterations to this ancestral house. Nisar Husain apparently thought that his brother Ikram Husain, although entitled to a half share in the house, was not entitled to the benefit of the improvements which had been made in the ancestral house at his expense. However, the prosecution evidence is that on 24th April 1941 Nisar Husain began to dismantle the tiles of this house. Ikram Husain went over to Sirajul Husain and spoke to him as well as two other persons Tahir Ali and Jawaad Ali, the latter two being his relatives, about the highhandedness of his brother. Sirajul Husain, who was admittedly on terms of hostility with Nisar Husain, came up to Nisar Husain and questioned him as to why he was dismantling the house. Nisar Husain resented this interference on the part of Sirajul Husain, came down from the tiled roof and gave a slap to Sirajul Husain. Sirajul Husain went back and reported the matter to his brother Imdad Husain and then both of them came armed with lathis apparently to take their revenge. A lathi fight is said to have ensued between Nisar Husain and Murtaza Husain on the one hand and Imdad Husain and Sirajul Husain on the other hand. The occurrence took place between 6 or 7 A. M. in the morning. According to the prosecution case Nisar Husain was the first to deal a lathi blow to his opponents. Imdad Husain and Sirajul Husain returned lathi blows. Imdad Husain deceased then threw away the lathi and grappled with Nisar Husain. Imdad Husain according to the evidence was a tall and stout person. While he held Nisar Husain in his grip, the latter took out a karauli and stabbed Imdad Husain in the abdomen. He also rushed at Sirajul Husain, but, Sirajul Husain snatched the karauli from his hands, and both he and Imdad Husain ran away. The appellants chased the two brothers up to Ali Bahadur's door, where Imdad Husain fell down as a result of the serious injuries received by him, and Murtaza Husain struck Sirajul Husain on the hand holding the karauli. The karauli fell down and Nisar Husain took it up and ran away with his cousin Murtaza Husain.

3. It is unfortunate that the injuries of Imdad Husain were not promptly attended to, and he was not taken to the hospital at Qaisergunj which was only a few miles away from the place of the occurrence till