JUDGMENT

1. This is an appeal by nine men who were convicted by the learned Additional Sessions Judge of Kheri, under Section 148, and also under Section 304 and either Section 325 or Section 323, or both of these sections, read with Section 149, Penal Code. Two of the appellants, Gajraj and Lalla, were sentenced to transportation for life under Section 304: one was sentenced to six years, and the other five to four years rigorous imprisonment under this section. Various sentences of rigorous imprisonment to run concurrently with the sentences under Section 304 were passed on the appellants for the other offences. The prosecution evidence establishes the existence of enmity between two parties in the village of Dulhapur; one party consisting of the zamindar Baba Har Narain Das, his karinda, Baba Earn Behari Das and his asamis and servants; and the other of the appellant Gajraj, who also owned some zamindari in the village, and his relatives, connexions and friends. On the day preceding the occurrence of 13th April 1941, under consideration, it is said that a marpit had occurred between Mitthu, a son of Gajraj, and a pujari who is in the service of Baba Ram Bihari Das. Reports of this occurrence were made to the police by both parties.

2. According to the prosecution story, one of the asamis of Baba Har Narain Das named Hemanchal was attacked about sunrise on 13th April, in his khalyan by three of the appellants, namely, Gajraj, his son Kandhai, and his son-in-law Lalla; the other appellants, most of whom are connected with Gajraj, being posted, it is alleged, (with some other men who were acquitted) at some distance from this place to prevent any one from coming to his rescue, Hemanchal is said to have been thrown down by Kandhai in the first instance. Gajraj and Lalla are alleged to have then placed a lathi across the upper part of his body and to have pressed upon it with such weight that four of his ribs were fractured. One of the broken ribs punctured a lung and Hemanchal died on the spot. Hemanchal raised an alarm on being attacked and five of his supporters ran from some distance to his rescue, but were themselves attacked and beaten by the men who had been posted to prevent any attempt at rescue.

3. All the nine appellants were named in the first information report. There appears to be no doubt that they all absconded from the village. Proceedings were taken against them as absconders and they surrendered or were otherwise arrested on various dates, most of them in May. The prosecution story was believed by the Additional Sessions Judge and little attempt has been made by the learned Counsel for the appellants to show that it is not true. There were a large number of eye-witnesses, and there can be no doubt about the presence of many of them. Only a few points have been urged against them. One is that they all belong to the ' same party as the deceased and are therefore not disinterested. This is no doubt true, but it is not an uncommon feature in oases of this kind and it is to be expected. If there were any witnesses of the occurrence who were not members of either party it is not likely that they would come forward. No defence evidence was produced, except for one witness to support an alibi put forward by the appellant Lalla. This evidence was not believed and the reasons given by the Additional Sessions Judge for not believing it have not been challenged.

4. Another argument advanced is that as the rescue party had to come a distance of some 400 paces and there were trees between them and the scene of the occurrence it is not likely that they could have seen exactly what was happening. Some trees are shown in the site plan, but we are not told what kind of trees they were and they do not appear to be very numerous. The evidence suggests that most of the witnesses had reached a place outside this clump of trees and that nothing obstructed their view between this place and the scene of the occurrence. It is argued tha